Imperial Properties (P) Ltd. vs Ami Chand
1997 Latest Caselaw 792 Del

JUDGMENT

Mahinder Narain, J.

1. We have heard the Counsel for the appellant. The appellant has come before us against the order of the Hon'ble Single Judge which had stated that by merely a payment of Rs. 50,000/- against the total sale consideration of Rs. 22,00,000/-, it is not possible to get an order of injunction. The Hon'ble Single Judge had relied upon a judgment of the Supreme Court in Kanshi Ram Vs. Om Prakash, , in which the total sale consideration was Rs.16,000/- and only a sum of Rs. 2,500/- had been paid. In that case, the total consideration which had been paid was only 16 per cent of the total sale consideration. In the instant case, the amount which has been paid is only 2.27 per cent of the total sale consideration.

2. The Supreme Court in the aforesaid case held that a buyer would not be entitled to a decree for specific performance despite the fact that two Courts below directed the specific performance of the contract.

3. We wanted to see the bona fides of the appellant before us, who is the purchaser, by finding out whether it was ready and willing and able to deposit the entire consideration amount in this Court for the benefit of the person who succeed in appeal. Before us, it has been said that the appellant is not willing to deposit the entire amount of the consideration.

4. Counsel for the appellant relies upon a judgment of a Division Bench of this Court in Ansal Properties and Industries (Pvt.) Ltd. Vs. Rajinder Singh and Anr., . The Court in that case held as under:

"Section 12 which requires money to be paid to the defendant comes into pay only at the time when the Court is passing the decree and is deciding the rights of the parties. Section 12 nowhere states that a suit is not maintainable unless the sale consideration is deposited. The use of the expression "pays or has paid the consideration" means payment of money, as consideration, to the seller. It is inconceivable that the said section would contemplate payment of consideration to the seller at or before the time of filing of the suit. The question of payment of consideration would arise only when the Court directs the purchaser to do so. Such a direction will be issued only after the trial of the suit and at the time when the rights of the parties are being determined. Such a direction is issued at the time when the final decree is passed and not at an earlier point of time."

5. If the aforesaid statement of law is the true state of affairs, then provisions of section 12 of the Specific Relief Act may become otiose insofar as their application agreement to sell by one of the joint owners of the properties - when there are more than three joint owners, or in case of sale proposed by the "Karta" of a coparcenery where there are more than three coparceners, as in each of the aforesaid case's it will not be possible for only one person to sell the entirety of the property unless other join in the sale, and if others do not join in the sale, then Section 12 will come into play as the seller cannot perform the entirety of the contract as his capacity to sell will be controlled by the share the seller holds.In case of sale by such joint owners or such "Karta" who is unable to perform the entirety of the contract, it may be open to contend that section 12 applies, and, therefore, unless the entire consideration amount for which the property was agreed to be sold has been paid, or is paid, the suit itself may not be maintainable.

6. This is so because the use of words "has paid" and "pays" in Sect;on 12 are suggestive of payment prior to, and latest at the time of the institution of the suit.

7. In any case, as the aforesaid judgment does not deal with the exercise of discretion by the Court in this matter of granting an injunction, in our view, the same will have no application to the matter of exercise of discretion to the grant of injunction. In our view, as the appellant is not willing to deposit the entire consideration amount, and in view of the judgment of the Supreme Court in , we are not inclined to grant injunction.

The appeal is dismissed.