Bombay High Court
Ajay Shripal Jain (Huf), Through ... vs Prafulla S/O. Sadashivrao Hedoo ... on 22 March, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6827 OF 2015
1. Ajay Shripal Jain (HUF) through
its Karta Shri Ajay s/o Shripal Jain,
aged about 57 years, Occupation
Chartered Accountant, r/o Amarjyoti,
Dhantoli, Nagpur.
2. Ajay s/o Shripal Jain,
aged about 57 years, Occupation
Chartered Accountant, r/o Amarjyoti,
Dhantoli, Nagpur. ... PETITIONERS
ig VERSUS
1. Prafulla s/o Sadashivrao Hedaoo,
aged about 76 years, Occupation
Business,
2. Prabha w/o Prafulla Hedaoo,
aged about 71 years, Occupation
Housewife,
3. Manoj s/o Prafulla Hedaoo,
aged about 45 years, Occupation
Business,
4. Shrikant s/o Prafulla Hedaoo,
aged about 38 years, Occupation
Business,
5. Dilip s/o Sadashivrao Hedaoo,
aged about 56 years, Occupation
Business,
6. Sanjivani w/o Dilip Hedaoo,
aged about 51 years, Occupation
Housewife,
7. Adot d/o Dilip Hedaoo,
aged about 28 years, Occupation
Education,
8. Ishan s/o Dilip Hedaoo,
aged about 22 years, Occupation
Education.
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1 to 8 R/o Plot No.1, Deonagar,
Nagpur.
9. M/s. Renuka Construction Company,
a Registered Partnership Firm
registered under the Indian Partnership
Act, 1932, having its office at 58, Chhoti
Dhantoli, Nagpur.
10. Abhaya s/o Mukundrao Loharkar,
aged about 47 years, Occupation
Business,
11. Ajay s/o Mukundrao Loharkar,
aged about 43 years, Occupation
Business.
10 and 11 R/o 58, Chhoti Dhantoli,
Nagpur.
12. Rajesh s/o Suresh Joshi,
aged about 43 years, Occupation
Business, R/o. C/o. Smt. Shubhada
Joshi, 13, PMG Colony, Pratap Nagar,
Nagpur - 440 009.
13. Renuka Mata Infrastructure Company
Pvt. Ltd., 58, Chhoti Dhantoli,
Nagpur - 440 012. ... RESPONDENTS
....
Shri Rohit Joshi, Advocate for the petitioners.
Shri P.P. Thakare, Advocate for respondent Nos.1 to 8.
Shri S.A. Sainis, Advocate for respondent No.12.
....
CORAM : PRASANNA.B.VARALE, J.
DATED : 22ND MARCH, 2016.
ORAL JUDGMENT :
Rule. Rule is made returnable forthwith. Heard finally with the
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consent of the learned Counsel appearing on behalf of the respective
parties.
2. Though the notice of final disposal was issued and respondent
Nos.9, 10 and 11 are duly served, none appears on behalf of these
respondents. A limited controversy is involved in the instant petition. The
petitioners challenge the order passed by the learned 08th Joint Civil Judge,
Senior Division, Nagpur dated 02nd November, 2015 thereby rejecting the
application presented on behalf of the plaintiffs-petitioners.
3. Shri Joshi, the learned Counsel for the petitioner submits that
the petitioners initiated a joint venture and agreement to that effect is also
placed on record. Certain property was purchased under an agreement of
sale. The copy of the same is also placed on record. It is the submission of
the learned Counsel for the petitioners that the partners in a joint venture
along with petitioners backed out from the venture. The petitioners filed
the suit for recovery of money and claiming injunction. Shri Joshi, the
learned Counsel for the petitioner further submits that the petitioners-
plaintiffs submitted an application seeking direction to the defendants to
execute and get the registered sale deed cancelled of the agreement of sale
dated 17.07.2008. It is the submission of the learned Counsel for the
petitioners that the expenses were borne out by the petitioners-plaintiffs
by paying the stamp duty to the extent of Rs.26,68,750/-. It is submitted
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that the parties to the agreement of sale were not interested in execution of
the sale deed. On the backdrop that the parties were not interested in
execution of the sale deed, the petitioners-plaintiffs sought the directions
as referred to above in order to get refund of the stamp duty.
4. Shri Joshi, the learned Counsel for the petitioners submits that
the application was submitted in the year 2010. The application was not
opposed by the respondents. As the application was pending for quite
some time before the Court and the matter could not proceed further for
one or the other reason, the petitioners submitted written notes of
arguments in support of the application. The learned Counsel for the
petitioner, by inviting my attention to the copy of the written notes of
arguments, submits that a specific ground was raised placing reliance on
the provisions of Section 46(c)(5) of the Maharashtra Stamp Act, 1958
which entitles a person seeking refund of the stamp duty on approaching
the Collector by preferring an application. Shri Joshi, the learned Counsel
for the petitioners also submits that the Section 48(1) stipulates where an
agreement of sale of an immovable property on which the stamp duty was
paid and the proposed sale transactions failed, an application can be
moved for refund of the stamp duty within stipulated period from the date
of execution of the registered sale deed cancelled. It is further submitted
by the learned Counsel for the petitioner that in view of the peculiar facts,
the agreement of sale dated 17.07.2008 stood frustrated and the proposed
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transaction was failed and no steps were taken for seeking enforcement of
the sale transaction though much period has been lapsed. It was the
submission of the plaintiffs that in view of the provisions of the
Maharashtra Stamp Act, 1958, the petitioners had approached the Court
by submitting an application and also supported the application by filing
written notes of arguments referring to the relevant provisions making the
object of the petitioners-plaintiffs clear before the Court.
5.
It is further the submission of Shri Joshi, the learned Counsel
for the petitioners that there was also no opposition from the other side to
the application presented by the petitioners-plaintiffs. He submits that in
spite of all these facts which were placed on record, the learned 8 th Joint
Civil Judge, Senior Division, Nagpur by merely observing that there is no
necessity to get the registered deed of cancellation of agreement and as no
provision is shown by the plaintiffs, the application is rejected. Shri Joshi,
the learned Counsel submits that if there had been any objection from the
other side, the Court could have been in a position to reject the application
and the rejection of the application by the learned Judge is not in
consonance with the facts of the record nor in view of the provisions which
were referred to by the petitioners-plaintiffs making his object clear. It is
further submitted that the learned Civil Judge also erred in observing that
there was no substance in the application.
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6. The learned Counsel appearing on behalf of the respondents
have not resisted the petition.
7. I have gone through the material placed on record and more
particularly the copy of the joint venture, copy of agreement of sale and the
application filed by the petitioners-plaintiffs as also the written notes of
arguments. It is not in dispute that the application was filed in the year
2010 and as there was no further progress, written notes of arguments were
placed in support of the application. Perusal of the written notes of
arguments reveals that by relying on the provisions of the Maharashtra
Stamp Act, 1958 more particularly Section 47(c)(5) and Section 48(1), the
plaintiffs sought the directions. It is also not disputed that the petitioners-
plaintiffs had borne the expenses of the stamp duty to the tune of
Rs.26,68,750/-. In view of the requirement referred to in Section 47(c)(5) of
the Stamp Act and stipulation under Section 48(1), the petitioners sought
the directions. It is also not in dispute that there was no opposition to the
application before the learned 8th Joint Civil Judge, Senior Division nor
before this Court.
8. On the backdrop of these facts, I am of the opinion that there is
considerable merit in the submission of the learned Counsel for the
petitioners. It is also revealed that the learned Judge only on a passing
observation that there was no necessity to get the registered deed of
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cancellation of agreement nor any provision was shown by the plaintiffs,
rejected the application. The petitioners-plaintiffs were intending to take
recourse to the provisions of the Maharashtra Stamp Act and were ready to
comply with the requirement and to follow the stipulation. The learned 8th
Joint Civil Judge, Senior Division, Nagpur lost the sight of all these facts
and only on assumption and presumption rejected the application. In
view of these facts, the order impugned in the petition is clearly
unsustainable.
9. In the result, the petition is allowed in terms of prayer clause (i)
and (ii). Rule is accordingly made absolute in the aforesaid terms.
JUDGE
*rrg.
