GREENCARE HOLDINGS LTD Vs. MKG DEVELOPERS LIMITED

JUDGEMENT

(1.) THIS appeal has been preferred by the appellants against the respondents challenging the judgment and order dated 25th July, 2008 passed by Hon'ble Justice Sanjib Banerjee in G. A. No. 1975 of 2006 arising out of C. S. No; 84 of 2006 (M. K. G. Developers Limited and Anr. v. Greenacre holding Limited and Ors.) asserting that the learned Judge should have sustained the applicants' claim under Section 10 of C. P. C. and instead of passing such an order, the learned Judge erroneously imposed cost of rs. 3. 000/- GMs. upon the appellants upon dismissal application being g. A. No. 1975 of 2006 arising out of C. S. No. 84 of 2006. According to the appellants the Hon'ble Judge should have held that the suit was not maintainable because it was malafide, vexatious and harassing and liable to be dismissed. According to the appellants the order so passed by the learned Judge should be set aside with the observation that it was wrong in law as well as in facts.

(2.) IT appears from the order dated 25th July, 2008 that the learned judge was pleased to dispose of five applications filed by the parties by a common judgment. G. A. No. 1726 of 2006 is the plaintiffs principal inter locutory application in aid of reliefs claimed in the suit. G. A. No. 1975 of 2006 is the application by the 1 st and 4th defendants for disposal of the suit by directing the plaint to be taken off the file with an alternative prayer for stay of all proceedings in the suit. G. A. No. 2305 of 2006 is the second defendant's application for similar purpose. G. A. No. 1983 of 2007 is the plaintiffs' application for amendment which the plaintiffs seek to abandon with leave to pursue the subsequent amendment application being G. A. No. 553 of 2008. The principal relief claimed in the suit is for specific performance of an agreement for sale of a land at No. 3 Barapulia Road, nizamuddin East, New Delhi together with other reliefs. On the plaintiffs' application being G. A. No. 1726 of 2006 an ad interim order was made on june 16, 2006 requiring the parties to seek prior leave of Court before selling their respective shares in the suit property and such order was passed without prejudice, the rights and contentions of the parties in the proceeding pending before the Delhi High Court. The first defendant instituted C. S (O. S.)No. 719 of 2006 in the Delhi High Court on 16th March, 2006 seeking a decree for partition of the New Delhi property in two equal shares between the parties to that suit. In that suit the first plaintiff took out an application in the Delhi suit for stay of trial thereof on the ground that the Calcutta suit was the earlier suit and that the matter directly and substantially in issue in the subsequent Delhi suit were also directly and substantially in issue in the previous Calcutta suit. The applying defendants by filing an affidavit stated that :-

(3.) THE application under Section 10 of the Code was dismissed by the Single Judge of the Delhi High Court on the ground that there was a previous application under Section 10 of the Code that the defendant in the delhi suit had filed and withdrawn without any leave to apply afresh, which precluded the defendant from subsequently re-agitating the substance of the application that had been withdrawn and seeking a stay of the suit. The order was passed on 18th July, 2007.