Bombay High Court
M/S Trilok Builders Through Its ... vs Praveen Kapurchand Surana And ... on 5 January, 2018
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3403 OF 2016
M/s Trilok Builders,
Through its Partner
Shri Pankaj Trilokchand Pande,
Age : 41 years, Occupation : Business,
R/o Chouraha, Aurangabad.
...PETITIONER
-VERSUS-
1 Mr.Praveen Kapurchand Surana,
Age : 46 years, Occupation : Business,
R/o Flat No.6, Trilok Plaza,
Shahagunj, Aurangabad.
2 Mrs.Seema Praveen Surana,
Age : 39 years, Occupation : Household,
R/o Flat No.6, Trilok Plaza,
Shahagunj, Aurangabad.
...RESPONDENTS
...
Advocate for the Petitioner : Shri Bhandari Anand P..
Advocate for the Respondents : Shri Gangakhedkar Shailendra S.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 05th January, 2018
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 The Petitioner/ original Plaintiff is aggrieved by the impugned
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order dated 03.02.2016 by which, the application Exhibit-36 filed by the
Petitioner seeking amendment to the plaint under Order 6 Rule 17 of the
Code of Civil Procedure, has been rejected.
3 While issuing notice in this matter on 28.03.2016, this Court
has granted ad-interim relief in terms of prayer clause "C" to the Petitioner.
4 I have considered the submissions of the learned Advocates
for the respective sides.
5 Shri Gangakhedkar, learned Advocate for the Respondents,
has strenuously defended the impugned order and has prayed that this
petition be dismissed with heavy costs.
6 There is no dispute amongst the litigating sides that the
application Exhibit-36 seeking amendment to the plaint was filed before
the commencement of the trial in Special Civil Suit No.32/2007. The
application was filed on 18.07.2009 and the Trial Court has dealt with the
said application by passing the impugned order on 03.02.2016. During the
pendency of Exhibit-36, the issues have been cast.
7 The Plaintiff and the Defendants had entered into an
agreement to sale on 06.07.2004 with regard to a flat. The stamp value
was Rs.6,76,200/- and actual sale value was Rs.6,75,000/-. The
Petitioner/ Plaintiff is a builder and developer of the flat, which is owned
by one Mr.Manikchand Gangwal, who is not a party to the suit before the
Trial Court. The Respondents are the purchasers.
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8 Clause (2) of the agreement indicates the eventuality of an
automatic cancellation of the agreement, if the purchaser fails to pay the
entire amount as is agreed in the said agreement. In the suit filed by the
Petitioner seeking recovery of possession, the thrust of the Petitioner's case
is based on the clause of automatic cancellation of the agreement to sale
thereby, giving rise to the recovery of possession. Though it is so pleaded
at different places in the plaint, a specific prayer that the agreement be
declared as being automatically cancelled, has not been formally put forth
by the Petitioner/ Plaintiff.
9 Shri Gangakhedkar has pointed out from the impugned order
that the Trial Court has observed that since the entire issue in the case
turns upon the agreement to sale, all conditions that are specifically set
out in the agreement will have to be considered by the Trial Court. Since
the Trial Court has so observed that while deciding the suit it would
consider the effect of the language and conditions set out in the
agreement, it would obviously enable the Plaintiff to canvass the issue of
automatic cancellation of the agreement.
10 It, therefore, appears that the litigating sides are fully relying
upon the agreement and the terms and conditions set out therein and
consequentially, the Trial Court would then have to consider the effect of
clause (2) of the agreement which provides for automatic cancellation on
account of the purchaser having failed to pay the entire amount.
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11 No doubt, in my view, the Trial Court will have to consider
the effect of the terms and conditions of the agreement. However, it would
be necessary to appreciate the backdrop in which the Plaintiff has pleaded
for cancellation of the agreement to sale. If both sides are aware that the
issue of automatic cancellation is being considered by the Trial Court and
if the Trial Court is aware that it needs to consider the effect of automatic
cancellation, I do not find that the Defendants would be prejudiced if a
formal prayer to that effect is put forth in the plaint. It also needs to be
considered that Exhibit-36 was filed before the trial has commenced.
12 Considering the above, this Writ Petition is partly allowed.
The impugned order dated 03.02.2016 is quashed and set aside and the
application Exhibit-36 is allowed on the condition that the Petitioner shall
deposit an amount of Rs.7,500/- (Rupees Seven Thousand Five Hundred).
The learned Advocate for the Respondents graciously submits that the said
amount can be donated to the Advocates Association of Bombay High
Court, Bench at Aurangabad.
13 As such, the Petitioner shall deposit the amount of Rs.7,500/-
with the Advocates Association of Bombay High Court, Bench at
Aurangabad on or before 02.02.2018 and shall produce a receipt of such
deposit before the Trial Court on or before 09.02.2018.
14 Upon compliance of the above direction, the Petitioner shall
carry out the amendment to the plaint by introducing paragraph 8-A and
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prayer clause A(1) on or before 09.02.2018. Liberty is granted to the
Defendants to file an additional written statement pursuant to the
amendment. The learned Trial Court would be at liberty to frame an
additional issue in the light of this amendment.
15 At this stage, the learned Advocates for the respective sides
submit that as the suit is about 11 years old, the same be expedited.
16 Considering the said request, the Trial Court is directed to
decide the suit as expeditiously as possible and preferably on or before
31.12.2018.
17 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
