:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION SUIT SUIT SUIT NO. 87 OF NO. 87 OF NO. 87 OF 1981 1981 1981 Quadir Ahmed Nisar Ahmed and Ors. ... Plaintiffs. V/s. Tehhzib Husain Syed F. Husain & Ors. ... Defendants. Mr. Palan i/b. J.P. Thakkar for the Plaintiffs. Mr. M.B. Shirsat for Defendants 4,7,10 to 14. Mr. Manohar V. Shetty for Defendant No.9. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 26TH 26TH 26TH MARCH 2009. MARCH 2009. MARCH 2009. P.C. P.C. P.C. : : : . The Suit was pending in this Court from 1981. Being a Administration Suit and being dispute is between family members, the Court thought it fit to impress upon the parties that they should protect the right, title and interest in the immovable properties by agreed terms. I had observed in the earlier order that bone of contention is a Immovable property wherein Bakery business is carried on. If that property can be disposed off and from the sale proceeds can be divided on agreed basis, share and the entire dispute can be resolved. 2. Accordingly, from 2nd December 2008 till date, repeatedly, the matter was placed before me and I made every endeavour to impress upon the parties that they should settle the matter more particularly, since :2: Defendant Nos.1,2,3,5 and 6 had expired during the pendency of the suit. Similarly, some of the Plaintiffs have also expired. The dispute cannot go on eternally. 3. Consent Terms were drawn in pursuance of the order dated 2nd December 2008 but thereafter, practical difficulties were placed before me inasmuch as a tenanted property was being put up for sale. I had permitted the parties to redraw the terms and thereafter file them so that interest of third parties and strangers to the Suit is not adversely affected. 4. Accordingly, time was sought and today Consent Terms are placed before me. 5. At the outset, Mr. Palan, appearing for the Plaintiffs, on instructions, makes a statement that the Plaintiffs have not taken any steps to serve the Writ of Summons on Defendant No.9. They do not wish to proceed with the Suit against Defendant No.9 and the Suit may be dismissed for want of prosecution against Defendant No.9. Defendant No.9 is present in Court so also her Advocate. It was emphasised and clarified to both of them that no order contrary to her interest is being passed inasmuch as she has not been served with the Writ of Summons and the Suit is not being pressed as against her. Therefore, if she desires to pursue any remedy, it would be open for her to do so. :3: 6. It is, in this light that I have heard parties on the question as to whether the Consent Terms can be taken on record and the Suit decreed accordingly. The Consent Terms are between the Plaintiffs on the one hand and Defendant Nos.4,5a,6a,6b,7,10 and 11 to 14. The Constituted Attorney of Defendant No.4 has signed the terms on behalf of Defendant No.4. The Plaintiffs and their Advocates so also above Defendants and their Advocates have taken steps to explain and interpret the terms to the respective parties. The Assistant Chief Translator and Interpreter of this Court has also explained and interpreted the terms to the parties. All of them state that the Terms are as per the Agreement arrived at by them. The signatures of the above parties are also appearing on the Terms. 7. The Terms record that Defendant Nos.4 to 7 and 10 to 14 declare that they are in possession of the Suit property and the same had been handed over by Defendant Nos.1 to 3. In these circumstances, the Suit against Defendant Nos.1a to 1c, Defendant Nos.2a to 2b and Defendant Nos.3a to 3f is withdrawn by the Plaintiff and it stands dismissed accordingly. 8. The parties to the Suit admit that the Plaintiffs have 35% share in the Suit property and the Plaintiffs have given up their contention that they are entitled to :4: 50% share in the suit property. 9. Further, it is agreed that Defendant Nos. 4 to 7 and 10 to 14 have 65% share in the Suit property. The Suit claim has already been withdrawn and not pressed against Defendant No.9. Both sides have agreed that the Suit property need not be partitioned by metes and bounds or physical possession handed over to them. However, the said property be sold on "As is whereis basis". The terms then record as to who shall have the first option to bring in a purchaser. The First option is being given to Defendant Nos.4 to 7 and 10 to 14. Parties have agreed that the sale will be completed, either way, that is whosoever exercises the option, within a period of six weeks from the date the terms being taken on record. 10. Upon their failure to do so, the Court Receiver, High Court, Bombay would be appointed as a Receiver and will take steps to sell the property. Needless to state that disbursement of the sale proceeds will be in the ratio, which is agreed and provided in the terms. The consequences that would follow after appointment of Court Receiver are also provided in the terms. 11. The parties are present in Court today. In these circumstances, and being satisfied that the dispute interse and between family members having been amicably resolved and fully settled that there is no impediment in :5: taking the Terms on record and passing a decree, as prayed by the parties. 12. Hence, it is clear that the Terms are signed willingly. There is no pressure or force of any kind. Each party and signatory to the Terms has understood fully the implications and consequences flowing from the Terms. They have no objection to the Terms being taken on record. 13. In the light of the above, Consent Terms are taken on record and marked ‘X’ for identification. Order in terms of the Consent Terms. The Suit decreed to the extent indicated in the Consent Terms against parties covered by the Terms. As against the Defendants whose description, appears in Clauses 2 and 9 of the terms, the Suit claim stands withdrawn and the Suit would be dismissed for non-prosecution as against them. 14. Decree be drawn accordingly. All concerned to act on authenticated copy of this order. Refund of Court fees as per Rules. No order as to costs. The Receiver to act on authenticated copy. Undertaking of the parties in Clauses 3 and 5 is accepted. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)