Andhra Pradesh High Court - Amravati
Additional District Judge vs A To C Schedule Properties on 26 October, 2021
HON'BLE SRI JUSTICE JOYMALYA BAGCHI
AND
HON'BLE SRI JUSTICE RAVI NATH TILHARI
CIVIL MISCELLANEOUS APPEAL No.197 OF 2020
(Taken up through video conferencing)
JUDGMENT: (Per Hon'ble Sri Justice Joymalya Bagchi)
1. This Appeal is directed against the order, dated 21.08.2020,
passed in I.A. No.152 of 2020 in O.S. No.24 of 2020 by the learned X
Additional District Judge, Tirupati, Chittoor District (for short, 'the trial
Court'), whereby the learned Judge, while granting an order of injunction
restraining the respondents from alienating A to E schedule properties till
disposal of the Suit, declined to grant an order of injunction restraining the
respondents from disturbing the possession of the appellant in respect of
A to C schedule properties.
2. The appellant has filed a suit against the respondents claiming
Rs.78,73,551/- with future interest at the rate of 24% p.a. from the date of
suit till realization basing on a Memorandum of Understanding, dated
24.07.2019, and in default of payment of the said amount, sought for
execution of registered sale deed for plaint D and E schedule properties
and also prayed for execution of registered sale deed for A to C schedule
properties in his favour.
3. The case of the appellant is that he is the Proprietor of M/s.Sri
Shanti Constructions which carries on business in construction of
apartments in and around Tirupati. The husband of the 1st respondent was
an old acquaintance of the appellant. Due to close association, he had
lend a sum of Rs.9,90,000/- on 15.06.2019 to the appellant on the
assurance that the latter would repay the money with interest. Against the
loan, the appellant had issued blank cheques as security and had
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executed a Registered Sale Agreement-cum-General Power of Attorney in
favour of the 1st respondent and one Palakuru Mamatha, vide Document
No.2135/2009, dated 15.06.2009. Subsequently, the appellant took further
loans from the husband of the 1st respondent on various dates. Thereafter,
he made repayments to the husband of the 1st respondent on various
dates including adjusting the sale consideration of Flat No.305 in Orange
Homes Apartment to the tune of Rs.23,40,000/-. As a consequence,
Rs.6,30,420/- was due and payable by the husband of the 1st respondent
to the appellant. Thereafter, the appellant again borrowed money from the
husband of the 1st respondent on the assurance of repayment of the
borrowed sum with interest and changed the Registered Sale Agreement-
cum-General Power of Attorney as sale deed in the name of the husband
of the 1st respondent, vide document No.5119/2020, dated 07.10.2010, as
security, which covered A schedule property. Subsequently, he repaid
certain amounts with interest to the husband of the 1st respondent and the
parties entered into a Development Agreement-cum-General Power of
Attorney pertaining to the aforesaid sale deed, dated 07.10.2010, in the
name of the firm of the appellant with an understanding that the husband
of the 1st respondent would execute registered sale deeds for the allotted
flats as per the Development Agreement in the name of the appellant or
his nominee upon receiving the loan amount with accrued interest. Under
the aforesaid Development Agreement, husband of the 1st respondent was
to get two flats being Flat Nos.302 and 306 which are described as B and
C schedule properties and had undertaken to execute registered sale
deed pertaining to the said flats either in the name of the appellant or his
nominee. The appellant constructed the building and paid money to the
husband of the 1st respondent on various dates. Although the husband of
the 1st respondent received money, he did not settle account. In the
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meantime, flat No.306 was sold to one Sunil, who in turn, sold in favour of
G.Mani, who is in possession and enjoyment of the aforesaid flat.
However, the husband of the 1st respondent failed and neglected to
execute registered sale deed in favour of G.Mani. As per the appellant,
upon deducting the amounts paid to the husband of the 1st respondent
including sale consideration pertaining to flat No.305, a sum of
Rs.34,61,420/- was due and payable by the husband of the 1st respondent
to him. Accordingly, by legal notice dated 10.06.2019, the appellant called
upon the husband of the 1st respondent to execute sale deed in respect of
A, B and C schedule properties and to pay Rs.34,61,420/- with interest at
24% per annum. After receipt of legal notice and pursuant to negotiations,
a Memorandum of Understanding dated 24.07.2019 was entered by and
between the parties whereupon the husband of the 1st respondent agreed
to pay Rs.34,61,420/- with simple interest at 24% per annum, that is,
Rs.78,73,551/- on or before 23.07.2020, in default to execute registered
sale deed for D and E schedule properties by treating the aforesaid due as
sale consideration and to execute the sale deeds in respect of A, B and C
schedule properties bearing flat Nos.302 and 306 in Radha Govinda
Residential Apartment. Upon death of the husband of the 1st respondent
on 07.05.2020, the appellant requested the respondents to execute sale
deeds in respect of A, B and C schedule properties and to comply with the
terms of the memorandum of understanding, but the respondents failed
and neglected to do so. Hence, a legal notice was issued upon
respondents to execute registered sale deeds in respect of A, B and C
schedule properties and to pay a sum of Rs.78,73,551/- or execute sale
deeds for D and E schedule properties, but the respondents refused to do
so, on false and untenable grounds. The appellant is in possession of A, B
and C schedule properties and the respondents are threatening to
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dispossess him. Hence, he filed the suit and prayed for injunction
restraining them from disturbing his possession in respect of A, B and C
schedule properties.
4. The respondents have filed their objections and denied and
disputed such contentions. It is contended that the Memorandum of
Understanding dated 24.07.2019 is a fabricated document. It was further
contended that the husband of the 1st respondent never agreed to sell A to
C schedule properties. It is also contended that A to C schedule properties
are not in possession of the appellant. In fact, the respondents are in
possession of the said properties.
5. Upon considering the submissions of the parties, in view of the fact
that a Development Agreement-cum-General Power of Attorney had been
executed by and between them and the law declared by the Hon'ble Apex
Court in Saketa Vaksana LLP and another v. Kaukutla Sarala and
others1, the trial Court granted an injunction restraining the respondents
from alienating A to E schedule properties till disposal of the suit.
However, the trial Court recording that the possession of the appellant in
respect of A to C schedule properties is doubtful, hence the trial Court
refused to grant an order of injunction restraining interference with the
possession of the said properties.
6. We have heard the learned counsel for the parties.
7. Sri T.D.Phani Kumar, learned counsel, appearing on behalf of the
appellant, submits that an order of status-quo may be passed in respect of
A to C schedule properties. He further submits that his client is in
possession of A to C schedule properties in question.
2020 (1) AmLJ 10 (SC)
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8. On the other hand, Sri Harinath Reddy, learned counsel appearing
for the respondents, submits that the electricity bills submitted by the
appellant stood in the name of the husband of the 1st respondent and, in
fact, they are in possession of the same.
9. We have given anxious consideration to the rival submissions of
the parties. The suit has been filed for a decree of Rs.78,73,551/- on the
basis of Memorandum of Understanding, dated 24.07.2019, and in default
for execution of registered sale deed in respect of D and E schedule
properties and also for execution of a sale deed in respect of A to C
schedule properties.
10. Having considered the materials on record, the trial Court had
passed an order restraining the respondents from alienating the suit
properties in question. However, as the possession of the appellant was
doubtful, no order restraining interference into such possession was
passed. We are in agreement with the finding of the trial Court that the
materials on record do not create a prima-facie case with regard to
possession of A to C schedule properties by the appellant. On the other
hand the electricity bills placed on record in respect of the said properties
show that they are standing in the name of the husband of the 1st
respondent, thus, creating an impression that the respondents are in
control and possession of A to C schedule properties in question.
11. In the course of arguments, parties agreed that in order to preserve
the properties and avoid multiplicity of proceedings an order of status-quo
as to possession may be passed in respect of A to C schedule properties
till the disposal of the suit.
12. In view of the aforesaid, we hold there are prima-facie materials to
show that A to C schedule properties are in possession and control of the
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respondents and there shall be an order of status-quo as to possession in
respect of the said properties till the disposal of the Suit.
13. The Civil Miscellaneous Appeal is, accordingly, disposed of. No
order as to costs.
14. As a sequel, miscellaneous applications pending, if any, shall stand
closed.
______________________________
JOYMALYA BAGCHI, J
______________________________
RAVI NATH TILHARI, J
Date: 26-10-2021
Dsh
