Bombay High Court
M/S. Parijat Developers (Through ... vs M/S. Parshwa Associates (Through ... on 16 August, 2017
Bench: Mridula Bhatkar
5-fa-778-2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.778 OF 2014
WITH
CIVIL APPLICATION NO.2134 OF 2017
IN
FIRST APPEAL NO.778 OF 2014
M/s.Parijat Developers
(Through Its Partner Mayur Shamaldas
Desai) ..Appellant
V/s.
M/s.Parshwa Associates
(Through Its Partners Chandrakant
Nanji Bheda) & Ors. ..Respondents
----
Mr.Abhijit P. Kulkarni for the Appellant.
Mr.Sanjay Kadam a/w Mr.Sanjil Kadam, Ms.Sayalee Rajpurkar i/b
Kadam & Co. for Respondent No.2.
Mr.Prashant Kamble i/b Mr.A.S. Rao for Respondent No.8.
----
CORAM : MRIDULA BHATKAR, J.
DATE : 16th AUGUST 2017
P.C.
1. The learned counsel for the appellant submits that he
has served Respondent Nos.1A to 1D, 4 and 5 by publication. The
appellant has deleted Respondent Nos.3 and 7. In spite of service,
none present for the Respondent Nos.1A to 1D. This Court by order
dated 17th March 2015 has indicated to the parties that an endeavor
N.S. Kamble page 1 of 6
5-fa-778-2014
will be made to decide the appeal finally at the stage of admission.
The parties are given notice that it will be heard finally at the stage
of admission.
2. The learned counsel for Respondent No.2 is present.
3. Admit. By consent and as was indicated to both the
parties, the matter is finally heard at the stage of admission.
4. The appellant is the original plaintiff, who is a
developer, and has filed the suit. He has entered into an agreement
for the development on 06-08-2011 with a trust i.e. original
Defendant No.2 and according to the plaintiff, the plaintiff has
acquired all the development rights in respect of the suit land
owned by the trust. The suit land earlier was owned by Parsee
Zorastrian Anjuman of Kalyan which was purchased by Defendant
No.2-Trust and thereafter, by agreement dated 18-12-2002, one
Mr.P.R. Patel had entered into an agreement for the development of
the property with the Trust. Thereafter, the plaintiff gave financial
assistance to him of Rs.1,89,00,0000/-. After demise of Mr.Patel
vide agreement dated 09-08-2011, the plaintiff entered into an
agreement with the Trust and purchased the development rights.
N.S. Kamble page 2 of 6
5-fa-778-2014
However, Defendant-Trust had also entered into the development
agreement earlier with the defendant No.1 and had executed a
Power of Attorney on 27-09-2006 or 02-11-2006 in respect of the
development of the suit land in favour of defendant No.1.
Therefore, the plaintiff filed the suit for specific performance seeking
declaration that the development rights of the movable properties
assigned to the plaintiff by agreement dated 09-08-2011 is legal,
valid and enforceable in law. He also sought a declaration against
defendant No.1 in whose favour the defendant Trust executed the
Power of Attorney of development rights in respect of the suit lands
and these Power of Attorney and the agreement dated 03-04-2008
are to be declared as false, fabricated, illegal and fraudulent
documents. The plaintiff sought number of documents in respect of
sanctioned plans, IOD etc., given by Kalyan-Dombivali Municipal
Corporation i.e. defendant No.8. After notice, the defendant No.1
and other defendant Nos.2 to 7 filed appearance and they moved an
application under Section 9A read with Order VII Rule 11 of the
Civil Procedure Code, taking objection to the maintainability of the
suit. The objection raised by the defendants was that the suit
cannot tried by the Civil Court as appearing under Section 51 of the
Bombay Public Trusts Act, 1950 on the ground of necessary
permission and due to the subject matter which is triable by the
N.S. Kamble page 3 of 6
5-fa-778-2014
Charity Commissioner. The objection was also that the suit is
barred under Section 149 of the Maharashtra Regional Town &
Planning Act, 1966. The learned 4th Joint Civil Judge Senior
Division, Kalyan, after hearing both the parties and considering the
submissions, allowed the said application and dismissed the suit by
order dated 08th January 2014. Hence this Appeal.
5. Heard submissions of the learned counsel for both the
sides and perused judgment, record and proceedings placed before
this Court. The learned counsel for the appellant has submitted that
appellant has asked for a number of prayers and the main prayer is
that of the specific performance. Other prayers are ancillary and
there cannot be an order under Section 51 of the Bombay Public
Trusts Act, 1950 or under Section 149 of the Maharashtra Regional
& Town Planning Act, 1966. He has submitted that in this case
Respondent No.8-Kalyan-Dombivali Municipal Corporation has
acted upon the permission granted by the Charity Commissioner of
Rajkot under Bombay Public Trust Act, which is illegal. He has
submitted that the view taken by the learned trial Judge is not
correct.
6. The learned counsel for the respondent No.2-Trust has
N.S. Kamble page 4 of 6
5-fa-778-2014
submitted that defendants have also filed Special Civil Suit No.51 of
2014 in respect of the agreement dated 3rd April 2008 along with
Deed of Conveyance dated 15 th April 2013 against the present
respondent No.1 in respect of their earlier agreement of 2006 and in
respect of the same suit land which is pending before the Kalyan
Court. He submits that in the said Civil Suit, present defendant or
respondent No.2-Trust seeks the cancellation of the said agreement
of 2006.
7. This being the challenge under Order VII Rule 11 of the
Civil Procedure Code and so also under Section 149 of the MRTP
Act on the ground of maintainability of the suit, it is necessary to
refer to and rely on the pleadings and the prayers made in the
plaint. If at all the suit is filed against the movable property of the
Trust, then permission of the Charity Commissioner under Section
51 of the Bombay Public Trust Act is necessary. However, the
plaintiff has filed the suit not only against the Trust but also against
Respondent No.1 and also other persons as it appears from the
pleadings and the prayers made therein. The plaintiff seeks specific
performance in respect of agreement dated 09-08-2011 which is
executed between him and defendant no.2-Trust. Similarly, a
declaration is sought that the earlier agreement dated 03 rd April
N.S. Kamble page 5 of 6
5-fa-778-2014
2008 which was executed between the defendant Nos.2,3,4 and
defendant No.1 is false, fraudulent and illegal. So also, plaintiff has
prayed for the cancellation of the other Power of Attorney which
was executed in favour of the defendant no.1 who is not a Trust. He
also seeks other ancillary reliefs in respect of the permission granted
by the corporation for the development activities of the defendant
No.2. Considering the prayers made and reliefs sought by the
plaintiff, I am of the view that the Charity Commissioner is not
having jurisdiction to decide the issues between the parties, which
are not trust and, therefore, the suit as a whole, is required to be
decided along with all the prayers and considering this, I am of the
view that the Civil Court is a proper Court to entertain the suit to
adjudicate all the issues raised before him.
8. Moreover, defendant-Trust has also filed Special Civil
Suit No.51 of 2014 which is pending before the Court at Kalyan in
respect of the suit property. In view of this, the First Appeal is
allowed. The judgment and order dated 08 th January 2014 passed
by the learned trial Judge is hereby set aside. The suit is to be listed
before the concerned Trial Judge.
(MRIDULA BHATKAR, J.)
N.S. Kamble page 6 of 6
