Paramjyoti Builder & Developer LLP vs M/s Devi Infrastructure & Anr.

Heard finally with consent of learned counsel for the respective parties. Mr. Bhutada, a/w. Mr. Agrawal, learned counsel for the applicant, Mr. Lokhande, respondent No.1 (Party-in-person).

This is an application filed by the present a pplicants under Section 115 of the Code of Civil Procedure, 1908 (for short “CPC”), challenging the order dated 07.04.2025 passed below Exh.20 by the learned 3^rd Joint Civil Judge Junior Division, Nagpur, in Regular Civil Suit No.652 of 2024, thereby, the application came to be allowed. Vide the said order, learned Trial Court directed the plaintiff/non-applicant No.1 to carry out proper valuation of the suit based on valuation of the suit property and to pay appropriate Court fees as per the provisions of Section 6(iv)(ha) of the Maharashtra Court Fees Act, 1959 (for short “the Act”), based on valuation of the suit property within the period of 15 days from the date of the said order.

Being aggrieved by the impugned order dated 07.04.2025 passed by the learned 3^rd Joint Civil Judge Junior Division, Nagpur, in Regular Civil Suit No.652 of 2024, the applicant approached this Court, by filing the present civil revision application.

The following facts, which are necessary for the purpose of deciding the present application, are being stated hereunder:

According to the applicant, on 09.10.2023, the non-applicant No.1/plaintiff entered into an Agreement of Sale in respect of the subject property with defendant No.1/applicant by executing the same before the Sub-Registrar, Nagpur -10 (Rural) bearing document No.7409 of 2023. It is further contended that the Sale Deed came to be executed on 17.01.2024 by non-applicant No.1/plaintiff directly in favour of non-applicant No.2/defendant No.2, wherein the applicant-Company stood as a consentor. However, in view of the dispute as regards the payment of the suit property, the non-applicant No.1 filed the civil suit for declaration and permanent injunction and seeking relief of instruments/transactions dated 09.10.2023 and 17.01.2024, null and void.

The applicant-Company filed an application under Order VII, Rule 11 of the CPC, on 26.09.2024 for rejection of the plaint for want of a clear cause of action and insufficient Court Fees. Vide order dated 07.04.2025, the learned Trial Court partly allowed the said application with a direction to non-applicant No.1 to correct the proper valuation of the suit inter alia and to pay the deficit Court fees. The learned Trial Court has also directed the plaintiff to carry out necessary amendments in the plaint. According to the applicant, the impugned order dated 07.04.2025 suffers from grave illegality and is perverse.

Mr. Bhutada, learned counsel for the applicant states that the learned Trial Court has travelled beyond its jurisdiction not vested in it by law thereby, directing the non-applicant No.1/plaintiff to amend the plaint and further directing him to pay the deficit Court fees in terms of Section 6(iv)(ha) of the Act. He further submits that the Sale Deed in question cannot be cancelled on the ground of non-payment of sale consideration. According to him, the plaintiff is having other modes to recover the amount of outstanding dues.

In support of his submissions, he relies upon the judgment delivered by the Hon’ble Supreme Court in the matter of Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives and Others reported in (2020) 7 Supreme Court Cases 366. According to him, the relief claimed by the non-applicant No.1/plaintiff, on the basis of the averments made in the plaint if perused, would reveal that the non-applicant No.1/plaintiff is praying for a declaration that the Sale Deed dated 17.01.2024, executed by him in favour of non-applicant No.2/defendant No.2 in respect of the suit property, be declared as illegal and bad in law. The said recitals goes to show that on account of non-payment of entire sale consideration, the plaintiff is seeking to declaration for cancellation of Sale Deed dated 17.01.2024. According to Mr. Bhutada, learned Counsel for the applicant, non-payment of outstanding dues could not be a ground for cancellation of the registered Sale Deed. The plaintiff can have other remedies in law for recovery of balance consideration. Accordingly, he prays that the impugned order dated 07.04.2025 passed by the learned Trial Court be quashed and set aside.

Per contra, Mr. Lokhande, respondent No.1 (party-in-person) submits that in pursuance of the Agreement to Sale dated 09.10.2023, the area of the description of the properties was Survey No.189/4, area admeasuring under the sale agreement was 2.85 H.R, Tahsil Nagpur (Rural) and District Nagpur. However, he submits that defendants have not paid the amount as per the said registered Sale Agreement and therefore, the defendant No.1 has not complied with the terms and conditions thereof. He further submits that due to non-compliance of the registered Sale Agreement dated 09.10.2023, the transaction dated 17.01.2024 i.e. Registered Sale Deed is illegal and not binding upon the plaintiff.

After hearing both for the parties, it has come to the notice of this Court that on the basis of averments made in the plaint, there appears to be a dispute in pursuance of the registered Sale Agreement dated 19.10.2023 executed between the plaintiff and the applicant. Thereafter, the Sale Deed dated 17.01.2024 came to be executed by the plaintiff/non-applicant No.1 in favor of non-applicant No.2/defendant No.2, wherein the applicant/defendant No.1 was a consentor party.

This Court find that the recitals in para 7 of the plaint are fraudulent and misleading this Court. The Sale Deed which has been filed along with the plaint has been executed between the non-applicant No.1/plaintiff, M/s. Devi Infrastructure, a proprietary concern, through its Proprietor Abhay Vitthalrao Lokhande in favor of non-applicant No.2 (original defendant No.2)-Mukunda Keshavam Infraventures, LLP, through Designated Partner Shri Vrajesh Paresh Ved and (original defendant No.1) Paramjyoti Builder and Developer LLP, through Designated Partner Shri Sheshrao Baburao Dhenge, applicant herein as a consentor party.

The said sale deed specifically refers to the Registered Agreement to Sale dated 09.10.2023 executed before Sub-Registrar, Nagpur-10 (Rural), by seller-plaintiff where land admeasuring about 0.81 H.R. out of land 1.23 H.R. agreed to sell to applicant-Paramjyoti Builder and Developer LLP, for a valuable consideration. They entered to the Agreement to Sale dated 09.10.2023 registered with Sub-Registrar, Nagpur-10 (Rural). The plaintiff had agreed to execute the Sale Deed in favour of applicant/defendant No.1 or to any person suggested by defendant No.1. The purchasers being interested, have approached to seller and the applicant being consentor had agreed to purchase the said land for total consideration of Rs.5,17,20,000/-. It further records that the applicant-consentor has also assigned its rights to obtain the Sale Deed of the said land area admeasuring 0.81 H.R. from the seller in favor of purchaser herein-above. Accordingly, the sale deed in question came to be executed between the parties. The recitals of the Sale Deed also mentions that the purchaser had paid the entire sale consideration to the seller and the consenting party and therefore, Sale Deed came to be executed in favor of them.

The sale deed also contains the manner of payment in which the sale consideration was made to the parties. However, the further recitals of this plaint discloses that defendant No.1 was not ready and willing to perform the Registered Sale Agreement dated 09.10.2023. Defendant No.1 is consentor in the Sale Deed dated 17.01.2024. This Court find that the averments made in the para 7 and para 10 of the plaint are misleading. Even otherwise, the Registered Sale Agreement dated 09.10.2023 has been subsumed in the sale deed, the sale deed in question came to be executed by considering the contractual terms and conditions between the parties in terms of the said agreement. Thus, on the basis of plaint averments and documents it is clear that the Sale Deed has got superseded the agreement to sale dated 09.10.2023.

In this context the judgment delivered by the Hon’ble Apex Court in Dahiben’s case (supra), Para 29.9 is reproduced for ready reference :-

In view of above observations, the plaintiff’s claim cannot be entertained. The plaintiff by clever drafting has tried to show the cause of action in order to maintain his suit. This Court finds that the plaintiff having executed the Sale Deed in favor of defendant No.2, wherein, the present applicant was the consenting party, is not now entitled to institute the suit for cancellation of the Sale Deed on the ground of non-payment of sale consideration. The plaintiff is having remedy in law to recover his outstanding dues.

In that view of the matter, it is held that plaintiff has got no cause of action to institute the suit against the defendants. The learned Trial Court failed to consider the aforesaid facts and totally ignored the provisions of law. The learned Trial Court found to have traveled beyond its jurisdiction, which is not vested in it by law, thereby, directing to amend the plaint and further to pay deficit Court Fees.

Accordingly, this Court finds that the impugned order is totally illegal and deserves to be quashed and set-aside. Hence, I pass the following Order :-