Bombay High Court

M/S Laxmi Ratan Builders Pvt. ... vs Shri. Alok Kumar Jagannath Prasad ... on 31 October, 2017

Bench: S.B. Shukre

        J-ao49.16.odt                                                                                                        1/7


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


                             APPEAL AGAINST ORDER No.49 OF 2016


        M/s. Laxmi Ratan Builders Pvt. Ltd.,
        Through its Director,
        Sagar Satyanarayan Ratan,
        Aged about 40 years,
        R/o. Laxmi Nivas, Lakdapul, 
        Near Aychit Mandir, Nagpur.                                                   :      APPELLANT

                           ...VERSUS...

        Shri Alok Kumar Jagannath Prasad 
        Dwivedi,  Aged about 60 years,
        R/o. House No.582, Opp. Indian Gymkhana, 
        Near Dinanath High School, 
        Dhantoli, Nagpur.                                                             :      RESPONDENT


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri S. Zia Qazi, Advocate for the Appellant.
        None for the Respondent.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                       CORAM  :   S.B. SHUKRE, J.

st DATE : 31 OCTOBER, 2017.

ORAL JUDGMENT :

1. This is an appeal preferred against the order dated 20 th

August, 2016 passed by the Civil Judge, Senior Division, Nagpur below

application vide Exh.-5 filed for grant of temporary injunction in Special

Civil Suit No. 287/2016.

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2. The appellant is the plaintiff, who entered into an agreement

for purchase of the suit property on 19.5.2015 with the respondent,

original defendant, the owner of the suit property, comprising plot No.12

situated at Dhantoli, Nagpur, for a total consideration of Rs.5/- crores

and 3 flats and one shop block. According to the appellant, the amount

of Rs.5/- lakhs was paid on the date of execution of the agreement to sale

on 19.5.2015 and it was paid by cheque No.080775 drawn on Axis Bank.

The appellant submits that this cheque was also encashed by the

respondent. But, later on, the respondent dragged his feet and refused to

perform his part of contract. Left with no other alternative, the appellant

preferred a civil suit for enforcing specific performance of contract

against the respondent in which application seeking temporary

injunction (Exh-5) was filed by it. The application was resisted by the

respondent. The Trial Court found substance in such resistance and

therefore it rejected the application by the impugned order.

3. I have heard learned counsel for the appellant. None appears

for the respondent, though duly served on merits. I have gone through

the impugned order and all the documents filed along with this appeal.

4. Now, the only point which arises for my consideration is :

Whether refusal to exercise discretion in favour of appellant by the trial Court is illegal and arbitrary ?

5. It is seen from the pleadings of the respondent that he has

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taken different stands at different points in the present case. When

notice issued to him for performing his part of contract by the appellant

was received by him, he gave a reply that the amount of Rs.5/- lakhs

came to be deposited in his account by some un-known person. He also

said that he made an inquiry in that regard with the Bank Manager and

he learnt that the cheque was deposited in his account by the appellant.

In the reply, the respondent further stated that the appellant got the

knowledge about the bank account through illegal means and deposited

the cheque in his account, without informing anything about the same to

him. He further stated that thereafter he returned the amount of Rs.5/-

lakhs to the appellant on 21.3.2016 through cheque. However, it is seen

from another document filed on record by the appellant that this entry of

Rs.5/- lakhs made on credit side of the current account of the appellant

was cancelled and by debiting Rs.5/- lakhs to that account, the account

of the respondent was re-credited with amount of Rs.5/- lakhs. This is

the impression one gathers prima facie from the documents filed on

record. Now, if one takes a look at the written statement of the

respondent, we would come across a different stand taken by the

respondent. Here the respondent says that he had indeed received Rs.5/-

lakhs from the appellant but this amount was received by him by way of

hand loan, which he had taken from the appellant to enable him to meet

the expenses of proposed marriage of his son, which was later on

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postponed and, therefore, the amount of Rs.5/- lakhs was returned by

him to the appellant. Then, in the reply given by the respondent to the

notice of the appellant, the respondent has nowhere stated that he is a

patient of schizophrenia and now in his written statement, he has taken a

plea in that regard.

6. It is also seen from the pleadings of the respondent that

although he has denied execution of the agreement to sale dated

19.5.2015, he has maintained complete silence about the signature

appearing thereon, which is prima facie purported to be made by the

respondent. While he says that he did not execute any such agreement,

he does not say that this agreement dated 19.5.2015 does not bear his

signature and the signature appearing thereon has been forged by the

appellant or somebody else.

7. The above referred facts and circumstances would

prima facie show that there has been an agreement taken place between

the appellant and the respondent regarding sale of the suit property on

the terms and conditions prima facie mentioned in this agreement, which

terms and conditions, were later on not adhered to in a prima facie

manner by the respondent. Even, the trial Court has reached the same

conclusion about prima facie existence of a sale agreement between the

appellant and the respondent in respect of suit property for a total

consideration of Rs.5/- crores, as could be seen from the finding recorded

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by it in paragraph 9 of the impugned order. This finding for the sake of

convenience is re-produced thus :

"The document i.e. agreement to sale dt.19.5.2015 prima facie suggests that, there was a sale agreement between plaintiff and defendant in respect of the suit property for total consideration of Rs.5/- crores. It also shows that plaintiff paid an amount of Rs.5/- lacs by way of cheque to defendant vide Cheque No.080775 dt.19.5.2015. The remaining amount was agreed to be paid in seven installment within 36 months. Defendant was agreed to obtain NOC and renewal of lease deed from Nazul for execution of registered sale deed."

8. But, in the later part of the order, even the trial Court, just as

the respondent, took a different stand recording a contrary findings that

whether or not the respondent agreed to sell the suit property to the

appellant, whether or not he executed alleged agreement in favour of

the appellant and whether or not a part consideration has been paid to

the respondent, are all triable issues which could be determined by

adjudication on merit. The contrary findings so recorded by the trial

Court are as below :

"Apart from this fact, whether the defendant was agreed to sale suit property to the plaintiff, whether he executed alleged agreement in favour of plaintiff and whether defendant has paid a part consideration amount to the defendant, these are all the triable issues and that can be determined only by adjudication on merit."

9. On the basis of such contrary findings, it appears that the

trial Court has refused to exercise its discretion in favour of the appellant.

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Having regard to what has been found by this Court earlier regarding

existence of prima facie case, I find that recording of contrary findings in

the instant case by the trial Court is a perversity committed by it and,

therefore, the impugned order would have to be said as arbitrary as well

as illegal.

10. The next questions would be about balance of convenience

and causing of irreparable loss and the questions, in the facts and

circumstances of this case, would also have to be answered in favour of

the appellant. After having entered into a prima facie valid agreement