Bombay High Court
Satish S/O Tarachand Godhe And ... vs Shreedhar Sitaram Khadloya on 18 February, 2021
Bench: V.M. Deshpande
1 WP2709.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 2709 OF 2019
PETITIONERS : 1. Satish S/o Tarachand Godhe,
Aged about 61 years, Occu. Business,
2. Sumit S/o Satish Godhe,
Aged about 31 years, Occu. Business,
Both 1 & 2 R/o Deshmukh Plot, Civil Lines,
Khamgaon, Tah. Khamgaon, Dist. Buldhana,
VERSUS
RESPONDENT : Shreedhar Sitaram Khadloya,
Aged about 64 years, Occu. Business,
R/o Bajoriya Nagar, Yavatmal,
Tah. & Dist. Yavatmal.
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Mr. H. R. Gadhia, Advocate for the petitioners
Mr. A. V. Bhide, Advocate for the respondent
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CORAM : V. M. DESHPANDE, J.
DATE : FEBRUARY 18, 2021.
ORAL JUDGMENT
1. In view of the order dated 05.4.2019 (Coram :
A.S.Chandurkar, J.), Rule. Rule is taken up for final hearing.
2. Heard Mr. H. R. Gadia, learned counsel for the
petitioners and Mr. A.V. Bhide, learned counsel for the respondent.
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3. By this writ petition, the petitioners are challenging the
order passed by the learned Civil Judge, Senior Division, Malkapur,
dated 22.02.2019 below Exh.9 in Special Civil Suit No. 18/2018,
whereby the learned Judge has dismissed the application filed on
behalf of the petitioners under Order VII Rule 11 read with Section
9A of the Code of Civil Procedure.
4. The petitioners are the original defendants and the
respondent is the original plaintiff. The respondent has filed a suit
for specific performance of the contract and for injunction seeking
specific performance of the agreement entered into between the
parties for execution of Sale Deeds of 106 plots at the rate of
Rs.211/- per square feet. As per the respondent/plaintiff, valuation
of the suit is Rs.3,99,00,682/-. Along with the suit, an application
for injunction was filed and it is informed to this Court that till
today, the orders are not passed on the application for injunction.
The petitioners/defendants have already filed their written
statement.
5. During pendency of the suit, the petitioners/defendants
have filed an application (Exh.9) for twin purpose, firstly, the plaint
be rejected for non-joinder of necessary party and secondly, the suit
3 WP2709.19.odt
be transferred to the "Commercial Court". The said application is
rejected and therefore, this writ petition.
6. Before this Court, Mr. Gadhia, learned counsel for the
petitioners, on instructions from the petitioners, states that the
petitioners are abandoning and giving up their contention that the
plaint is required to be rejected for non-joinder of necessary party
because of the observation made by the learned Judge of the Court
below that the said issue will be agitated at the stage of trial. In
view of the statement made by the counsel for the petitioners, this
Court is not adverting to the said issue and is not giving any finding
on the same.
7. Insofar as transfer of the suit to the "Commercial Court"
is concerned, there is some force in the submissions made by the
learned counsel for the petitioners. Admittedly, the respondent/
plaintiff himself has valued the suit for more than Rupees Three
crores. Even as per the prayers made in the plaint, the plaintiff is
seeking Sale Deeds in his favour from the defendants for 106 plots
and it obviously shows and suggests that it was not for personal use.
Further, in the reply to the application (Exh.9), the plaintiff himself
has admitted that the plaintiff is doing the business of sale and
purchase of plots and therefore, he entered into an agreement dated
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10.10.2016 for purchasing 106 plots converted from agriculture to
non-agriculture one.
8. Mr. A. V. Bhide, learned counsel for the respondent/
plaintiff submits that there will be no prejudice to the plaintiff if the
matter is transferred to the "Commercial Court". He, however
submits that in the meanwhile, the petitioners be directed not to
create any third party interest.
9. Since, the property intended to be purchased by the
plaintiff was for commercial purpose, undisputedly the suit lies
before the "Commercial Court". The injunction application filed on
behalf of the plaintiff is still pending before the learned Civil Judge,
Senior Division, Malkapur. It is informed to this Court that in view
of the stay granted by this Court on 05.04.2019, the said injunction
application is not decided.
10. If during pendency of the suit the defendants are
creating third party interest, then that will be subject to the
principles of lis pendence. The petitioners will have to give an
appropriate notice of pendency of the suit to the intending
purchasers so as to avoid the unnecessary litigation by the plaintiff
on the ground that they are bona fide purchaser without notice.
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ORDER
1. The Writ Petition is partly allowed.
2. Special Civil Suit No. 18 of 2018 pending on the file
of learned Civil Judge, Senior Division, Malkapur is
hereby directed to be transferred to the "Commercial
Court" at Malkapur.
3. The stay granted by this Court on 05.04.2019 shall
cease to exist from today and the 'Commercial Court'
where the suit is being transferred, shall expeditiously
decide the application for injunction within a period
of one month from the date when the plaint is
received by the said Court.
4. If any third party interest is created by the petitioners/
defendants,it shall be hit by principles of lis pendence
5. The petitioners are directed to put on notice every
intending purchaser by giving appropriate notice to
them.
6. With these directions, the writ petition is partly
allowed and disposed of. Rule accordingly. No order
as to costs.
V. M. DESHPANDE, J.
Diwale Digitally signed
Parag by Parag
Diwale
Diwale Date:
2021.02.22
17:10:09 +0530
