Bombay High Court
Mr. Hardasmal Hazarimal Tharwani And ... vs Mr. Sunil Hardasmal Tharwani And Others on 27 November, 2025
Author: R.I. Chagla
Bench: R.I. Chagla
2025:BHC-AS:51646-DB
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
COMMERCIAL APPEAL FROM ORDER NO. 28 OF 2023
WITH
WRIT PETITION NO. 14485 OF 2023
1. Mr. Hardasmal Hazarimal Tharwani
(Since deceased) through his LRs.
1/1. Mr. Dhiren Anil Tharwani &
1/2. Mr. Abhishek Anil Tharwani
Age : Adult, Occ : Business,
Both R/o. Hampton Flat No. 2601 &
2602, One Hiranandani Park,
Ghodbhunder Road,
Thane (W) - 400 067.
2. Mr. Anil Hardasmal Tharwani
Age : 51 yrs, Occ. Business,
Partner of M/s. Sai Associates,
R/o. 2nd Floor, Tharwani Villa,
Royal Residency Complex,
Near Telephone Exchange,
Ulhasnagar - 421 002.
3. Mr. Mohan Hardasmal Tharwani
Age : 47 yrs, Occ. Business,
Partner of M/s. Sai Associates,
R/o. 4th Floor, Tharwani Villa,
Royal Residency Complex,
Near Telephone Exchange,
Ulhasnagar - 421 002. ... Appellants/
Petitioners
V/s.
1. Mr. Sunil Hardasmal Tharwani
Age : 49 yrs, Occ. Business,
Partner of M/s. Sai Associates,
R/o. 3rd Floor, Tharwani Villa,
Royal Residency Complex,
New Telephone Exchange,
Order dated 27th November 2025
(Page 1 of 20)
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COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
Ulhasnagar - 421 002.
2. Mrs. Anisha Sunil Tharwani
Age : 45 yrs, Occ : Business,
Partner of M/s. Sai Associates,
R/o. 3rd Floor, Tharwani Villa,
Royal Residency Complex,
New Telephone Exchange,
Ulhasnagar - 421 002.
3. M/s. Tharwani Construction Pvt. Ltd.
A Company registrered under the
Companies Act, 1956,
O/at : 310-313, Persipolis Premises CHS,
Plot No. 74, Sector-17 Vashi,
Navi Mumbai - 400 705.
Through its Directors,
(Mr. Sunil Hardasmal Tharwani &
Mrs. Anisha Sunil Tharwani)
4. Mr. Prakash D. Deshmukh
Age : 50 yrs, Occ : Business,
R/o. Parkar Complex,
S.T. Stand Road, Bhogle, Chiplun,
Dist. Ratnagiri (Maharashtra)
5. Radhe Construction
(through its Partner Mr. Haresh Vidharia)
Age : 54 yrs, Occ : Business,
O/o. Opp. Barac No. 2002,
Near Swami Shanti Prakash Ashram,
Ulhasnagar, Thane - 421 005.
6. Mrs. Ritu Vinod Karasai
Age : 27 yrs, Occ : Housewife,
R/o. Mathura Mahal,
Near Sai Baba Temple,
Ulhasnagar, Thane - 421 005.
7. Mrs. Bhavna Tarani
Age : 56 Yrs, Occ. Housewife,
R/o. C612/1224, Riddhisiddhi,
Block No. 3rd Lane, Bunglow Area,
Order dated 27th November 2025
(Page 2 of 20)
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COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
Opp. Kalani Section 24,
Ulhasnagar, Thane - 421 004. ... Respondents/
Orig. Defendants
Mr. Anil Y. Sakhare, Senior Counsel a/w. Mr. S.S. Kanetkar for Appellant in
COMAO/2/2023.
Mr. Yash Dewal for Appellant in COMAO/3/2023.
Mr. Prasad Shenoy i/b. Mr. J.M. Joshi for Appellant/Petitioner in
COMAO/28/2023 & WP/14485/2023.
Mr. Anil Y. Sakhare, Senior Counsel a/w. Mr. Valmiky H. Narvekar for
Respondent No. 1 in WP/14485/2023 & COMAO/28/2023.
Mr. Simil Purohit, Senior Counsel a/w. Mr. Shrikant M. Seegarla i/b. M/s.
RMG Law Associates for Respondent Nos. 2 and 3 in COMAO/28/2023.
Mr. Simil Purohit a/w. Mr. Sunil Gangan a/w. Mr. Manav Chetwani i/b. M/s.
RMG Law Associates for Respondent No. 3 in COMAO/2/2023 &
COMAO/3/2023.
Mr. Venkatesh Dhond, Senior Counsel a/w. Mr. Prasad Shenoy a/w. Mr. Sujit
Lahoti a/w. Ms. Tejasvi Kudtarkar a/w. Mr. Aditya Sheth i/b. M/s. Sujit
Lahoti & Associates for Respondent Nos. 1A, 1B & 3 in COMAO/2/2023 &
COMAO/3/2023.
_______________________________________
CORAM : R.I. CHAGLA AND
FARHAN P. DUBASH, JJ.
RESERVED ON : 21st NOVEMBER 2025
PRONOUNCED ON : 27th NOVEMBER 2025
ORDER (per Farhan P. Dubash J.):
1. Two Orders, both dated 5th September 2023, came to be passed
by the District Judge-2, Panvel-Raigad, in Commercial Suit No. 2 of 2021.
The first order was passed below Exhibit 11, being an application on behalf
Order dated 27th November 2025
(Page 3 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
of the original Plaintiffs/Appellants herein under Order 39 Rule 1 and 2 of
the Code of Civil Procedure, 1908 (CPC) for grant of a temporary injunction,
whilst the other, below Exhibit 13, was an Application also filed by the
original Plaintiffs/Petitioners herein under the provisions of Order 38 of the
CPC for attachment before judgment.
2. The impugned order passed below Exhibit 11 has been
challenged by the original Plaintiffs/Appellants in Commercial Appeal from
Order No. 28 of 2023 whilst the Impugned Order passed below Exhibit 13
has been challenged by the original Plaintiffs/Petitioners in Writ Petition (L)
No. 14485 of 2023. Since there is commonality of parties and of subject
matter and since both orders were passed in the same proceedings, viz. in
Commercial Suit No. 2 of 2021, the parties have agreed that both the above-
referred proceedings can be disposed of by a common order. For
convenience, the impugned order passed in the Appellants' Application under
Order 39 of the CPC for temporary injunction shall hereinafter be referred to
as the "impugned order passed below Exhibit 11", whilst the other one,
passed under Order 38 of the CPC for attachment before judgment shall
hereinafter be referred to as " impugned order passed below Exhibit 13 ".
Also, for convenience, the Appellants/Petitioners herein are referred to as the
original Plaintiffs whereas, the Respondents herein are referred to as the
original Defendants.
Order dated 27th November 2025
(Page 4 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
3. For the purposes of this order, it is not necessary to go into a
detailed factual background of the disputes between the parties and instead,
it would suffice that only a brief factual narration be given. The same is as
under:
i) Mr. Hardasmal Tharwani and his three sons - Anil, Mohan
and Sunil carried on business of a partnership known as M/s.
Sai Associates (Partnership Firm) with each of them, having a
25% share in the profits and losses therein.
ii) In addition to this partnership, the said parties also
undertook similar business of construction and development of
residential and commercial buildings through various other
partnerships, such as M/s. Sai Homes, M/s. Sai Properties and
M/s. Sai Home Makers, with a similar profit sharing ratio
therein.
iii) After the filing of the captioned Commercial Appeal from
Order and Writ Petition, Mr. Hardasmal Tharwani has passed
away and his legal representatives have since, been impleaded.
iv) Respondent No. 2 - Mrs. Anisha Tharwani ('Anisha') is the
wife of Respondent No. 1 - Sunil Hardasmal Tharwani ('Sunil').
v) M/s. Tharwani Construction Pvt. Ltd. - Respondent No. 3
Order dated 27th November 2025
(Page 5 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
herein (Tharwani Construction) is a limited company wherein,
Sunil and Anisha are stated to be its only 2 Directors and
shareholders.
vi) The dispute which led the parties to court emanated
between Mr. Hardasmal Tharwani (since deceased) and his two
sons, Petitioner No. 1 - Anil Hardasmal Tharwani ('Anil') and
Petitioner No. 2 - Mohan Hardasmal Tharwani ('Mohan') on the
one hand and Sunil (and Anisha) - on the other hand, with the
former, alleging that Sunil (and Anisha) themselves and also
through Tharwani Construction had fraudulently sold 36
premises/units of the Partnership Firm in the " Tharwani
Residency" project, without their consent which led to a discord
between them. This has resulted in acrimonious disputes which
further led to the former, dissolving the Partnership Firm and
approaching the District Judge by filing Commercial Suit No. 2
of 2021 for several consequential reliefs thereto including
interalia declarations that the said partnership is dissolved,
accounts be drawn, cancellation and setting aside of the sale
transactions in respect of the said 36 premises/units, a
declaration that they have 75% share in the said 36
premises/units fraudulently sold, and various compensatory and
Order dated 27th November 2025
(Page 6 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
other injunctive reliefs including disclosure and appointment of
a Court Receiver, etc.
4. Prior to the passing of the two impugned orders on 5 th
September 2023, several earlier orders were passed in the said Commercial
Suit, but since they have no bearing on this order, no reference is being made
to them. However, before we discuss the two impugned orders, it would be
advantageous to set out a few facts, which are not in dispute and admitted
by both parties before us during oral arguments :
i) Sunil has alone sold/alienated 36 premises/units to
Tharwani Construction and other third-parties impleaded as
Respondent Nos. 3 to 7 herein.
ii) Prior to this transfer, no consent of his father late Mr.
Hardasmal Tharwani or his brothers, Anil and Mohan was taken by
Sunil.
iii) Sunil did not give any share of profit from the said
transfer of the 36 premises/units to his father and brothers.
iv) Save and except none, there are no unsold premises in the
Tharwani Residency project of the Partnership Firm or in the other two
projects of the Partnership Firm (Tharwani Krupa Project and
Tharwani Riviera Project).
Order dated 27th November 2025
(Page 7 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
5. After filing the said Commercial Suit No. 2 of 2021, the original
Plaintiffs preferred two interim applications, the first of which was one under
Order 39 Rule 1 and 2 of the CPC - being Exhibit 11 which interalia sought
several injunctive and other reliefs. The said application was vehemently
contested by Sunil and the other original Defendants. Ultimately, by the
impugned order passed below Exhibit 11, the same came to be partly
allowed. Neither Sunil nor any of the other original Defendants have
challenged this order and therefore the same is binding upon them. In a
detailed 31 page order, the District Judge has recorded several findings
including interalia that a commercial dispute had arisen between the parties
thereto and therefore, the commercial suit was maintainable at the hands of
the original Plaintiffs. The District Judge then analyzed and arrived at a
finding that, the commercial suit was correctly instituted in the said Court
which had territorial jurisdiction to try and entertain it. Next, the District
Judge rejected the contention raised by Sunil that the Partnership Firm was
also required to be separately impleaded as a party to the suit and prima
facie held that its non-joinder, at the interim stage, would not affect the
rights of the parties.
6. On the plea of limitation raised by Sunil, by asserting that the
Tharwani Residency Project was completed way back in 2017 or thereabouts,
the District Judge held that, having regard to Section 42 of the Indian
Order dated 27th November 2025
(Page 8 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
Partnership Act, 1932, since there was no settlement of accounts of the
Partnership Firm, no finding on limitation could be recorded at the interim
stage, since it involved a mixed question of fact and law, which could not be
decided at that stage whilst considering the application for injunctive reliefs.
7. On the plea of fraud and mismanagement of funds and accounts
raised by the original Plaintiffs, the District Judge, after noting detailed
submissions of both parties, recorded a prima facie finding in their favour
that Sunil had not accounted for the amounts received by him as
consideration towards sale of the 36 premises/units, and that the original
Plaintiffs had made out a prima facie case that Sunil had committed
irregularities, as well as illegalities in transferring the monies of the
Partnership Firm to his sole benefit1. The District Judge has also held that the
transfer of amount from the account of the Partnership Firm to that of
Tharwani Construction, was without the consent of the original Plaintiffs and
prima facie amounted to siphoning of the monies by Sunil. He further held
that such conduct was in breach of the agreement relating to management of
affairs of the Partnership Firm and that Sunil was prima facie guilty of
conduct which prejudicially affected the business of the Partnership Firm2.
8. However, despite recording these express findings, the District
Judge recorded a prima facie finding that since the 36 premises/units have
1 In paragraph 44 of the Impugned Order passed below Exhibit 11
2 In paragraph 45 of the Impugned Order passed below Exhibit 11
Order dated 27th November 2025
(Page 9 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
already been transferred, albeit without the consent of original Plaintiffs, to
third-parties by registered instruments and that consideration was paid by
such third-parties, such purchases were bonafide3. Thus, the District Judge
was of the opinion that since some consideration was paid for this transfer,
the third-party purchasers ought not to be dragged into the dispute between
the partners of the Partnership Firm. The District Judge also held that the
original Plaintiffs had not been able to establish that the said third-party
purchasers were "dummy purchasers" and/or that they were hand-in-glove
with either Sunil, Anisha or Tharwani Construction and thereafter, a prima
facie finding has been recorded that the original Plaintiffs had failed to make
out a case against the said third-party purchasers from further alienating
and/or creating third-party rights in the said 36 premises/units.
9. The District Judge also recorded a prima facie finding in favour
of the original Plaintiffs that they had made out a ground for dissolution of
the Partnership Firm, which position was also conceded to by Sunil, during
the course of arguments. Accordingly, the District Judge held that full and
complete accounts of income and expenditure, including the details of sale
proceeds from the sale of premises of all the three projects of the Partnership
Firm were required to be made and accordingly, granted the relief sought in
prayer clause (c) of Exhibit 11 and directed Sunil to render/furnish such full
3 In paragraph 46 of the Impugned Order passed below Exhibit 11
Order dated 27th November 2025
(Page 10 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
and complete disclosure of accounts4.
10. The District Judge whilst considering the reliefs sought in prayer
clause (a) therein, which sought an injunction, restraining Sunil or any one
claiming through or under him, from alienating, transferring or creating
third-party rights in respect of any of the unsold premises in the three
projects of the Partnership Firm namely Tharwani Residency, Tharwani Krupa
and Tharwani Riviera and upon any other assets of the Partnership Firm till
the disposal of the suit, recorded the categoric statement of Sunil that there
were no unsold premises in any of the projects of the Partnership Firm 5. The
District Judge then noted his earlier finding that Sunil had alienated the
Partnership Firm's property to the extent of 36 premises/units without the
consent of the original Plaintiffs and thereby deprived them of a share in its
profits. The District Judge held that such amount could always be the subject
matter of settlement of accounts between the partners and as a result, the
original Plaintiffs had an efficacious remedy available, in accordance with
Section 41(h) of the Specific Relief Act, 1963 and therefore, the third-party
purchasers could not be injuncted. On this ground, the District Judge denied
the reliefs sought in prayer clause (b) therein. However, relying on his earlier
finding that Sunil had in fact mismanaged the assets of the Partnership Firm
and thereby deprived the original Plaintiffs of the fruits of profit, the District
4 In paragraph 55 of the Impugned Order passed below Exhibit 11
5 In paragraph 51 of the Impugned Order passed below Exhibit 11
Order dated 27th November 2025
(Page 11 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
Judge curiously held that the original Plaintiffs were entitled to an order of
interim injunction restraining Sunil from alienating or creating third-party
rights in any unsold premises in the three projects of the Partnership Firm till
the disposal of the suit and on that basis, granted the reliefs sought in prayer
clause (a) therein.
11. Thereafter, whilst passing the impugned order dated 5 th
September 2023 below Exhibit 13, the District Judge has recorded a finding
that the original Plaintiffs had not made out any case for an order of
attachment before judgment or to deposit the amounts in court as security or
for a bank guarantee to be furnished, as sought therein. However, in arriving
at this finding, after setting out the submissions of the parties, including the
caselaw cited by them, the District Judge held that the power to order
attachment of property should not be exercised mechanically but instead,
used sparingly6 and relying on this proposition, observed that he had already
passed the order below Exhibit 11 granting an interim injunction restraining
Sunil from alienating unsold premises in the three projects of the Partnership
Firm.
12. A further finding was also recorded that the original Plaintiffs
had not made out/satisfied the pre-conditions that were required in order to
grant the reliefs sought below Exhibit 137. The District Judge also recorded
6 In paragraph 14 of the Impugned Order passed below Exhibit 13
7 Ibid
Order dated 27th November 2025
(Page 12 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
that the said order of injunction restraining Sunil from alienating unsold
premises in the three projects of the Partnership Firm passed below Exhibit
11 would also take care of reliefs sought by the original Plaintiffs in Exhibit
13. Accordingly, the District Judge held that the original Plaintiffs had not
made out any exceptional circumstances for being granted an order of
attachment before judgment or for a direction directing Sunil to furnish
security and accordingly, rejected the reliefs sought under Exhibit 13.
13. Mr. Dhond, learned Senior Counsel appearing on behalf of
original Plaintiffs has strenuously argued that despite noting Sunil's
submission that the Partnership Firm had no unsold inventory in any of its
three projects, the District Judge, after recording a finding in favour of the
original Plaintiffs that they were entitled to protection in the form of
injunctive relief against Sunil, has proceeded to erroneously grant the relief
sought by his client and restrained Sunil from alienating and creating third-
party rights in respect of the purported unsold inventory of the three projects
when there was none. He further submits that this error is compounded
inasmuch as the District Judge then proceeded and rejected the other reliefs
sought by his clients by erroneously taking into consideration that such
injunctive relief provided adequate security to the original Plaintiffs at the
time of settlement of accounts of the Partnership Firm.
Order dated 27th November 2025
(Page 13 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
14. In fact, Mr. Dhond is at pains to point out that relying on such an
ex-facie erroneous and illusory relief granted below Exhibit 11, the District
Judge did not grant any of the other reliefs sought by his clients below
Exhibit 13 on a flawed premise that the original Plaintiffs were adequately
protected. He submits that considering that in view of there being an obvious
error made by the District Judge, which is apparent of the face of the record,
both the impugned orders dated 5th September 2023 be set aside by this
Court and the matters be remanded back to the District Judge with a
direction to hear them afresh and pass fresh orders on the application's
preferred by the original Plaintiffs below Exhibit 11 and Exhibit 13.
15. Per contra, Mr. Anil Sakhare, learned Senior Counsel who
appears on behalf of Sunil, Anisha and Tharwani Construction submits that
the District Judge has correctly exercised his discretion and granted the
limited interim reliefs below Exhibit 11, on the basis of the findings recorded
by him therein. He contends that besides the Partnership Firm, admittedly,
the brothers and their late father had several other partnerships which are
subsisting and in the circumstances, it could not be said that his client/s were
removing themselves from the jurisdiction of the Court and/or transferring
their properties to defeat any orders that may be passed against his client/s
and therefore, the District Judge has rightly passed the order below Exhibit
13 rejecting the reliefs sought therein.
Order dated 27th November 2025
(Page 14 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
16. Mr. Sakhare points out that even though there may be no unsold
inventory in any of the three projects of the Partnership Firm, its accounts are
yet to be taken and drawn up (in furtherance of dissolution) and no case had
been made out by original Plaintiffs that they would not be in a position to
realize the monies from the Partnership Firm, upon dissolution thereof and
finalization/settlement of its accounts. On this ground also, he submits that
the original Plaintiffs are not entitled to the reliefs sought below Exhibit 13.
17. Mr. Sakhare relies on various judgments in Herald Engineers Vs.
Wonderpack Industries Pvt. Ltd.8, Premraj Mundra Vs. Md. Maneck Gazi &
Ors.9, Raman Tech & Process engg. Co. & Anr. Vs. Solanki Traders. 10 and SJJ
Marine Pvt. Ltd. Vs. Pisces EXIM (INDIA) Pvt. Ltd. 11 which prescribe and lay
down the scope of an inquiry under Order 38 of the CPC and the test that is
required to be met thereunder. By relying on these decisions, he submits that
the District Judge has justifiably rejected the reliefs sought below Exhibit 13.
18. Mr. Sakhare also relies on the judgments in Navneet Kaur
Harbhajansingh Kundles Vs. State of Maharashtra & Ors. 12, Mohd. Yunus Vs.
Mohd. Mustaqim13 and Shivchandrai Vs. Govindprasad14 which prescribe the
scope and parameters of the Court exercising extra-ordinary supervisory
8 (2013) 4 Mh.L.J. 217
9 1951 SCC Online Cal 20
10 (2008) 2 SCC 302
11 (2013) 3 Mh.L.J. 684
12 (2024) 12 SCC 264
13 (1983) 4 SCC 566
14 (2003) SCC Online Bom 462
Order dated 27th November 2025
(Page 15 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
jurisdiction under Article 227 of the Constitution of India. By relying on
these decisions, Mr. Sakhare submits that no case has been made out by the
original Plaintiffs for interference by this Court and accordingly, he seeks
dismissal of the captioned proceedings.
19. Upon considering the submissions made by both parties and
going through the record with their assistance, we are unable to agree with
the submissions made by Mr. Sakhare. Instead, we are of the view that the
peculiar facts of the present case warrant interference from this Court. The
reasons for arriving at this conclusion is recorded hereunder.
20. A perusal of the impugned order passed below Exhibit 11 would
reveal that the District Judge has recorded various findings including
interalia that Sunil was prima facie guilty of misappropriation of funds since
he had disposed of the said 36 premises/units without the consent of the
other partners and that he had thereby deprived them of their share in
profits of the remuneration arising from such sale. It is in furtherance of this
finding, that the District Judge appears to have granted the injunctive relief
of protection in favour of the original Plaintiffs by injuncting Sunil from
alienating and/or disposing of the unsold inventory in the three projects of
Partnership Firm, on the basis that by doing so, the original Plaintiffs'
monetary claim towards loss caused to them (by the unilateral transfer of 36
premises/units done by Sunil) would be adequately protected and secured.
Order dated 27th November 2025
(Page 16 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
However, in the bargain, the District Judge, importantly lost sight of the fact
that there was infact no unsold inventory in any of the three projects of the
Partnership Firm. This is an admitted position, both then and even now. In
fact, in the impugned order passed below Exhibit 11, the District Judge has
also recorded an express statement to that effect made by Sunil and despite
this position, he has thereafter proceeded to grant the injunctive reliefs
against the unsold inventory15. In our considered view, this is an obvious
error and oversight on his part. We fail to understand how the District Judge
could have protected the original Plaintiffs by granting such an injunction in
respect of unsold flats when admittedly, none existed on that date.
Accordingly, this Court would be wholly entitled to exercise its appellate
jurisdiction and set aside the impugned order passed below Exhibit 11.
21. Insofar as the impugned order passed below Exhibit 13 is
concerned, we note that though the District Judge has recorded findings to
the effect that, from the record available before him, the original Plaintiffs
had failed to make out a case warranting the reliefs under Order 38 of the
CPC. However, the District Judge has rejected the said reliefs by also relying
on the fact that the original Plaintiffs were adequately protected by the
injunctive reliefs granted in the earlier order passed below Exhibit 11 under
which Sunil had been restrained from creating any third-party rights in
respect of the unsold inventory. In the circumstances, since the impugned
15 In paragraph 51 of the Impugned Order passed below Exhibit 11
Order dated 27th November 2025
(Page 17 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
order passed below Exhibit 13 is based on the said finding of injunctive
reliefs being granted in the earlier order passed below Exhibit 11, which we
have already held to be illusory and an obvious error and oversight on the
part of the District Judge, the impugned order passed below Exhibit 13 also
cannot be sustained.
22. We are conscious of the limited scope exercised by this Court
under Article 227 of the Constitution of India. In Shivchandra Rai
Jhunjhunwala (supra), it was held that the power under Article 227 should
be invoked only where it is genuinely required and such interference should
not defeat the intention of the legislation or frustrate its object. In
Satyanarayan Laxminarayana Hegde v. Mallikarajun Bhavanappa Tirumale 16,
which decision is referred to therein, it is held that courts can exercise their
discretion under Article 227 of the Constitution when the error of law is
apparent on the face of the record. Applying such ratio, we are of the opinion
that this is a fit and appropriate case for this Court to interfere in the matter.
As is evident, the reliefs sought below Exhibit 13 have been rejected on
various grounds, including one that the original Plaintiffs were adequately
protected by the injunctive relief granted in the earlier order passed below
Exhibit 11 under which Sunil had been restrained from creating any third-
party rights in respect of the unsold inventory. Since, we have already held
16 AIR 1960 SC 137
Order dated 27th November 2025
(Page 18 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
this injunctive relief to be illusory and an obvious error and oversight on the
part of the District Judge, there is clearly an error apparent on the face of the
record and which entitles interference from this Court exercising extra-
ordinary supervisory jurisdiction under Article 227 of the Constitution of
India.
23. Accordingly, the following order is passed :
:: ORDER ::
i) The Impugned Order dated 5th September 2023 passed by the
District Judge-2, Panvel-Raigad below Exhibit 11 in Commercial
Suit No. 2 of 2021 is hereby quashed and set aside.
ii) The Impugned Order dated 5th September 2023 passed by the
District Judge-2, Panvel-Raigad below Exhibit 13 in Commercial
Suit No. 2 of 2021 is also hereby quashed and set aside.
iii) Both matters are remanded back to the District Judge-2, Panvel-
Raigad who is directed to hear and decide Exhibit 11 and 13
afresh on the basis of the same pleadings and pass orders
thereon after hearing the parties, on or before 31 st January
2026.
iv) The captioned Commercial Appeal from Order No. 28 of 2023
Order dated 27th November 2025
(Page 19 of 20)
COMAO.28.2023 with WP 14485.2023[1]
Ajay Jadhav
and Writ Petition No. 14485 of 2023 are hereby disposed of in
the above terms, there shall be no order as to costs.
( FARHAN P. DUBASH, J. ) ( R.I. CHAGLA J. )
24. After the order is pronounced, learned Counsel for Respondent No. 1
seeks a stay of this order for a period of four weeks. However, considering that we
have set aside the impugned orders dated 5 th September 2025 and remanded the
matters back to the District Judge-2, Panvel-Raigad to hear and decide the
Applications under Exhibit 11 and 13 afresh before 31 st January 2026, no stay can
be granted.
( FARHAN P. DUBASH, J. ) ( R.I. CHAGLA J. )
JYOTI PRAKASH
PRAKASH PAWAR
PAWAR Date:
2025.11.27
18:52:53 +0530
Order dated 27th November 2025
(Page 20 of 20)
