Bombay High Court
Shree Construction Company vs Bagwe Housing Pvt.Ltd. And 8 Ors. on 29 September, 2025
2025:BHC-OS:16705
Sumedh p1-ia-3262-2024-J+.doc
IN THE HIGH Court OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.3262 OF 2024
IN
SUIT NO.1033 OF 2016
Amey Realty & Construction LLP, ]
a Partnership Firm having its office at GB, ]
"Shiv Chhaya", Sir M.V. Road, Andheri ]
(East), Mumbai- 400 069. ] ... Applicant
(Orig. Defendant No.9)
In the matter between
Shree Construction Company, ]
a Partnership firm registered under Indian ]
Partnership Act, 1932, having its office at ]
Neelashree, 3rd Floor, Aarey Road, ]
Goregaon (East), Mumbai- 400 063. ]... Plaintiff
versus
1. Bagwe Housing Private Ltd., ]
A Company registered under the Companies ]
Act, 1956 and having its registered office at ]
D-15, MIDC Central Road, Near Seepz ]
Marol, Andheri (East), Mumbai-400 093 ]
and office at G/128, Ansa Industrial Estate, ]
Saki Vihar Road, Andheri (East), ]
Mumbai-400 072. ]
2. Rajdulari Ramdular Pande, ]
Age: Not known, Occupation Housewife ]
3. Laxminarayan Ramdular Pande, ]
Age: 61 years, Occupation Not Known ]
4. Satyanarayan Ramdular Pande, ]
Age:58 years, Occupation Not Known ]
5. Sheshnarayan Ramdular Pande, ]
Age: 54 years, Occupation Not Known ]
6. Vijaykumar Ramdular Pande, ]
Age: Not Known, Occupation Not Known ]
Digitally
signed by
SUMEDH
SUMEDH
NAMDEO
NAMDEO
SONAWANE 1/14
SONAWANE Date:
2025.09.30
11:49:11
+0530
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7. Santoshkumar Ramdular Pande, ]
Age: Not known, Occupation Not Known ]
8. Pushpavati Ramdular Pande, ]
Age: 43 years, Occupation Not known ]
Defendant Nos.2 to 8 of Mumbai Indian ]
Inhabitants residing at A/601, Gajalaxmi ]
Apartment, Parsi Panchayat Road, Old ]
Nagardas Road, Andheri (East), ]
Mumbai-400 069. ]
9. Amey Realty & Construction LLP ]
(Previously known as Amey Construction) ]
a Limited Liability Partnership having ]
its office at GB, "Shiv Chhaya", Sir M.V. ]
Road, Andheri, Mumbai-400 069. ]... Defendants
WITH
INTERIM APPLICATION NO.3487 OF 2024
IN
SUIT NO.1033 OF 2016
Shree Construction Company ]
a partnership firm registered under Indian ]
Partnership Act, 1932, having its office at ]
Neelashree, 3rd Floor, Aarey Road, Goregaon ]
(East), Mumbai-400 063. ] ...Applicant
(Original Plaintiff)
versus
1. Bagwe Housing Private Ltd., a ]
company registered under the ]
Companies Act, 1956 having its ]
registered office at D-15, MIDC Central ]
Road, Near Seepz Marol, Andheri (East), ]
Mumbai-400 093 and office at G/128, ]
Ansa Industrial Estate, Saki Vihar Road, ]
Andheri (East), Mumbai-400 072. ]
2. Rajdulari Ramdular Pande, ]
Age: Not Known, Occupation Housewife ]
3. Laxminarayan Ramdular Pande, ]
Age: 61 years, Occupation Not Known ]
2/14
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4. Satyanarayan Ramdular Pande, ]
Age:58 years, Occupation Not Known ]
5. Sheshnarayan Ramdular Pande, ]
Age: 54 years, Occupation Not Known ]
6. Vijaykumar Ramdular Pande, ]
Age: Not Known, Occupation Not Known ]
7. Santoshkumar Ramdular Pande, ]
Age: Not known, Occupation Not Known ]
8. Pushpavati Ramdular Pande, ]
Age: 43 years, Occupation Not known ]
Defendant Nos.2 to 8 of Mumbai Indian ]
Inhabitants residing at A/601, Gajalaxmi ]
Apartment, Parsi Panchayat Road, Old ]
Nagardas Road, Andheri (East), ]
Mumbai-400 069. ]
9. Amey Realty & Construction LLP ]
(Previously known as Amey Construction) ]
a Limited Liability Partnership having ]
its office at GB, "Shiv Chhaya", Sir M.V. ]
Road, Andheri, Mumbai-400 069. ]... Defendants
WITH
MISCELLANEOUS CIVIL APPLICATION NO.199 OF 2025
(APPELLATE SIDE)
Shree Construction Company ]
a partnership firm having their office at ]
Neelashree, 3rd Floor, Aarey Road, Goregaon ]
(East), Mumbai-400 063. ] ...Applicant
(Original Plaintiff)
versus
1. Bagwe Housing Private Ltd., a ]
company registered under the ]
Companies Act, 1956 having its ]
registered office at D-15, MIDC Central ]
Road, Near Seepz Marol, Andheri (East), ]
Mumbai-400 093 and office at G/128, ]
Ansa Industrial Estate, Saki Vihar Road, ]
Andheri (East), Mumbai-400 072. ]
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2. Rajdulari Ramdular Pande, ]
Age: Not Known, Occupation Not Known ]
3. Laxminarayan Ramdular Pande, ]
Age: Not Known, Occupation Not Known ]
4. Satyanarayan Ramdular Pande, ]
Age: Not Known, Occupation Not Known ]
5. Sheshnarayan Ramdular Pande, ]
Age: Not Known, Occupation Not Known ]
6. Vijaykumar Ramdular Pande, ]
Age: Not Known, Occupation Not Known ]
7. Santoshkumar Ramdular Pande, ]
Age: Not known, Occupation Not Known ]
8. Pushpavati Ramdular Pande, ]
Age: Not known, Occupation Not Known ]
all of Mumbai Indian Inhabitants ]
residing at A/601, Gajlaxmi Apartment, ]
Parshi Panchayat Road, Old Nagardas Road, ]
Andheri (East), Mumbai-400 069. ]
9. Amey Realty and Construction LLP ]
registered under the Limited Liability ]
Partnership Act 2008 having their ]
registered office at GB Shiv Chhaya, ]
Sir M.V. Road, Andheri East, Mumbai, ]
Mumbai City, Maharashtra -400 069. ]... Respondents
Mr. Shanay Shah, a/w Ms. Shruti Maniar and Adv. Jyotika
Raichandani, i/by M/s. Solomon & Co. for the
Plaintiff/Applicant in IA/3262/2024, MCA/199/2025.
Mr. Sandeep Mahadik for the Defendant No.1.
Mr. Sharan Jagtiani, Senior Advocate, a/w Adv. Muttahar Khan, a/w
Ms. Jinal Mehta, i/by Mehta & Co. for the Defendant Nos.2 to 9
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CORAM : KAMAL KHATA, J.
RESERVED ON : 10th September 2025.
PRONOUNCED ON : 29th September 2025.
JUDGMENT:
1) By this Interim Application, the Defendant No. 9 seeks
rejection of the Plaint under Order VII Rule 11 (d) of the Code of Civil
Procedure,1908 (CPC).
2) Mr. Sharan Jagtiani, learned Senior Counsel for the
Defendant No. 9 submits that the present Suit mainly seeks a
declaration to cancelling/ nullifying two Deeds of Surrender both
dated 13th February 2006 executed between Defendant No. 1 and
Defendant Nos. 2 to 8.
3) The Plaintiff's case is that by an agreement dated
15th July 1994, Defendant Nos. 2 to 8 had granted development
rights in respect of the Suit property bearing old CTS Nos. 182 and
182/1 to 5, admeasuring 4972 square meters., now bearing CTS Nos.
182/A, 182/B, 182/C, 182/D, 182/E admeasuring 5057.70 square
meters, situate at Village Mogra, Taluka- Andheri, Mumbai Suburban
District, Old Nagardas Road, Andheri (East), Mumbai - 400069.
4) Pursuant to the agreement, Defendant Nos. 2 to 8
executed Power of Attorney dated 26 th October 1994 and 26th April
2002 in favour of Defendant No. 1 to enable it to act in respect of the
Sumedh p1-ia-3262-2024-J+.doc
said property. Thereafter, Defendant No.1 awarded a construction
contract to the Plaintiff by an agreement dated 13 th January 1999 for
construction of buildings on Segment I (CTS No. 182/A) and Segment
III, (CTS No. 182/C to E). Further, by an agreement dated
26th February 1999, the Plaintiff was appointed the sole selling agent
of Defendant No. 1 for sale of flats in the buildings to be constructed
on Segment I and III.
5) The Plaintiff is aggrieved by the Deeds of Surrender
dated 13th February 2006 under which the Defendant No. 1
surrendered /relinquished its rights under the agreement dated
15th July 1994 to Defendant Nos. 2 to 8 and revoked the above
Powers of Attorney dated 26th October 1994 and 26th April 2002 in
respect of Segment III admeasuring 1693.09 square meters. The
Plaintiff also challenges the Deed of Conveyance dated 26 th December
2006 executed between Defendant Nos. 2 to 8 and Defendant No. 9,
whereby CTS Nos. 182/C to E were conveyed to Defendant No. 9.
6) Mr. Jagtiani points to paragraph nos. 27 and 45 of the
plaint to show that the Plaintiff admittedly had knowledge of the
Deeds of Surrender, evinced by its Advocates' letter dated
21st December 2009. Accordingly, any Suit ought to have been filed by
21st December 2012. The present suit, filed only on 20 th August 2016
is 6 years and 8 months later, and hence ex-facie barred by
Sumedh p1-ia-3262-2024-J+.doc
limitation. He submits paragraph no.57 discloses no explanation and
the said suit is vexatious, filed only to stall development and extract
a nuisance - value settlement.
7) Mr. Shah, learned Counsel for the Plaintiff, contends that
under the agreement dated 15th July 1994 between the Defendant
Nos. 2 to 8 (owners) and Defendant No. 1 (developer), the Plaintiff as
Power of Attorney holder took several steps. In Segment I, it
demolished structures and successfully completed construction
"Gajalakshmi" building on CTS 182/A where four flats were allotted
to Defendant Nos. 2 to 8. This, he submits, shows performance and
benefit received by Defendant Nos. 2 to 8 as owners under the
contract.
8) As regards Segment II (CTS 182/B), construction was
completed and handed to Brihanmumbai Municipal Corporation
(BMC). For Segment III, defaults of Defendant Nos 2 to 8 prevented
construction. The Deeds of Surrender themselves, he argues,
acknowledge Plaintiff's rights by requiring cancellation of Plaintiff's
Powers of Attorney. No such consent was given; hence, the Deeds of
Surrender are invalid not binding on the Plaintiff. He also relies upon
ownership agreements dated 26th December 2006, allotting flat
Nos. C501, A601 and C601 in Gajalakshmi to Defendant Nos. 3, 4 and
5 in lieu of the consideration mentioned in the agreement dated
Sumedh p1-ia-3262-2024-J+.doc
15th July 1994, which have been registered with the Sub Registrar of
Assurances and Clause 22 of the agreement dated 15 th July 1994,
under which the Defendant No. 1 was entitled to TDR, in segment III
and in lieu of TDR, Defendant No. 1 allotted flat No. B/101 to
Defendant Nos. 2 to 8 in Wing B of Gajalakshmi under the agreement
dated 8th April 2008. Recitals No. 4 and 5 of the agreement dated 8 th
April 2008 confirm the subsistence of 1994 agreement and
Defendant No.1's authority to develop. Referring to these recitals in
the agreement as well as the Deeds of Surrender, Mr Shah submits
that at all times Defendant Nos. 2 to 8 were aware of the rights of the
Plaintiffs in the Suit properly and expressly consented to the same.
9) Mr. Shah further submits that Defendant No. 4 and his
daughter-in-law are partners of Defendant No. 9, hence aware of
Plaintiff's rights. He invokes Section 19 of the Specific Relief Act to
argue that contracts bind not only parties but also persons claiming
under them. Thus, the Plaintiff can seek performance not only
against Defendant No.1 but also Defendant Nos 2 to 9 there being
privity of contract and being aware of the Plaintiff's rights in the Suit
property. On limitation, he relies on Clause 12 of the agreement dated
13th January 1999 making Defendant No. 1 responsible to obtain the
Commencement Certificate for Segment III. Since this was never
obtained, he argues that limitation has not commenced as averred in
Sumedh p1-ia-3262-2024-J+.doc
paragraph no.57 of the plaint.
10) Relying on Article 54 of the Limitation Act, 1963, and
judgments in the case of Shakti Bhog Food Industries Limited Vs. The
Central Bank of India,1 Chhotanben Vs. Kiritbhai Jalkrushnabhai
Thakkar,2 Arjan Singh Vs. Union of India.3, he contends that
limitation is a mixed question of law and fact and the same cannot be
decided summarily. He further contends that the period of limitation
in case of specific performance begins from the date fixed for
performance or when the Plaintiff the performance is refused. In the
present case, the date when the Defendant No. 1 would obtain the
Commencement Certificate from the MCGM would be the date for
performance.
11) In view of the aforesaid, he submits that the Suit ought
not to be decided in a summary manner under Order VII Rule 11 and
a detailed consideration of facts and merits is required for which
evidence ought to be led by the parties and accordingly seeks
dismissal of the Interim Application.
Reasoning:
12) I have considered the rival submissions and the record.
13) It is settled law that the Court must consider only
(2020) 17 SCC 260.
2018 6 SCC page 422
1986 SCC OnLine Del 110
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averments in the plaint and the documents annexed thereto while
deciding an application under Order VII Rule 11. Having examined
the averments in the plaint and the Deeds of Surrender exhibited
with it, I find that the Plaintiff has not established any privity of
contract with Defendant Nos. 2 to 8 or with Defendant No. 9.
14) In my view, the Plaintiff's cause of action lies, if at all,
only against the Defendant No. 1, with whom contract was executed.
Mr. Shah has not cited any judgment supporting the contention that
mere "awareness" constitutes privity of contract. Admittedly,
no agreement exists between the Plaintiff and Defendant Nos. 2 to 8.
Mere "awareness" cannot create privity.4 Since no agreement
recognized in law exists between the Plaintiff and Defendant Nos. 2 to
8, much less Defendant No. 9, no enforceable right arises against
them. The admission of Plaintiff as to 'awareness', certainly does not
constitute privity of contract, but it does something else. It starts the
clock ticking against him.
15) I find merit in Mr. Jagtiani's submission. Referring to
paragraph no.27 of the plaint, he highlights that the Plaintiff was
aware of Deeds of Surrender at least by 21 st December 2009. Any
challenge ought to have been filed within the stipulated period of 3
years, i.e., on or before 21st December 2012, in terms of Article 58 of
the Limitation Act, 1963. Having failed to do so, and having filed a
KPM Builders Pvt. Ltd. Vs. NHAI & Anr. (2015) 15 SCC 394.
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Suit nearly six years later, the claim is clearly barred against the
Defendant No. 9. Where the Court derives a conclusion on examining
the plaint that the Suit is barred no evidence is required.
16) Reliance is placed on Dahiben Vs. Arvindbhai Kalyanji
Bhanusali (Gajra),5 wherein in the Supreme Court reiterated that
Order VII Rule 11 provides an independent and special remedy
empowering Courts to summarily dismiss a Suit at the threshold if
barred by limitation or disclosing no cause of action. The Court
stressed that unnecessary protraction of sham litigation must be
avoided. The provisions are mandatory, and where any ground under
clauses (a) to (e) is made out, rejection of the plaint is inevitable.
17) In ITC Limited Vs. Debts Recovery Appellate Tribunal 6,
the Supreme Court held that clever drafting creating an illusion of a
cause of action cannot be permitted and only if a clear right is made
out in the plaint, it deserves to be allowed.
18) In Madanuri Shri Rama Chandra Murthy Vs. Syed Jalal 7
the Supreme Court held that bogus litigations should be "nipped in
the bud" and Courts must remain vigilant against camouflage or
suppression and determine whether the litigation is vexatious or an
abuse of the process of the Court.
(2020) 7 SCC 366.
(1998) 2 SCC 70.
2017 SCC OnLine SC 459
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19) In Khatri Hotels (P) Ltd. Vs. Union of India 8 the Apex
Court clarified that where multiple causes of action are alleged,
limitation begins from the first accrual of the right to sue; successive
violations do not generate fresh causes.
20) In my view, these principles squarely apply to the facts of
the present case. In my view, paragraph 27 of the Plaint clearly
establishes that the Plaintiff was aware about the Deeds of Surrender.
If not in 2006, then certainly by 21 st December 2009, as stated in its
Advocates letter. Therefore, the cause of action, if any, arose then,
and the Plaintiff ought to have sued on or before 21 st December 2012.
21) In these circumstances, the filing of the Plaint on
20th August 2016 is clearly beyond limitation. I find no merit in the
contention that the Defendant No. 1's obligation to obtain
Commencement certificate for Segment III deferred the limitation
period. The Plaintiff's contract was solely with Defendant No. 1; there
is no evidence to show a contract with Defendant Nos. 2 to 9. Hence,
mere awareness or receiving incidental benefits arising from
Defendant No. 1's actions cannot confer upon the Plaintiff any
enforceable right against Defendant Nos. 2 to 9.
22) In my view, execution of a Power of Attorney in favour of
the Plaintiff by Defendant No.1 does not confer any right to sue
2011 SCC OnLine SC 1236
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Defendant Nos. 2 to 9. The Plaintiff lacks cause of action against them
because:
A. No privity of contract exists between the Plaintiff and
Defendant Nos. 2 to 9.
B. The Joint development agreement dated 15 th July 1994 is
between 2 to 8 and Defendant No. 1; Plaintiff is not a party.
C. The Powers of Attorney by Defendant Nos 2 to 8 in favour of
Defendant No. 1 do not refer to the Plaintiff. The agreements
dated 13th January 1999 and 26th February 1999 are only
between the Defendant No. 1 and the Plaintiff.
E. The Plaintiff is not a party to the Deed of Surrender dated
13th February 2006.
F. The Defendant Nos. 2 to 9 cannot be treated as "claiming
under" Defendant No.1; if anything, rights flowed from
Defendant Nos. 2 to 8 to Defendant No. 1, and not vice versa.
23) Reliance by Mr. Jagtiani on Patil Automation Private
Limited & Ors. Vs. Rakheja Engineers Private Limited 9 to submit
that the Court can, even suo motu, reject a plaint where Order VII
Rule 11 grounds are made out, is also well-taken.
24) Considering the above, the Suit is ex-facie barred by
limitation and discloses no cause of action against Defendant
(2022) 10 SCC 1.
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Nos. 2 to 9.
25) Accordingly, the Suit stands dismissed against
Defendants Nos.2 to 9.
(KAMAL KHATA, J.)
26) At this stage, learned Advocate for Plaintiff request for
stay. In view of the aforestated reasons, the request for stay is
rejected.
MISCELLANEOUS CIVIL APPLICATION NO.199 OF 2025:
27) In view of the dismissal of the Suit against the Defendant
Nos.2 to 9, the Miscellaneous Civil Application No.199 of 2025
seeking the transfer of Suit No.0100957 of 2024 (High Court Suit
No.309 of 2014) from the the City Civil Court, Mumbai stands
dismissed as infructuous.
(KAMAL KHATA, J.)
