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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER No.49 OF 2016
M/s. Laxmi Ratan Builders Pvt. Ltd.,
Through its Director,
Sagar Satyanarayan Ratan,
Aged about 40 years,
R/o. Laxmi Nivas, Lakdapul,
Near Aychit Mandir, Nagpur. : APPELLANT
...VERSUS...
Shri Alok Kumar Jagannath Prasad
Dwivedi, Aged about 60 years,
R/o. House No.582, Opp. Indian Gymkhana,
Near Dinanath High School,
Dhantoli, Nagpur. : RESPONDENT
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Shri S. Zia Qazi, Advocate for the Appellant.
None for the Respondent.
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CORAM : S.B. SHUKRE, J.
st DATE : 31 OCTOBER, 2017.
ORAL JUDGMENT :
1. This is an appeal preferred against the order dated 20 th August, 2016 passed by the Civil Judge, Senior Division, Nagpur below application vide Exh.-5 filed for grant of temporary injunction in Special Civil Suit No. 287/2016.
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2. The appellant is the plaintiff, who entered into an agreement for purchase of the suit property on 19.5.2015 with the respondent, original defendant, the owner of the suit property, comprising plot No.12 situated at Dhantoli, Nagpur, for a total consideration of Rs.5/- crores and 3 flats and one shop block. According to the appellant, the amount of Rs.5/- lakhs was paid on the date of execution of the agreement to sale on 19.5.2015 and it was paid by cheque No.080775 drawn on Axis Bank. The appellant submits that this cheque was also encashed by the respondent. But, later on, the respondent dragged his feet and refused to perform his part of contract. Left with no other alternative, the appellant preferred a civil suit for enforcing specific performance of contract against the respondent in which application seeking temporary injunction (Exh-5) was filed by it. The application was resisted by the respondent. The Trial Court found substance in such resistance and therefore it rejected the application by the impugned order.
3. I have heard learned counsel for the appellant. None appears for the respondent, though duly served on merits. I have gone through the impugned order and all the documents filed along with this appeal.
4. Now, the only point which arises for my consideration is :
Whether refusal to exercise discretion in favour of appellant by the trial Court is illegal and arbitrary ?
5. It is seen from the pleadings of the respondent that he has ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:47:13 ::: J-ao49.16.odt 3/7 taken different stands at different points in the present case. When notice issued to him for performing his part of contract by the appellant was received by him, he gave a reply that the amount of Rs.5/- lakhs came to be deposited in his account by some un-known person. He also said that he made an inquiry in that regard with the Bank Manager and he learnt that the cheque was deposited in his account by the appellant. In the reply, the respondent further stated that the appellant got the knowledge about the bank account through illegal means and deposited the cheque in his account, without informing anything about the same to him. He further stated that thereafter he returned the amount of Rs.5/- lakhs to the appellant on 21.3.2016 through cheque. However, it is seen from another document filed on record by the appellant that this entry of Rs.5/- lakhs made on credit side of the current account of the appellant was cancelled and by debiting Rs.5/- lakhs to that account, the account of the respondent was re-credited with amount of Rs.5/- lakhs. This is the impression one gathers prima facie from the documents filed on record. Now, if one takes a look at the written statement of the respondent, we would come across a different stand taken by the respondent. Here the respondent says that he had indeed received Rs.5/- lakhs from the appellant but this amount was received by him by way of hand loan, which he had taken from the appellant to enable him to meet the expenses of proposed marriage of his son, which was later on ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:47:13 ::: J-ao49.16.odt 4/7 postponed and, therefore, the amount of Rs.5/- lakhs was returned by him to the appellant. Then, in the reply given by the respondent to the notice of the appellant, the respondent has nowhere stated that he is a patient of schizophrenia and now in his written statement, he has taken a plea in that regard.
6. It is also seen from the pleadings of the respondent that although he has denied execution of the agreement to sale dated 19.5.2015, he has maintained complete silence about the signature appearing thereon, which is prima facie purported to be made by the respondent. While he says that he did not execute any such agreement, he does not say that this agreement dated 19.5.2015 does not bear his signature and the signature appearing thereon has been forged by the appellant or somebody else.
7. The above referred facts and circumstances would prima facie show that there has been an agreement taken place between the appellant and the respondent regarding sale of the suit property on the terms and conditions prima facie mentioned in this agreement, which terms and conditions, were later on not adhered to in a prima facie manner by the respondent. Even, the trial Court has reached the same conclusion about prima facie existence of a sale agreement between the appellant and the respondent in respect of suit property for a total consideration of Rs.5/- crores, as could be seen from the finding recorded ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:47:13 ::: J-ao49.16.odt 5/7 by it in paragraph 9 of the impugned order. This finding for the sake of convenience is re-produced thus :
"The document i.e. agreement to sale dt.19.5.2015 prima facie suggests that, there was a sale agreement between plaintiff and defendant in respect of the suit property for total consideration of Rs.5/- crores. It also shows that plaintiff paid an amount of Rs.5/- lacs by way of cheque to defendant vide Cheque No.080775 dt.19.5.2015. The remaining amount was agreed to be paid in seven installment within 36 months. Defendant was agreed to obtain NOC and renewal of lease deed from Nazul for execution of registered sale deed."
8. But, in the later part of the order, even the trial Court, just as the respondent, took a different stand recording a contrary findings that whether or not the respondent agreed to sell the suit property to the appellant, whether or not he executed alleged agreement in favour of the appellant and whether or not a part consideration has been paid to the respondent, are all triable issues which could be determined by adjudication on merit. The contrary findings so recorded by the trial Court are as below :
"Apart from this fact, whether the defendant was agreed to sale suit property to the plaintiff, whether he executed alleged agreement in favour of plaintiff and whether defendant has paid a part consideration amount to the defendant, these are all the triable issues and that can be determined only by adjudication on merit."
9. On the basis of such contrary findings, it appears that the trial Court has refused to exercise its discretion in favour of the appellant. ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:47:13 :::
J-ao49.16.odt 6/7 Having regard to what has been found by this Court earlier regarding existence of prima facie case, I find that recording of contrary findings in the instant case by the trial Court is a perversity committed by it and, therefore, the impugned order would have to be said as arbitrary as well as illegal.
10. The next questions would be about balance of convenience and causing of irreparable loss and the questions, in the facts and circumstances of this case, would also have to be answered in favour of the appellant. After having entered into a prima facie valid agreement for purchase of the suit property and after having prima facie accepted amount of Rs.5/- lakhs as a part consideration by the respondent, the scale of convenience would tilt heavily in favour of the appellant. The suit property is an immovable property having substantial value and, therefore, if any third party interests are created or its nature is altered, such complications are likely to arise as may not be amenable to correction through mere payment of damages. Therefore, there is also a case of the appellant incurring irreparable loss if temporary injunction is refused to him.
11. In the result, I find that the impugned order being illegal and arbitrary, deserves to be quashed and set aside and it is quashed and set aside accordingly.
12. It is directed that the respondent shall not create any third ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:47:13 ::: J-ao49.16.odt 7/7 party interest and shall also not alter the nature of suit property till final disposal of the suit.
13. The application vide Exh.-5 is allowed accordingly and this appeal is allowed in the above terms.
14. The parties to bear their own costs.
15. The trial Court shall pass an appropriate order with regard to amount of Rs.50/- lakhs deposited with it at the time of final decision of the suit.
JUDGE okMksns ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:47:13 :::