- 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. jmi SUIT NO.335 OF 1990. Balkrishna Daji Kalantre. ..Plaintiff. vs. Kalpak Development Corporation & Anr. ..Defendants. .... Mr. Bhushan V. Mahadik, for Applicant. Mr. Suresh B. Kalantre, Applicant No.3, Son of Plaintiff, present. Mr.N.J.Shirke, i/b. Mr.Denzil D’Mello, for Defendant. Mr. Rajesh Wagh, Partner of Defendant present. .... CORAM CORAM CORAM: S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. DATE DATE DATE : 23RD MARCH, 2009 : 23RD MARCH, 2009 : 23RD MARCH, 2009. P.C.: P.C.: P.C.: . This suit was filed by the original plaintiff Balkrishna Daji Kalantre seeking an order and decree of specific performance of the agreement for sale dated 17th February 1986 and in respect of flat no.102, first floor, Kalpak Estate, Building No.10, Type -B, on plot bearing C.S.Nos.85 & 93, Sheikh Mishri Road, Wadala, Mumbai (suit flat) 2. After the suit was filed and the proceedings served on defendant no.1, the defendant no.1 informed the plaintiff that third party rights in respect of the suit flat are already created in favour of the defendant no.2. The plaintiff thereafter carried out the necessary amendments to the plaint and joined defendant - 2 - no.2 as party defendant and also sought appropriate reliefs against defendant no.2. However, the plaintiff admittedly failed to serve the writ of summons as well as other proceedings before defendant no.2. 3. No ad-interim reliefs were also granted at any time in favour of the plaintiffs. 4. The plaintiff thereafter expired on 21st October 2003. Since then, no steps whatsoever are taken by the legal heirs of the deceased plaintiff to come on record. Just a few weeks back after this Court directed the Court office to serve a notice to the original plaintiff and his Advocates, did the heirs of the original plaintiff appeared before the Court and informed the Court that the original plaintiff has expired on 21st October 2003 and that his only legal heirs are as follows :- Smt. Gangubai Kalantre - Wife. Shri Bajirao Kalantre - Son. Shri Suresh Kalantre - Son. 5. In view of the aforesaid facts, this Court had suggested to the parties to amicably settle the suit. The parties have today tendered consent terms before - 3 - this Court dated 23rd March 2009 which are taken on record and marked ‘X’ for identification. The consent terms are signed by the applicant no.3 (plaintiff no.1(c)) for himself and as power of attorney holder of applicant nos.1 & 2 (plaintiff nos.1(a) & 1(b)). Advocate for the Applicants/ plaintiffs has also signed the consent terms. The partner of defendant no.1, Mr. Rajesh Wagh and the Advocate for defendant no.1 have also signed the consent terms. The original power of attorney in favour of applicant no.3 (plaintiff no.1(c)) executed by the applicant nos. 1 & 2 (plaintiff nos.1(a) & 1(b)) is taken on record and marked ‘X-1’ for identification. The original letter dated 23rd March 2009 signed by both the partners of defendant no.1 authorising Mr. Rajesh Wagh to sign the consent terms dated 23rd March 2009 is also taken on record and marked ‘X-2’ for identification. 6. Under clause (2) of the consent terms, the heirs of the deceased whose names are set out herein above have declared and undertaken to this Court that they are the only legal heirs of the plaintiff and have prayed that they be taken on record as plaintiff nos.1(a), 1(b) & 1(c) and also allowed to carry out the necessary amendments in the cause title of the plaint alongwith - 4 - other consequential amendments. 7. Under clause (3) of the consent terms, the defendant no.1 has agreed and undertaken to pay to the applicants (plaintiff nos.1(a), 1(b) & 1(c)) and aggregate sum of Rs.1,16,000/- only in full and final settlement of the plaintiff’s claim in the suit. Four post dated cheques aggregating to Rs.1,16,000/- have been handed over by the defendant no.1 to the Applicants/plaintiff nos.1(a), 1(b) and 1(c)), particulars of which are set out in clause (3). Under clause (4) of the consent terms, it is provided that suit be disposed of between the applicants/ plaintiff nos.1(a), 1(b) & 1(c) and defendant no.1 in terms of the consent terms and the suit be dismissed against defendant no.2 for want of prosecution with no order as to costs. 8. In view thereof, the following order is passed :- (1) The applicants are allowed to amend the plaint and join themselves as plaintiff nos.1(a), 1(b) & 1(c). (2) The applicants to carry out the amendments - 5 - within a period of one weeks from today. (3) The undertakings given by the plaintiff and defendant no.1 in paragraph nos. 2 & 3 of the consent terms are accepted. (4) The suit stands disposed of between the plaintiff and the defendant no.1 in terms of the consent terms marked ‘X’. (5) The suit against defendant no.2 is dismissed for want of prosecution with no order as to costs. [S.J.KATHAWALLA, [S.J.KATHAWALLA, [S.J.KATHAWALLA, J.] J.] J.]