The main legal point established in the judgment is that a plaintiff's statutory charge under Section 55(6) of the Transfer of Property Act entitles them to seek further relief against proposed defendants in a civil suit.

JUDGMENT

R.B. Deo, J. - Rule. Rule made returnable forthwith.

2. With consent of learned counsel appearing for the parties, the petition is heard finally.

3. The petitioner is assailing the order dated 21-12-2020 rendered by learned 12th Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit 306/2019, whereby the application preferred by the petitioner under Order I Rule 10 of the Code of Civil Procedure (CPC), to implead respondents 2 and 3 as defendants, is rejected.

4. Considering the limited issue arising, only few facts may be noticed. The petitioner, who shall be referred to as the plaintiff and respondent 1 (defendant) entered into an agreement to sell dated 11-7-2016 where under the defendant agreed to sell in favour of plaintiff residential construction on land admeasuring 52.59 sq.mtrs. bearing City Survey 531, for total consideration of Rs. 1,16,00,000/- (Rupees One Crore Sixteen Lakhs).

5. The plaintiff avers that he paid the defendant Rs. 30,00,000/- (Rupees Thirty Lakhs) as part consideration, as on the date of execution of the agreement and subsequently paid further amount of Rs. 10,00,000/- (Rupees Ten Lakhs).

6. In a nutshell, the case of the plaintiff is that after the defendant entered into an agreement to sell, he executed a power of attorney in favour of his daughter, respondent 2 herein, who executed a gift deed of the property in favour of herself and brother, respondent 3 herein.

7. The plaintiff called upon the respondent to abide by the contractual terms and in response, the son and daughter of the defendant took a stand that the property is ancestral and, therefore, their father could not have entered into an agreement of sale. While the defendant-father did not then respond to the notice, in the written statement, he appears to have blamed the daughter for misusing the power of attorney.

8. The plaintiff preferred an application seeking attachment of the property under Order XXXVIII Rule 5 of the CPC and simultaneously, preferred an application for impleading the son and daughter of the defendant on the premise that in their absence, the plaintiff would not be in a position to either seek injunctive relief or attachment. This application is rejected by the trial Court reasoning that the presence of the son and daughter is not necessary. The trial Court refers to Section 127 and 128 of the Transfer of Property Act, 1882 ('TP Act') and reasons that since the gift is attached with the debt and liabilities, if the plaintiff ultimately succeeds in the suit, he can institute further proceedings for recovery of the decreetal amount against the donee.

9. Learned counsel for the petitioner, Mr. Nitin Lalwani would submit that Section 55(6) of the TP Act creates a statutory charge in favour of the purchaser as regards the part consideration paid and the interest thereon. Referring to a decision of the Hon'ble Apex Court in 2004 (5) ALL Mr. (S.C.) 559 [Videocon Properties Ltd. Vs. Dr. Bhalchandra Laboratories & ors.], the learned counsel would argue that since the charge is statutory and not contractual, the plaintiff would be well within his rights to claim either injunctive relief or then attachment order and in the absence of the proposed defendants who are claiming to be the owners of the property on the basis of the gift deed, the rights and remedies of the plaintiff shall be rendered illusory.

10. While the learned counsel for respondent 3 would argue that the suit is not for specific performance, that aspect is irrelevant. The suit is instituted to recover the part consideration along with interest/ compensation. Prima facie, the possession was not delivered. It is not even the case of the seller that the buyer refused to accept possession. Au contraire, the case of the seller appears to be that power of attorney which he executed in favour of his daughter, is misused. In this view of the matter, the plaintiff is right in asserting that there is a statutory charge.

11. The statutory charge which the plai