CHIRANJITH AJILA Vs. ARCHANA PROJECTS

JUDGEMENT

(1.) The defendant 2-Chiranjith Ajila, has filed this petition in this Court under Art. 227 of the Constitution of India challenging two orders passed by Trial

(2.) The learned Counsel for the petitioner-defendant 2-Mr. Sampath Anand Shetty, has urged before the Court that the suit filed by the plaintiff is not for specific performance but only for recovery of money from defendant 1 the vender and the defendant 2-the present petitioner-Mr. Chiranpth Apia to whom the said defendant 1 sold the suit property m question has no privity of contract with the plaintiff nor he has purchased such property with any encumbrance from the said defendant 1 and therefore, defendant 2-the present petitioner-Mr. Chiranjith Ajila was neither a necessary nor a proper party in the present suit for money recovery only and therefore the learned Court below has erred in rejecting the application filed by defendant 2 by the impugned order. Hence, the present writ petition is filed under Art. 227 of Constitution of India.

(3.) On the other hand, the learned Counsel for the respondent/plaintiff-Mr. K.A.' Ariga, has urged before the Court relying upon the provisions of section 55(6)(b) of the Transfer of Property Act, 1882 and the two judgments of the Honourable Supreme Court that even though the agreement in question under which defendant 1 had agreed to sell property in question to the; plaintiff on 16-8-2013, which was cancelled by the plaintiff himself on 14.10.2014 and the suit was filed only for recovery of advance money in question paid to the vender-defendant 1, but since the money m question was paid by the plaintiff as prepaid sale price and on account of non-performance of the agreement on the part of defendant 1-the plaintiff chose to cancel the said agreement but the charge on the suit property remains because the plaintiff had not improperly declined to accept delivery of the property m question and therefore, the rights of the plaintiff qua the said suit property existed even against the defendant 2 and such a charge on the property is protected by virtue of the said provisions of section 55(6)(b) of the Transfer of Property Act and the following judgments of the Honourable Supreme Court.