Advocates:
['Shinde Ganesh P', 'CAVEAT FILED BY ADV MAHESH R SONAWANE', '', 'SONAWANE MAHESH RAMNATH']

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902-wp-7333-2022

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.7333 OF 2022

MATRUBHUMI LANDMARK PVT. LTD. THROUGH ITS

DIRECTOR RAM BHAGWAT PAWAR

VERSUS

VIKRAM BHAGINATH KHADKE AND OTHERS

…

Mr. Rajendrraa Deshmukh, Senior Advocate a/w Mr. Sanket A.

Jadhav i/by Mr. G. Shinde, Advocate for the Petitioner.

Mr. Mahesh R. Sonawane, Advocate for Respondent Nos.1 and 2.

Mr. Narsing B. Jadhav, Advocate for Respondent No.6.

…

CORAM : SANDEEP V. MARNE, J.

DATED : 23^rd NOVEMBER, 2022.

PER COURT:-

1.

By the present petition petitioner challenges order

dated 25.04.2022 passed by District Judge-3, Aurangabad in

M.C.A. No.107/2021 thereby reversing the order passed by the

Trial Court refusing interim injunction. The District Court has

restrained respondent no.11 from changing nature of the suit

property described in paragraph 1 of the plaint by carrying out

any construction thereon or by creating any third party interest.

2.

It is common ground that the nature of the suit

property at paragraph no.1 have long since then altered by

defendant no.11 by constructing buildings thereon. Number of

flats have already been sold to banafide purchasers and the

possession thereof has already been handed over.

3.

The only factor that has weighed with the District

Court in grating interim injunction in favour of plaintiff is that

earlier sale deed executed by defendant nos.1 and 2 was in favour

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of proposed Society (defendant no.3). The District Court,

therefore, has arrived a a finding that the proposed Society, not

being a legal entity, would not acquire any right, tittle or interest

in the suit property on the strength of such sale deed. True it is

that defendant no.3 is a Chief Promoter of proposed Co-operative

Society and therefore, not a legal entity. However, the issue

would still remain as to whether in absence of a proposed Society

being a legal entity, whether the right, tittle or interest in the

property transferred by the sale deed would vest atleast in the

name of the Chief Promoter in his personal capacity. This aspect

will have to be decided at the time of final hearing of the suit and

no opinion is expressed in that regard.

4.

However, at the same time the interest of plaintiffs

are also required to be protected during the pendency of the suit.

The plaintiffs claimed share to the extent of 20R in the suit

property. The learned counsel appearing for respondent no.6 has

tendered across the bar an undertaking dated 23.11.2022 under

which respondent no.6 has undertaken to keep vacant land

admeasuring 15R described in paragraph no.5 of the undertaking

and not to create any third party interest thereon till the decision

of the Regular Civil Suit No.674/2017. The undertaking is taken

on record and accepted.

5.

The learned counsel appearing for respondent nos.1

and 2 submits that his clients are satisfied with the undertaking

filed by respondent no.6.

6.

In that view of the matter, it would not be necessary

to operate the order of injunction granted by the District Court on

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25.04.2022. Accordingly, the order dated 25.04.2022 passed by

the District Judge-3, Aurangabad in M.C.A. No.107/2021 is set

aside. The undertaking given by respondent no.6 is accepted.

Respondent no.6 to act as per the undertaking. The hearing of

Regular Civil Suit No.674/2017 is expedited and the Trial Court is

requested to make an endeavour to decide the same as

expeditiously as possible and preferably within a period of one

year from today.

7.

With the above directions, writ petition is disposed of.

(SANDEEP V. MARNE)

JUDGE

Devendra/November-2022