Kerala High Court
Jacob Abraham Thomas @ Idasseril ... vs Chappan Aboobacker Sidhique on 12 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
FAO NO. 38 OF 2024
AGAINST THE ORDER DATED 16.12.2023 IN OS NO.93 OF 2023 OF
ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL COURT, PAYYANNUR
APPELLANTS/RESPONDENTS IN I.A.NO.2 OF 2023/DEFENDANTS IN
O.S.NO.93 OF 2023:
1 JACOB ABRAHAM THOMAS @ IDASSERIL VEETTIL TONY
AGED 75 YEARS
S/O ABRAHAM IDASSERIL THOMAS @ A.I.THOMAS,
IDASSERIL HOUSE, OLAYAMBADI, KUTTOOR AMSOM DESOM,
PAYYANNUR TALUK, KANNUR DISTRICT, (P.O) OLAYAMBADI,
(VIA) M.M.BAZAR., PIN - 670306
2 JUNE SUSAN ABRAHAM
AGED 40 YEARS
D/O JACOB ABRAHAM THOMAS, FLAT NO. 303C, S.M.R.
VINAY CRESCENT, OPPOSITE VINAYAKA TEMPLE, HENNOOR
CROSS, (P.O.) KALYAN NAGAR, BANGALORE - 560043
BY ADVS.
PAUL ABRAHAM VAKKANAL
ABRAHAM VAKKANAL (SR.)
VINEETHA SUSAN THOMAS
ANIRUDH INDUKALADHARAN
RESPONDENT/PETITIONER IN I.A.NO.2 OF 2023/PLAINTIFF IN
O.S.NO.93 OF 2023:
CHAPPAN ABOOBACKER SIDHIQUE
AGED 49 YEARS
S/O UMMER HAJI, 'BAITH AL FATHAH', KOLACHERY AMSOM,
PATTYAM DESOM, (P.O) KOLACHERY, TALIPARAMBA TALUK.
BY ADV R SURENDRAN
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION
ON 12.04.2024, THE COURT ON 12.04.2024 DELIVERED THE FOLLOWING:
2
F.A.O.No.38 of 2024
G.GIRISH, J.
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F.A.O.No.38 of 2024
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Dated this the 12th day of April, 2024
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JUDGMENT
The appellants are the defendants in O.S No.93 of 2023 of Sub Court, Payyannur, a suit for specific performance of agreement for sale.
2. In an application filed as I.A.No.2 of 2023 by the respondent herein, who is the plaintiff in the aforesaid suit, the learned Sub Judge passed an order on 16.12.2023 restraining the appellants herein from transferring the suit property to any other person till the disposal of the said suit. It is the above order which is under challenge in this appeal.
3. The appellants would contend that, right from the very beginning, the respondent/plaintiff was having lackadaisical attitude towards fulfilling the obligation cast on him as per the terms of agreement in respect of the sale of the suit property. It is alleged that even the cheque issued by the respondent/plaintiff in respect of the advance amount of Rs.50 lakhs, was dishonoured, and that the above amount was later on paid by the respondent by way of four 3 F.A.O.No.38 of 2024 instalments. It is further stated that the respondent/plaintiff defaulted payment of the balance sale consideration of Rs.4,18,05,500/-, and hence he is disentitled and disqualified to seek enforcement of the agreement for sale executed in between him and the appellants for the sale of the suit property. Thus, the appellants claim to have rescinded the agreement with effect from 31.10.2022. After the elapse of about one year, the respondent/ plaintiff is said to have instituted the suit by stating false claims.
4. The respondent, on the other hand, would contend that the non-payment of the balance sale consideration was not due to any fault on his part, and that the appellants did not even apply for obtaining the basic documents such as legal heir-ship certificate, thandaper certificate, building ownership certificate, transfer of registry from previous owners, land ceiling exemption order and such other documents required for the execution and registration of the sale deed. It was also alleged that the appellants were not even prepared to share the originals of the title documents to ensure that the property was not under any mortgage.
5. Before the trial court, though the appellants filed written statement, the respondent/plaintiff insisted for hearing and early disposal of I.A.No.2 of 2023 for the reason that the appellants herein are making all preparations for the sale of the suit property to others 4 F.A.O.No.38 of 2024 in order to defeat the right of the respondent. While the matter was being considered by learned Sub Judge on 28.11.2023, the learned counsel for the plaintiff submitted that he shall deposit the balance sale consideration within three days if the defendants are ready to execute the sale deed. In answer to the above submission the learned counsel for the defendants is said to have made the submission that the defendants are ready to execute the sale deed if the plaintiff deposits the balance sale consideration. Accordingly, the case was posted to 01.12.2023 for the deposit of balance sale consideration. Thereafter the case was taken up by the learned Sub Judge only on 04.12.2023 due to official exigencies. In the meanwhile, the respondent/plaintiff filed I.A.No.4 of 2024 on 02.12.2023 seeking extension of time for the deposit of balance sale consideration till the appellants/defendants filed an undertaking expressing their willingness to execute the sale deed, or for decreeing the suit for specific performance. The reason stated was that the appellants/defendants have stoutly denied the entitlement of the respondent/plaintiff to have specific performance of the agreement, and that nowhere in the written statement had the appellants/defendants expressed their willingness to execute the sale deed. The appellants/defendants filed counter to the above interlocutory application contending that the respondent plaintiff has 5 F.A.O.No.38 of 2024 no legal right to require the appellants to express their willingness to execute the sale deed or for decreeing the suit for specific performance, and that the only intention of the plaintiff was to delay the consideration of I.A.No.2 of 2023 for temporary injunction, wherein the plaintiff had obtained an ad-hoc interim injunction against the alienation of the property. It is thereafter that the learned Sub Judge heard I.A.No.2 of 2023 and passed the impugned order on 16.12.2023.
6. The point to be decided in this appeal is whether the order passed by the learned Sub Judge on 16.12.2023 in I.A.No.2 of 2023 is liable to be interfered with.
7. Much has been argued by the learned counsel for the appellants about the lackadaisical attitude and laxity on the part of the respondent/plaintiff in honouring the terms of the agreement for sale executed by him in favour of the appellants. It is pointed out by the learned Senior Counsel that the respondent/plaintiff is making all efforts to try whether the matter could be procrastinated so that the appellants may not be able to dispose of their property to potential buyers who are ready with funds to purchase the suit property. According to the learned Senior Counsel, the impugned order of the trial court has curtailed the valid right to property of the appellants against whom the respondent had instituted the suit with 6 F.A.O.No.38 of 2024 malicious objectives. The learned counsel for the respondent, on the other hand, would contend that the inability of the appellants to procure the relevant legal documents for the conveyance of absolute title in favour of the respondent, was the real reason why the proposed sale transaction could not be fulfilled. It is further pointed out by the learned counsel for the respondent that the appellants are eager to dispose of the property to strangers with the oblique motive to have unjust enrichment out of the advance amount of Rs.50 lakhs received from the respondent.
8. The merits of the rival contentions raised by the appellants and the respondent in the above regard, are matters to be adjudicated by the Trial Court in the pending suit. It is not possible for this Court to adjudicate, at this stage, the question as to whose fault has resulted in the road block towards the fulfilment of the agreement between the appellants and the respondent. The scope of interference in this appeal has to be confined to the legality and correctness of the impugned order of the Trial Court.
9. A reading of the order under challenge would reveal that the learned Sub Judge has correctly evaluated the three essential elements of prima facie case, balance of convenience and irreparable injury, on the basis of which interim injunction contemplated under Order XXXIX Rule 1 of the Code of Civil Procedure has to be passed. 7 F.A.O.No.38 of 2024 It has been observed by the Trial Court that the balance of convenience is in favour of the respondent since he would be put to irreparable injury and prejudice, if the appellants succeed in alienating the suit property.
10. The learned counsel for the appellants would contend that there is absolutely no justification for the above observation in the impugned order since the Trial Court has not taken into account the contumacious conduct of the respondent in not depositing the balance sale consideration as assured before the Court, when the case was taken up for consideration on 28.11.2023. According to the learned counsel for the appellants, the Trial Court ought to have taken serious note of the failure of the respondent to abide by the submission made in the above regard in connection with the deposit of balance sale consideration, and dismissed I.A.No.2 of 2023 as one filed without any bona fides.
11. As already stated above, the reason for the non-deposit of the balance sale consideration as undertaken by the respondent before the Trial Court on 28.11.2023, is stated in I.A.No.4 of 2023 filed by him before the said court. The contention in the above interlocutory application that the defendants (appellants) have stoutly denied the entitlement of the plaintiff (respondent) to have specific performance of contract, and that the defendants have not 8 F.A.O.No.38 of 2024 expressed anywhere in the written statement about their willingness to execute the sale deed, cannot be brushed aside as a mere lame excuse to avoid payment of balance sale consideration. The fact that the appellants are holding the advance sale consideration of Rs.50 lakhs paid by the respondent, and that they have not stated anything about the repayment of the said amount while sticking on to their right to have the suit property sold to strangers, would lend support to the apprehension of the respondent about the transfer of the said property to his detriment.
12. While concluding the arguments, the learned counsel for the respondent submitted that if the appellants succeed in transferring the suit property to strangers, the respondent would be deprived of his right to proceed against the purchasers, who could show that they were transferees for value, who paid the money in good faith, without notice of the original contract between the appellants and the respondent. It is further pointed out by the learned counsel for the respondent that this Court could consider the option of modifying the temporary injunction upon such terms, making it clear that the restraint thereunder is limited to alienation of the suit property without disclosing the pendency of this suit, and the agreement between the appellants and the respondent, which is the subject matter of the suit.
9F.A.O.No.38 of 2024
13. The suggestion made in the above regard by the learned counsel for the respondent, appeals to reasoning and fairness. The appellants, if they are very particular to alienate the suit property pending the disposal of the suit, are having the responsibility to disclose to the potential buyers about the pendency of the suit before the Trial Court for the specific performance of the agreement for sale in respect of the said property, in between the appellants and the respondent. Such a revelation is required for the sake of fairness in the sale transaction. Having regard to the submission of the learned counsel for the respondent in the above regard, as well as the need to ensure fairness in the transactions, during the pendency of a suit for the enforcement of the contractual obligations of an agreement for sale of the property, I am of the view that the temporary injunction granted by the Trial Court is liable to be modified in such a manner that there would be no prohibition for the transfer of the suit property if there is disclosure of the pendency of the suit to the potential buyers.
In the result, the order dated 16.12.2023 of the Sub Court, Payyannur in I.A.No.2 of 2023 in O.S.No.93 of 2023, stands modified as follows :
(i) The defendants (appellants herein) are restrained by a temporary injunction till the 10 F.A.O.No.38 of 2024 disposal of O.S.No.93 of 2023 from transferring or encumbering the suit property without disclosing to the potential buyers or creditors about the pendency of the said suit.
(ii) It is made clear that any such alienation made by
the appellants would be subject to the outcome
of O.S.No.93 of 2023 of the Sub Court,
Payyannur.
Appeal disposed of as above.
Sd/-
G.GIRISH, JUDGE
ded/vgd