Bombay High Court
Shivaji Kundalik Chunchekar And Others vs Manoj Madanlal Mutha And Others on 23 July, 2025
2025:BHC-AUG:19195
1 ao 40.24 with cra
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 40 OF 2024
1. Shivaji S/o Kundalik Chunchekar,
Age : 65 Years, Occu. : Business,
2. Sau. Rukhmini (Rakhamani) W/o
Shivaji Chunchekar,
Age : 60 Years, Occu. : Business,
3. Shailesh Shivaji Chunchekar,
Age : 21 Years, Occu. : Education
and business,
All Appellants R/o D-714 Shishaki CHS
Building No. 15, Aakruti Road, near
MTNL telephone exchange, Mahada
Colony, Lokhandwala,
Mumbai - 400 101. .. Appellants
Versus
1. Manoj S/o Madanlal Mutha,
Age : 52 Years, Occu. : Business
and Agriculture,
R/o Gopalpura, Modhikhana Jalna,
Tq. and Dist. Jalna.
2. Sau. Purnima W/o Dinesh Barlota,
Age : 46 Years, Occu. : ____,
R/o Saklecha nagar, Near
Bhokardan naka, Jalna,
Tq. and Dist. Jalna.
3. Sau. Pravita W/o Sanjay Jain,
Age : 48 Years, Occu. : Agril. & Business,
R/o Near Chatrapati Shivaji
Maharaj Statue, Jalna,
2 ao 40.24 with cra
Tq. and Dist. Jalna.
4. Sunilkumar S/o Laxman Khurde,
Age : 55 Years, Occu. : Business,
R/o Room No. 84, M.I.G.
Infront of Dhoot Hospital, CIDCO,
Chhatrapati Sambhajinagar.
5. Vikas S/o Rambhau Mule,
Age : 50 years, Occu. : Business,
R/o Plot No. 93, G-n 220/229,
Shirpad Colony, Jatwada Road,
Chhatrapati Sambhajinagar.
6. Pradeep Patil @ Balasaheb Chadidaar,
Age : 45 Years, Occu. : Business,
R/o Bhivgaon, Tq. Devulgaonraja,
Dist. Buldhana.
7. Wahiruddin Syed S/o Kamiruddin Syed,
Age : 70 Years, Occu. : Business,
R/o Old MIDC, Durga Mata Temple Road,
Jalna, Tq. and Dist. Jalna.
8. Sachin S/o Pralhad Londhe,
Age : 40 Years, Occu. : Business,
R/o MIDC Road, Jalna-Aurangabad
Road, Jalna, Tq. & Dist. Jalna. .. Respondents
Shri Balbhim R. Kedar, Advocate for the Appellants.
Shri Chaitanya V. Dharurkar, Advocate for the Respondent No.
1.
WITH
CIVIL REVISION APPLICATION STAMP NO. 29362 OF 2024
1. Shivaji S/o Kundalik Chunchekar,
Age : 65 Years, Occu. : Business & Agril.
3 ao 40.24 with cra
2. Sau. Rukhmini (Rakhamani) W/o
Shivaji Chunchekar,
Age : 60 Years, Occu. : Business,
3. Shailesh Shivaji Chunchekar,
Age : 21 Years, Occu. : Education
and business,
All Appellants R/o D-714 Shishaki CHS
Building No. 15, Aakruti Road, near
MTNL telephone exchange, Mahada
Colony, Lokhandwala,
Mumbai - 400 101. .. Petitioners
Versus
1. Manoj S/o Madanlal Mutha,
Age : 52 Years, Occu. : Business
and Agriculture,
R/o Gopalpura, Modhikhana Jalna,
Tq. and Dist. Jalna.
2. Sau. Purnima W/o Dinesh Barlota,
Age : 46 Years, Occu. : ____,
R/o Saklecha nagar, Near
Bhokardan naka, Jalna,
Tq. and Dist. Jalna.
3. Sau. Pravita W/o Sanjay Jain,
Age : 48 Years, Occu. : Agril. & Business,
R/o Near Chatrapati Shivaji
Maharaj Statue, Jalna,
Tq. and Dist. Jalna.
4. Sunilkumar S/o Laxman Khurde,
Age : 55 Years, Occu. : Business,
R/o Room No. 84, M.I.G.
Infront of Dhoot Hospital, CIDCO,
Chhatrapati Sambhajinagar.
4 ao 40.24 with cra
5. Vikas S/o Rambhau Mule,
Age : 50 years, Occu. : Business,
R/o Plot No. 93, G-n 220/229,
Shirpad Colony, Jatwada Road,
Chhatrapati Sambhajinagar.
6. Pradeep Patil @ Balasaheb Chadidaar,
Age : 45 Years, Occu. : Business,
R/o Bhivgaon, Tq. Devulgaonraja,
Dist. Buldhana.
7. Wahiruddin Syed S/o Kamiruddin Syed,
Age : 70 Years, Occu. : Business,
R/o Old MIDC, Durga Mata Temple Road,
Jalna, Tq. and Dist. Jalna.
8. Sachin S/o Pralhad Londhe,
Age : 40 Years, Occu. : Business,
R/o MIDC Road, Jalna-Aurangabad
Road, Jalna, Tq. & Dist. Jalna. .. Respondents
Shri Balbhim R. Kedar, Advocate for the Petitioners.
Shri Chaitanya V. Dharurkar, Advocate for the Respondent No.
1.
CORAM : SHAILESH P. BRAHME, J.
CLOSED FOR JUDGMENT ON : 18.07.2025
JUDGMENT PRONOUNCED ON : 23.07.2025
JUDGMENT :
-
. Heard Mr. Balbhim R. Kedar, learned counsel for the
appellants in appeal from order and revision petitioners in civil
revision application and Mr. Chaityanya Dharurkar, learned
counsel for the respondent No. 1 in both matters, who is the
5 ao 40.24 with cra
contesting party. None appears for other respondents.
2. Parties, facts and circumstances are common, hence I
propose to decide appeal from order and civil revision application
by this common judgment and order. Both the learned counsel
appearing for the contesting parties consented for the final
disposal of the matters.
3. Appellants/petitioners in both matters are original
defendant Nos. 1, 7 and 8. The respondent No. 1 in both the
matters is original plaintiff No. 1. Appellant/petitioner No. 1 is
the husband of the appellant/petitioner No. 2 and father of the
appellant/petitioner No. 3. Other respondents did not contest the
matter in the Trial Court and they have not caused appearance.
Parties are referred by their original status in Spl. C. S. No. 338
of 2024.
4. Respondent Nos. 1 to 3/original plaintiffs have filed Spl. C.
S. No. 338 of 2024 for specific performance of contract,
declaration and injunction. Application Exhibit 05 was filed for
two fold reliefs of injunction namely not to disturb the possession
of the plaintiffs and not to create third party interest. Their
application Exhibit 05 was partly allowed vide order dated
05.09.2024, granting injunction not to create third party interest
in the suit land, hence defendant Nos. 1, 7 and 8 have preferred
appeal from order.
6 ao 40.24 with cra
5. Revision petitioners/defendant Nos. 1, 7 and 8 filed
application Exhibit 23 under Order VII Rule 11 of the Code of
Civil Procedure (for the sake of brevity and convenience
hereinafter referred as to the "C. P. C."), which was rejected on
04.06.2024, hence they have preferred civil revision application.
6. Defendant No. 1 - Shivaji is the owner of land gut No. 548
admeasuring 2H 85R situated at Waghul Jahangir, which is the
subject matter. He along with his wife and son are resident of
Mumbai. The plaintiffs who are joint purchasers are claiming to
be transferee under agreement to sale. As per contentions of
both parties, the defendant No. 2 - Sunilkumar, who acted as
agent is imposter and fraudster.
7. It's a case of the plaintiffs that the brokers proposed them
to purchase suit land belonging to the defendant No. 1 - Shivaji.
Plaintiff No. 1/Manoj was introduced with the defendant No. 2 -
Sunilkumar as owner of the land, personating defendant No. 1 -
Shivaji. A unregistered agreement was executed on 04.07.2023
between the plaintiffs and the defendant No. 1. Plaintiffs agreed
to purchase the land for consideration of Rs. 21,51,000/- per acre.
Accordingly, two cheques of Rs. 5,00,000/- each were handed over
and Rs. 20,00,000/- were parted in cash by the plaintiffs.
8. On 28.09.2023 on the demand of the defendant No. 2 -
Sunil further amount of Rs. 67,00,000/- was parted by the
plaintiffs. In all according to the plaintiffs Rs. 97,00,000/- was
7 ao 40.24 with cra
paid to the defendant No. 2 - Sunil. An agreement to sale was
registered on 28.09.2023 disclosing the transaction of Rs.
71,00,000/-. A separate receipt of payments was also executed.
The defendant No. 2 impersonated the plaintiffs to be defendant
No. 1 - Shivaji. During the registration when finger prints did
not match an excuse was given for updating of the Aadhar card.
Lateron, it was disclosed to plaintiff No. 1 that the person with
whom the agreement was executed was not real defendant No. 1
- Shivaji, but imposter defendant No. 2 - Sunil.
9. A ransom was demanded for not registering the offence. On
inquiry, plaintiffs realized that they were being defrauded by the
defendant No. 2 - Sunil. A police complaint was filed on
20.12.2023 against the defendants. By intervention of the of the
Court offence bearing CR. No. 1055/2023 was registered.
10. It was transpired that defendant No. 1 - Shivaji executed
Memorandum of Understanding (for the sake of brevity and
convenience hereinafter referred as to the 'M.O.U.') on
06.07.2023 with the defendant No. 2 for purchasing the suit land
for Rs. 3.15 crores with an understanding to execute sale deed
within two months. It was further transpired that cheque of Rs.
5,00,000/- bearing No. 269159 was given by the defendant No. 2
to the defendant No. 1. It was encashed by the defendant No. 1.
11. It is further pleaded in the plaint that on 31.10.2023,
defendant No. 1 executed registered gift deed in favour of the
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defendant Nos. 7 and 8, who are wife and son respectively. It is
contended that defendants acted in collusion and made them to
part huge amount. They claimed to be in possession in pursuance
of registered agreement. Defendants are alleged to have dogged
the execution of the sale deed, hence suit is filed for specific
performance of contract, declaration that gift deed is null and
void and injunction.
12. Defendants have a case that the defendant No. 2 - Sunil
got executed agreement to sale of the suit land on 04.07.2023 for
Rs. 1,50,03,225/-. Defendant No. 2 obtained the two cheques of
Rs. 5,00,000/- from the plaintiffs and cash of Rs. 20,00,000/-. He
impersonated as defendant No. 1 - Shivaji. Defendants -
original owners were not aware of transaction of 04.07.2023.
Thereafter defendant No. 2 approached defendant No. 1 and
MOU was executed on 06.07.2023. That time they agreed to sale
the suit land for Rs. 3.15 crores and a cheque of Rs. 5,00,000/-
bearing No. 269159 issued by plaintiff No. 1 - Manoj Mutha was
given to defendant No. 1 - Shivaji representing that Manoj is his
partner for purchasing the land. The sale deed was agreed to be
executed within two months only. The forged Aadhar and PAN
cards of the defendant No. 1 - Shivaji were prepared. Defendant
No. 2 impersonated the plaintiffs as defendant No. 1 - Shivaji
and agreement to sale was executed on 28.09.2023 and it was
registered. The defendant No. 1 forfeited the amount of Rs.
5,00,000/- given by the defendant No. 2 by cheque as the sale
deed was not executed within two months. As the earlier
9 ao 40.24 with cra
contract was rescinded, the defendant No. 1 executed gift deed in
favour of his wife and son.
13. It further transpired by the defendants that by bogus and
forged Aadhar and PAN cards, defendant No. 2 - Sunil opened a
saving account with Deogiri Nagari Sahkari Bank, Aurangabad
in the name of the defendant No. 1 - Shivaji. The cheques issued
in the name of the defendant No. 1 - Shivaji were credited in the
said account and got encashed by the defendant No. 2. Defendant
Nos. 1, 7 and 8 have denied agreement dated 04.07.2023,
registered agreement dated 28.09.2023 and payment receipt
dated 28.09.2023. Those were prepared by impersonation. They
have denied to have received Rs. 97,00,000/-. It is contended that
defendant No. 2 - Sunil is acting in collusion with the plaintiffs.
A false offence bearing CR No. 1025/2023 was being registered by
suppressing material facts. No agreement was ever executed by
them to sale the suit land to the plaintiffs. It is further
contended that whatever amount received by the defendant No. 1
in pursuance of M.O.U. was due to the representation of the
defendant No. 2 - Sunil.
14. When defendant No. 1 - Shivaji learnt about registered
agreement to sale dated 28.09.2023, he approached the police
and filed written complaint on 26.10.2023. The cognizance was
not taken, hence he was required to approach the criminal court.
By intervention of the Court FIR was registered bearing CR. No.
01/2025.
10 ao 40.24 with cra
15. On the above backdrop litigating parties advanced the
submissions. Two offences are registered due to their cross
complaints. Common accused/defendant No. 2 - Sunil Khurde is
absconding. Charge sheet is filed in CR No. 1055/2023.
16. Though there is rival claim for possession over the suit
land, it is categorically found by the Trial Court while
considering application Exhibit 05 that possession of the suit
land is with the defendant No. 1 - Shivaji. Application Exhibit
05 was partly allowed. The relief of injunction not to obstruct
possession is refused holding that plaintiffs are not in possession.
Against denial of the relief, no revision is filed by the plaintiffs.
Submissions and reasoning in Appeal from Order :
17. Learned counsel Mr. Balbhim Kedar for the defendant Nos.
1, 7 and 8 submitted that there was no privity of contract
between his clients and the plaintiffs. So called agreement dated
04.07.2023, registered agreement dated 28.09.2023 and payment
receipt were not executed by the defendant No. 1 - Shivaji, but
those were got executed by impersonation due to overt act of the
defendant No. 2 - Sunil, hence the claim of specific performance
is misconceived. It is contended that there was no cause of action
for the plaintiffs against his clients. More specifically when as
per M.O.U. sale transaction was to be executed within two
months only i. e. upto 06.09.2023. There was no reason for his
11 ao 40.24 with cra
clients to execute agreement on 28.09.2023, when no compliance
was made as per M.O.U. dated 06.07.2023. It is submitted that
plaintiffs and defendant No. 2 - Sunil acted in collusion and
deceived his clients. Behind his back agreements were executed
by impersonation showing inconsistent and different amounts of
transaction. It is submitted that amount of Rs. 5,00,000/-
received through cheque on 06.07.2023 was under the pretext
that the drawer of the cheque i. e. plaintiff No. 1 - Manoj Mutha
was the partner of defendant No. 2. The said amount was not
towards the earnest amount from the plaintiffs.
18. Learned counsel vehemently contended that the defendant
No. 2 - Sunil fraudulently opened account with Deogiri Nagari
Sahkari Bank Ltd. Aurangabad by misusing photographs on the
basis of forged Aadhar and PAN cards. He got credited cheques
and withdrawn the amount personating that he is defendant No.
1 - Shivaji. It is submitted that no sooner than mischief is
disclosed, complaint was made on 26.10.2023 and thereafter FIR
was lodged. Plaintiffs and the defendant No. 2 are fraudsters
and wanted to grab the suit land of the defendant No. 1. It is
submitted that learned Judge committed perversity in clamping
the injunction when defendant Nos. 1, 7 and 8 are in dire need of
money for the medical treatment of the son. The hardship and
irreparable loss for not providing treatment to the son is totally
lost sight of. It is further submitted that gift deed was required
to be executed to protect the suit land.
12 ao 40.24 with cra
19. Per contra, learned counsel Mr. Chaitanya Dharurkar
submitted that the fact that the defendant No. 1 accepted the
cheque of Rs. 5,00,000/- which was issued by the plaintiff No. 1 -
Manoj Mutha and encashed it in his account of a bank at
Bombay shows that he was also involved with other defendants.
It is vehemently contended that plaintiffs parted with huge sum.
Besides that two offences are registered against the parties. The
registered agreement dated 28.09.2023 on which the claim for
specific performance is founded showed the privity of contract. It
is further contended that defendant No. 1 - Shivaji and
defendant No. 2 - Sunil are acting in collusion. Other cheques
issued by the plaintiffs were encashed by defendants. The
execution of the gift deed creates doubt on the conduct of the
defendants. It is vehemently submitted that the defendant Nos.
1 to 7 have filed separate R.C.S. No. 174 of 2024 after rejection of
application Exhibit 05 for declaration and injunction with
application Exhibit 05. It is submitted that huge stakes are
involved and the plaintiffs have suffered great hardship, hence to
avoid the complications trial Court is justified in granting
injunction.
20. I have considered rival submissions of the parties. I am
guided by the principles laid down by the Supreme Court in the
matter of Wander Ltd. and another Vs. Antox India Pvt. Ltd. reported in
1990 (Suppli) (1) SCC 727. The jurisdiction under Order XLIII of the
C. P. C. is that of principle. The appreciation of evidence is not
permissible. The inference is imperative in the case of
13 ao 40.24 with cra
perversity, patent illegality or lack of jurisdiction. Both the
learned counsel forceably made rival submissions. Those are
disputed questions of facts.
21. There are cross complaints and the investigation is
completed in one of the offences. The criminal liability would be
adjudicated before the competent forum. In the present civil
proceedings, it would be very difficult to castigate either of the
parties as fraudsters at this stage. Two civil suits are pending to
resolve disputed questions of facts. What transpires from record
is that defendant No. 2 - Sunil Khurde is the fraudster, who is
absconding and he has played predominant role in the deception.
22. Agreement dated 04.07.2023 was executed showing
consideration of Rs. 1,50,03,225/- in between plaintiff No. 1
Manoj and defendant No. 1 - Shivaji. Defendant No. 1 is
disputing the execution of the agreement and payment of earnest
amount. M.O.U. was executed on 06.07.2023 between defendant
No. 1 and defendant No. 2 showing consideration of Rs. 3.15
crores, at that time a cheque of Rs. 5,00,000/- bearing No. 269159
was handed over to the defendant No. 1 - Shivaji, which was
encashed. Defendant No. 1 claims to have repudiated the said
contract.
23. The registered agreement dated 28.09.2023 shows the
consideration of Rs. 71 Lakhs. On the same day payment receipt
was also executed by the defendant No. 1 - Shivaji to plaintiff
14 ao 40.24 with cra
No. 1 - Manoj Mutha disclosing acknowledgment of payment of
Rs. 97 Lakhs. Both these documents are vehemently disputed by
the defendant Nos. 1, 7 and 8. Both the parties are attributing
collusion and fraud against each others
24. In such a peculiar circumstances, Trial Court refused to
grant injunction of not to obstruct the plaintiffs, but granted
injunction of not to create third party interest. Trial Court is
mainly influenced by the receipt of Rs. 5,00,000/- issued by the
defendant No. 1, which he could not account for satisfactorily.
The execution of gift deed by the defendant No. 1 has been
treated to be the intention to create third party interest.
25. It is very difficult at this juncture to arrive at a conclusion
as to whether there was privity of contract between defendant
No. 1 - Shivaji and plaintiffs. Agreement dated 04.07.2023 as
well as registered agreement dated 28.09.2023 apparently show
the signature of the defendant No. 1. The possession receipt also
shows signatures. The photographs are appearing on the
documents. The theory of impersonation put forth by the learned
counsel Mr. Kedar cannot be accepted as a gospel truth, when
criminal proceedings are underway. These are hotly disputed
facts in issue, which are required to be gone into during full
fledged trial of both the suits.
26. Further submission of Mr. Kedar that by impersonation
and on the basis of forged document account of the defendant No.
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1 - Shivaji was opened in Deogiri Bank also needs in depth
scrutiny. Objective scrutiny is required to be undertaken to come
to the conclusion as to whether defendant No. 1 and defendant
No. 2 acted in collusion or plaintiffs with defendant No. 2 acted
in collusion or all the defendants acted in collusion.
27. I find that observations of the Trial Court for holding that
prima facie case is made out, cannot be faulted. When in respect
of suit land two offences and two civil proceedings are subjudice,
it is necessary to restrain the parties from creating third party
interest so as to avoid further complications and multiplicity of
litigation. The view taken by the learned Judge is plausible and
cannot be termed as patently illegal, perverse or without
jurisdiction.
28. After hearing both sides, I find that prima facie case,
balance of convenience and irreparable loss tilt in favour of the
plaintiffs. The conduct of the defendant No. - 1 Shivaji is
doubtful and learned counsel Mr. Kedar is unable to satisfy this
Court on following aspects of the matter :
(i) When after executing M.O.U. on 06.07.2023 cheque of Rs.
5,00,000/- bearing No. 269159 was handed over to the
defendant No. 1 - Shivaji it was not drawn by the
defendant No. 2 - Sunil, but plaintiff No. 1 - Manoj. The
theory that defendant No. 2 - Sunil represented that Manoj
was his partner is not spelt out in the written complaint
16 ao 40.24 with cra
dated 26.10.2023 and criminal application U/Sec. 156(3) of
the Code of Criminal Procedure.
(ii) No steps appear to have been taken by the defendant No. 1
after receiving the amount of Rs. 5,00,000/-, as to know
how the drawer of the cheque claims to be the purchaser.
(iii) The defendant No. 1 needed huge amount for medical
treatment of his son, then why gift deed was executed on
31.10.2023, which did not fetch any consideration and it is
stated in the deed that no proceedings in the police station,
court or Government offices are pending. This is apparent
lie, when already defendant No. 1 had approached police on
26.10.2023 with a written complaint.
(iv) The defendant No. 1 has encashed Rs. 5,00,000/-, which he
claims to be forfeited. He is held to be in possession of the
suit land. As against that the plaintiffs have parted with
huge amount nearing Rs. 97,00,000/-. They are not in
possession of the suit land. They have suffered greater
hardship than the defendant No. 1.
(v) Considering comparable hardship, if the suit land is
permitted to be alienated, plaintiffs are likely to suffer
irreparable loss.
(vi) Defendant Nos. 1, 7 and 8 have also filed R.C.S. No. 174 of
2024 with application Exhibit 05 for the self same relief,
which is lost sight of.
17 ao 40.24 with cra
29. For the reasons stated above, I am not inclined to interfere
in the impugned order. Appeal from order sans merit and it is
dismissed.
Submissions and Reasoning in Civil Revision
Application :
30. Defendant Nos. 1, 7 and 8 filed application Exhibit 23
under Order VII Rule 11 of the C. P. C. Said application is
rejected on 04.06.2024. Learned counsel Mr. Kedar submitted
that there was no privity of contract. There was no cause of
action. Learned counsel adopted same submissions which were
canvassed in the appeal from order. Reliance is placed on the
following judgments of the Supreme Court and Coordinate Bench
of this High Court.
I T. Arvindandam Vs. T. V. Satyapal reported in (1977) 4 SCC 467.
II Judgment dated 28.08.2024 in Civil Revision
Application No. 164 of 2023 in the matter of Anil
Hiralal Patil Vs. Rajesh Vijay Patil and others.
31. As against that learned counsel Mr. Dharurkar supports
impugned order. He would advert my attention to the plaint
which discloses cause of action in para Nos. 24 and 25. He
submits that R.C.S. No. 174 of 2024 has also been filed. It is
further submitted that only defendant Nos. 1, 7 and 8 have filed
application U/O VII Rule 11 of the C. P. C. out of other eight
18 ao 40.24 with cra
defendants. A plaint cannot be rejected qua few defendants only.
He places reliance on following judgments of the Supreme Court
and High Courts.
(i) Kum. Geetha D/o Late Krishna and others Vs. Nanjundaswamy and others
reported in 2023 Livelaw (SC) 940.
(ii) Central Bank of India and another Vs. Smt. Prabha Jain and another
reported in 2025 INSC 95.
32. I have gone through the plaint. It is not understood as to
whether defendant Nos. 1, 7 and 8 have filed written statement
or not. Learned counsel Mr. Kedar was unable to make a
statement to that effect. The application Exhibit 26 contains
various pleas, which are sought to be raised by the defendants to
counter the claim in the suit. The cardinal principal of enquiry
U/O VII Rule 11 of the C. P. C. is that plaint and the documents
annexed to it are only to be gone into.
33. Petitioners have tendered a copy of say to Exhibit 05 on
record. The tenor of the submissions of learned counsel Mr.
Kedar is founded on say. Those can be said to be various pleas
likely to be raised by the defendants in the written statement.
However, plaint cannot be rejected on the basis of these
submissions.
34. I have gone through the plaint. Plaintiffs are soliciting
relief of specific performance of contract, which is founded on
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registered agreement to sale executed on 28.09.2023. The said
document shows that it was being executed by defendant No. 1 -
Shivaji in favour of plaintiffs. It is a registered instrument.
Prima facie, it establishes the privity of contract. It would be
matter of trial to decide as to whether the signatures are forged
and there was no parting of payment. At this juncture the
contents of the agreement have to be accepted.
35. I have already recorded that both the parties have filed
cross complaints alleging fraud and cheating. The criminal trial
would decide criminal liability. The submissions of Mr. Kedar
based on M.O.U. dated 06.07.2023, possession receipt and alleged
fraud and forgery in opening account in Deogiri Nagari Sahkari
Bank at Aurangabad cannot be entertained in the enquiry under
Order VII Rule 11 of the C. P. C. Those are disputed questions of
facts and needed to be examined during the course of trial. The
cause of action is stated in para No. 20 to 25. Considering overall
circumstances and the transaction between the parties referred
in the plaint, I find that cause of action is properly described.
The contention of the defendants that the cause of action is
illusory and its outcome of cleaver drafting holds no merit.
36. Mr. Kedar, learned counsel has relied on the judgment of
the Supreme Court in the matter of T. Arvindandam Vs. T. V. Satyapal
(supra) to buttress the submission that if clever drafting of the
plaint created illusion of a cause of action, it is to be nipped in
the bud and a bogus litigant should be shot down at the earliest
20 ao 40.24 with cra
stage. Principles laid down by the Supreme Court cannot be
doubted. Those cannot be made applicable to the present case.
The cause of action cannot be said to be illusory. Defendants'
plea of want of privity of contract cannot hope of cause of action.
37. Further reliance is placed on the judgment of the
Coordinate Bench of this Court in the matter of Anil Hiralal
Patil Vs. Rajesh Vijay Patil and others (supra). In that case
also for want of privity of contract, plaint was sought to be
rejected u/o VII Rule 11 of the C. P. C. That was a suit for
specific performance of contract. The defendant therein had
already filed suit for the declaration that there existed no
agreement of sale between the parties. In that context the
observations were made in para No. 6 of the judgment holding
that plaint was liable to be rejected for want of privity of
contract. The plaintiff did not appear before the High Court to
contest the revision. In present case I have already recorded that
prima facie there is privity of contract between the parties and it
would be a matter of full fledged trial in civil as well as criminal
proceedings to find out as to whether agreement was ever
executed by the defendant No. 1 - Shivaji. The said judgment
would not enure to the benefit of the appellants/petitioners.
38. There are in all eight defendants. Application Exhibit 23 is
filed by defendant Nos. 1, 7 and 8. If the application Exhibit 23
is allowed, plaint would be rejected as against defendant Nos. 1,
7 and 8, partially. Such a partial rejection of plaint is
21 ao 40.24 with cra
impermissible. For that purpose reliance is placed on the
judgment of the Apex Court in the matter of Central Bank of India and
another Vs. Smt. Prabha Jain and another (supra). Relevant extract of
para No. 10 of the judgment inter alia referred to judgment of
Mardia Chemicals Ltd. Vs. Union of India, (2004) 4 SCC 311 is as follows :
"10. We do not deem it necessary to elaborate on all other arguments
as we are inclined to accept the objection of the appellant(s) that the
relief of rejection of plaint in exercise of powers under Order 7 Rule
11(d) CPC cannot be pursued only in respect of one of the
defendant(s). In other words, the plaint has to be rejected as a whole
or not at all, in exercise of power under Order 7 Rule 11(d) CPC.
Indeed, the learned Single Judge rejected this objection raised by the
appellant(s) by relying on the decision of the Division Bench of the
same High Court. However, we find that the decision of this Court in
Sejal Glass Ltd. [Sejal Glass Ltd. v. Navilan Merchants (P) Ltd.,
(2018) 11 SCC 780 : (2018) 5 SCC (Civ) 256] is directly on the
point. In that case, an application was filed by the defendant(s)
under Order 7 Rule 11(d) CPC stating that the plaint disclosed no
cause of action. The civil court held that the plaint is to be bifurcated
as it did not disclose any cause of action against the Director's
Defendant(s) 2 to 4 therein. On that basis, the High Court had
opined that the suit can continue against Defendant 1 company
alone. The question considered by this Court was whether such a
course is open to the civil court in exercise of powers under Order 7
Rule 11(d) CPC. The Court answered the said question in the
negative by adverting to several decisions on the point which had
consistently held that the plaint can either be rejected as a whole or
not at all. The Court held that it is not permissible to reject plaint qua
any particular portion of a plaint including against some of the
defendant(s) and continue the same against the others. In no
uncertain terms the Court has held that if the plaint survives against
certain defendant(s) and/or properties, Order 7 Rule 11(d) CPC will
have no application at all, and the suit as a whole must then proceed
to trial."
39. Further reliance is placed on the judgment in the matter of
22 ao 40.24 with cra
Kum. Geetha D/o Late Krishna and others Vs. Nanjundaswamy and others . I
have gone through para No. 11 which is on the same line. The
Supreme Court inter alia relied on the judgment of Madhav Prasad
Agrawal Vs. Axis Bank Ltd. reported in (2019) 7 SCC 158. Learned
counsel Mr. Dharurkar is right in his submissions that if
application Exhibit 23 cannot be allowed.
40. For the reasons assigned above, I find no merit in the civil
revision application. The trial Court has rightly rejected the
application Exhibit 23. The civil revision application is
dismissed.
[ SHAILESH P. BRAHME J. ]
bsb/July 25
