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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.4080 OF 2021

1.

Dream Developers,

(Regd. Partnership Firm)

Plot No.38, Rajendra Nagar,

Nalva Road, Nandurbar

Tq. & Dist. Nandurbar.

Being the developers,

Through its Partners.

2.

Devidas Khandu Nerkar,

Age: 56 years, Occu: Business,

R/o: Plot No.1, Roopam Nagar,

Nalva Road, Nandurbar

Tq. & Dist. Nandurbar.

3.

Suryakant Bhimdas Agale,

Age: 47 years, Occu: Business,

R/o: Plot No.38, Rajendra Nagar,

Nalva Road, Nandurbar

Tq. & Dist. Nandurbar.

… Petitioners

(Orig. Plaintiffs)

Versus

1.

Dharmistha Vinodkumar Jain,

Age: 47 Years, Occu: Farmer & Business,

R/o: Vaibhav Nagar, Nalva Road,

Nandurbar Tq. & Dist. Nandurbar.

2.

Narendra Dhingadmal Burud,

Age: 45 years, Occu: Business,

R/o: Parshwanath Park, Jain

Dadawadi, Talod Road,

Nandurbar Tq. & Dist. Nandurbar

… Respondents

(Orig. Defendants)

…

Advocate for Petitioners : Mr. A. S. Abhyankar h/f Mr. S. V. Natu

Advocate for Respondents No. 1 & 2 : Mr. S. P. Brahme

…

CORAM : NITIN B. SURYAWANSHI, J.

RESERVED ON : 29^th JUNE, 2022

PRONOUNCED ON : 22^nd JULY, 2022

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ORDER :

1.

This petition filed under Article 227 of the Constitution

of India is directed against the order dated 18/01/2021 passed by

the learned Ad-hoc District Judge-1, Nandurbar in Misc. Civil Appeal

No.14/2020, thereby allowing the appeal filed by the respondents

and setting aside the order of temporary injunction passed by the

trial Court.

2.

The petitioners/original plaintiffs filed Special Civil Suit

No.24/2018 against the defendants/respondents seeking relief of

specific performance of contract dated 07/08/2017 for execution of

re-conveyance deed and recovery of possession of land Survey

No.37/3/B, to the extent of 550 Sq. Mtrs out of total 1650 Sq.Mtrs.,

situated at Nandurbar. It is contended by the petitioners that they

were owner and possessor of the suit property. They were in need

of money and therefore, they approached respondent No.1 and

requested him to lend amount of Rs.20 lakhs. The respondent No.1

agreed to lend the said amount on condition that

petitioners/plaintiffs would execute nominal sale deed of the suit

property as a security to the said loan, in favour of respondent

No.1. The said condition was accepted by the plaintiffs. The

respondent No.1 at the same time agreed to execute re-conveyance

agreement in respect of the suit property in favour of the plaintiffs.

On 07/08/2017, respondent No.1 executed re-conveyance

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agreement in favour of the plaintiffs and the plaintiffs executed

nominal sale deed of the suit property on 08/08/2017 and

respondent No.1 advanced Rs.20 lakhs to the petitioners/plaintiffs.

As per the agreed terms the plaintiffs were ready to repay loan

amount of Rs.20 lakhs with interest @ 2% per month to respondent

No.1. However, instead of executing re-conveyance deed in favour

of the petitioners, respondent No.1 without petitioners consent

transferred the suit land in the name of respondent No.2 by

executing sale deed for consideration of Rs.17 lakhs. The

petitioners/plaintiffs were, therefore, constrained to file the suit.

3.

The plaintiffs also filed application Exhibit-5 seeking

injunction against the defendants. The defendants opposed the suit

as well as the interim application by filing written statement at

Exhibit-14, thereby denying the transaction between the

petitioners/plaintiffs and respondent No.1/defendant No.1 as a

money lending transaction. They contended that since the plaintiffs

wanted to purchase another property, they sold the suit property to

defendant No.1 for consideration of Rs.20 lakhs by executing a sale

deed. The averment in respect of re-conveyance deed executed on

07/08/2017 is specifically denied. The defendants have come out

with a spec