1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO.28 OF 2010 01. Santoshkumar s/o Madanlalji Mutha, age 38 years, occup. trade, r/of R.P.Road, Sadar Bazar, Jalna, Taluka and District Jalna. 02. Sow. Kamlabai w/o Madanlalji Mutha, age 63 years, occup. Household, r/of Gopalpura, College Road, Jalna, Taluka Appellants/ and District Jalna. orig.pltffs. versus 01. Shri Radhalaxmi Hotels and Theatres Pvt. Ltd., Jalna, Running Hotel Surya Inter- national at Develgaon Raja Road, Jalna. 02. Purushottam s/o Radhakishanji Bagdia, age 67 years, occup. Trade, r/o R.P.Road, Jalna. Taluak and District Jalna. 03. Sow. Prabhawati w/o Purushottam Bagdia, age 63 years, occup. household, r/of as above. 04. Rajesh s/o Purshottam Bagdia, age 45 years, occupation Trade r/of as above. Defendants (appellants) Nos. 2 to 4 are Directors of Defendant No.1 Shri Radhalaxmi Hotels and Theatres Pvt. Ltd., Jalna. 2 05. Jalna Medical Foundation and Research Center Pvt. Ltd., Jalna. 06. Dr. Girish s/o Chandrakant Paknikar, age 49 years,occup. Medical Practitioner, r/of Paknikar Hospital, Kadrabad, Jalna. 07. Dr. Rajkumar s/o Daulatram Sachdeo, age 52 years,occup. Medical Practitioner, r/of Sachdeo Hospital, Devalgaon Raja Road, Jalna. 08. Dr. Charudatta s/o Prabhakar Hawaldar, age 45 years, occup. Medical Practitioner, r/of Hawaldar Hospital, Sambhaji Nagar, Jalna. 09. Dr. Charumita w/o Charudatta Hawaldar, age 40 years, occup. Medical Practitioner, r/of as above. 10. Dr. Shrimant s/o Sakharam Misal, age 52 years, occup. Medical Practitioner, r/of Misal Hospital, Saraf Nagar, Jalna. 11. Dr.Deepak s/o Murlidhar Mantri age 48 years, occup. Medical Practitioner, r/of Mantri Hospital, R.P. Road, Jalna. 12. Dr.Arti w/o Deepak Mantri age 46 years, occup. Medical Practitioner, r/of as above. 3 13. Dr. Shamsundar s/o Sugnomal Budhani, age 38 years, occup. Medical Practitioner, r/of Respondents/ Misson Hospital, Post Office Orig.Defts. Road, Jalna. Respondents No. 6 to 13 are directors of Defendant-Resp. No.5 Jalna Medical Foundation and Research Center, Jalna. APPEAL FROM ORDER NO.29 OF 2010 01. Santoshkumar s/o Madanlalji Mutha, age 38 years, occup. trade, r/of R.P.Road, Sadar Bazar, Jalna, Taluka and District Jalna. 02. Sow. Kamlabai w/o Madanlalji Mutha, age 63 years, occup. Household, r/of Gopalpura, College Road, Jalna, Taluka Appellants/ and District Jalna. orig.pltffs. versus 01. Shri Radhalaxmi Hotels and Theatres Pvt. Ltd., Jalna, Running Hotel Surya Inter- national at Develgaon Raja Road, Jalna. 02. Purushottam s/o Radhakishanji Bagdia, age 67 years, occup. Trade, r/o R.P.Road, Jalna. Taluak and District Jalna. 03. Sow. Prabhawati w/o Purushottam Bagdia, age 63 years, occup. household, r/of as above. 4 04. Rajesh s/o Purshottam Bagdia, age 45 years, occupation Trade r/of as above. Defendants (appellants) Nos. 2 to 4 are Directors of Defendant No.1 Shri Radhalaxmi Hotels and Theatres Pvt. Ltd., Jalna. 05. Jalna Medical Foundation and Research Center Pvt. Ltd., Jalna. 06. Dr. Girish s/o Chandrakant Paknikar, age 49 years,occup. Medical Practitioner, r/of Paknikar Hospital, Kadrabad, Jalna. 07. Dr. Rajkumar s/o Daulatram Sachdeo, age 52 years,occup. Medical Practitioner, r/of Sachdeo Hospital, Devalgaon Raja Road, Jalna. 08. Dr. Charudatta s/o Prabhakar Hawaldar, age 45 years, occup. Medical Practitioner, r/of Hawaldar Hospital, Sambhaji Nagar, Jalna. 09. Dr. Charumita w/o Charudatta Hawaldar, age 40 years, occup. Medical Practitioner, r/of as above. 10. Dr. Shrimant s/o Sakharam Misal, age 52 years, occup. Medical Practitioner, r/of Misal Hospital, Saraf Nagar, Jalna. 5 11. Dr.Deepak s/o Murlidhar Mantri age 48 years, occup. Medical Practitioner, r/of Mantri Hospital, R.P. Road, Jalna. 12. Dr.Arti w/o Deepak Mantri age 46 years, occup. Medical Practitioner, r/of as above. 13. Dr. Shamsundar s/o Sugnomal Budhani, age 38 years, occup. Medical Practitioner, r/of Respondents/ Misson Hospital, Post Office Orig.Defts. Road, Jalna. Respondents No. 6 to 13 are directors of Defendant-Resp. No.5 Jalna Medical Foundation and Research Center, Jalna. -------------------------------------------------- Shri R.R.Challani, Advocate, for the appellants. Shri A.S.Bajaj,Advocate for Respondent Nos.1 to 4. Shri S.C. Bora, Advocate with Shri S.G. Chapalgaonkar,Advocate for Respondent Nos.5 to 13. -------------------------------------------------- Coram : P.R. Borkar, J. Date : July 07, 2010 ORAL JUDGMENT 01. These two appeals from Orders are filed by original plaintiffs being aggrieved by common order passed by the learned Civil Judge, Senior Division, Jalna, on 14.12.2009 thereby rejecting applications of the plaintiffs at Exhibits 5 and 56 in Special Civil Suit No.96 of 2009. 6 02. Briefly stated, facts giving rise to these two appeals from orders are as under; The appellants-plaintiffs have filed Special Civil Suit No.97 of 2009 against the respondents- defendants for specific performance of the agreement for sale, claiming that Respondent Nos. 2 to 4 are the directors of Respondent No.1 which is a Private Limited company and Respondent Nos. 6 to 13 are directors of Respondent No.5 Jalna Medical Foundation and Research Centre Pvt. Ltd., Jalna. It is stated that on 6.2.2001, two agreements were executed. By first agreement, Respondent No.2 agreed to sell to appellant No.1 CTS NO.3007 within municipal area of Jalna Municipal Council for Rs.15,00,000/= out of which appellant-plaintiff No.1 paid Rs.13,50,000/= to Respondent No.2 on the same day. On 6.2.2001, Respondent No.3 also entered into agreement for sale with appellant No.2 (original plaintiff No. 2) in respect of CTS No.3018 for Rs.15,00,000/= out of which Rs.13,50,000/= were paid by plaintiff 7 No.2 to Respondent No.3 as earnest money. Thus, two separate agreements for sale are claimed to have been executed by defendant Nos.2 and 3 in favour of Plaintiff Nos. 1 and 2 in respect of two CTS Nos. i.e. 3007 and 3018. It is stated that there were tenants in the said properties and the defendants agreed to execute sale deed after tenants vacated the premises but the tenants did not vacate the premises and, therefore, the sale deeds could not be obtained as per the agreements dated 6.2.2001. In the circumstances, on 30.1.2002, the impugned agreement for sale was executed between plaintiff No.1 Santoshkumar and Defendant No.2 Purushottam, whereby, as per the plaintiffs, since the tenants did not vacate premises as per earlier agreement for sale, Defendant No.2 agreed to sell CTS No.369/2 admeasuring 54,000/= square ft. situated at Jalna, owned by Respondent No.1 company for Rs. 1,37,00,000/= to plaintiff. As per the agreement dated 30.1.2002, amount of Rs.27.00 lakhs paid as earnest amount under earlier two agreements dated 6.2.2001 was to be adjusted in the said 8 consideration amount of Rs.1.37 crores. It is further stated that on the said property known as "Surya Hotel & Lawns" of Respondent No.1, there was mortgage of one Pannalal Bagdia and it was agreed by Defendant No.2 that after redemption of the said mortgage, sale deed would be executed in respect of the said property. Ultimately, suit was filed on 18.7.2009 for specific performance of the agreement dated 30.1.2002. 03. Respondents appeared in the suit. Respondent Nos. 1 to 4 and Defendant Nos. 5 to 13 filed their separate written statements. According to them, there was no agreement for sale executed by Defendant-Respondent No.2. The alleged agreement of sale is a forged document and there was no such agreement to sell. Defendants, therefore, prayed that the suit be dismissed. It is further stated that Respondent Nos. 5 to 13 were in need of open space to construct a super speciality hospital and, therefore, they approached Respondent Nos.1 to 4 for purchasing the open site and accordingly negotiations took 9 place. Respondent Nos. 1 to 4 told them that there was no obstacle in execution of the sale deed in respect CTS No.369/2. On 24.11.2008, a public notice was given by Respondent Nos. 2 to 4 through Advocate Shri Raman Mantri, calling upon objections, if any, for sale of the said Surya Hotel & Lawn. To the said notice, reply was filed by appellant-Plaintiff No.1 on 11.12.2008 through Advocate Shri N.S.N.S.Alijar (Jain) which was published in newspaper on 12.12.2008, claiming that the Respondent No.2 Purushottam Bagdia agreed to sell the said property to the plaintiffs. Thereafter, Respondent No. 2 by his letter dated 23.12.2008, called upon appellant No.1 and his Advocate Shri Alijar (Jain) to supply true and certified copies of the agreement for sale dated 7.2.2001 and agreement dated 30.1.2002 referred by them in their public reply/objection dated 11.12.2008. According to the appellants, by letter dated 26.12.2008, through their Advocate Shri Alijar (Jain), they forwarded xerox copies of said documents to Respondent No.2 Purushottam. It is further stated by Advocate Shri Alijar in his 10 said letter that he could not immediately send attested copies of the said agreements because the originals are in the locker. 04. It is argued before this court on behalf of Respondents that if we compare the copy of the agreement dated 30.1.2002 supplied by Advocate Shri Alijar (Jain) with the impugned agreement produced by plaintiffs, the portion regarding suit property i.e. CTS No.369/2, appears to be interpolation. It is, therefore, further case of Respondent No.2 that appellants-plaintiffs have forged the said document in respect of which he filed complaint and the police filed charge sheet against appellant-plaintiff No.1 Santosh. The cmopy of the charge sheet is also placed on record. In the circumstances, it is submitted by Respondents that no relief can be granted on the basis of the forged document. 05. It is further argued on behalf of Respondent Nos. 1 to 4 that assuming for a moment that agreement for sale was executed by Respondent 11 No.2 as claimed by appellants-plaintiffs, still it was an agreement alleged to have been executed on behalf of a private limited company and such an agreement would not be valid unless there was authorization in favour of Respondent No.2 by the board of directors of the company to enter into such transaction and to sign on behalf of the company. Moreover, it is also argued that the agreements dated 6.2.2001 which were first in point of time were between individuals i.e. one agreement between plaintiff No.1 Santoshkumar and Defendant No.2 and second between Plaintiff No.2 Kamlabai and Defendant No.3 Prabhavati Bagdia. It is, therefore, submitted that Defendant 2 had no authority to adjust the earnest amount of Rs. 13,50,000/= paid by plaintiff No.2 to defendant No.3 in respect of CTS No.3018, for the purpose of consideration of Rs.1.37 crores in respect of alleged agreement dated 30.1.2002. 06. Along with reply affidavit filed in Civil Application No.2718 of 2010 in Appeal from Order No.29 of 2010, at Exhibit R-6, there is a a copy 12 of letter written by Advocate-Notary Shri S.M. Dhannawat to Assistant Commissioner of Police, Special Task Force, Jalna, on 21.1.2009. Letter indicates that as per copy of the impugned agreement dated 30.1.2002 kept with Advocate/Notary Shri Dhannawat in whose presence the said agreement was executed, there was no reference to CTS No. 369/2. It was original document which was notarized only for extension of time regarding agreement for sale in respect of CTS No.3007/2. 07. In the present case, Respondents have produced at Exh.R-2 (to the reply in Civil Application No.2717 of 2010 in Appeal from Order No.28 of 2010), a xerox copy of the agreement supplied by Advocate of the appellants by his letter dated 26.12.2008 to them in response to the letter by Respondents dated 23.12.2008 referred to earlier. If we compare the said document with the agreement for sale produced by plaintiffs on record and consider conduct of Respondent No.2 in lodging police complaint and 13 consequently police filing charge-sheet against appellant No.1, in my opinion, this court needs to be slow in interfering with the discretion exercised by the learned trial court. 08. Learned Counsel for Respondent Nos. 1 to 4 rightly argued that the property which belongs to a private limited company could not have been agreed to be sold by one of its directors without proper authorization in that behalf. It is also argued that though the impugned agreement was of 30.1.2002, neither the appellants nor Respondent Nos. 1 to 4 would have waited till 18.7.2009 when the suit is filed and if really, respondent Nos. 1 to 4 were in need of money, as can be seen also from the compromise that was arrived at between Respondent No.2 and his mortgagor in Special Civil Suit No.74 of 2006, in such case, Respondent Nos. 2 to 4 would have insisted on appellants to complete the transaction by paying balance amount and thereby they would have been able to repay the mortgage amount and save some amount for themselves. Moreover, if there was really desire 14 on the part of the appellants-plaintiffs to obtain sale deed in respect of the suit property, they would not have waited from the year 2002 for seven years to file suit in 2009 and thereby block their amount of Rs.27.00 lakhs without interest. 09. After going through the judgment of the trial court and considering various circumstances discussed above, in my considered opinion, this is not a case for interference in the discretion used by the trial court. On the face of record, Respondent Nos. 5 to 13 appear to be bonafide purchasers. Hence, both appeals from orders stand dismissed. 10. At the time of arguments, learned counsel for the appellants prayed that the trial court may be directed to expedite hearing of the suit. Advocates for the parties are ready to cooperate with the trial court for expeditious hearing. In the circumstances, the trial court is directed to expedite hearing of the suit and disposed of the same at the earliest. It is made clear that the 15 trial court shall not get influenced by any of the observations made in this order and it shall decide the suit on its own merits and on the evidence on record. Both Appeals from Orders are disposed of with observations as above. pnd/ao28.10 (P.R.BORKAR, J.) 16