1 IN THE COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.4441 OF 2008 IN FIRST APPEAL NO. 1651 OF 2007 Sou Sujata Dilip Chordiya ..Appellant/ Applicant V/s. Shri Ramniwas Pokarmal Agarwal (Since deceased through his LR's) Smt.Santoshidevi Ramniwas & Ors. ..Respondents Mr.R.N.Sanghvi for the Appellant/Applicant. Mr.D.S.Joshi for the Respondents. CORAM : R.M.SAVANT, J. DATED : AUGUST 26TH, 2008. P.C. By the above Civil Application the Applicant prays for variation/modification of the order dated 2nd May, 2008 passed in Civil 2 Application No.627 of 2008 filed by the Appellant/Applicant for stay of the Judgment and decree impugned in the above Civil Application. The said Civil Application has been made absolute by an order passed today by which interim stay in terms of prayer clause “b” is granted on the condition that the Appellant/Applicant deposit the balance of the principal decretal amount i.e. the amount of Rs.94,400/- within a period of two months from date. 2. The Appellant/Applicant seeks variation/ modification of the said order dated 2nd May, 2008 on the ground that he has fulfilled his obligations in terms of the Development Agreement between the parties and has handed over two flats and one office in the building that has been constructed, as also Rs.20,000/- as agreed and therefore the condition imposed asking to deposit the entire decretal amount as a condition for the grant of 3 stay requires to be varied / modified. The learned counsel for the Appellant/Applicant has drawn my attention to the averments made in the affidavit of one Sanjay M. Chordiya and also the affidavit of Sujata Choridya on behalf of the Appellant/Applicant. In which affidavits, it is stated that two flats and one office has already been handed over to the Respondent above named. The learned counsel for the Appellant/Applicant also draws my attention to the evidence of the Respondent in the said suit, wherein he has accepted the position that he has received two flats and one office premises in the building which has been constructed by the Appellant/Applicant. 3. The decree which has been passed against the Appellant/Applicant is on the basis that the Applicant/Appellant has allotted flats to the Respondents herein, wherein the area of said flat is deficient in area to the extent of 324 sq. feet. 4 The Trial Court therefore taking into consideration the market rate prevailing then and the agreement which has been entered into thought it fit to award a sum of Rs.1,94,400/- to the Respondents for the said deficit area of 324 square feet. 4. The Appellant/Applicant has deposited an amount of Rs.1,00,000/- pursuant to the order passed in the Civil Application No.627 of 2008. However, as indicated above, has sought variation of the order passed in the said Civil Application to the extent that he should not be directed to deposit the further amount of Rs.94,400/- which is the balance remaining. 5. The order dated 2nd May, 2008 has been passed after hearing the learned counsel for the Appellant/Applicant. By the said order, the Appellant/Applicant was granted time of three months to deposit the balance of the decretal 5 amount. The above Civil application has been moved only after the said period had expired seeking variation/modification of the said order dated 2nd May, 2008. 6. Considering the aforesaid position and also considering the fact that two flats and one office premises have already been handed over to the Respondents herein, as per the finding recorded by the Trial Court, in my view, the interest of justice would be served that instead of the entire decretal amount, the Appellant/Applicant is directed to deposit the principal amount of Rs.1,94,400/-. The order dated 2nd May, 2008 is therefore modified to the aforesaid extent. Though the Civil Application No.627 of 2008 has been disposed of by an order passed today, the Appellant/Applicant is now liable to deposit the balance of the principal amount of Rs.1,94,400/- to be deposited within two months from date. It is 6 made clear that no further extension of time would be granted to deposit the said amount. 7. The Civil Application is, accordingly, disposed of. [R.M.SAVANT, J.]