Bombay High Court
Mr. Asad Choudhari S/O Abdul Hasan ... vs Mr. Shakil Ahmed Siddiqui S/O Sageer ... on 12 November, 2025
2025:BHC-AUG:30918
(1) AO-77-2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 77 OF 2025
WITH
CIVIL APPLICATION NO. 11011 OF 2025
IN AO/77/2025
1. Mr. Asad Choudhari S/o
Abdul Hasan Choudhari
Age: 48 years Occu: Business
2. Mrs. Afroze Arif Khan
Age: 44 years, Occ: Business
3. Mrs. Asima Vajulla Kanchwala
Age: 52 years, Occu: Business
All R/o: C/o Babu Bhai Kanchwala,
Behind Telephone Exchange,
Chembur Naka, Chembur,
Mumbai 400071 .....APPELLANTS/
Original defendant
Nos.1 to 3
VERSUS
Mr. Shakil Ahmed Siddhiqui
S/o Sageer Ahmed Siddhiqui
Age: 57 years, Occu: Business and Agri.
R/o: Plot No.146, Near MGM Hospital,
Motiwala Nagar, CSN (Aurangabad) ....RESPONDENT/
Original Plaintiff
______________________________________________________________
Shri. S. V. Adwant, Advocate for the Appellants
Shri. Sanjeev Deshpande, Senior Advocate I/b. Patel Shaikh Ashpak
Taher, Advocate for the Respondent
(2) AO-77-2025
...
CORAM : SHAILESH P. BRAHME, J.
RESERVED DATE : 04.11.2025
PRONOUNCED DATE: 12.11.2025
JUDGMENT :
-
1. Heard both sides finally with the consent of the parties.
2. This Court is called upon to decide as to whether the
injunction granted by the Trial Court restraining the defendants from
creating any third-party interest in the suit land is legal and proper.
Appellants are original defendants and the respondent is the original
plaintiff in Special Civil Suit No.172 of 2025, filed for the relief of
specific performance of contract and injunction. Parties are referred to
by their status in the Trial Court.
3. Appellants/defendants are the owners of Gut No.1 (1H
50R) and Gut No.3(9H 55R) situated at Jainpur, Tq. Paithan, Dist.
Chh. Sambhajinagar. The total area of 26 Acres 15 Guntha is the
subject matter of the controversy.
(3) AO-77-2025
4. The respondent/plaintiff claims that by oral agreement
dated 06.01.2025, defendant agreed to sell the suit land for
consideration of Rs.3,12,00,000/- and earnest of Rs.4,90,000/- was
paid from 27.12.2024 to 03.01.2025. The possession is contended to
have been handed over to the plaintiff. The balance amount was to be
paid and the sale deed was to be executed before 15.04.2025. The
plaintiff learnt that defendants were trying to sell the suit land for
better consideration, dodging the transactions between the plaintiff.
Hence Special Civil Suit No.172 of 2025 was required to be filed along
with an application at Exhibit-5 for injunction.
5. The defendants contested the application at Exhibit-5 as
well as plaint by plea of total denial of any deliberations or oral
contract. It is contended that the plaintiff is trying to grab the suit land
at a low price. The payment of the earnest amount has also been
denied. The case of the plaintiff is stated to be totally false and
concocted. It is specifically pleaded that the defendant had already
entered into an agreement to sell on 24.11.2024 with one Mr. Javed
Khan Rashid Khan for consideration of Rs.5,62,50,000/-. It is
contended that memorandum of understanding was executed between
(4) AO-77-2025
defendants and Mr. Bassy S.E.Kuzhimanil Mathai Mathew. Earnest
amount of Rs.51,00,000/- was received by the defendants. In view of
the above facts, the application and the suit are prayed to be
dismissed.
6. By order dated 09.05.2025, the learned Trial Judge
allowed the application Exhibit-5 and restrained the defendants from
creating third-party interest till disposal of the suit. Taking exception
to the order, the present appeal is filed.
7. Learned counsel Mr. S. V. Adwant, submits that entire
claim of the plaintiff is false, bogus and concocted and it is made to
grab the property at a low rate. It is submitted that there are no
material particulars regarding the alleged oral transaction, handing
over of the possession, plea of verbal and written request or recourse
to the revenue authorities. It is further submitted that much prior to
the filing of the suit, the defendants entered into an agreement of sale
on 24.11.2024 with Mr. Javed Khan Rashid Khan and received
Rs.11,00,000/- towards earnest amount. Thereafter, a memorandum of
understanding was executed on 24.02.2025 for consideration of
(5) AO-77-2025
Rs.5,62,50,000/-. The documentary evidence placed on record in this
regard has not been dealt with by the Trial Court. It is further
submitted that the theory of having received Rs.4,90,000/- as earnest
is unconscionable and against the policy of the Central Government.
8. Learned counsel further submits that there were no
cordial relations between the parties so as to have any oral transaction
for such a huge amount. It is submitted that the learned Judge
committed perversity in recording inconsistent findings in respect of
handing over of possession. The material aspects of the matter are
overlooked by the Trial Court. It is further submitted that the learned
Trial Judge committed grave error of jurisdiction in granting injunction
when there is no prima facie case to show enforceable oral contract or
semblance of any contract. There is no prima facie case or balance of
convenience in favour of the plaintiff, still injunction is granted on
extraneous considerations. It is submitted that no irreparable loss
could have been caused to the plaintiff.
9. Per contra, learned senior counsel Mr. Sanjeev Deshpande
repeals the submissions by submitting that this Court has very limited
(6) AO-77-2025
scope under Order 43 of the C.P.C. to interfere in the impugned order.
It is submitted that the defendants failed to make out a case of
perversity or patent illegality and the discretion has been rightly
exercised by the Trial Court. It is further submitted that the impugned
order is innocuous and only preserves the property, which is beneficial
to the parties. It is further submitted that the theory of execution of
memorandum of understanding is misconceived because the oral
agreement executed between the parties on 06.01.2025 was not
superseded. It is submitted that prima facie case is made out by the
affidavits of the witnesses and a full-fledged trial is required to decide
the rival claims. It is also submitted that the implications as per
Income Tax Act and the policy of the Central Government can be dealt
with during the course of trial.
10. Having considered the rival submissions of the parties and
having gone through the notes of written submissions tendered by the
appellants and the compilation of the documents which are part of
record, the plaintiff has founded his suit for specific performance of
contract on the oral agreement which had taken place between the
parties on 06.01.2025. He claims that consideration of
(7) AO-77-2025
Rs.3,12,00,000/- for area of 26 Acres 15 Guntha is agreed and out of
that earnest of Rs.4,90,000/- in cash has been parted with. As against
that, the defendants have come up with a contract of sale executed in
writing on 24.11.2024 with Mr. Javed Khan Rashid Khan and
thereafter, a memorandum of understanding in favour of Mr. Bassy on
24.02.2025. They have placed on record bank statements, cheques and
the recitals to support the payment of earnest amount of
Rs.51,00,000/-.
11. At the outset, it needs to be made clear that this Court is
guided by the law laid down by the Hon'ble Supreme Court in Wander
Limited Vs. Antox India Private Limited; 1990 MLJ (2) 1 : 1990 DGLS
(SC) 269 : 1990 SCC (Supp.) 727 : 1990 Arb.L.R. (2) 399 for
entertaining the appeal under Order 43 of the C.P.C.. It is an Appeal on
principles and unless there is perversity or patent illegality or
arbitrariness the interference in the impugned order is not permissible.
The re-appreciation of the facts and possibility of another view cannot
be the grounds to interfere with the impugned order.
(8) AO-77-2025
12. A huge chunk of land is agreed to be sold by the
defendants to the plaintiff for Rs.3,12,00,000/- and out of that, earnest
amount of Rs.4,90,000/- is said to have been paid to the defendants.
The reason shown by the plaintiff for not executing any written form
of contract is the cordial relations between the parties. My attention is
adverted to the proceedings of RCA No.254 of 2016 filed by the
plaintiff against defendant no.1. It was emanating from Special Civil
Suit No.251 of 2013 filed by the plaintiff for possession which was
dismissed on 21.01.2015, albeit for some other property. It is not
possible to countenance that the relations are cordial and no necessity
was felt to enter into any contract in writing.
13. It's a trite law that when relief of specific performance of
contract is founded on oral contract, heavy burden lies on the plaintiff.
The plaintiff is under obligation to prima facie show the existence of
such oral contract, payment of earnest amount and the possession of
the suit land. To corroborate the claim, the plaintiff relied on the
affidavits of Mr. Mohd. Azeem Abdul Samad Saudagar, Mr. Shaikh
Sohel Shaikh Basheer, Mr. Faiyaz Ahmad Shaikh and Mr. Arshad Khan
Saleem Khan. No material is placed to show payment of earnest of
(9) AO-77-2025
amount of Rs.4,90,000/- to the defendants in cash. The plaint lacks
material particulars for the plea raised in para 7 about the verbal and
written request and plea of para 8 of having approached the revenue
authorities. The plaintiff could have placed on record the
circumstances or the material to infer oral agreement.
14. The plaint shows a specific plea of handing over of
possession, but it does not spell out the time. No panchanama or
possession receipt or any corroborative material is produced on record
to indicate that the plaintiff is in possession in pursuance of the oral
agreement. In the impugned order inconsistent observations are
recorded by the learned Judge in para 16 regarding handing over of
possession. The plaintiff is recorded to be in possession of the suit land
which is totally misconceived and unfounded. It is rightly contended
by the learned counsel Mr. Adwant that the finding in respect of
possession is perverse.
15. It is overlooked by the learned Judge that the defendants
have placed on record voluminous material to show that on or about
24.11.2024, an agreement was executed between the defendants and
( 10 ) AO-77-2025
Mr. Javed Khan Rashid Khan. Thereafter, a memorandum of
understanding was executed on 24.02.2025 in favour of Mr. Bassy. The
defendants have been paid earnest amount to the tune of
Rs.51,00,000/-, the photocopies of the cheques, extracts of the bank
transaction, the statements and recitals of memorandum of
understanding corroborate their theory. The impugned order does not
refer to this material aspect which amounts to patent illegality on the
face of the record.
16. There is no iota of evidence of alleged oral agreement
between the parties. It was possible for the plaintiff to show the
existence of the agreement by surrounding circumstances, revenue
record or any such messages or written request. It is difficult to
fathom that the parties would prefer to go for an oral agreement for
such a huge monetary transaction. Under the specious observation that
everything would be decided after a full-fledged trial, the plaintiff can
not be absolved from making out prima facie case and balance of
convenience.
( 11 ) AO-77-2025
17. My attention is adverted to the affidavits filed by the
plaintiff in support of the plaint as well as Exhibit-5 which are very
cryptic. The affidavits of Mr. Mirza Baig and Mr. Vajiulla Kanchwala
support the case of the defendants that there was no oral agreement.
The submissions of the learned counsel for the appellant have
substance that neither there was any oral contract nor was it legally
enforceable one. The reliance is placed on the judgment of
Correspondence, RBANMS Education Institution vs. B. Gunashekar
2025 SCC Online SC 73 to buttress that transaction above
Rs.2,00,000/- made in cash are liable for the penal action under
Section 271DA of the Income Tax Act. I have gone through para 18.1
as well as 19 of the judgment. It is apposite to reproduce the relevant
extract of para no.18.1 as follow :
"18.1. Further, through the averments made in the plaint
and in the agreement, the respondents/plaintiffs have
claimed to have paid huge sum towards consideration by
cash. It is pertinent to recall that Section 269ST of the
Income Tax Act, was introduced to curb black money by
digitalising the transactions above Rs.2,00,000/- and
contemplating equal amount of penalty under Section
271DA of the Act. As per the said provisions, action is to
be taken on the recipient. However, there is also an onus
on the plaintiffs to disclose their source for such huge
cash. The Central Government thought it fit to cap the
cash transactions and move forwards towards digital
( 12 ) AO-77-2025
economy to curb the dark economy which has a drastic
effect on the economy of the country. It will be useful to
refer to the Budget Speech during the introduction of the
Finance Bill, 2017 and the extract of the memo presented
with the Finance Bill, 2017, which lay down the object :
................... It is settled position that ignorance in fact
is excusable but not the ignorance in law." Therefore, we
deem it necessary to issue the following directions:
(A) Whenever, a suit is filed with a claim that Rs.
2,00,000/- and above is paid by cash towards any
transaction, the courts must intimate the same to the
jurisdictional Income Tax Department to verify the
transaction and the violation of Section 269ST of the
Income Tax Act, if any,
(B) Whenever, any such information is received either
from the court or otherwise, the Jurisdictional Income Tax
authority shall take appropriate steps by following the
due process in law,
(C) Whenever, a sum of Rs. 2,00,000/- and above is
claimed to be paid by cash towards consideration for
conveyance of any immovable property in a document
presented for registration, the jurisdictional Sub-Registrar
shall intimate the same to the jurisdictional Income Tax
Authority who shall follow the due process in law before
taking any action,
(D) Whenever, it comes to the knowledge of any Income
Tax Authority that a sum of Rs. 2,00,000/- or above has
been paid by way of consideration in any transaction
relating to any immovable property from any other source
or during the course of search or assessment proceedings,
the failure of the registering authority shall be brought to
the knowledge of the Chief Secretary of the State/UT 32
for initiating appropriate disciplinary action against such
officer who failed to intimate the transactions."
I find substance in the submissions of the appellants that the plea of
earnest amount of Rs.4,90,000/- in cash by the plaintiff to the
( 13 ) AO-77-2025
defendants is vulnerable and needs to be discarded at this juncture.
18. The alleged agreement to sell executed on 06.01.2025
cannot be said to be prior in time. The defendants entered into
contract with one Mr. Javed Khan on 24.11.2024, thereafter, a
memorandum of understanding was executed on 24.02.2025 with Mr.
Bassy. The defendants received earnest amount of Rs.11,00,000/- from
Mr. Javed Khan, which is well corroborated. Prima facie, the
transaction of the defendants with these person would prevail.
19. The learned senior counsel Mr. Deshpande attacked the
memorandum of understanding as it does not spell out or supersede
an agreement dated 24.11.2024 executed by the defendants with Mr.
Javed Khan. The agreement of the defendants and the memorandum
of understanding are not inconsistent. Mr. Javed Khan has signed
memorandum of understanding. The effect of those transactions can
be gone into during the course of trial. I am of the considered view
that in the absence of a prima facie case or balance of convenience, the
original owners cannot be prevented from alienating the suit land.
( 14 ) AO-77-2025
20. The learned counsel for the appellants has relied on the
judgment of K. Nanjappa vs. R. A. Hameed reported in (2016) 1 SCC
762. It is relevant to refer to para 22 and 23 which reads as follows :
"22. However, in a case where the plaintiff come
forward to seek a decree for specific performance of
contract of sale of immovable property on the basis of an
oral agreement or a written contract, heavy burden lies
on the plaintiff to prove that there was consensus ad idem
between the parties for the concluded agreement for sale
of immovable property. Whether there was such a
concluded contract or not would be a question of fact to
be determined in the facts and circumstances of each
individual case. It has to be established by the plaintiffs
that vital and fundamental terms for sale of immovable
property were concluded between the parties.
23. In a suit for specific performance of a contract, the
Court has to keep in mind Section 20 of the Specific
Reliefs Act, 1963. This Section preserves judicial
discretion to grant decree for Specific performance.
However, the Court is not bound to grant specific
performance merely because it is lawful to do so. The
Court should meticulously consider all facts and
circumstances of the case and to see that it is not used as
an instrument of oppression to have an unfair advantage
not only to the plaintiff but also to the defendant."
In the same judgment, inter alia a reference is made to the earlier
judgment of the Hon'ble Supreme Court as under :
"26. In Mayawanti v. Kaushalya Devi, this Court
observed as under : (SCC pp. 5-6, para 8)
8. In a case of specific performance it is settled
law, and indeed it cannot be doubted, that the jurisdiction
( 15 ) AO-77-2025
to order specific performance of a contract is based on the
existence of a valid and enforceable contract. The Law of
Contract is based on the ideal of freedom of contract and
it provides the limiting principles within which the parties
are free to make their own contracts. Where a valid and
enforceable contract has not been made, the court will
not make a contract for them. Specific performance will
not be ordered if the contract itself suffers from some
defect which makes the contract invalid or unenforceable.
The discretion of the court will be there even though the
contract is otherwise valid and enforceable and it can
pass a decree of specific performance even before there
has been any breach of the contract. It is, therefore,
necessary first to see whether there has been a valid and
enforceable contract and then to see the nature and
obligation arising out of it. The contract being the
foundation of the obligation the order of specific
performance is to enforce that obligation."
In the absence of any semblance of contract between the parties in the
present case also the impugned order amounts to making of the
contract for the parties.
21. Reliance is placed on the judgment of Andhra Pradesh
High Court in the case of Mundru Ramarao and others vs. Mundru
Kresha and another 2023 SCC Online AP 2029 . I have gone through
para 10 to 16. In view of the ratio laid down therein, the affidavits of
the plaintiff can be said to be bland affidavits.
( 16 ) AO-77-2025
22. Appellants have further referred to the judgment of
Ambalal Sarabhai Enterprise Ltd. vs. KS Infraspace LLP Ltd., reported
in (2020) 5 SCC 410. It was also case of specific performance of
contract founded on oral agreement. The respondents therein filed suit
for declaration as specific performance of contract. The Trial Court had
restrained the defendants from creating third party interest which was
affirmed by the High Court. The defendants had approached the Apex
Court and it quashed the order of injunction. The following
observations are relevant.
"22. In M.P. Mathur v. DTC, (2006) 13 SCC 706, this
Court observed:
"14. The present suit is based on equity...In the present
case, the plaintiffs have sought a remedy which is
discretionary. They have instituted the suit under Section
34 of the 1963 Act. The discretion which the court has to
exercise is a judicial discretion. That discretion has to be
exercised on well-settled principles. Therefore, the court
has to consider--the nature of obligation in respect of
which performance is sought, circumstances under which
the decision came to be made, the conduct of the parties
and the effect of the court granting the decree. In such
cases, the court has to look at the contract. The court has
to ascertain whether there exists an element of mutuality
in the contract. If there is absence of mutuality the court
will not exercise discretion in favour of the plaintiffs.
Even if, want of mutuality is regarded as discretionary
and not as an absolute bar to specific performance, the
court has to consider the entire conduct of the parties in
relation to the subject-matter and in case of any
( 17 ) AO-77-2025
disqualifying circumstances the court will not grant the
relief prayed for (Snell's Equity, 31st Edn., p. 366)...."
23. Wander Ltd. (supra) prescribes a rule of prudence
only. Much will depend on the facts of a case. It fell for
consideration again in Gujarat Bottling Co. Ltd. v. Coca
Cola Co., (1995) 5 SCC 545, observing as follows:
"47....Under Order 39 of the Code of Civil Procedure,
jurisdiction of the Court to interfere with an order of
interlocutory or temporary injunction is purely equitable
and, therefore, the Court, on being approached, will,
apart from other considerations, also look to the conduct
of the party invoking the jurisdiction of the Court, and
may refuse to interfere unless his conduct was free from
blame. Since the relief is wholly equitable in nature, the
party invoking the jurisdiction of the Court has to show
that he himself was not at fault and that he himself was
not responsible for bringing about the state of things
complained of and that he was not unfair or inequitable
in his dealings with the party against whom he was
seeking relief. His conduct should be fair and honest...."
The above ratio supports the appellants in the present case. The
conduct of claiming oral agreement when they were not on good
terms, unsupported plea of handing over of possession and payment of
earnest in cash is objectionable and suspicious.
23. Reliance is placed by learned counsel Mr. Deshpande on
Ramakant Ambalal Choksi vs. Harish Ambalal Choksi and others
reported in 2024 DGLS(SC) 1204 to buttress that protection under
( 18 ) AO-77-2025
Order 39 Rule 1 and 2 of C.P.C. is necessary, notwithstanding Section
52 of the Transfer of Property Act. The ratio laid down in para no.43 to
45 cannot be doubted and this Court is bound by it but in the present
case the respondent has failed to make out prima facie case of
existence of enforceable valid contract and its mutuality. The granting
of injunction would amount to creation of contract for the respondent.
Hence he is not entitled to temporary injunction.
24. For the reasons assigned above, I find that the appellants
are bound to succeed. I pass the following order :
ORDER
i. Appeal from Order is allowed and impugned order below
Exhibit-5 in Special Civil Suit No.172 of 2025 is quashed.
ii. The application Exhibit-5 in Special Civil Suit No.172 of 2025
stands rejected.
iii. Civil Application No.11011 of 2025 is disposed of.
( SHAILESH P. BRAHME, J. )
PRW
( 19 ) AO-77-2025
1. After pronouncement of the judgment, the learned
counsel for the respondent prays for continuation of the order below
Exhibit-5 for a further period of eight (8) weeks.
2. The request is opposed by the learned counsel for the
appellants.
3. I have already recorded that there is no prima facie case
and balance of convenience in favour of the respondent. The claim of
the respondent is founded on oral contract which cannot be made out
from the available circumstances. I do not find that the respondent will
suffer any irreparable loss.
4. The request of the respondent is rejected.
( SHAILESH P. BRAHME, J. )
PRW
