Sagi Koteswara Rao vs M/S Jai Bhavani Constructions
2022 Latest Caselaw 4763 AP

  THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
                       AND
 THE HON'BLE SRI JUSTICE G. RAMAKRISHNA PRASAD

   CIVIL MISCELLANEOUS APPEAL Nos. 127 & 166 OF 2022

COMMON JUDGMENT:             (Per Hon'ble Sri G.Ramakrishna Prasad)



             The Plaintiff in O.S.No.96 of 2021 is the Appellant

in both the Civil Miscellaneous Appeals and the Defendants

are the Respondents.

2. The C.M.A.No.127 of 2022 is filed by the

Plaintiff/Appellant challenging the Order passed by the

learned VIIIth Additional District Judge, Vijayawada, dated

16.03.2022 in I.A.No.560 of 2021 in O.S.No.96 of 2021.

3. The C.M.A.No.166 of 2022 is filed by the

Plaintiff/Appellant challenging the Order passed by the

learned VIIIth Additional District Judge, Vijayawada, dated

16.03.2022 in I.A.No.559 of 2021 in O.S.No.96 of 2021.

4. I.A.No.560 of 2021 is filed by the

Plaintiff/Appellant under Order 39 Rule 1 and 2 of Code of

Civil Procedure (for short 'C.P.C') seeking Temporary

Injunction restraining the Defendants/Respondents from

making further constructions in the Petition Schedule

Property till the disposal of the suit.

5. I.A.No.559 of 2021 is filed by the

Plaintiff/Appellant under Order 39 Rule 1 and 2 of C.P.C.

seeking Temporary Injunction restraining the Respondents

from alienating the suit schedule property in any manner till

the disposal of the suit.

6. Learned VIIIth Additional District Judge,

Vijayawada passed two separate Orders on 16.03.2022

dismissing both the Applications.

7. As the facts are identical and the only difference is

in the prayers in the above mentioned two Interlocutory

Applications, this Court deems it appropriate to dispose of

both the Civil Miscellaneous Appeals by this Common Order.

8. At the outset, it is to be stated that the

observations made while passing this Order, would only be

limited for the purpose of disposing the present Civil

Miscellaneous Appeals. It is needless to state that these

observations would not bind the learned VIIIth Additional

District Judge, Vijayawada in disposing of the main suit in an

uninfluenced manner on merits, as these observations are

only at this pre-trial stage.

PLAINTIFF'S CASE:

9.1. The facts that are relevant in the present case are

that the Plaintiff/Appellant filed O.S.No.96 of 2021 seeking

Specific Performance of Agreement of Sale dated 13.09.2013.

He had stated in the Plaint that during the subsistence of this

Agreement of Sale, the Respondent Nos.1 & 2 (who are

Defendant Nos.1 and 2) have sold and registered this property

in favour of the Respondent No.3 by way of Sale Deed, dated

29.03.2017 and that the said sale is not binding on the

Plaintiff/Appellant on account of the subsistence of the earlier

Agreement of Sale, dated 13.09.2013. The Plaintiff/Appellant

had stated in the Plaint that the total sale consideration

under the Agreement of Sale, dated 13.09.2013 is

Rs.49,50,000/- and that out of the said amount, the

Plaintiff/Appellant had advanced an amount of

Rs.37,00,000/- to Respondent Nos.1 and 2 on the date of

execution of Agreement of Sale. He had stated that

Respondent Nos.1 and 2 agreed to register the Agreement of

Sale and receive the balance sale consideration of

Rs.12,50,000/-.

9.2. It is further stated by the Plaintiff/Appellant that

though he was ready and willing to perform his part of

contract to get the Sale Deed registered by paying the

remaining sale consideration (Rs.12,50,000/-), Respondent

Nos.1 and 2 are postponing the same on one pretext or the

other. He further stated that the registered Sale Deed

executed by Respondent Nos.1 and 2 in favour of the

Respondent No.3, dated 29.03.2017 is a sham one.

9.3. The Plaintiff/Appellant further stated that the

Respondent No.2 got issued a Legal Notice, dated 16.06.2021

to the Plaintiff/Appellant alleging that the Plaintiff/Appellant

obtained three blank signed papers and four blank signed

cheques from Respondent No.2 under threat and coercion.

The Plaintiff/Appellant also got issued a Legal Notice, dated

01.09.2021 to Defendants Nos.1 and 2/Respondent Nos.1

and 2 demanding them to execute the Sale Deed in

pursuance of the Suit Agreement of Sale and that the

Defendants/Respondents managed the Postal Authority and

got returned the said Notice.

9.4. It was, therefore, prayed that since Respondent

Nos.1 and 2/Defendant Nos.1 and 2 failed to perform their

part of the contract by executing the Registered Sale Deed,

the Plaintiff/Appellant would suffer irreparable injury if the

Court does not pass an Order of Injunction restraining the

Respondents/Defendants from alienating the property

(I.A.No.559 of 2021) and further, another Order of Injunction

restraining the Respondents/Defendants from making further

construction in the Petition Schedule Property (I.A.No.560 OF

2021).

DEFENDANTS'CASE:

10.1. Respondent Nos.1 to 3/Defendants 1 to 3 filed

their joint Counter Affidavits denying the material allegations

of the Plaintiff/Appellant. At the outset, the

Defendants/Respondents categorically denied the execution

of Agreement of Sale, dated 13.09.2013 and the receipt of any

advance amount, much less a sum of Rs.37,00,000/- from

the Plaintiff/Appellant, and put the Plaintiff to strict proof of

the same. The Defendants/Respondents further submitted

that the Respondent No.2 is doing real-estate business; that

the Plaintiff/Appellant approached the Defendant

No.2/Respondent No.2 in the year 2017 with a proposal to

purchase land for investment. Upon the mediation done by

Respondent No.2, the Plaintiff/Appellant has purchased an

extent of 317 sq.yards site in Rayanapadu Village for sale

consideration of Rs.15,98,000/- under Registered Sale Deed,

dated 23.10.2017; that however, due to market fluctuations,

as the value of the property purchased by the

Plaintiff/Appellant got diminished in the month of September,

2020, the Plaintiff/Appellant demanded the Respondent No.2

for cancellation of the above Sale Deed and for return of sale

consideration; that as the Respondent No.2 did not agree to

this proposal, the Plaintiff/Appellant had placed this matter

before political leaders and Anti Social Elements and under

threat and coercion, the Plaintiff/Appellant obtained three

blank papers and four blank cheques relating to the firm and

also four blank papers from the Respondent No.2 as security

with an undertaking to purchase the property from the

Plaintiff/Appellant within six months; that the

Defendants/Respondents further stated that the Respondent

No.2/Defendant No.2 is no way concerned with the property

purchased by the Plaintiff/Appellant under Registered Sale

Deed, dated 23.10.2017 and that he simply acted as mediator

only; that as the Plaintiff/Appellant was threatening the

Respondent No.2 by making phone calls and threatening him

with dire consequences, the Respondent No.2 got issued Legal

Notice, dated 16.06.2021 demanding the Plaintiff/Appellant

to return blank papers containing his signatures and the

cheques, and without giving reply to the said Notice, as a

counter blast, the Plaintiff/Appellant got issued the Legal

Notice, dated 01.09.2021 (after 75 days) to wrong postal

address with false story that Respondent Nos.1 and 2

executed alleged Suit Agreement of Sale having received the

advance sale consideration of Rs.37,00,000/- on the same

day i.e. on 13.09.2013.

10.2. It is further stated categorically by the

Defendants/Respondents that the Plaintiff/Appellant is a

Mason and he has no financial capacity to pay huge amount

of Rs.37,00,000/- in the year 2013. It is further submitted by

the Respondents that Ex.R3 is an Aarogyasri Health Card

issued by the Government in the name of the

Plaintiff/Appellant under which the Plaintiff/Appellant is

entitled to free medical treatment in the Hospital. The

Respondents further submitted that this Aarogyasri Health

Card is issued to the people whose annual income is below

Rs.2,00,000/-. It is further submitted that the mere fact that

the Plaintiff/Appellant is in possession of Ex.R3/Aarogyasri

Health Card shows the incapacity of the Plaintiff/Appellant in

being able to negotiate the property for a sum of

Rs.49,50,000/- and paying advance amount of

Rs.37,00,000/- on 13.09.2013.

10.3. The Respondents have put the

Plaintiff/Appellant to strict proof of the payment of advance

amount also which is alleged to form part of total sale

consideration.

11. Having considered these above rival contentions,

the learned VIIIth Additional District Judge, Vijayawada had

dismissed both the Interlocutory Applications by separate

Orders on 16.03.2022.

12. The learned VIIIth Additional District Judge,

Vijayawada has given identical reasons for dismissing the two

Interlocutory Applications, which are discussed hereunder:

REASONING OF THE LEARNED TRIAL JUDGE:

13. Ex.P1 which is admittedly the unregistered non

possessory Agreement of Sale, dated 13.09.2013 (Ex.P1) does

not have the stipulation of any time or date for getting the

Registered Sale Deed after having allegedly parted with the

consideration of Rs.37,00,000/- out of Rs.49,50,000/-; that

the Plaintiff/Appellant did not mention his occupation in this

Ex.P1; that as stated by the Defendants/Respondents, the

Plaintiff/Appellant was a Mason and may not have the

financial capacity to pay huge amount of Rs.37,00,000/- in

the year 2013; that Ex.R3 produced by the Respondents,

which is the Aarogyasri Health Card issued by the

Government, under which the Plaintiff/Appellant is entitled

for free medical treatment in the Hospital also prima-facie

probabilises the financial incapacity of the Plaintiff/Appellant

and that the Plaintiff/Appellant did not dispute Ex.R3; that

Ex.P7 Sale Deed, dated 05.07.2013 indicates that an amount

of Rs.39,25,000/- has been realised by selling property of the

Plaintiff/Appellant, and receiving the entire amount in cash

(Rs.39,25,000/-) and that this transaction is being shown as

the capacity of the Plaintiff/Appellant to enter into an

Agreement of Sale, dated 13.09.2013; that as Ex.P1 is of the

year 2013 where the Plaintiff/Appellant has paid an advance

of Rs.37,00,000/- out of Rs.49,50,000/- and that he had to

pay only balance amount of Rs.12,50,000/-; that the

Plaintiff/Appellant has not given any reason as to why he has

not obtained a Registered Sale Deed till September, 2021 after

having parted with 3/4th of the amount of sale consideration

and as to why he has kept quiet till September, 2021 (for a

period of nearly eight years) without seeking execution of Sale

Deed or approaching the Court for Specific Performance of

Suit Agreement of Sale; that Ex.P4 namely the Legal Notice,

dated 01.09.2021 is also issued deliberately to the wrong

address to ensure return of Notice and as a counter blast to

the Legal Notice issued by the Respondents, dated

16.06.2021.

14. The learned VIIIth Additional District Judge,

Vijayawada held that the Plaintiff/Appellant had failed to,

prima-facie, establish his financial capacity to purchase the

suit schedule property for such a huge amount and failed to

make out a prima-facie case to grant Interim Injunctions in

his favour. The learned VIIIth Additional District Judge,

Vijayawada further held that the genuineness of

Ex.P1/unregistered non possessory Agreement of Sale, dated

13.09.2013 and passing of consideration under it is to be

decided during the course of full fledged trial only, but at this

stage only prima-facie case is to be considered and under the

circumstances, the Plaintiff/Appellant failed to establish the

prima-facie case in his favour.

15. The learned VIIIth Additional District Judge,

Vijayawada also held that the balance of convenience is also

not in favour of the Plaintiff/Appellant and it is more in

favour of the Defendants/Respondents because the

Respondent No.2 already alienated a part of the schedule

property by executing a Sale Deed in favour of the

Respondent No.3, and therefore, even on this count balance

of convenience is not in favour of the Plaintiff/Appellant. It is

also held that the Plaintiff/Appellant has failed to prove any

irreparable injury if the Court does not grant an Order of

Injunction in his favour; and that, on the other hand, if

Temporary Injunction is granted restraining the Respondents

from making further construction in the schedule property,

the Respondents will be put to irreparable loss and injury.

16. The Defendants/Respondents have filed Counter

Affidavit before this Court. Along with it they have filed a

Building Permit Order dated 09.01.2020, which indicates that

the plan for constructing a building has been approved by the

Andhra Pradesh Capital Region Development Authority. They

have also filed two photographs of the building under

construction in the said approved site which is also the site

under Agreement of Sale dated 13.09.2013. This building has

stilt with five floors, as is clearly visible in the two

photographs.

17. Sri S. Satyanarayana Prasad, learned Senior

Counsel appearing on behalf of Smt. C.Sindhu Kumari,

learned counsel for the Plaintiff/Appellant advanced his

arguments and Sri Sreenivasa Rao Velivela, learned counsel

for the Respondents advanced his arguments.

18. Sri S. Satyanarayana Prasad, learned Senior

Counsel appearing on behalf of Plaintiff/Appellant has cited

Judgment rendered by the Hon'ble Apex Court in Gangubai

Bablya Chaudhary and others vs. Sitaram Bhalchandra

Sukhtankar and others1 and drawn the attention of this

Court as regards the considerations that the Court has to

take into account while considering Interlocutory Applications

under Order 39 Rule 1 and 2 of C.P.C. At the outset it should

be mentioned that this case pertains to a suit for Permanent

Injunction wherein the Hon'ble Apex Court has laid down

criteria for grant of Temporary Injunction under Order 39

Rule 1 and 2 of CPC in a suit for grant of Permanent

1 (1983) 4 SCC 31

Injunction. The Hon'ble Apex Court had clearly stated that

the Court may have to examine whether the party seeking the

assistance of the Court was at any time in lawful possession

of the property and if it is so established one could prima-facie

ask the other side contesting the suit to show how the

Plaintiffs were dispossessed.

19. The learned Senior Counsel appearing for the

Plaintiff/Appellant also cited Ajendraprasadji

Narendraprasadji Pandey vs. Swami K. Narayandasji

and others2. In this case, no doubt the Hon'ble Apex Court

has laid down criteria for dealing with cases under Order 39

Rule 1 and 2 of C.P.C. and Order 7 Rule 11 of C.P.C., but this

case pertains to Trusts and Trustees arising out of Bombay

Public Trusts Act, 1950 wherein the Hon'ble Apex Court, at

Para No.12 of the Judgment, stated that:

"12. It is needless to note that while deciding the issue of injunction the courts have to consider the cumulative factors i.e. prima facie case, balance of convenience and irreparable loss. Definite findings have to be given on these aspects, on a prima facie basis. The impugned judgment of the High Court which forms the Subject-matter of appeal relating to SLP (C) No.15386 of 2004 does not meet the requirements. Therefore, without expressing any opinion on the merits and the acceptability of the various issues, we deem it appropriate to remit the matter to the High Court for fresh consideration".

20. The ratio laid down by the Hon'ble Apex Court in

the above two cases would not help the Plaintiff/Appellant as

2 (2005) 10 SCC 11

the ratio therein does not relate to suits arising out of a

Specific Relief Act, 1963 much less on the subject of specific

performance. The Hon'ble Apex Court, in the above referred

cases, has laid down specific criteria to be considered by the

Courts that are dealing with temporary reliefs, in suits for

grant of Permanent Injunctions. Therefore, the ratio in the

above two Judgments of the Hon'ble Apex Court do not help

the Plaintiff/Appellant.

21. The learned Senior Counsel has also cited another

Judgment of the Hon'ble Apex Court in Saketa Vaksana LLP

and another vs. Kaukutla Sarala and others3, which is a

suit for Specific Performance, but it is between the land owner

and the developer wherein there is an admitted contract and

exchange of partial consideration and under these

circumstances, the Hon'ble Apex Court, while noting that

there are serious disputed questions of fact involved in the

matter as regards possession of the suit property and whether

it has been handed over to the developer, the Hon'ble Apex

Court thought it fit to affirm the orders of the Division Bench

vacating the Injunction Order passed in favour of the

developer. Whereas, in the instant case there is a complete

denial on the part of the Defendants/Respondents as regards

execution of the Agreement of Sale, dated 13.09.2013 as well

as passing of any partial consideration of sale, much less the

3 (2020) 11 SCC 773

issue of possession, as admittedly it is a non-possessory

Agreement of Sale.

22. Sri Sreenivasa Rao Velivela, learned counsel for

the Defendants/Respondents has cited the Judgment of

Hon'ble Apex Court in Ambalal Sarabhai Enterprise

Limited vs. K S Infraspace LLP Limited and another4,

wherein the Hon'ble Apex Court had considered and laid

down the conditions for grant of Temporary Injunction or

otherwise under Order 39 Rule 1 and 2 of C.P.C. in a suit for

specific performance of contract for sale. The Hon'ble Apex

Court categorically held that the relief under Specific Relief

Act for specific performance of contract of sale is itself a

discretionary relief, and therefore, the criteria for considering

the grant of temporary relief under Order 39 Rule 1 and 2 of

C.P.C. falls on a different footing in suits for specific

performance as compared to temporary reliefs under Order 39

Rule 1 and 2 of C.P.C. in other suits. Sri Sreenivasa Rao

Velivela, learned counsel for the Defendants/Respondents

has drawn the attention of this Court to para No.15 of the

above Judgment. It is worth extracting the same which is as

under:

"15. Chapter VII, Section 36 of the Specific Relief Act, 1963 (hereinafter referred to as "the Act") provides for grant of preventive relief. Section 37 provides that temporary injunction in a suit shall be regulated by the Code of Civil Procedure. The grant of relief in a suit for specific performance is itself a discretionary remedy. A plaintiff seeking

4 (2020) 5 SCC 410

temporary injunction in a suit for specific performance will therefore have to establish a strong prima facie case on basis of undisputed facts. The conduct of the plaintiff will also be a very relevant consideration for purposes of injunction. The discretion at this stage has to be exercised judiciously and not arbitrarily".

23. The attention of the Court was also drawn to Para

No.19 which is also reproduced as under:

"19. In a matter concerning grant of injunction, apart from the existence of a prima facie case, balance of convenience, irreparable injury, the conduct of the party seeking the equitable relief of injunction is also very essential to be considered as observed in Motilal Jain vs. Ramdasi Devi ((2000) 6 SCC 420) holding as follows: (SCC p. 424, para 6) "6. The first ground which the High Court in Ramdasi Devi vs. Motilal Jain (1990 SCC OnLine Gau 120) took note of is the delay in filing the suit. It may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property:

(i) delay running beyond the period prescribed under the Limitation Act;

(ii) delay in cases where though the suit is within the period of limitation, yet;

(a) due to delay the third parties have acquired rights in the subject-matter of the suit;

(b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief.""

24. In the above quoted Paragraph No.19 the Hon'ble

Apex Court considered the ratio as laid down in Para No.6 in

Motilal Jain vs. Ramdasi Devi5, wherein the Hon'ble Apex

Court has dealt with two instances of delay in cases where

5 ((2000) 6 SCC 420)

the suit is within the limitation period. In para No.21 of the

Judgment, the Hon'ble Apex Court has also stated that when

the existence or otherwise of the contract between the parties

is itself a matter of trial to be decided on the basis of the

evidence that may be lead, the Interim Injunction may not be

granted.

25. In the present case, no single averment in the

plaint has been admitted by the Defendants/Respondents.

Execution of Agreement of Sale, dated 13.09.2013 has not

been admitted. The receipt of advance amount of

Rs.37,00,000/- out of Rs.49,50,000/- has not been admitted,

nor is the Plaintiff/Appellant is able to prima-facie establish

even by filing a scrap of paper that the

Defendants/Respondents have in fact received this advance

amount that constitutes 3/4th of the total amount of sale

consideration. The agreement dated 13.09.2013 which is

pitched by the Plaintiff/Appellant itself indicates that it is a

non possessory agreement of sale.

ANOTHER GLARING FACT AS NOTICED BY THIS COURT:

26. This Court has also noticed that a Sale Deed dated

05.07.2013 (Ex.P7) is pitched by the Plaintiff/Appellant in

order to show his ability to pay the advance amount of

Rs.37,00,000/- when he entered into Agreement of Sale dated

13.09.2013. This Sale Deed, dated 05.07.2013 is between

two joint vendors (namely Smt. Sagi Dhanalakshmi and Smt.

Gajula Rajyalakshmi) and the vendee is one Sri Koya

Ramakrishna Satyavara Prasad. It is indicated in the Sale

Deed that Smt. Sagi Dhanalakshmi, who is the daughter of

Sri Sagi Koteswara Rao (Plaintiff/Appellant herein), owns

about Ac.0-82 cents of land and Smt. Gajula Rajyalakshmi

owns about Ac.0-75 cents of land (Total extent being Ac.0-82

cents + Ac.0-75 cents = Ac.1.57 cents) and they have jointly

(under single Sale Deed, dated 05.07.2013-Ex.P7) sold this

total extent of land for a total consideration of Rs.39,25,000/-.

27. This transaction indicates that the sale

consideration which the joint vendors have received i.e. an

amount of Rs.39,25,000/- will have to be proportionately

shared between Smt. Gajula Rajya Lakshmi and Smt. Sagi

Dhana Lakshmi. Smt. Sagi Dhana Lakshmi is the daughter

of present Plaintiff/Appellant and she would be entitled to the

proportionate share (approximately about Rs.20,50,000/-) in

the sale consideration of Rs.39,25,000/-. Therefore, prima-

facie even assuming this total amount being available to the

Plaintiff/Appellant for the purpose of making advance

payment to the Defendants/Respondents, still, that ipso

facto, is not sufficient to conclude passing of advance amount

from plaintiff to defendant, particularly in the light of strong

denial, unless plaintiff adduces proof showing passing of

consideration by an acceptable mode like Cheque/Demand

Draft/RTGS etc., for, the 1st Defendant being a registered

firm, cannot be expected to accept such a huge amount in

cash. The Plaintiff, in our view, failed to establish this crucial

fact convincingly.

28. Learned VIIIth Additional District Judge,

Vijayawada has dealt with all these facts thoroughly before

applying the principles laid down by the Hon'ble Apex Court

as regards grant or otherwise of Temporary Injunction under

Order 39 Rule 1 and 2 C.P.C. in a case of specific

performance and has held that the Plaintiff/Appellant is not

entitled for any indulgence at this stage.

29. The learned VIIIth Additional District Judge,

Vijayawada is also conscious, as is noted in the order, that

any observation may cause prejudice to the Plaintiff or

Defendants during trial and that the observations made by

the learned VIIIth Additional District Judge, Vijayawada are

only limited to the pre-trial stage and they would not have

any bearing in disposal of the main suit for specific

performance.

30. In view of the discussion herein above, this Court

does not find any grounds to interfere with the findings given

by the learned VIIIth Additional District Judge, Vijayawada in

his Order dated 16.03.2022 in I.A.No.559 of 2021 and

I.A.No.560 of 2021 in O.S.No.96 of 2021.

31. Accordingly, the C.M.A.Nos.127 & 166 of 2022 are

dismissed. However, we must hasten to add that any

activities of the Respondents/Defendants in respect of suit

property shall be subject to result of the suit and in the event

of their failing in the suit, they cannot pray for equities.

There shall be no order as to costs.

32. Interlocutory applications, if any pending, also

stand closed in terms of this Order.

_____________________________ U. DURGA PRASAD RAO, J

_______________________________ G. RAMAKRISHNA PRASAD, J 01-08-2022 SDP

THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO AND THE HON'BLE SRI JUSTICE G. RAMAKRISHNA PRASAD

CIVIL MISCALLANEOUS APPEAL Nos. 127 & 166 OF 2022

01.08.2022

SDP