:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 784 OF 2008 Hemant Jayram Thakkar and anr ...Petitioner. Versus Ajay Shankarro Desai and Ors. ...Respondents. Mr.G.S.Godbole with Mr.P.M.Arjunwadkar for the petitioner Mr.P.J. Pawar, for respondent no.2. CORAM: S.C.DHARMADHIKARI, J. DATED: 15TH FEBRUARY,2008. P.C. P.C. P.C. : : : 1. The order passed by the Trial Court, below Exhibit-19 in Special Civil Suit no.39 of 2006 dated 13.3.2007 is confirmed by the lower Appellate court in Misc.Civil Appeal no.40 of 2007 dated 17.1.2008. The aggrieved Original Plaintiffs are therefore challenging the same before me invoking my jurisdiction under Article 227 of the Constitution of India. 2. From a perusal of the petition and the Annexures thereto, it is apparent to me that the Trial Court and :2: :2: :2: the Lower Appellate Court beyond reproducing the pleadings, have failed to apply their mind to several vital matters, even at the prima-facie stage. It is not necessary to elaborate them in detail. Suffice it to state that the allegation of the Respondent no.2/Original Defendant no.2-Bank before me, that the suit is collusive and filed with a view to defeat its claim arising out of Recovery proceedings which have culminated in a Award of the Co-operative Court in their favour has not been dealt with and a careful and minute perusal of the orders passed and challenged before me, do not show that the same has been adverted to or considered. The issue as to whether the Trial Court could have at a prima-facie stage held that the sale in favour of the Defendant no.1 by Plaintiff no.2 is conclusive and cannot be re-opened is not touched. The alleged Deed of Conveyance/sale which has been executed by Defendant No.1 in favour of the plaintiff No.2, based upon which the Plaintiff No.2 allegedly conveyed the property to plaintiff No.1, are also matters which have not been considered, at the prima-facie stage. :3: :3: :3: 3. Lastly and importantly, whether all this is with a view to defeat the claim of the bank or not and whether collusion is apparent from the pleadings or not, is something which must be gone into, if at all the same is in issue. 4. Mr.Pawar appearing for the Respondent No.2-Bank contended that the orders under challenge should not be interfered with. He relied upon the Sale-Deed and the other documents on record. However, in the absence of any reference to them and the pleas based thereon, it will not be proper to render any finding. That would prejudice both sides. Mr.Godbole, is right in concluding that the Original Plaintiffs-petitioners before me have been non-suited virtually at the interim stage. 5. In such circumstances, both orders challenged in the petition are quashed and set aside and Exhibit-19 is restored to the file of the Trial court for disposal afresh on merits and in accordance with law, uninfluenced by the observations made in the earlier order and the fact that this court has :4: :4: :4: interfered with them. The Trial Court to endeavour and dispose off Exhibit-19 as expeditiously as possible and within a period of 2 months from the date the parties appear before the same. All contentions on merits are kept open. Petition allowed accordingly. SD/- ******