1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4468 OF 2006 IN SUMMARY SUIT NO.1753 OF 1987 GUNVANT BABUBHAI PAREKH ..PLAINTIFF VS. JOST'S ENGINEERING CO. LTD. ..DEFENDANTS Mr. N.M.Pareikh for the Plaintiff Mr Anoshak Davar i/b Crawford Bayley & co. for Defendants CORAM: SMT ROSHAN DALVI, J. DATED: 20 th February, 2009 P.C.: 1. The Plaintiff initially filed a Company Petition against the Defendants for winding up the Defendants. The Defendants were ordered to deposit Rs.5.25 lacs in this Court. The Plaintiff was to file a suit within 4 weeks of the order in the Company Petition. The suit has been filed upon the Defendant depositing the amount so ordered. The suit is for recovery of Rs.7,68,120 /- on the principal amount of Rs.5,24,476.48 with interest @ 18% p.a. thereon. The suit was filed as Summary Suit. The Defendants were given 2 unconditional leave to defend the suit. They were to file written statement within 12 weeks. The Written statement has not been filed. The Plaintiff took out the Notice of Motion for withdrawal of the amount deposited. The parties settled their dispute. The order dated 20.11.2006 came to be passed by consent. The suit was decreed for Rs.5.25 lacs together with interest @ 6% p.a. from the date of the suit. The suit has been filed in 1987. The decree passed in 2006. The amount of interest accrued on the sum of Rs.5.25 lacs is stated to be about Rs.6.25 lacs. The total amount of interest with his accrued due on the amount deposited and invested by the Prothonotary & Senior Master is Rs.25 lacs. 2. The Plaintiff desires modifications of the consent order decreeing the suit dated 20.11.2006. 3. The Defendants' Advocate contends that there can be no modification of consent order. He contends that only upon the Plaintiff realising that the amount which has accrued by way of interest on the principal amount is so large that the Plaintiff desires modifications. Such modifications should not be allowed. 4. The Plaintiff contends that there was a mistake in accepting the amount payable to the Plaintiff upon the decree being 3 passed. 5. Paragraph 6 of the Affidavit in support of the Notice of Motion filed by the Plaintiff shows why this Notice of Motion is taken out. It shows the instructions given to the Advocate for the Plaintiff to settle and compromise the suit as well as to refer it to arbitration. It further shows that out of Rs.27 lacs which is now lying deposited in the suit account, the Plaintiff would receive only Rs.11.50 lacs inclusive of interest. It is, therefore, seen that the Plaintiff did agree to settle the dispute and the Plaintiff also agreed to accept the interest @ 6% p.a. on the principal amount of Rs.5.25 lacs for the 20 years that the suit remained pending in this Court. 6. What must be appreciated is that the Defendants' were given unconditional leave to defend the suit. However, they had not defended the suit. They were directed to file written statement within 12 weeks from 09.11.1987. They have not filed written statement from 1988 to 2006. Much would depend upon whether such gross delay would be condoned. 7. What must be appreciated is that the suit was required to be decreed as prayed. The Plaintiff had prayed for interest @18% p.a. However, the Plaintiff would have to execute the 4 decree, atleast for the additional amount of interest claimed by the Plaintiff, over the interest which accrued due on the amount lying to the credit of the suit. 8. It is a common knowledge that the interest which accures on the amount invested with the nationalised bank is less than 10% p.a. The Principal amount was due to the Plaintiff two decades prior to the decree being passed. Neverthless the plaintiff settled the dispute by giving complete authority to his Advocate to compromise the suit. The decree which is passed is the usual decree passed upon undefended causes. It is only upon realising later that the amount which has accrued due is a far higher amount than what the Plaintiff had expected that is the Notice of Motion is taken out. Hence the Plaintiff has sought to take out this Application to take a chance for obtaining a higher amount. 9. The Plaintiff is expected to know and understand the amount which would have accrued due on the principal amount deposited in court. Upon such knowledge which must be imputed upon the Plaintiff, he settled the dispute. That was in consideration of the Plaintiff not having to execute the decree. Besides, upon payment of heavy costs, the Defendants may have been granted leave to defend. The Plaintiff was stated to be of advanced age who did not desire 5 to litigate. The forbearance on the part of the Plaintiff is therefore good consideration for the settlement of the dispute. The Plaintiff therefore cannot be allowed to take advantage of the fact that now he realised that larger amount than he expected accrued due on the investment with Prothonotary & Senior Master of this Court. 10. Hence there shall be no order in Notice of Motion and no order as to costs. (Roshan Dalvi, J)