VINEET KOTHARI, J.

1. The Defendant No. 2-Chiranjith Ajila, has filed this petition in this Court under Article 227 of the Constitution of India challenging two orders passed by Trial Court:-

(i) The order dated 05.07.2016 passed by the learned Trial Court in O.S. No. 84/2014 allowing the application-I.A. III seeking to implead the petitioner herein as party to the suit; and

(ii) The order dated 16.12.2016 rejecting the application-I.A.V filed by defendant No. 2-the present petitioner himself under Order 10 Rule 2 of CPC seeking to be deleted from the array of defendants in the present suit filed by respondent No. 1/plaintiff-M/s. Archana Projects for recovery of money of Rs. 9,40,000/- with interest from vender-Defendant No. 1-Mr. Roy Antony.

2. The learned counsel for the petitioner-Defendant No. 2-Mr. Sampath Anand Shetty, has urged before the Court that the suit filed by the plaintiff is not for specific performance but only for recovery of money from Defendant No. 1, the vender and the Defendant No. 2-the present petitioner-Mr. Chiranjith Ajila to whom the said Defendant No. 1 sold the suit property in question has no privity of contract with the plaintiff nor he has purchased such property with any encumbrance from the said Defendant No. 1 and therefore, Defendant No. 2-the present petitioner-Mr. Chiranjith Ajila was neither a necessary nor a proper party in the present suit for money recovery only and therefore, the learned Court below has erred in rejecting the application filed by Defendant No. 2 by the impugned order. Hence, the present writ petition is filed under Article 227 of Constitution of India.

3. On the other hand, the learned counsel for the respondent/plaintiff-Mr. K.A. Ariga, has urged before the Court relying upon the provisions of Section 55(6)(b) of the Transfer of Property Act, 1882 and the two judgments of the Hon'ble Supreme Court that even though the Agreement in question under which Defendant No. 1 had agreed to sell property in question to the plaintiff on 16.08.2013, which was cancelled by the plaintiff himself on 14.10.2014 and the suit was filed only for recovery of advance money in question paid to the vender-Defendant No. 1, but since the money in question was paid by the plaintiff as pre-paid sale price and on account of non-performance of the Agreement on the part of Defendant No. 1, the plaintiff chose to cancel the said Agreement, but the charge on the suit property remains because the plaintiff had not improperly declined to accept delivery of the property in question and therefore, the rights of the plaintiff qua the said suit property existed even against the Defendant No. 2 and such a charge on the property is protected by virtue of the said provisions of Section 55(6)(b) of the Transfer of Property Act and the following judgments of the Hon'ble Supreme Court:

(1) In Delhi Development Authority v. Skipper Construction Co. (P) Ltd. (AIR 2000 SC 2003), the Hon'ble Supreme Court has held that the buyer's charge under Section 55(6)(b) of the Transfer of Property Act is a statutory charge and differs from a contractual charge, which a buyer is entitled to claim and the charge on the property under Section 55(6)(b) is enforceable not only against the seller but against all the persons claiming under him. The relevant para-29 is quoted below for ready reference:

"29. Those points depend upon the effect of the provisions in Sub-clause (6) of Section 55 of the Transfer of Property Act. That Section starts with the words "In the absence of a contract to the contrary, and reads thus (insofar as it is material for our purpose):

"Section 55(6) (b): The buyer is entitled

(a) ………….

(b) Unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him to the extent of the seller's interest in the property, for the amount any purchase-money property paid by the buyer in anticipation of the delivery and for interest