1 33 mca.89.08 anr ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION MISCELLANEOUS CIVIL APPLICATION NO. 89 OF 2008 WIMCO Limited. ... Applicant Versus Matoshree Shelters (India) Private Limited and ors. ... Respondents WITH MISCELLANEOUS CIVIL APPLICATION NO. 126 OF 2010 Matoshree Shelters (India) Private Limited and anr. ... Applicants Versus WIMCO Limited and anr. ... Respondents ----- Mr. Navroj Seervai, Senior Counsel, with Mr.Nimish Kothare and Mr.Kevic Setalvad and Ms.Vijaylaxmi Kulkarni i/b Nanu Hormasjee and Company for the Applicant in MCA No.89 of 2008 and for the Respondents in MCA No.126 of 2010. Mr. R.A.Shah with Ms.Rashmi V. Sawant i/b M/s.Mansukhlal Hiralal and Company for the Respondents in MCA No.89 of 2008 and for the Applicants in MCA No.126 of 2010. ----- CORAM : A.S.OKA, J. DATE : 08 th March, 2011. P.C. 1 The learned counsel appearing for the parties in both the applications agree that in view of the subsequent events, notwithstanding 2 33 mca.89.08 anr the order dated 22 nd October, 2008 passed by this Court in Miscellaneous Civil Application No. 89 of 2008, these two applications may be taken up for final disposal. By consent of the parties, I have taken up the applications for final disposal. 2 The parties are hereinafter referred to with reference to their status in Miscellaneous Civil Application No. 89 of 2008. The Applicant claims to be the owner of certain immovable property, which is described in paragraph No.3 of the Miscellaneous Civil Application No. 89 of 2008. According to the case of the Applicant, Memorandum of Understanding dated 29 th July, 2004, Development Agreements dated 21 st January, 2005 and 16 th June, 2005 as well as a Power of Attorney dated 16 th March, 2005 were executed by and between the Applicant on one hand and Respondent Nos.1 and 2 on the other hand. The Applicant filed a suit being Suit No.2551 of 2006 in this Court on 2 nd September, 2006. In the said suit, the Applicant claimed declaration that upon its termination, the aforesaid Memorandum of Understanding and Development Agreements are void and inoperative in law. It is also prayed that the Court may order that Memorandum of Understanding and Development Agreements be delivered up and cancelled. There are other prayers made in the said suit. 3 Respondent Nos.1 and 2 filed Special Civil Suit No.271 of 2008 in the Court of the Civil Judge (Senior Division) at Kalyan in District 3 33 mca.89.08 anr Thane. The said suit was filed by Respondent Nos.1 and 2 for specific performance of the aforesaid agreements. The said suit refers to the suit filed by the Applicant to which a reference has been made earlier. It is not in dispute that prayer in the said suit filed by Respondent Nos.1 and 2 is for specific performance of the Memorandum of Understanding dated 29 th July, 2004 and the Development Agreement dated 16 th June, 2005. 4 The prayer in Miscellaneous Civil Application No.89 of 2008 by invoking Section 24 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”) is for transfer of the suit filed by Respondent Nos.1 and 2 to this Court. 5 Miscellaneous Civil Application No.126 of 2010 has been filed by Respondent Nos.1 and 2 in Miscellaneous Civil Application No.89 of 2008. The prayer in the said application is for transfer of the suit filed by the Applicant in Miscellaneous Civil Application No.89 of 2008 pending in this Court to the Court of Civil Judge (Senior Division) at Kalyan. 6 The learned senior counsel appearing for the Applicant in support of the Miscellaneous Civil Application No.89 of 2008 submitted that the suit filed by Respondent Nos.1 and 2 is subsequent in point of time to the suit filed by the Applicant and therefore, the subsequent suit will have to be transferred to this Court. Making a reference to the various orders passed by this Court in the suit filed by the Applicant, he 4 33 mca.89.08 anr submitted that only this Court will have jurisdiction to entertain and try the said suit. He submitted that the contention of Respondent Nos.1 and 2 that suits can be disposed of more expeditiously by the Court at Kalyan is not at all relevant for considering the prayer for transfer. 7 The learned counsel appearing for Respondent Nos.1 and 2 while opposing the Miscellaneous Civil Application No. 89 of 2008 and supporting the Miscellaneous Civil Application No.126 of 2010 contended that considering large pendency of very old suits in this Court, both the suits will have to be transferred to the Court of the Civil Judge (Senior Division) at Kalyan to ensure early disposal. He submitted that information obtained by Respondent Nos.1 and 2 under the Right to Information Act shows that very old suits are pending in this Court. He submitted that even the Applicant is having factory at Ambernath within the Ordinary Original Civil Jurisdiction of the Court at Kalyan and it will be convenient for both the parties if both the suits are heard by the Court at Kalyan. He submitted that if both the suits are transferred to the Court at Kalyan, the same can be expeditiously disposed of. 8 I have given careful consideration to the submissions. There is no dispute between the parties that both the suits will have to be heard by one Court. The suit filed by the Applicant in this Court appears to have been filed on 2 nd September, 2006 in which a relief is sought for declaration that the Memorandum of Understanding and the aforesaid 5 33 mca.89.08 anr Development Agreements upon its termination are void and inoperative. The Respondent Nos.1 and 2 have filed a suit for specific performance of the same documents in the Court at Kalyan. The said suit is instituted on 13 th August, 2008. Perusal of the cause title of both the applications show that the Applicant in Miscellaneous Civil Application No. 89 of 2008 is a company having a registered office at Ballard Estate, Mumbai. The Respondent No.1 in the said application is also a company having registered office at Dahisar (East), Mumbai. Respondent No.2 is a resident of Mumbai. 9 In the substantive suit filed by the Applicant, various proceedings have been taken out, which are being contested by Respondent Nos.1 and 2. The Respondent Nos.1 and 2 are contesting the suit filed by the Applicant, which is earlier in point of time. It is true that the pendency of the suits in the Court of Civil Judge (Senior Division) at Kalyan is negligible as compared to huge pendency of the suits on Original Side of this Court. But that cannot be the only consideration or ground for transfer of the suit to the Court at Kalyan. As stated earlier, the Applicant No.1 and the Respondent No.1 in Miscellaneous Civil Application No. 89 of 2008 are companies having their registered offices at Mumbai and that the Respondent No.2 therein is a resident of Mumbai. The suit filed in this Court is earlier in point of time. Hence, this is a case where the suit filed by Respondent Nos.1 and 2 in the Court of Civil Judge (Senior Division) at Kalyan will have to be transferred to this Court 6 33 mca.89.08 anr for disposal alongwith the Suit No. 2551 of 2006. 10 Accordingly, Miscellaneous Civil Application No. 89 of 2008 is hereby allowed and the Special Civil Suit No. 271 of 2008 pending in the Court of the learned Civil Judge (Senior Division) at Kalyan is hereby transferred to the Original Side of this Court. 11 Miscellaneous Civil Application No. 126 of 2010 is rejected. 12 There will be no order as to costs in both the applications. [ A.S.OKA, J ]