Parkash Kaur vs Everest Construction Company
1990 Latest Caselaw 483 Del

JUDGMENT

Mahinder Narajn, J.

(1) By this order,I propose to deal with the interim application I.A. No. 277 of 1989, whereby the plaintiff & seeks an order of injunction again me defendant, restraining the de.endant from entering into any agreement with respect to flat No. 606 in "Resham Tower", a building proposed to be constructed at Prabha Devi, Bomby. The alleged agreement to ell on the basis of which the injunction is sought was dated 13-10-1981.

(2) By my order dated 2-2-1989. I granted injunction sought initially.

(3) The mater has to be finally disposed of now.

(4) I have heard counsel for both the parties at length. At an earlier stage, when the matter came up before me for determining the preliminary issue regarding want of jurisdiction of this Court, by my order dated 18-9-1990., I have held that this Court has jurisdiction to deal with the suit as filed. I.A. No. 277 of 1989 was not dealt with by me at that time at the request of counsel.

(5) Mr. P. C. Khanna has not been able to bring any case to my notice which goes against what is stated by the Supreme Court in (Ram Saran Prasad v. Ram Mohit Hazara & ors.), (1) and Bai Dosabai v. Mathuradas Govinddas & ors. (2) that a contract of sale does not of itself create any interest or charge on such property.

(6) In view of the aforesaid judgments of the Supreme Court, and in view of the provisions of section 54 of the Transfer of Property Act, in the facts and circumstances of the case, which is a suit for declaration of existence of an agreement to sell, it would not be appropriate to pass an order of injunction, restraining sale of property pending establishment of the existence of an agreement to sell by the suit of declaration.

(7) BE. ides this. in the plaint there is no relief sought for an injunction, restraining the defendant, from selling the property which is the subject-matter of the purported agreement between the parties. Inasmuch as in the main suit, the relief of injunction which is sought in the interim application, has not been prayed for. it would not be proper to grant the injunction which is sought.

(8) With these remarks, the application for injection is dismissed. The plaintiff is not entitled to an injunction, and the. order of injunction already granted on 2-2-1989, restraining the defendant from entering into any agreement with respect to the flat in question with any person, or delivering the possession of the whole or part thereof to a third person, is vacated.

(9) Suit No. 82 of 1989 be listed before the Deputy Registrar on 17-1-1991.