Bombay High Court
Shri. Kirtibhai Hargovandas ... vs Jamsubhai Kuvaria Patel Deceased ... on 22 November, 2022
Bench: R. I. Chagla
15-CAF-611-19-FA-175-19.doc
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO. 611 OF 2019
IN
FIRST APPEAL NO. 175 OF 2019
Shri. Kirtibhai Hargovandas Patel ...Applicant/
Appellant
Versus
Shri. Jamsubhai Kuvaria Patel & Ors. ...Respondents
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Mr. Mandar Soman a/w Mr. Hardik Joshi for the Applicant/Appellant.
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CORAM : R.I. CHAGLA J
DATE : 22 November 2022
ORDER :
1. Heard Mr. Soman, learned Counsel appearing for the
Applicant/Appellant.
2. First Appeal has been filed challenging the judgment and
decree dated 4th August 2018 passed in Civil Suit No. 47 of 2010 by
the learned Civil Judge, Senior Division, Dadra and Nagar Haveli
Silvassa.
15-CAF-611-19-FA-175-19.doc
3. Mr. Soman has stated that the Appellant has been given
to understand that the Respondents are trying to create third parry
interest in the suit property. The Respondents have been served with
the First Appeal in February 2022 and Mr. Soman undertakes to file
Affidavit of Service within a period of one week from the date of this
order.
4. The original Suit was filed for specific performance of
agreement dated 15th July 2008 in respect of the suit property. The
original Suit filed for specific performance and injunction of the suit
property was disposed of and decreed by directing the Defendants to
refund the amount of Rs. 34,75,000/- to the Plaintiff along with
interest of 6% per annum from the date of this order. This was upon
the finding that the Suit was filed by the Plaintiff in collusion with
the Defendants to seek direction from the Court against the
Government / Collector to grant them permission to execute the sale
deed without intentionally making the Government and Collector a
party. This finding has been arrived at despite the Court holding that
the Defendant had admitted receipt from the Plaintiff of the amount
of Rs.21,75,000/- and that the Defendants had contended that they
had repaid the amount to the Plaintiff. However, the Defendant could
15-CAF-611-19-FA-175-19.doc
not produce any evidence of re-payment.
5. The Appellant has filed the First Appeal being aggrieved
with the findings in the judgment dated 4th August 2018 by which
prayer for specific performance and injunction of the suit property in
the Suit filed by the Appellant was rejected. The present Application
has been made for status quo to be maintained in respect of the suit
property, as the Respondents are attempting to create the third party
interest in the suit property.
6. Having considered the present Application for status quo
to be maintained in respect of the suit property, in my view, it would
be necessary to grant the relief sought, considering that the First
Appeal arises from the non-grant of specific performance of the suit
property which had been sought in the Suit. The Suit was disposed of
and decreed by directing the Defendants to refund the amount paid
by the Plaintiff despite issues having been decided in favour of the
Plaintiff. This is in view of the finding of the Court that there is
collusion between the Plaintiff and Defendant to seek direction from
the Court against the Government / Collector to grant and execute
the sale deed. In my prima facie view, there are inconsistencies in the
15-CAF-611-19-FA-175-19.doc
findings of the lower Court. Thus, the Suit property of which specific
performance has been claimed in the Suit requires to be protected.
7. In that view of the matter, keeping the rights and
contentions of the parties open, status quo shall be maintained in
respect of the suit property.
8. Advocates for the Appellant shall serve notice of this
order on the Respondents and shall file appropriate Affidavit of
Service on or before the next date.
9. Civil Application No. 611 of 2019 is accordingly,
disposed of.
10. List the First Appeal No. 175 of 2019 for
admission on 5th December 2022.
[R.I. CHAGLA J.]
