BHARATHI WAREHOUSING Vs. SHREESHYLA CO OPERATIVE

JUDGEMENT

(1.) PETITIONERS 1 and 2 in this petition are firms represented by their Power of Attorney Holder. In this petition, petitioner have sought for setting aside the impugned order dated 30th June, 2008 made in LA. IV on the file of the XI Additional City Civil judge, Bangalore in O. S. No. 40/2007 and to award the costs of this petition and further to grant such other reliefs, as this Court may deem fit to pass, in the circumstances of the case.

(2.) BRIEF facts of the case are that, the plaintiffs-petitioners herein are registered partnership firms and defendants-respondents, by falsely representing, assuring and undertaking that, they would transfer, convey and in-veat in the plaintiffs-petitioners a clear and marketable title to property situate at doddakallasandra village, Uttarahalli Hobli, bangalore South Taluk, Bangalore induced the two plaintiffs-petitioners to part with a sum of Rs. 1,44,23,500/- (Rupees One Crore Forty four Lakhs Twenty Three Thousand Five humdred only) by Demand Drafts. The respondent-defendant No. 1 had agreed to sell to the petitioner No. 1-plaintiff No. 1 the suit schedule property. Accordingly, under the two agreements, the respondent-defendant No. 1 has received a total aggregate sum of rs. 02,04,97,182/- (Rupees Two Crores Four lakhs Ninety seven Thousand One Hundred and [eighty Two only) through seventeen demand drafts in favour of respondent through defendant No. 1 and all the seventeen demand drafts have been encashed and credited to the account of respondent-defendant No. 1 on 9th december 2003 for a sum of Rs. 1,44,23,500/-and saubsequently, on instructions and on behalf of the respondent-defendant No. 1, a sum of Rs. 60,73,682/- dated 3rd January, 2004 to the KIADB. It is the case of petitioners that, despite receiving a total sum of rs. 02,04,97,182/- under the two agreements, both dated 2nd January 2004, referred above, the respondent-defendant No. 1 did not come forward and execute the sale deeds in favour of the petitioner No. 1-plaintiff No. 1. Instead, the respondent-defendant No. 1 went ahead, executed and registered a sham sale deed dated)30th May, 2005 with respondent-defendant: no. 4 viz. M/s. Shreeshyla Builders Pvt. Ltd. represented by Its Director, Ms. Anisha Gopi, who is the daughter of respondent-Defendant no. 2. Therefore, petitioners herein, in view of the aforesaid reasons, were constrained to file a original suit in O. S. No. 40/2007 before the Court below and respondent-defendant no. 4 was also arrayed as Defendant No. 4 in the suit in terms of Section 19 of the Specific relief Act since the said respondent-defendant was the subsequent purchaser having full knowledge of the two agreements, both dated 2nd January, 2004 executed by the respondent-defendant No. 1 in favour of the petitioner No. 1-plaintiff No. 1. Further, before the Court below, as an ancillary prayer, petitioners had also prayed for a declaration that, the registered sale deed dated 30th May, 2005 and rectification deed dated 2nd September 2005 in favour of the subsequent purchaser (which was a sham transfer) be declared as null and void and the said prayers were urged as prayers (b) and (c) before the Court below. It is the further case of petitioners that, the said prayers (b) and (c) sought before the court below were ancillary and, in any event, superfluous under Section 19 (b) of the Specific Relief Act.

(3.) BE that as it may, the Trial Court was pleased to pass an ex parte interim order on 16th January, 2007, restraining the respondent-defendants from transferring or in any way encumbering the suit schedule property and restraining the defendants from changing the nature of the Suit Schedule Property. The respondents-defendant Nos. 1 to 4 entered appearance after service of summons and filed a detailed written statement. Subsequently, the said ex parte interim order was made absolute by the trial Court vide its order dated 4th april, 2007. Being aggrieved by the said order passed by the trial Court making the in terim order absolute, the respondent-defendant no. 1 filed M. F. A. No. 8078/2007 and respondents-defendants 2 to 4, who were initially arrayed as respondents 3 to 5 in the Miscellaneous Appeal were deleted at the request of respondent-defendant No. 1. The said M. F. A. filed by respondent-defendant No. 1 was disposed of with a direction to the trial Court to hear and dispose of the said suit pending before it within three months. After disposal of the Miscellaneous First Appeal by this Court, the Trial Court framed necessary issues on 26th May, 2008 and petitioners-plaintiffs led evidence marked exhibits on 5th June, 2008. Be that as it may, on 9th June, 2008, the respondents-defendants 1 to 3 filed an interim application under Order 7, Rule 11 (d) of the civil Procedure Code, praying that, the suit be rejected as, purportedly, the nature of the relief sought for by plaintiffs-petitioners touches upon the constitution, management and business of the respondent-defendant No. 1-Society and notice under Section 125 of the karnataka Co-operative Societies Act, had not been issued nor complied with the mandatory provisions of the said Act.