Bombay High Court
Farah Diba Sultan Ahmed vs Anwar Mohammed Shaikh And Anr on 16 July, 2019
Author: B.P. Colabawalla
Bench: B.P.Colabawalla
3-MCA-47-2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
MISC. CIVIL APPLICATION NO. 47 OF 2016
IN
L.C. SUIT NO. 2605 OF 2014
Farah Diba Sultan Ahmed ... Applicant
V/s.
Anwar Mohammed Shaikh and Anr. ... Respondents
Mr. Shekhar Jagtap a/w. Ms. Sairuchita Chowdhary, i/b. J. Shekhar
& Co. for Applicant.
Mr.M.A.Khan, for Respondents.
CORAM: B.P.COLABAWALLA, J.
DATE : 16 th July, 2019 P.C:-
1. This Transfer Application No.47 of 2016 has been filed by the applicant (original defendant in L.C.Suit No. 2605 of 2014 pending before the Bombay City Civil Court at Bombay). The reliefs sought in this application are to order and direct that Suit No.2605 of 2014 (pending in BCCC) be withdrawn / transferred to this Court and thereafter tagged with Suit No.1715 of 2012 which is pending in this Court and which has been filed by the applicant herein against the respondents.
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3-MCA-47-2016.doc
2. It is the case of the applicant that Suit No.1715 of 2012 was filed by the applicant against the defendants in this Court for cancellation of the sale transaction and other related documents (including the Memorandum of Understanding and the Deed of Transfer) on the ground that the respondents herein (defendants in Suit No.1715 of 2012) had breached the terms of the agreement and have not fulfilled their obligations thereunder. The subject matter of the agreement is Flat No.503, situated on the 5 th Floor of building known as Hill Glade Co-operative Housing Society Limited, 7 A, Pali Road, TPS III, Bandra (W), Mumbai- 400 050 admeasuring approximately 750 sq.ft.
(carpet area).
3. The learned Advocate appearing on behalf of the applicant submitted that subsequent suit filed in the BCCC by the respondents herein, namely, Suit No.2605 of 2014, is also between the same parties and the subject matter of this suit also is the aforesaid flat No.503. The learned Advocate submitted that even though the relief sought in the BCCC suit is different from the reliefs sought in the suit filed in the High Court, looking at the subject matter of the two suits and the parties being the same, common evidence would have to be led and it would be in the interest of all the parties if both the suits are heard together. Considering that the suit filed in this Court Sonali Kilaje 2 of 5 ::: Uploaded on - 18/07/2019 ::: Downloaded on - 18/07/2019 23:09:23 ::: 3-MCA-47-2016.doc cannot be transferred to the BCCC as it would lack pecuniary jurisdiction to entertain the same, a request is made to transfer the BCCC suit to this Court so that both the suits (Suit No.1715 of 2012 and Suit No.2605 of 2014) can be heard and disposed of together.
4. After this matter was argued for some time, the learned Advocate appearing on behalf of the respondents (the Plaintiffs in Suit No.2605 of 2014) stated before me, on instructions, that the respondents are agreeable to have their suit transferred to this Court. He, however, had an apprehension that if once the two suits are tagged together, the applicants herein may indulge in tactics so as to delay the disposal of Suit No.2605 of 2014. He, therefore, requested that if this Application is allowed, hearing in both the suits be expedited and the matter be disposed of in a time bound manner.
5. Having heard both sides, I find considerable force in the arguments canvassed on behalf of the applicant. It is not in dispute that the subject matter of suits is one and the same, namely Flat No.503. It would therefore be in the interest of all parties if both suits are heard together since the evidence in both matters would also be common and at the same time would avoid the possibility of conflicting Judgments. In these circumstances, and considering the Sonali Kilaje 3 of 5 ::: Uploaded on - 18/07/2019 ::: Downloaded on - 18/07/2019 23:09:23 ::: 3-MCA-47-2016.doc statement made on behalf of the respondents, this Application is allowed in terms of prayer clauses (a) and (b) which read thus :
"(a) That this Hon'ble Court be pleased to order and direct that Suit No. 2605 of 2014 be withdrawn / transferred from the Hon'ble City Civil Court to this Hon'ble Court;
(b) That this Hon'ble Court be pleased to order and direct that Suit No.2605 of 2014 and Suit No.1715 of 2012 be tagged / clubbed together and that the two Suits be heard, decided and disposed of together;"
6. On being served with a copy of this order, the Registrar of the BCCC shall transfer all the papers and proceedings in Suit No.2605 of 2014 to this Court within a period of four weeks from today. It is further directed that the Registrar shall act on an authenticated copy of this order.
7. Once the papers and proceedings in Suit No.2605 of 2014 are received by this Court then both the Suits viz. Suit No. 2605 of 2014 and Suit No.1715 of 2012 shall be tagged together and heard finally. To proceed further in these matters, therefore, it is directed that once the papers and proceedings are received, place Suit No.1715 of 2012 on board for direction on 13/08/2019. The Registrar of the Sonali Kilaje 4 of 5 ::: Uploaded on - 18/07/2019 ::: Downloaded on - 18/07/2019 23:09:23 ::: 3-MCA-47-2016.doc BCCC shall transfer the papers and proceedings in Suit No.2605 of 2014 before the next date fixed by this Court.
8. The above Application is accordingly disposed of. No order as to costs.
(B.P. COLABAWALLA,J.)
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