Om Parkash vs Shri Randhir Singh
1999 Latest Caselaw 759 Del

ORDER

Vikramajit Sen, J.

1. This application has been filed for obtaining of restraint orders against the Defendant from selling, alienating, encumbering, transferring or otherwise parting with the possession of sundry immovable properties which are the subject matter of the plaint. The suit is for the specific performance of an Agreement to Sell dated 27.3.1997 between the parties in respect of these properties.

2. When the case came up for hearing for the first time on 19.8.1997 the ex parte and interim injunction prayed for was granted, conditional on the deposit of the amount payable up to 26.9.1997; an amount of Rs. 7,25,000/- was deposited and has now been invested in Fixed Deposit. After summons and notices were issued on the Defendant he has filed his Written Statement and Reply to the application under Order 39, Rule 1 & 2 as also an application for vacation of stay under Order 39, Rule 4. Both these applications will be disposed of by this order.

3. The first contention of the Defendant was that in the plaint an alternative prayer has been preferred for the passing of a Decree for Rs. 7,75,000/- along with pendente lite and future interest at the rate of 24% per annum and, therefore, it would be appropriate if the restraint orders in respect of the suit properties should be recalled. Since the prayer in the suit was in specie to the said amount of Rs. 7,75,000/-, the injunction in respect of immovable property was not called for. This argument appears to be misconceived for the reason that in every suit for specific performance of a contract relating to immovable property, it is incumbent that the plaintiff prays for damages in the alternative since he would otherwise be precluded from claiming this relief. Acceptance of the argument of the Defendant would have the consequences of negating and rendering illusory the right of a party to seek specific performance of a contract. This is not the intendment of Specific Relief Act. This Statute itself provides that compensation in terms of money cannot be considered as an adequate relief in cases of breach of a contract pertaining to immovable property.

4. It was then argued on behalf of Defendant that numerous vexatious litigation has been initiated by Shri Bhim Singh and that the present suit is merely an extension thereof. It is averred that the Plaintiff is related to Shri Bhim Singh. Although this was not disputed by the Plaintiff, he argued that the Plaintiff is also related to the Defendant, even more closely than to Shri Bhim Singh. For the present I shall assume that both these positions are correct but in the view that I have taken, these arguments are not very relevant.

5. For the grant of the relief of a temporary injunction, the applicant must prove that the three concomitants exists in his favour i.e. a prima facie case, balance of convenience and that irreparable injury will be caused to him if the injunction sought for is not granted.

6. In the case in hand, Plaintiff claims that an Agreement to Sell was executed between the parties on March 27, 1997. This is categorically denied by the Defendant who has stated that this Agreement as well as the Cash Receipt purporting to be for the Earnest Money of Rs. 85,000/- are forged and fabricated to the knowledge of the Plaintiff and that these documents have neither been executed nor signed by him. A mere denial of this nature would not be sufficient to warrant the rejection of an application for temporary injunction since in every case such a denial is likely to be put forward. In order to determine whether a prima facie case exists in favour of the Plaintiff, a consideration of attending factors would have to be considered. Learned Senior counsel for the Defendant has submitted that the Defendant had already entered into an Agreement with Shri Karam Singh in terms of Agreement dated 6.3.1997 pursuant to which he had received a sum of Rs. 3,20,000/- from Shri Karam Singh. Since these alleged payments made to the Defendant by the Plaintiff and by the said Karam Singh are in cash, it is not possible to determine at this stage whether they are authentic transactions or whether the Agreement with Shri Karam Singh is anterior to that of the Plaintiff. The Plaintiff's application cannot be rejected on this ground.

7. Learned Senior counsel for the Defendant thereafter drew my attention to an Agreement executed on December 20, 1988 between the Defendant and his brothers on the one part of Shri Jayanti Prasad Gupta on the other part. By this Agreement a portion of the land owned by the Defendant in village Ali Pur, Delhi was sold @ Rs. 10,00,000/- per acre. It was submitted that since 1988 the value of the property in Delhi had increased in leaps and bounds and that it was inconceivable that the entire immovable property of the Defendant should have been agreed to be transacted for a partly sale consideration of Rs. 8,10,000/-. It was argued that even at the 1988 rates the value of the Defendant's land would be over five times the price alleged by the Plaintiff. Mr. Sandeep Sethi, learned counsel for the Plaintiff countered this argument by stating that the inadequacy of the sale consideration would not have the effect of non-suiting the Plaintiff in his prayer for specific performance. In my view this is a futile effort to parry the argument advanced by the Defendant since it is not a latter's submissions that the prayers contained in the plaint should be granted on this ground. The Defendant's argument is that the sale consideration is so unrealistic that the agreement relied upon by the Plaintiff is an obvious forgery and for this reason should not be given credence at this stage and hence a prima facie case had not been made out. This is especially so since a transaction pertaining to the land in question exists a decade earlier, and that too with a third party.

8. In my considered opinion a prima facie case does not exist in favour of the Plaintiff. The application being I.A. No. 7877/97 is, therefore, rejected on this ground.

9. Learned Senior counsel for the Defendant stated that Defendant has already entered into agreement for the sale of these properties with third parties and is willing to furnish security as may be considered appropriate by the Court. Accordingly the Defendant is directed to furnish security and/or bank guarantee for a sum of Rs. 25 lacs to the satisfaction of the Registrar of this Court. This security is to be furnished within four weeks from today.

10. I.A. 11502/98 is disposed of accordingly. I.A. 2633/98

11. At the time when arguments were heard in I.As. 7877/97 and 11502/98, Shri Ramesh Chandra, learned Senior counsel appearing for the applicant submitted that the application had been filed because the interim order previously passed was also operating against the applicant Shri Karam Singh. It was his submission that the application had been preferred only for this reason and that in the event of the interim orders being vacated no purpose would be served if the applicant is imp leaded as a party. The ad interim injunction previously granted has been vacated. Hence this application is not allowed. There will, however, be no order as to the costs.