IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 837 OF 2009 HERITAGE REAL ESTATE DEVELOPER REP. BY ITS PARTNER SHRI PARESH M. PAI ... Petitioner Versus SHRI SHASHIKANT PADMANABH AKHADKAR AND 7 ORS. ... Respondent Mr. J.P. Mulgaonkar, Advocate for the Petitioner. Mr. A.D. Bhobe, Advocate for Respondents No.1 & 2. Coram:- N. A. BRITTO, J. Date:- 23rd April, 2010 P.C.: Heard learned Counsel on behalf of both parties. 2. The petitioners herein are the judgment debtors in Execution Proceedings no.12/2008 before the learned Civil Judge Senior Division. 3. There was a consent decree between both the parties. In terms of the said consent decree and particularly clause 9, the defendants/judgment debtors were required to pay to the respondents/decree holders a sum of Rs.25,000/- per month in case possession was not given of the premises in the newly constructed building. There is no dispute that till date no possession has been given. After hearing the parties, the learned Executing Court passed an order dated 27/08/2009 and fixed the matter for an inquiry and framed a point for determination which reads as follows; Whether the judgment debtors prove that the delay in completing the construction and handing over the possession of the premises to the decree holders was caused due to reasons attributable to the decree holders. 4. The said order has attained finality for neither of the parties have challenged the same till date, not even in this writ petition. 5. Thereafter, the petitioners/judgment debtors filed an application for recasting the said issue or point for determination framed by the Executing Court. The said application came to be dismissed by order dated 14/10/2009, which is under challenge in this Writ Petition, for in the opinion of the Executing Court under all circumstances the decree holders were entitled for possession of the premises agreed and failing which they were entitled to compensation and only in the event it is proved that the delay was caused due to the reasons attributable to the judgment debtors, then they are not entitled to the compensation. 6. Shri Mulgaonkar, the learned Counsel appearing on behalf of the petitioners/judgment debtors submits that the petitioners/judgment debtors would have been liable to pay the said compensation only in case there were reasons which were attributable to the petitioners/judgment debtors and not otherwise. Learned Counsel submits that the onus that the decree holders were entitled to compensation was on them. On the other hand, Shri Bhobe, learned Counsel on behalf of the respondents submits that till date the possession of the newly constructed premises has not been handed over to the respondents/decree holders in as much as there is also no dispute as regards the quantum which was agreed to be paid in terms of the consent decree. 7. It is not known as to why the decree holders have opted for an inquiry, when the terms of the decree were quite clear. However, the fact remains that the first order is still in force. 8. A perusal of Clause 7 shows that the decree holders were permitted to shift their goods into the old adjoining house, close to the suit house till such time newly constructed premises are delivered to the decree holders but the fact remains that till date newly constructed premises have not been delivered to the decree holders. A perusal of clause 9 shows that for any reason, the shop premises could not be delivered to the plaintiffs/decree holders within a period of one year and the plaintiffs/decree holders could not carry on their business in such shop on account of its non-completion or due to lack of occupancy certificate of the concerned authorities or for any other reason attributable to the defendants/judgment debtors, the defendants/judgment debtors would be liable to pay Rs.25,000/- per month towards the loss of business income to be calculated from 31/05/2007 till the period plaintiffs are put in actual and physical possession of the said shops premises in the proposed building. Clause 9 further stipulated that it was agreed by the defendants that the amount of the income referred to above was calculated on the basis of the present undisputed income of the plaintiffs/decree holders and that the defendants/judgment debtors shall not be entitled to raise any a kind of dispute in future as to such amount in the event the plaintiffs puts the decree passed on the basis of these terms into execution before the Hon'ble Court for recovery of the said compensation on account of non delivery of the peaceful possession of the said premises to the plaintiffs and to this extent the decree shall be deemed to be a money decree. 10. Clause 9 is quite clear. If the shop premises could not be delivered to the decree holders for any reason attributable to the judgment debtors, the latter were liable to pay agreed compensation. However, as things stand an inquiry has been ordered. Issue has been framed. Onus to prove the same is cast on the judgment debtors. Possession of the shops has not been given to the decree holders. The judgment debtors now contend that the decree holders had not adhered to the terms of consent. If that be so, the onus to prove the same is on the judgment debtors and not the decree holders. In any event, the impugned order is not an order which can be said to have caused gross injustice to the petitioners to be interfered in supervisory jurisdiction. [see Surya Dev Rai V/s. Ram Chander Rai (2003 (6) SCC 675)]. 11. Considering the above, the Writ Petition is hereby dismissed. N. A. BRITTO, J. NH