JUDGMENT :

1. By the present Appeal from Order, the appellant is challenging the order dated 4th May, 2023 passed by the 8th Joint Civil Judge Senior Division, Aurangabad on an application filed on behalf of the respondents – defendant nos.9 to 11 under Section 2 (c), (i), (vi), (vii), (xi) and explanation (a) of the Commercial Court Act, 2015 [for short ‘Act of 2015’] read with Order VII Rule 10 and 11 of the Code of Civil Procedure for return of the plaint for presentation to the proper forum i.e. Commercial Court constituted under Section 3 of the Commercial Courts Act, 2015.

Brief facts giving rise to filing the present Appeal from Order can be summarized as under :

2. Memorandum of understanding dated 26.12.2009 came to be executed between plaintiff, defendant no.1 and defendant no.7. As per the said memorandum, the defendant no.1 i.e. Vendor was to get amount of consideration of Rs.35 crores towards development of suit property. As per the said MoU, the defendant no.1 agreed to give property Plot No. E-36-1 admeasuring 17000.00 (17,066.25) sq.mt. situated at MIDC Chikalthana, Aurangabad Tq. & Dist. Aurangabad for the development to the plaintiff and accordingly the defendant no.1 accepted the amount of Rs.5,92,55,000/-. As per the memorandum of understanding, the defendant nos.1 to 7 were to get the part property converted to residential use. A joint venture was to be constituted by the plaintiff and defendant no.7.

3. Since the MOU dated 26.12.2009 was not acted upon by the defendants, the plaintiff filed a suit for specific performance of the memorandum of understanding dated 26.12.2009 in respect of property plot No.E-36-1 admeasuring 17000.00 (17,066.25) sq.mt. Situated at MIDC Chikalthana, Aurangabad Tq. & Dist. Aurangabad and Perpetual injunction. The property is described in the plaint at para 1.

4. In the plaint it is pleaded that as per the terms and conditions of the MOU plaintiff was required to pay only the amount of Rs.3.5 crore prior to construction permission and to pay Rs.2.5 crore after obtaining construction permission by defendant no.1. However, defendant no. 1 did not obtain the conversion of land from industrial to residential and the construction permission, but still plaintiff paid the amount of Rs.5,92,55,000/- as stated above. The plaintiff further contended that the plaintiff also called upon the said defendants to execute and register a Development Agreement as regards the suit property. It is further contended that the plaintiff was ready and willing to pay the balance agreed consideration amount of Rs.29,07,45,000/-, and thus, the plaintiff’s cause of action to file the present suit. It lastly arose in the month of February, 2023, after several meetings, when the defendant nos.1 to 11 refused to execute the Development Agreement in favour of the plaintiff and also defendant nos.9 to 11 launched its project under the name of Dream World Phase-1 on the suit property on 25.02.2023. The cause of action arose at Aurangabad. In view of the place of cause of action, the situation of the property, and the residence of the parties, the suit is filed in Aurangabad.

5. The plaint contains following prayers :

PRAYERS

a. The suit of the Plaintiff may be decreed with costs

b. Defendants no.1 to 11 may be directed to execute the Development Agreement and Power of Attorney in respect of the property described in Para 1 of the plaint by obtaining the Consent of defendant no. 12 for the execution of the Development Agreement and Power of Attorney and to present the same to the Sub-Registrar, Aurangabad as per terms of Memorandum of Understanding dated 26.12.2009.

c. The Deed of Assignment bearing registration no. 4569/2021 dated 21.6.2021 executed by Defendant Nos.1, 7 and 9 is illegal, null and void ab initio and not binding on Plaintiff and is liable to be cancelled.

d. The perpetual injunction may kindly be issued against the defendants to restrain them from alienating, selling, and creating third party interest, in