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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR
M.S. JAWALKAR, J.
M/s. Radha Madhav Developers - Appellant
Versus
Mr. Vinod Kumar S/o. Rajaram Agarwal - Respondents
Writ Petition No. 4021 of 2024
Decided on : 16-04-2025
(A) Indian Partnership Act, 1932 - Code of Civil Procedure, 1908 - Section 10 - Cancellation of Agreement to Sale - The petitioner, a partnership firm, sought cancellation of an agreement to sell a property after the respondents demanded a refund and filed a consumer complaint. The trial court stayed the civil suit pending the consumer complaint, which the petitioner challenged. The court found that the issues in both proceedings were not identical and that the consumer forum could not grant the relief sought in the civil suit. (Paras 4, 6, 10, 18, 22)
(B) Jurisdiction - The court emphasized that the jurisdiction of civil courts and consumer forums are distinct, and Section 10 of the CPC applies only when the matter in issue is identical in both suits. (Paras 20, 22)
Facts of the case:
The petitioner entered into an agreement with the respondents for the sale of a row house, receiving part payment. The respondents later sought to cancel the agreement and filed a consumer complaint.
Findings of Court:
The court ruled that the trial court's order to stay the civil suit was erroneous as the issues were not the same.
Issues: The main issues were whether the civil suit and consumer complaint involved the same matter and whether the trial court erred in staying the civil suit.
Ratio Decidendi: The court held that Section 10 of the CPC does not apply as the matters in both proceedings were not identical, and the consumer forum could not provide the relief sought in the civil suit.
Result: Writ Petition allowed.
JUDGMENT :
M. S. JAWALKAR, J.
(1) Rule. Rule made returnable forthwith.
(2) Heard learned Counsel for both the parties.
(3) Being aggrieved by the said Order dated 27/06/2024, passed by learned 12th Joint Civil Judge Senior Division, Nagpur. The Petitioner is a partnership firm, registered under the provision of Indian Partnership Act, 1932. The Petitioner firm is represented through its authorised partner Mr. Rajesh Navranglal Agrawal, who is well aware of the facts and circumstances, which have culminated into filing of the suit bearing No. Spl. C. S. No.1243/2022, which is a Suit for Cancellation of Agreement to Sale Dt. 18.01.2022. The Petitioner firm is engaged in the business of real estate and has developed a township named and styled as Vrindavan Township, consisting of various residential, commercial units as well as various amenities and facilities.
(4) On 18/01/2022, Registered Agreement to sale was executed between the petitioner and respondents, whereby, the respondents agreed to purchase Row House No. B1-C3, having built up area admeasuring 255.50 Sq.mt., covered in 6 bedrooms, from the petitioner and paid part payment of Rs. 15,23,334/-, out of Rs. 94,23,334/-. The respondents also paid Rs. 10,76,666/- statutory charges such as Stamp Duty, Registration charges, GST, Electric meter Charges & Legal charges as mentioned in Paragraph Nos. 4 and 5 of the said Registered Agreement. The respondents have also agreed in paragraph No. 4 that they shall pay the balance consideration of Rs. 79,00,000/- (Rs. 94,23,334 Rs.15,23,334), in the prescribed manner by the end of April 2022. On16/02/2022, the respondents issued notice to petitioner, thereby, cancelling the booking of the above mentioned unit and demanded Refund of entire amount paid along with interest. On 24/02/2022, the petitioner replied by offering a choice to the respondent to either continue with the said booking of 6 BHK Unit purchased and make the timely payment of balance agreed sale consideration as agreed or to execute Registered Cancellation Deed of Agreement dated 18/01/2022 and receive a refund of Rs. 15,23,334/-. On 06/06/2022, the respondent No. 1 lodged a Consumer Complaint bearing No. CC/454/2022, before the learned District Consumer Dispute Redressal Commission, Nagpur. The petitioner filed a reply to the same and is contesting the same. On 13.10.2022, the petitioner having no other efficacious remedy filed Special Civil Suit No. 1243/2022, seeking Cancellation of Registered Agreement to sale dated 18/01/2022and damages against the Respondents.
(5) The learned Trial Court failed to appreciate the underlying object of the Section 10 of Code of Civil Procedure, which is to prevent Courts of Concurrent Jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue, between the same parties. Each and every aspect of the above object has to be fulfilled and even if any one aspect is left out, the learned Trial Court ought not to have stayed the said suit under Section 10 of Code of Civil Procedure.
(6) In the present case, the issues involved in both the proceedings are different, in as much as in Consumer Complaint, the respondent has alleged unfair trade practice in order to seek refund and compensation. Whereas, in the Civil Suit, the petitioner has pointed out breach of contract, non-payment of balance Sale consideration for seeking Cancellation of Registered Agreement to sale dated 18.01.2022. Therefore, the issues are neither directly and substantially the same nor incidentally or collaterally the same, in both the said proceedings. On this ground also, the learned Trial Court ought to have rejected the said application
(7) Learned Counsel for the Petitioner relied on following citation:
1. National Institute of Mental Health and Neuro Sciences Vs. C. Parameshwara, AIR 2005 SC 242
2. E.I.C.M. Exports Ltd. Vs. South Indian Corpn. (Agencies) Ltd., AIR 2009 SC 3127
3. M/S. Hindustan Motors Ltd. Vs. Amardeep Singh Wirk and ors,
The jurisdiction of civil courts and consumer forums is distinct; Section 10 of the CPC applies only when the matters in both suits are identical.
Section 10 of the CPC aims to prevent simultaneous trials of parallel suits on the same matter, applicable only if the substantive issues are identical.
Parties seeking stay of proceedings under Section 10 must demonstrate direct and substantial similarity of issues, and late applications are discouraged, particularly at trial's end.
An agreement to sell does not confer any legal right until formally executed; merely having such an agreement without a registered sale deed leaves no interest to sue third parties.
Stay of suit – For applicability of Section 10 of C.P.C. there must be complete identity of entire two suits – Section 10 was never intended to take away inherent power of Court to consolidate for in....
Where khatedari rights are yet to be determined/declared, a party has to first approach Revenue Courts.
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