.abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 292 OF 2009 ------------------------------------------------------------------------ Office Notes, Office Memoranda of : coram, appearances, Court’s Orders: Court’s or Judge’s orders or directions and Registrar Orders: ------------------------------------------------------------------------ Mr.S.K. Shinde with Mr.D.N. Salvi for the appellant. Mr.K.Y. Mandlik for the respondent. CORAM : B.H. MARLAPALLE & D.G. KARNIK, JJ. DATE : 25TH MARCH 2009 P.C. P.C. P.C. : 1. Heard Mr.Shinde with Mr.Salvi, the learned counsel for the appellant. Mr.Mandlik appears for the respondent- original defendant. 2. This appeal arises from the judgment and order dated 25th March 2007 rendered by the learned Civil Judge, Senior Division at Alibag thereby dismissing Special Civil Suit No.158 of 1996 filed by the present appellant firm. The suit was filed for specific performance of the purported oral - 2 - agreement dated 12th September 1993. It was the case of the plaintiff that it had paid an amount of Rs.51,000/- as earnest money to the defendant towards the transaction and even that amount was not returned. On the other hand, the defendant claimed that though such amount was received by cheque No.190482 dated 12th September 1993, the amount was refunded by issuing a cheque for the said amount. It was stated before us that the cheque received from the defendant was not encashed by the plaintiff and, therefore, the amount of Rs.51,000/- was not received by the plaintiff. 3. After hearing for some time, Mr.Mandlik, the learned counsel for the defendant, agreed to pay Rs.51,000/- along with an additional amount of Rs.4,000/- by way of lumpsum amount towards interest to the plaintiff in case the cheque was not encashed. It was stated across the Bar that if such a payment is made, the appeal would be withdrawn as and by way of settlement between the parties and, therefore, the time was granted. - 3 - 4. Today when the appeal is called out, Mr.Mandlik, the learned counsel for the defendant, handed over a demand draft for Rs.55,000/- drawn on State Bank of India in favour of the appellant-plaintiff. The said banker’s cheque has been received by Mr.Shinde today. Mr.Shinde, therefore, on oral instructions of the plaintiff, seeks leave to withdraw the appeal as and by way of settlement between the parties. 5. Leave granted and the appeal is disposed as withdrawn. The appellant to issue a receipt of Rs.55,000/- to the respondent. (D.G. KARNIK, J.) (B.H. MARLAPALLE, J.)