Telangana High Court
Om Narayan Sahu vs M/S. Vijaya Infratech on 22 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
C.M.A.No.493 of 2023
JUDGMENT:
This appeal is filed by the appellants/defendant Nos.2, 3, 5 and 6 challenging the order and decree dated 04.04.2023, passed by the IV Senior Civil Judge, City Civil Court, Hyderabad, in I.A.No.358 of 2021 in O.S.No.660 of 2021.
2. The appellants herein are defendant Nos.2, 3, 5 and 6 respectively, respondent Nos.1 to 5 are the plaintiffs and respondent Nos.6 and 7 are defendant Nos.1 and 4 in the suit.
3. The facts of the case, in brief, are that the respondents/plaintiffs filed the suit vide O.S.No.660 of 2021 on the file of the IV Senior Civil Judge, City Civil Courts, Hyderabad, against the appellants/defendants and respondent Nos.6 and 7, seeking permanent injunction restraining the defendants from inducting any third party into the suit schedule property viz., 14,726 square yards, bearing Municipal Nos.9-1- 44/1/2, 9-1-44/2/1/A and 9-1-44/1, falling in Survey Nos.140, 141 (Old No.144/1), situated at Langer House, Hyderabad. The 2 LNA, J CMA No.493 of 2023 plaintiffs also filed an Interlocutory Application vide I.A.No.358 of 2021 under Order XXXIX Rules 1 and 2 read with Section 151 C.P.C. to grant ad-interim injunction restraining the appellants/defendants and respondent Nos.6 and 7 from inducting any third party into the petition schedule property.
4. In the Interlocutory Application i.e., I.A.No.358 of 2021, the respondents/plaintiffs stated that the father of the appellants/defendants and respondent Nos.6 and 7 was owner of the suit schedule property i.e., 14,726 Square Yards and on demise of their father, the defendants succeeded to the suit schedule property. The appellants/defendants and respondent Nos.6 and 7 jointly executed an unregistered Development Agreement-cum-General Power of Attorney dated 02.11.2009 with regard to the development of entire suit schedule property i.e., 14,726 Square Yards in favour of the plaintiffs and the plaintiffs paid an amount of Rs.2.00 Crores in cash to the defendants as interest free refundable advance for the schedule property. Later, the appellants/defendants and respondent Nos.6 and 7 executed two Registered Development Agreements-cum- 3
LNA, J CMA No.493 of 2023 General Power of Attorney bearing document Nos.614 of 2010 and 615 of 2010, dated 30.11.2009, in respect of the lands admeasuring 3829 square yards and 3441.11 square yards respectively.
5. It is contended that the appellants/defendants and respondent Nos.6 and 7 have not complied with the clauses of the agreement, and therefore, the respondent/plaintiffs could not undertake development of the land. In the meanwhile, the defendants filed O.S.No.1648 of 2011 on the file of the IV Senior Civil Judge, City Civil Courts, Hyderabad, for cancellation of the Registered Development Agreements-cum-General Power of Attorney vide document Nos.614 of 2010 and 615 of 2010 dated 30.11.2009. The respondents/plaintiffs did not choose to contest the said suit and they remained ex parte. However, the said suit was dismissed by the trial Court vide order dated 11.07.2012 on the ground that Clause No.31 of the said Development Agreement was not complied with by the appellants/defendants and respondent Nos.6 and 7. Aggrieved by the order dated 11.07.2012, the appellants/defendants and respondent Nos.6 and 4 LNA, J CMA No.493 of 2023 7 filed an appeal vide C.C.C.A.No.159 of 2018 and the same is pending adjudication before this Court.
6. While the matter stood thus, on 20.10.2021 and 22.10.2021, the defendant Nos.3 and 4 came to the schedule property along with third parties with an intention to alienate the schedule property to third parties without cancelling the registered deeds.
7. The appellants/defendant Nos.2,3,5 and 6 filed counter denying the allegations made in the Interlocutory Application. However, they admitted that they entered into two Registered Development Agreements-cum-General Power of Attorney bearing document Nos.614 of 2010 and 615 of 2010 dated 30.11.2009 in respect of 3829 square yards and 3441.11 square yards respectively. They also denied that they jointly executed Unregistered Development Agreement-cum-General Power of Attorney dated 02.11.2009 for an extent of 14,726 square yards and further denied receipt of Rs.2.00 Crores as refundable interest free security deposit. They further denied that under Clause 13 of the Registered Development Agreements bearing document 5 LNA, J CMA No.493 of 2023 Nos.614 of 2010 and 615 of 2010 dated 30.11.2009, possession was delivered to the respondents/plaintiffs. They stated that physical possession of the schedule property is still with them, as they are running petrol pump and school in the schedule property and collecting the rents from the tenants.
8. On behalf of the respondents/plaintiffs, though none were examined, Exs.P.1 to P.8 were marked. On behalf of the appellants/defendants and respondent Nos.6 and 7, no oral or documentary evidence was adduced.
9. Initially, the trial Court granted status quo vide order dated 29.11.2021. Subsequently, the trial Court, after hearing both sides and considering the entire material available on record, allowed the I.A by granting temporary injunction restraining the defendants from inducting any third party into the petition schedule property pending disposal of the suit to avoid the multiplicity of proceedings vide impugned order dated 04.04.2023. Hence, this appeal.
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10. Heard Sri Vivek Jain, the learned counsel for the appellants and Sri K. Venu Madhav, the learned counsel for the respondents. Perused the record.
11. The learned counsel for the appellants/defendants submitted that the trial Court erred in granting temporary injunction in respect of the entire extent of 14,726 square yards of land basing on unregistered Development Agreement-cum- General Power of Attorney dated 02.11.2009. He further submitted that the trial Court ought to have seen that the two Registered Development Agreements were entered only in respect of 3829 square yards and 3441.11 square yards, totally admeasuring 7270.11 square yards, and they are under challenge in C.C.C.A.No.159 of 2018 before this Court. He further submitted that the trial Court failed to consider the provisions of Sections 14 and 41 of the Specific Relief Act,1963 and granted the temporary injunction mechanically.
12. The learned counsel for the appellants/defendants further submitted that Clause 13 of the Registered Development 7 LNA, J CMA No.493 of 2023 Agreements-cum-General Power of Attorney bearing document Nos.614 of 2010 and 615 of 2010, dated 30.11.2009, was only intended for the respondents/plaintiffs to enter into the property to carry on development works and as such, it was only a permissive possession and the developer was only a lincesee of the property. He further submitted that the respondents/plaintiffs have filed the suit for mere injunction simpliciter and no other reliefs for specific performance, money recovery or damages have been claimed, therefore, the suit is untenable in law. Further, there is no prayer for grant of leave to sue for a comprehensive relief under Order II Rule 2 C.P.C; that since the development agreement is unregistered, the same is hit by Section 17 of the Registration Act, 1908 and Section 47 of the Indian Stamp Act, 1899. Finally, he prayed to set aside the impugned order dated 04.04.2023.
13. In support of his contentions, the learned counsel for the appellants relied upon the judgments of the Hon'ble Supreme Court as well as united High Court of Andhra Pradesh in Kashi Math Samsthan & Anr. V. Shrimad Sudhindra Thirta Swamy & 8 LNA, J CMA No.493 of 2023 Anr., 1 Balram Singh v. Kelo Devi 2, Mohd. Jahangir v. Mallikarjuna Co-op Housing Society Ltd., 3 and Burra Anitha v.Elagari Mallavva 4,
14. Per contra, the learned counsel for the respondents/plaintiffs submitted that all the contentions raised by the appellants/defendants have to be settled in trial and that if the appellants/defendants enter into third party agreements, the respondents/plaintiffs would suffer irreparable loss and it will create multiplicity of litigation, and therefore, the trial Court has rightly granted temporary injunction. He further submitted that as per Clause 31 of the Registered Development Agreements- cum-General Power of Attorney bearing document Nos.614 of 2010 and 615 of 2010, dated 30.11.2009, the owners undertook to level the entire site admeasuring 3829 square yards and 3441.11 square yards respectively, by removing the stones and pebbles and also by leveling the ground to look even and also for fixing 1 (2010) 1 SCC 689 2 2022 SCC Online SC 1283 3 1991 SCC ONLINE AP 416 4 2010 SCC Online AP 518 9 LNA, J CMA No.493 of 2023 poles for boundaries; that there are no merits in the appeal and prayed for dismissal of the same.
Consideration:
15. A perusal of the record would show that there is serious dispute with regard to execution of the unregistered Development Agreement-cum-General Power of Attorney dated 02.11.2009 and payment of Rs.2.00 Crores towards refundable advance to the appellants/defendants. However, the appellants/defendants admitted that they entered into two Registered Development Agreements-cum-General Power of Attorney bearing document Nos.614 of 2010 and 615 of 2010, dated 30.11.2009, in respect of 3829 square yards and 3441.11 square yards respectively. The appellants/defendants contended that only symbolic possession was delivered to the respondents/plaintiffs for obtaining permission for construction.
16. Clause 13 of the Registered Development Agreements- cum-General Power of Attorney bearing document Nos.614 of 2010 and 615 of 2010, dated 30.11.2009, reads as under: 10
LNA, J CMA No.493 of 2023 "13. THAT the OWNERS agreed to sign the affidavits, declarations, applications maps, plans, etc., wherever it is required at the instance of DEVELOPER to approvals, sanctions, permissions from the government authorities or its agencies, departments at the cost of the Developer. Further, the OWNERS shall produce all original documents pertaining to the Schedule Property before the concerned authorities as and when it is required for the said purpose. That today all the Owners have delivered the vacant physical position of the Schedule Property to the Developer." (emphasis supplied)
17. Clause 31 of the Registered Development Agreement-cum- General Power of Attorney bearing document No.614 of 2010 dated 30.11.2009 reads as under:
"31. That the Owners hereby undertake to level the entire site admeasuring 3,829.00 Sq. Yards by removing the stones & pebbles and also by leveling the ground to look even and also for fixing of poles for boundaries."
18. Similarly, Clause 31 of the Registered Development Agreement-cum-General Power of Attorney bearing document No.615 of 2010, dated 30.11.2009 reads as under:
"31. That the Owners hereby undertake to level the entire site admeasuring 3,441.11 Sq. Yards by removing the stones & pebbles 11 LNA, J CMA No.493 of 2023 and also by leveling the ground to look even and also for fixing of poles for boundaries."
19. The above Clauses clearly disclose that the appellants/defendants and respondent Nos.6 and 7 have delivered vacant possession of the schedule property to the respondents/plaintiffs under Clause 13 and that the appellants/defendants and respondent Nos.6 and 7 undertook to level the sites covered by the said Registered Development Agreements by removing the stones and pebbles and by leveling the ground to look even and also for fixing poles for boundaries, as per Clause 31.
20. A perusal of the record discloses that there is no material to prove that the appellants/defendants and respondent Nos.6 and 7 complied with Clause 31 and therefore, there is considerable force in the contention of the respondents/plaintiffs that they could not take steps to develop the land and obtain permission for construction.
21. Admittedly, the appellants/defendants filed O.S.No.1648 of 2011 for cancellation of the Registered Development 12 LNA, J CMA No.493 of 2023 Agreements-cum-General Power of Attorney bearing document Nos.614 of 2010 and 615 of 2010, dated 30.11.2009, and the said suit was dismissed on 11.07.2012. Aggrieved by the same, the appellants/defendants and respondent Nos.6 and 7 filed C.C.C.A.No.159 of 2018 and the same is pending adjudication before this Court. Therefore, as on date, the two Registered Development Agreements-cum-General Power of Attorney bearing document Nos.614 of 2010 and 615 of 2010, both dated 30.11.2009, are still in force and are binding on the parties.
22. Interestingly, the respondents/plaintiff filed the present suit vide O.S.No.660 of 2021 for injunction restraining the appellants/defendants and respondent Nos.6 and 7 from inducting any third party into possession of the suit schedule property i.e., the land to an extent of 14,726 square yards covered by the Unregistered Development Agreement-cum-General Power of Attorney dated 02.11.2009. However, the respondents/ plaintiffs have neither sought any further relief for specific performance of unregistered Development Agreement dated 13 LNA, J CMA No.493 of 2023 02.11.2009 nor the leave of the Court under Order II Rule 2 CPC to file a comprehensive suit subsequently.
23. Insofar as the decisions relied upon by the learned counsel for the appellants is concerned, in Kashi Math Samsthan's case (1 supra), the Hon'ble Supreme Court held that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in favor even if, he has made out a case of balance of convenience in his favor and would suffer irreparable loss if no injunction is granted.
24. In Balram Singh's case (2 supra), the Hon'ble Supreme Court, while considering the facts of that case, observed that the plaintiff might not succeed in getting the relief of specific performance of such agreement to sell as the same was unregistered, the plaintiff filed a suit simplicitor for permanent injunction only. It may be true that in a given case, an 14 LNA, J CMA No.493 of 2023 unregistered document can be used and/or considered for collateral purpose. However, at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case the relief for specific performance.
25. In Mohd. Jahangir's case (3 supra), the erstwhile Hon'ble High Court of Andhra Pradesh held that in view of the fact that the relief of injunction is an equitable relief, the same cannot be granted when the plaintiff has not shown readiness and willingness to perform his part of the contract by seeking specific performance of agreement of sale. Accordingly, the Court partly allowed the CRP by partly setting aside the order of temporary injunction in I.A. and partly confirming to the extent of plots comprised in the plaint schedule. The Court further held that as the suit is pending and dispute between the parties has to be resolved in the suit, it will be expedient to restrain the petitioners from alienating the suit during the pendency of the suit.
26. In Burra Anitha's case (4 supra), this Court held as under: 15
LNA, J CMA No.493 of 2023 "12. The principle laid down by His Lordship in S. RAVINDER's case (4 supra) has to be understood with reference to such distinction and His Lordship was disinclined to permit undertaking an independent enquiry into the admissibility of a document at the stage of interlocutory enquiry when the agreement of sale was objected to be admitted into evidence for want of registration, whereas His Lordship himself recognized the right of the party to raise an objection even at the stage of consideration of an interlocutory application if the document suffers from any basic legal infirmity or illegality. This distinction is lost sight of by the trial Court. When the objection to the document in question was not only on the ground of want of registration, but also on the ground of want of sufficient stamp, the party producing the document was not stated either to have offered or to have made any attempt to pay required stamp duty and penalty on the document to en- able consideration of the admissibility of the document for any collateral purpose and in view of the absolute prohibition under Section 35 of the Stamp Act, looking into the document, even for the purposes of an interlocutory application, will be overlooking a basic legal infirmity or illegality.
The trial Court went wrong in appreciating the ratio of the precedents cited before it as permitting the marking of an unstamped and unregistered document in an interlocutory enquiry and opining that the objections will be considered while disposing of the interlocutory application. Section 60 of Civil Rules of Practice provides for marking of the documents in interlocutory proceedings in the same manner as in a suit and under the circumstances, the impugned order is liable to be set aside and the trial Court is to be directed to determine the objections of the Revision Petitioner/plaintiff against the admissibility of the document on the ground of insufficiency of stamp and want of registration."
27. In Punjab National Bank v. Iqbal Ahmed 5, the High Court of Delhi held as under:
"5. It may be pointed out that no suit for specific performance of unregistered agreements dated 31.3.1965 and 16.10.1965 was filed nor have the respondents sought cancellation of the registered sale deed dated 31.03.1965 and 19.10.1965. This would lead to a situation where the respondents are not avoiding the transaction in the registered 5 2003 SCC Online Del 1060 16 LNA, J CMA No.493 of 2023 instrument but are seeking to use the unregistered agreements dated 31.3.1965 and 16.10.1965 to seek mandatory and permanent injunction as also possession. Such is impermissible and any interim order in furtherance thereof cannot be granted. It has been held by the Supreme Court in S.Saktivel (dead) by LRs. vs. M.Venugopal Pillai and ors., 2000(7) SCC 104, that unregistered document cannot be rescinded, varied or altered by unregistered document. Therefore, no final relief can be granted on the basis of unregistered agreement in the teeth of the registered sale deed. Consequently, where a final relief cannot be granted, an interim relief to the same effect is also barred."
28. It is pertinent to note that in the present case the respondents/plaintiffs did not seek specific performance of Unregistered Development Agreement dated 02.11.2009 and no leave was sought under Order II Rule 2 CPC. Further, the Unregistered Development Agreement dated 02.11.2009 was not marked before the trial Court.
29. The trial Court came to the conclusion that the respondents/plaintiffs made out prima facie case, balance of convenience and irreparable loss for grant of injunction and to avoid multiplicity of litigation. However, the trial Court erred in granting injunction in respect of the entire extent of 14,726 square yards, which is covered by the Unregistered Development 17 LNA, J CMA No.493 of 2023 Agreement dated 02.11.2009, since there is a serious dispute with regard to execution of Unregistered Development Agreement dated 02.11.2009. Therefore, the trial Court ought to have confined the injunction only to 3829 square yards and 3441.11 square yards, totally admeasuring 7270.11 square yards, covered by Registered Development Agreements-cum-General Power of Attorney bearing document Nos.614 of 2010 and 615 of 2010, dated 30.11.2009, which are in force and binding on the parties.
30. In the light of the above factual background and the legal position, the impugned order dated 04.04.2023 is modified and restricted to the extent of the land admeasuring 7270.11 square yards covered by the Registered Development Agreements-cum- General Power of Attorney bearing document Nos.614 of 2010 and 615 of 2010, dated 30.11.2009, as under:
"Temporary Injunction is granted restraining the defendants from inducting any third party in respect of the land admeasuring 3829 square yards and 3441.11 square yards, totally admeasuring 7270.11 square yards, pending disposal of the suit."18
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31. Accordingly, the Second Appeal is partly allowed to the extent indicated above. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY, J Date: 22.01.2024 va