Additional District Judge vs Unknown
2021 Latest Caselaw 4332 AP

              HON'BLE SRI JUSTICE JOYMALYA BAGCHI

                                        AND

              HON'BLE SRI JUSTICE RAVI NATH TILHARI

           CIVIL MISCELLANEOUS APPEAL No.165 OF 2021
                         (Taken up through video conferencing)


JUDGMENT: (Per Hon'ble Sri Justice Joymalya Bagchi)

1.     This Appeal is directed against the order, dated 07.05.2021,

passed in I.A. No.68 of 2021 in O.S. No.6 of 2021 by the learned II

Additional District Judge, Kadapa at Proddatur (for short, 'the learned

Judge') whereby the prayer of the appellant/petitioner to grant interim

injunction restraining the respondents and their men from alienating the

suit schedule property to third parties had been turned down.

2. The appellant herein had filed O.S. No.6 of 2021 for specific

performance of an agreement for sale, which is said to be executed on

09.12.2013, for sale of the suit property i.e., an extent of Ac.8.00 cents out

of Ac.13.44 cents situated in Survey No.5 of Nanganurupalli Village,

Proddatur Mandal, Y.S.R. Kadapa District, at a sale consideration of

Rs.20,00,000/- per acre. As per the agreement, the balance sale

consideration was to be paid within six (6) months and sale deed was to

be executed. It is claimed the appellant made two part payments to a tune

of Rs.20,00,000/- each on 10.11.2016 and 10.10.2019 to the 1st

respondent, respectively. It is further alleged though the appellant was

ready and willing to pay the remainder of the sale consideration, the 1st

respondent was unwilling to perform her part of the contract and execute

the sale deed. Upon enquiry, the appellant came to know that the 1st

respondent in collusion with the 2nd respondent had executed registered

sale deed, dated 13.11.2014, conveying the suit property in favour of the

2nd respondent. Under such circumstances, the appellant issued a legal JB, J & RNT, J

notice, dated 26.12.2020, upon the 1st and 2nd respondents seeking

specific performance of the agreement for sale, whereupon the 2nd

respondent replied to the said notice on 04.01.2021 denying the

allegations. Hence, the suit for specific performance was filed.

3. As the respondents were taking steps to alienate the schedule

property to third parties, the appellant prayed for an injunction against

alienation of the suit property in question.

4. 2nd respondent contested the injunction application stating that he is

a bona-fide purchaser for value and the suit property which was conveyed

in his favour on 13.11.2014. Appellant had failed to pay the balance sale

consideration within six (6) months as per the agreement for sale and had

belatedly filed the suit for specific performance, which is barred by

limitation.

5. Upon considering the materials on record and the submissions of

the parties, learned Judge was of the view that as the property had been

conveyed to the 2nd respondent and there was nothing to show that the

latter was intending to alienate the suit property. Hence, no case for

injunction has been made out.

6. Learned counsel appearing for the appellant submits that the

agreement of sale was executed in 2013 and the 1st respondent received

part payments as late as in 2019. His client was unaware of the purported

sale of the suit property to the 2nd respondent in 2014, which is a sham

transaction. Photographs and other evidence were placed on record to

show that the 2nd respondent is developing the property in order to

alienate it to third parties. Hence, there is a serious apprehension of JB, J & RNT, J

creation of third party interest in the said property and the learned Judge

erred in refusing the order of injunction.

7. On the other hand, learned counsel appearing for the 2nd

respondent argues that the appellant is not entitled to a decree of specific

performance as he failed and/or neglected to pay the entire sale

consideration within six (6) months as per the agreement. Suit property

had been conveyed in 2014 and the appellant had kept quiet for more

than 7 years before instituting the present suit. Failure to pay the entire

consideration within the time stipulated and delay in institution of the suit

shows that the appellant was not ready and willing to perform his part of

contract and the learned Judge had rightly refused to pass an order of

injunction in his favour.

8. We have considered the rival submissions in the light of the

materials on record.

9. Agreement for sale was executed between the appellant and the 1st

respondent on 09.12.2013 and the appellant was required to pay the

balance sale consideration within six (6) months as per the terms of the

agreement. Admittedly, the appellant failed to do so. However, it is

contended that the 1st respondent received two part payments in 2016 and

2019 respectively. In the meantime, the schedule property had been

conveyed in favour of the 2nd respondent by way of a registered sale deed

in 2014. The appellant claims that he was unaware of such transaction.

However, nothing is placed on record to show that the appellant had taken

steps to protect his interest with regard to the schedule property in

question by making paper publication or otherwise with regard to the fact

that an agreement for sale has been executed between the appellant and

the 1st respondent with regard to the property in question. Furthermore, JB, J & RNT, J

there is inordinate delay on the part of the appellant in making part

payments with regard to balance sale consideration.

10. In view of the aforesaid, we are of the prima-facie opinion that the

appellant was not vigilant with regard to his right to enforce the sale

agreement. Under such circumstance and as the appellant had

approached the trial Court after a lapse of 7 years from the date of

execution of the registered sale deed in favour of the 2nd respondent, we

are of the view the appellant has failed to make out a prima-facie case in

his favour to justify an injunction against the respondents from alienating

the property in question. Moreover, as recorded by the learned Judge,

nothing has been placed on record to show that there is an immediate

threat for alienation of the schedule property by the 2nd respondent.

However, balancing the interests of the parties with regard to the schedule

property, we direct in the event any alienation is made by the 2nd

respondent in future, the same shall be subject to the result of the Suit

being O.S. No.6 of 2021 and the 2nd respondent shall be bound to make a

declaration with regard to pendency of the suit in any agreement or

instrument that may be executed by her in respect of the subject property.

11. With the above directions, the Civil Miscellaneous Appeal is

disposed of. No order as to costs.

12. It is needless to mention the observations hereinabove are made

for disposal of this Appeal and shall not have any binding impact in the

course of hearing of the Original Suit. The parties are at liberty to pray for

early disposal of the Suit before the trial Court.

JB, J & RNT, J

13. As a sequel, miscellaneous applications pending, if any, shall stand

closed.

______________________________ JOYMALYA BAGCHI, J

______________________________ RAVI NATH TILHARI, J Date: 26-10-2021 Dsh