The Single Bench of the Delhi High Court in the case of Vibhor Kumar Gupta & Ors. vs Anupama Kapoor & Ors. consisting of Justice Amit Bansal observes that an interim order that is based on false or misleading statement in relation to a material particular, is liable to be vacated on the ground of misrepresentation and concealment alone.
Facts
An application was filed on behalf of the plaintiffs under O39 Rules 1 and 2 CPC for grant of interim injunction and the application filed on behalf of the defendant nos. 1 to 4 under O39R4 CPC seeking vacation of ex parte ad-interim injunction granted by this Court. Vide the impugned order, this Court had granted an ex parte ad-interim injunction restraining the defendants from creating any third party rights in respect of three suit properties with the respective structures standing thereon situated in Village Chhattarpur and also known as part of Farm No.15, North Drive, DLF Chhattarpur Farms, New Delhi.
Contentions Made
Appellant: A sum of Rs.21,00,000/- was paid to the defendant no.5 by way of a cheque, and three demand drafts of Rs.30,00,000/- each were also made in favour of the defendant nos. 1, 2 and 3, which were also duly encashed. Again, Rs.50,00,000/- was paid in cash to the defendant no.5. A total consideration of Rs.1,61,00,000/- out of Rs. 14,00,00,000/- was paid by the plaintiffs to the defendants. Draft Sale Deeds were also sent to the defendant no. 5 and the same were sent again after making minor corrections as suggested orally by the defendant no. 5, thereby showing the intent of the parties to execute the Sale Deeds in respect of the suit property. Legal notice was sent on behalf of the plaintiffs to the defendants and no reply was received thereto. The defendant no.4 in his written statement has admitted the Agreement to Sell between the plaintiffs and the defendant no.5.
Respondent: The ex parte interim injunction order passed by this Court was on account of gross misrepresentations by the plaintiffs since this Court was not informed that there was an oral Agreement to Sell and not written Agreement to Sell. Further, it was not disclosed to the Court that only two draft Sale Deeds were sent by the plaintiffs. The revised Sale Deeds were sent on behalf of the plaintiffs only to the defendant no.5 and not to the defendant nos.1 to 3. In the plaint, there is no prayer regarding specific performance of an Agreement to Sell. The prayers are only seeking execution of Sale Deeds. So, the present suit filed for specific performance is not maintainable.
Observations of the Court
The Bench observed that the Court was not made aware of the fact that the agreement to sell in respect of the suit property was an oral agreement and not a written agreement. Perhaps, if the court would have been aware that the aforesaid agreement to sell was oral in nature, the ex parte ad interim injunction would not have been granted. Although an oral agreement to sell is permissible in law, but a heavy burden of proof must be fulfilled by the plaintiffs to prove it.
As per O39R4 CPC, an interim order that is based on false or misleading statement in relation to a material particular, is liable to be vacated on the ground of misrepresentation and concealment alone. It was observed that in a suit for specific performance, the plaintiff has to establish a strong prima facie case based on undisputed facts, for grant of interim injunction.
Judgment
As per the plaintiffs’ own case, there was no written agreement to sell executed in favour of the plaintiffs. There was no direct interaction or interface between the plaintiffs and the defendants. The demand drafts in respect of the remaining amount of the sale consideration made by the plaintiffs were also got cancelled, before issuance of legal notice, which demonstrated that the plaintiffs were also aware of the deal not going through. No time frame was also fixed between the parties for execution of the Sale Deeds. The entire suit property was one piece of contiguous land, which had not been divided till date. All the facts suggested that there was a lack of mutuality between the parties. So, it could not be stated that there was a legally valid and binding agreement between the parties. There was not even a prayer made in the plaint for specific performance of an agreement to sell. The prayers were more in the nature of a mandatory injunction for the defendants to execute the sale deeds in favour of the plaintiffs. Hence, the ex parte ad interim was liable to be vacated.
Case Name: Vibhor Kumar Gupta & Ors. vs Anupama Kapoor & Ors.
Citation: CS(OS) 13/2020, IA No.3028/2020 (u/S.151 of CPC) & IA No.3029/2020
Bench: Justice Amit Bansal
Decided on: 19th April 2022
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