Dismissed¶19

Sumedh S/O Nilkanthrao Patil and Another v. Suresh S/O Shyamraoji Umbarkar and Others

Bombay HC18 Feb 2025WP/304/2024

Case brief

AI extract

What is this about?

Writ petition dismissed; temporary injunction; Order 39, Rule 1 and 2 CPC; cancellation of sale-deed; permanent and mandatory injunction; agreement dated 27.08.2015 on Rs.100/- stamp paper; power of attorney to sell flats; loan instalments deducted; possession of flats; counter claim for specific performance; Misc. Civil Appeal No.09/2023; Special Civil Suit No.07/2022; Civil Judge Senior Division Wardha; District Judge Wardha; expedited disposal within one year; no costs.

What did the court decide?

At this juncture, it is not proper to interfere with the order passed by the learned District Judge, Wardha allowing the plaintiffs' injunction application. ¶17

Sumedh S/O Nilkanthrao Patil and Another Vs Suresh S/O Shyamraoji Umbarkar and Others — Bombay HC (2025) — LawSathi Research

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR

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WRIT PETITION NO.304/2024

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Sumedha s/o Nilkanthrao Patil and another

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Vs.

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Suresh s/o Shyamraoji Umbarkar and others

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- - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders

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Shri C.B. Dharmadhikari, Advocate for petitioners Shri V.B. Gawali, Advocate for respondent Nos.1 to 3

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CORAM : SMT. M.S. JAWALKAR, J. DATED : 18/02/2025

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Heard learned Counsel for both the parties.

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Original plaintiffs/respondent Nos.1 to 3 filed a suit for cancellation of sale-deed and for permanent and mandatory injunction. It also moved application under Order 39, Rule 1 and 2 of the Code of Civil Procedure, Exhibit-5. The learned Civil Judge Senior Division, Wardha rejected the application below Exhibit-5, for the reasons that the agreement executed between plaintiff and defendant Nos.1 and 2 dated 27.08.2015 is on Rs.100/- stamp paper.

¶13

However, it appears that no flat numbers are mentioned in the alleged agreement and it was not signed by attesting witness. Simultaneously, another document was executed i.e. power of attorney to sale all the flats in the suit property after construction. It is also observed by learned Trial Court that, on perusal of development agreement as well as of general power

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of attorney, it prima facie appears that it is executed by plaintiff No.1 only. In that case, taking of possession by plaintiff Nos.2 and 3 of respective flats is also relevant. On the contrary, defendant Nos.3 and 4 submitted loan agreement, from which, it appears that from time to time, installment amount deducted from their account. Considering the conduct of plaintiffs taking possession before completion of its work during existence of registered agreement to sell, which are duly executed, the application for injunction of respondent came to be rejected by trial Court.

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However, the appeal was carried out before the learned District Judge, Wardha bearing Misc. Civil Appeal No.09/2023, the learned District Judge allowed the application specifically on the ground that the plaintiff No.1 has not parted with the title over those three flats to the defendants. Therefore, their possession cannot be said to be illegal. The Defendant Nos.3 and 4 have already filed counter claim for relief of specific performance. Admittedly, plaintiffs are in possession of flats in dispute.

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As such, at this juncture, it would not be proper to interfere in the order passed by learned District Judge, Wardha. It is informed that suit is fixed for evidence. However, considering the facts involved in the matter, it would be appropriate to direct the learned 6^th Joint Civil Judge Senior Division, Wardha to dispose of Special Civil Suit No.07/2022 within a period of one year.

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Accordingly, Writ Petition is dismissed with above directions. No order as to costs.

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JUDGE

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R.S. Sahare

Sumedh S/O Nilkanthrao Patil and Another v. Suresh S/O Shyamraoji Umbarkar and Others

Case brief

What is this about?

What did the court decide?

Sumedh S/O Nilkanthrao Patil and Another v. Suresh S/O Shyamraoji Umbarkar and Others

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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