Advocates:
['TOTALA RAMESHWAR F', 'BHANDARI ANANAD P R/', '', 'Bhandari Anand P']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.2586 OF 2021

M/S ARYAN AQUA TECH PRIVATE LIMITED THROUGH ITS DIRECTOR

AND ANOTHER

VERSUS

CROYO CLEAN PRIVATE LIMITED THROUGH ITS DIRECTOR

...

Advocate for the Petitioners : Shri Totala Rameshwar F.

Advocate for the Respondent : Shri Bhandari Ananad P.

...

CORAM: SMT. BHARATI H. DANGRE, J.

DATE :- 15^th February, 2022

Per Court:

1.

Heard the learned counsel for the petitioners and the learned

Counsel for the respondent.

2.

The petitioners are aggrieved by rejection of their application

below Exhibit 20, at the hands of the learned Joint Civil Judge, Senior

Division, Aurangabad, seeking rejection of the plaint filed by the

respondent/ plaintiff in Special Civil Suit No.35/2016.

3.

Special Civil Suit No.35/2016 came to be filed by the

respondent Croyo Clean Private Limited, a company registered under the

Companies Act, 1956, seeking specific performance of the contract

directing the petitioners/ defendants to execute the supplementary

agreement (Deed of Transfer of Lease) in respect of plot Nos.A-78 and A-

79 situated at MIDC Paithan, District Aurangabad and for perpetual

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injunction. The suit property is described in paragraph 1 of the plain. In

paragraph No.2 of the plaint, it is pleaded that the plaintiff and the

defendants are registered under the Companies Act, 1956 and one

Mr.Aatish Ramchandra Pole is the authorized director of the plaintiff

company, whereas Mr.Uday Manoharrao Patil is the authorized director of

the defendant company. It is specifically pleaded that both the directors of

the companies took active part in the disputed transaction. It was pleaded

in the plaint that the defendant intended to start the unit of mineral water

and packaging and was allotted the plot in MIDC area in the year 2007

and even possession was delivered. It is further pleaded that though the

defendant was intending to start the packaging unit of mineral water on

the said property, it could not succeed in it’s venture and therefore, it was

in search of the party, who could purchase the said plot and the plaintiff

was also in search of certain property in the MIDC area and therefore, the

agreement was executed between the duo for the total premium/

consideration of Rs.15,00,000/-. The defendant agreed to transfer the suit

property either in the name of the plaintiff or any other name as suggested

by the plaintiff.

Further steps taken by the plaintiff company on it’

s

incorporation, are set out in paragraph Nos.6 to 8. It is also pleaded in the

plaint that the plaintiff, thereafter, prepared the project report for

commencement of the new unit on the suit property and filed an

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application for obtaining financial aid from the financial institution and

the supplementary agreement came to be executed between the MIDC and

the plaintiff. But, for execution of the supplementary agreement, the

defendant backed out and this constrained the plaintiff to file the suit for

specific performance of contract seeking direction to the defendant to

execute the supplementary agreement.

4.

In the said suit, an application came to be moved by the

defendant seeking rejection of the plaint by pleading that the suit is barred

by law as it is filed by a company and the company has to be understood

in a way defined in the Companies Act, 2013 i.e. the company

incorporated under this Act or any previous company law. It was,

therefore, projected that the suit is not maintainable because the

agreement of which the execution is sought, is not in the name of the

company, but it is in the name of individual Shri Aatish Pole, who

subsequently projected himself to be the director of the company and the

company was incorporated in the year 2014, whereas, the suit is filed in

the year 2016.

The learned Judge refused to entertain the application and

dismissed the same vide the impugned order dated 24.10.2019.

5.

It is a trite position of