SIDDHARTHA CHATTOPADHYAY,J. - (1.) The appeal arises out of an order passed in execution proceedings pertaining to a consent decree. The suit was filed by the respondent developer for the specific performance of the contract for development. The property is in up-market Theatre Road. The suit of 1985 was compromised by terms of settlement being executed in the year 2003, in effect, varying and even extinguishing certain rights under the original development agreement of October 13, 1982. The appeal has been filed by the heirs of the fourth defendant in the suit, primarily on the ground that despite a substantial part of the consideration due under the consent terms admittedly remaining outstanding, the executing court has required the appellants to execute the conveyance in respect of the land in favour of the developer or a receiver to do the necessary act upon the appellants' failure.
(2.) The consent terms of November 25, 2003 envisaged the shares of some of the defendants as undivided part owners of the property to vest in the plaintiff. The relevant document recognised that the predecessor of the appellants herein was entitled to one-fourth undivided share in the property and provided for the transfer thereof to the respondent. The following clauses of the consent terms of November 25, 2003 are of some relevance in the context of the order impugned and the rival contentions in the present appeal: "5. In consideration of the plaintiff agreeing to pay and making part payment of the sums to each of the consenting defendants in accordance with the Schedule "X" hereto annexed, which shall form part of this Terms of Settlement the right, title and interest of the said defendants in premises No. 46, Shakespeare Sarani (hereinafter referred to as the said premises) shall stand transferred to the plaintiff. Cheques for the appropriate amounts have been made over to the said defendants. 6. By reason of the aforesaid transfer by the consenting defendants in consideration of the payment made and agreed to be made by the plaintiff to them as aforesaid, rights and obligations of the said defendants in the said Development Agreement dated 13th October, 1982, entered into between the 3 plaintiff on the one hand and the present defendants referred to in the cause title in the suit and/or their predecessors in interest shall stand extinguished. 7. The consenting defendants undertake to this Hon'ble Court to execute the deed of conveyance or the deed of conveyances in favour of the plaintiff and/or its nominee or nominees as and when desired by the plaintiff upon making payment of the consideration to the consenting defendants. 8. Mrs. Moumita Chatterjee, Advocate is appointed Receiver over and in respect of the undivided share of the consenting defendants without security and without remuneration for the purpose of executing the deed of conveyance or deeds of conveyances in favour of the plaintiff or its nominee or nominees upon the plaintiff or its nominee or nominees making payment of the entire purchase consideration to the consenting defendants as mentioned in Schedule "X" and the Receiver shall also be entitled to admit execution and present such deed of conveyance or deeds of conveyances for registration before the appropriate registration authority. 9. For the sake of clarity, it is recorded that by reason of the aforesaid arrangements the plaintiff would now be entitled, as owner of the undivided 26/33th share of the said property, to proceed with the development of the said premises in the manner referred to in the said Development Agreement dated 13th October, 1982 and deal with all authorities concerned and finally sell transfer and/or deal with the constructed area attributable to the said undivided share under the said development agreement which has vested in the plaintiff. 10. It is also recorded that the consenting defendants have already made over possession of the vacant portion of the said premises which had been in their respective occupation or in occupation of their nominees as co-owner as recorded by Mrs. Indrani Chatterjee, Advocate, Receiver appointed in the suit in her report dated 22nd November, 1985. An authenticated copy of the Receiver's report dated 22nd November, 1985 is annexed hereto and marked "Y" and the same shall be treated as part of this Terms of Settlement."
(3.) It is not in doubt that as recorded in Schedule-'X' to the consent terms of November 25, 2003, insofar as the same is relevant for the present purpose, the appellants herein were paid a sum of Rs.40 lakh against the total consideration of Rs.85 lakh as envisaged in clause 1(e) of Part-I of Schedule-'X' to the consent terms. It is also not in dispute that after the execution of the consent terms, the balance amount of Rs.45 lakh has also been paid by the respondent to the appellants.;