1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8999 OF 2009 M/s. Pawar Promoters Builders & Developers & Ors. ..Petitioners Vs. M/s. Sheth Developers Pvt Ltd. ..Respondents Neha Palshikar Bhide for the Petitioners Mr. Shekhar Shetye i/b Gajaria & Co. for Respondents CORAM: A.S.OKA, J. DATED: 9th February, 2010 P.C. 1. Heard Learned Counsel appearing for the parties. Considering the narrow controversy involved, the Petition is taken up for final disposal at admission stage. The petitioners are the Defendants in a Suit filed by the Respondents. A Writ Petition was filed in this Court arising out of an interim order passed in the suit. On 05 th March 2008, when the said Writ Petition No.1213 of 2008 came up before this Court, the parties tendered consent terms providing for passing a decree on admission in the suit as provided therein. On the same 2 day this Court disposed of the Writ Petition in terms of the Consent Terms. 2. An application was made by the Respondents at Exhibit-45 praying that the office of the Trial Court be directed to draw a decree in terms of the clause 1 of the consent terms read with prayer clauses (a) and (b) of the suit filed by the Respondents. The contention raised by the Respondents was that the Petitioners were liable to pay a sum of Rs. 4,11,72,000/- along with interest @ 24% p.a. The said application was contested by the present Petitioners. By the impugned order, the said application has been disposed of. Following is the operative part of the impugned order dated 06 th August 2008. “1.Suit is hereby decreed in terms of the consent terms dated 5/3/2008 and order passed by the Hon’ble High Court. 2.In view of the purshis filed by the plaintiff, defendants do pay an amount of Rs.3,77,00,920/- 3 (Rupees Three Crores Seventy Seven Lacs & Nine Hundred and Twenty only) along with interest @ 24% p.a. Till the realization of the decretal amount. 3. Decree be drawn up accordingly “ 3. I have heard the Learned Counsel appearing for the parties. The consent terms were taken on record in Writ Petition No. 1213 of 2008. The order of this Court records that both the sides agreed to the consent terms after fully understanding the implications therein. Only thing which remained to be done by the trial Court was to pass a decree in terms of the consent terms filed in this Court. The Trial court could not have gone into the question as regards liability of the Petitioners to pay a certain amount as per the consent terms. The role of the Trial Court in the pending suit was confined to passing a decree strictly in accordance with the consent terms. If the case of the Respondents is that, the Petitioners have not paid the requisite amount in terms of the consent terms, the remedy of the Respondents is to execute the 4 decree which may be drawn in terms of the consent terms. A remedy is also available to the Respondents to file proceedings on the basis of the undertakings of the Petitioners in the consent terms which were accepted by this Court. 4. Perusal of paragraphs 6 to 10 of the impugned order show that the trial Court has gone into the question as to whether compliance has been made by the parties with terms of the consent terms. This aspect could not have been considered by the learned trial Judge and the only direction which could have been issued by the learned trial Judge was that a decree be drawn in terms of the consent terms. In the circumstances, clause (2) of the operative part of the impugned order will have to be set aside by reserving liberty to the Respondents to execute the decree in accordance with law. It is made clear that this Court has not made any adjudication as regards the liability of the Petitioners under the consent decree and the said issue will have to be decided in execution proceeding. 5 5. Hence, Writ Petition is disposed of by passing the following order: (i) Subject to observations made above, Clause (2) of the operative part of the impugned order dated 6 th August 2008 is hereby deleted. (ii) Clauses (1) and (3) of the operative part of the impugned order are not disturbed. (iii) It is made very clear that no adjudication has been made as regards the liability of the Petitioners under the Consent decree. (iv) Any proceedings taken out by the Respondents for execution of the decree will be decided on its own merits, independently of the observation made by the learned trial Judge in paragraphs No. 6 to 10 of the impugned order. (v) Writ Petition is disposed of in above terms. (A.S.OKA, J)