Delhi High Court

Prakash Khattar vs Smt. Shanta Jindal & Ors. on 4 July, 2011

Author: V.K.Shali

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(OS) NO.319/2008


                                        Date of Decision : 04.07.2011

PRAKASH KHATTAR                                  ...... Plaintiff
                               Through:    Mr.Rakesh Tiku, Sr.Adv.
                                           with         Mr.Prakash
                                           Gautam, Adv.


                               Versus

SMT. SHANTA JINDAL & ORS.                        ......    Defendants
                      Through:             Mr. Ved Prakash Sharma
                                           and Ms. Amrit Kaur,
                                           Advs.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                         YES
2.     To be referred to the Reporter or not ?              YES
3.     Whether the judgment should be reported
       in the Digest ?                                      YES

V.K. SHALI, J.

IA No. 2156/2008 (U/O 39, Rule 1 & 2) & IA No.10200/2009 (u/O 39 Rule 4 CPC)

1. This order shall dispose of an application bearing IA

No.2156/2008 under Order XXXIX Rules 1 and 2 CPC and

an IA bearing no.10200/2009 u/O 39 Rule 4 CPC filed by

the defendants for vacation of the ex parte ad interim stay

granted on 18.2.2008.

2. Brief facts of the case are that the plaintiff has filed the

present suit for specific performance against the defendant

nos.1 to 5 in respect of an agreement to sell dated

16.4.2005. It is alleged in the plaint that the defendant

nos. 1 to 5 are the legal heirs of one Sh.B.C.Mittal who had

a perpetual sub-lease in respect of a plot of land measuring

190 sq. yds. bearing no.B-154, Shivalik Colony, Malviya

Nagar, New Delhi in his favour.

3. Mr.B.C.Mittal, had expired on 31.5.99 and as a

consequence of this, the defendant nos.1,2 and 5 being the

daughters and the defendant nos.3 and 4 being the sons

had inherited the estate of the said deceased. They had

entered into an agreement to sell the aforesaid property in

favour of the plaintiff vide agreement to sell dated

16.4.2005 for a total sale consideration of `1,35,00,000/-,

out of which an amount of ` 15 lacs was paid by way of 5

pay orders dated 18.4.2005 drawn in favour of each of the

five defendants for which they had issued necessary

receipt. It is further alleged that a sum of `25,00,000/-

was also paid to them in cash which was duly

acknowledged by them. Thus, out of the total sum of

`1,35,00,000/-, an amount of ` 40 lacs is alleged to have

been paid to the defendants and the balance amount of `

95,00,000/- was to be paid to the defendants at the time of

execution of the sale deed in respect of the suit property

which was to be done within 60 days from the date of

conversion of the suit property from leasehold to freehold.

It is also alleged that the agreement envisaged that in the

event of the property being not converted into freehold for

any reason, the said amount would be paid to the

defendants within 60 days from the date of the execution

of the receipt dated 18.4.2005 provided the defendants

execute the other related documents like, General Power of

Attorney, Special Power of Attorney, receipt coupled with

the transfer of possession in respect of the suit property.

4. It is alleged by the plaintiff that on his asking, the

defendants had applied to the L&DO for conversion of the

leasehold rights in respect of the suit property into

freehold which was being followed by the plaintiff.

However, during this course, the plaintiff learnt that the

conversion could not take place as certain deficiencies were

pointed out by the L&DO. These deficiencies were that the

share certificate and the NOC from the concerned society

was not obtained and filed with the L&DO.

5. It has also been alleged by the plaintiff that it was learnt

that actually Mr.B.C.Mittal, deceased had made only

Mr.Vijay Mittal, defendant no.4 as the sole nominee of the

suit property. Further, the original share certificate was

not traceable, therefore, duplicate share certificate was

required to be obtained by the defendants in the name of

all the five defendants, who are purported to have executed

the agreement to sell. It is alleged that the defendants had

also lodged a report with the SHO P.S. Malviya Nagar on

29.8.2005 stating that they had lost the original share

certificate. The plaintiff further states that from April,

2005 till the end of August, 2006, nothing happened and

from September, 2006 for about one year, meetings took

place between the plaintiff and the defendants to resolve

the matter so that the transaction could be wound up but

it also did not bring any fruitful result.

6. It is stated that further meetings took place in September,

2007 which did not bring any resolution as in the

meantime, on account of considerable increase in the

prices of real estate, the defendants turned dishonest and

tried to wriggle out of the transaction compelling the

plaintiff to file the present suit for specific performance in

respect of the suit property and alternatively claiming a

recovery of `1,35,00,000/- against the defendants along

with an interest @18% being the sale price of the suit

property. Along with the suit the plaintiff had filed the

abovementioned IA under Order XXXIX Rule 1 and 2 CPC

for allowing an ex-parte ad interim injunction.

7. On 18.2.2008, the defendants were restrained by way of an

ex parte ad interim order from parting with the possession

of the suit property or in any manner creating any third

party interest.

8. The defendants filed their common written statement and

the reply to the application under Order 39 Rules 1 and 2

CPC and did not dispute the execution of the agreement

dated 16.4.2005 by the defendant no.1 for himself and by

defendant no.2 for his own self as well as defendant nos.3

to 5. However, it was the stand of the defendants that as

the said document dated 16.4.2005 was neither properly

stamped nor duly registered, therefore, the same was

inadmissible in law and could not be relied upon. It is

further contended that even if the said document is taken

into consideration, it would clearly show that according to

clauses 5,6 & 7 time was the essence of the contract. The

first party, namely the defendants at the instance of the

second party that is the plaintiff was to apply to the L&DO

for conversion of the leasehold rights to freehold and the

entire charges of conversion and the responsibility of

getting the property converted into freehold rested with the

plaintiff. It is alleged that the plaintiff failed to discharge

his obligation in a reasonable and efficient manner as a

consequence of which, the property could not be converted

from leasehold to freehold within the stipulated period as

envisaged under the agreement.

9. It has also been stated that the plea of the plaintiff that the

defendants have misplaced the original share certificate

and

consequently, conversion of the suit property to freehold

could not be done, is only a ploy to come out of the

transaction by the plaintiff. It is stated that the plaintiff

did not have requisite funds available with him. It is stated

that the defendants had obtained a duplicate copy of the

share certificate in the year 2006 that is a reasonable time

given to the plaintiff. In any case, it is contended by the

defendants that the agreement which was signed between

the parties clearly envisaged that in the event of the

property not being converted into freehold within 60 days,

the plaintiff was still to make the balance payment of

`95,00,000/- to the defendants and the defendants were

liable to execute the documents like power of attorney,

agreement to sell, Will and transfer the possession of the

suit property in favour of the plaintiff. It is stated that the

defendants have approached the plaintiff for making the

balance payment of ` 95 lacs in terms of the said clause of

the agreement so that the transaction could be completed

but the plaintiff for the reasons best known to him neither

got the said documents executed nor did he make the

requisite payment of `95,00,000/- in favour of the

defendants. It is stated by them that time being the

essence of the contract and the plaintiff having failed to

make the balance payment of `95,00,000/- to the

defendants, the defendants had forfeited the said amount

of `40 lacs given to them as an advance at the time of

signing of the agreement. It is also alleged by the

defendants that the plaintiff has not come to the Court

with clean hands and as a matter of fact, he is a

speculator, inasmuch as they were approached by one

Rajinder claiming himself to be the real estate agent

operating in Malviya Nagar, Delhi sometime in December,

2007/ January, 2008 and he claimed that he has

purchased the rights of the plaintiff under the agreement

dated 16.04.2005 from the plaintiff, and accordingly, he

wanted to complete the transaction even though it entails

the payment of certain escalating charges to the

defendants on account of increase in the prices of land as

claimed by the defendant. It is further alleged to have been

stated by the said gentleman that the plaintiff had suffered

huge losses in his business of running a show room in

electronic goods and therefore, was not in a position to go

ahead with the transaction. Thus, the defendants have

submitted that there was no prima facie case in favour of

the plaintiff warranting the continuance of the ex parte ad

interim stay granted to them on 18.2.2008.

10. The plaintiff filed his replication and controverted the

averments made in the written statement and reiterated

the averments made in the plaint.

11. From the respective pleadings of the parties, the following

facts emerge:

(i) It is not in dispute that on 16.4.2005, an agreement

to sell was executed between the defendants as the

first party and the plaintiff as the second party.

(ii) The defendants had admittedly received a sum of `

40 lacs out of which a sum of ` 15 lacs was received

by way of five pay orders of `3 lacs each in the name

of the five defendants and the balance payment of `

25 lacs was received by way of cash.

(iii) The property being a leasehold property was to be

converted into freehold and for this purpose, the

defendants had executed the necessary documents

like indemnity bonds etc. and applied to L&DO and

the plaintiff was to take up the matter for conversion

of the leasehold rights into freehold in favour of the

defendants and pay the necessary conversion

charges. It was the responsibility of the plaintiff to

ensure that the conversion of the leasehold rights

takes place within 60 days from the date of execution

of the receipt cum agreement dated 16.4.2005. The

sale deed was to be executed within that period and

the balance sale consideration was to be paid.

(iv) In the event of the leasehold rights not being

converted into freehold within the stipulated period of

60 days still the payment of ` 95 lacs was to be made

by the plaintiff to the defendants within the period of

60 days and the defendants were under an obligation

to execute the necessary documents like agreement

to sell, receipt, Will, Power of Attorney, etc. coupled

with the transfer of possession of the suit property in

favour of the plaintiff.

12. It is the case of the plaintiff that the defendants have

defaulted in carrying out their obligation in terms of the

agreement for want of original share certificate and the

nomination of defendant no.4 in the records of the society

created problems as the conversion could not be carried

out. It is also the case of the plaintiff that the property

prices having escalated, the defendants on being

approached on different dates engaged the plaintiff in futile

talks which ultimately did not yield any result. This

compelled the plaintiff to file the present suit for specific

performance in which this Court had issued an ex parte ad

interim stay on the very first date i.e. 18.2.2008.

13. As against this, the defendant has taken the plea that the

plaintiff did not discharge his obligation within the

stipulated period of 60 days from the date of signing of

agreement to sell. It is urged that the time was the essence

of the contract and in the absence of the property being

converted into freehold, the plaintiff could not absolve

himself from making the balance payment of ` 95 lacs to

the defendant as it was envisaged in the agreement itself

that in the event of conversion not being carried out by the

L&DO, the plaintiff had to make the balance payment of

`95 lacs and perfect his title by obtaining the possession

and getting all other requisite documents like agreement to

sell, Power of Attorney, receipt, etc. executed in his favour.

14. In the light of the aforesaid factual matrix, the question

which arises for consideration is as to whether the time

was the essence of the contract or not and if the time was

the essence of the contract, whether the plaintiff had

defaulted in performing his part of the obligation in terms

of such time frame stipulated in the agreement. For this

purpose, clauses 3, 4, 5, 6 and 8 of the agreement dated

16.4.2005 become important. The said relevant clauses

3,4,5,6 and 8 read as under:-

3) That the second party has seen and satisfied himself with regard to title deeds existing in favour of Late Shri B.C.Mittal and has also seen and satisfied himself with regard to mutation, carried out by MCD. Affidavit, Indemnity Bond that the first party has executed for effecting mutation of the property in their favour in the office of Land and Development, New Delhi. At the request of the second party, the first party will also apply in the office of Land and Development along with the mutation, for conversion of lease hold rights into the freehold rights. The Second party has agreed to pay the conversion charges as may be applicable in terms of policy, guidelines and rules framed by Land and Development office and get mutation and conversion done at his expense from the Land and Development office. The party of the First party shall cooperate and provide any document that may be required by the Second party for the purpose of mutation in the office of Land and Development and also for the purpose of effecting conversion from lease hold to freehold."

"4) That the First party has assured the Second Party that the property does not suffer from any defect of title.

5) That it is agreed that the Second party shall pay to the First party the balance sale consideration within 60 days from the execution of this receipt cum Agreement and the First party shall execute the sale deed in favour of the Second party simultaneously.

6) That the Second party has further agreed that in the event of mutation and/or conversion from leasehold to freehold for any reason not being sanctioned/carried out by the Land & Development Office within the stipulated period of 60 days as aforesaid, in that event the Second party shall pay to the First party the balance sale consideration of ` 95,00,000/- (Rupees Ninety Five Lakhs) within the said stipulated period of 60 days from the date of this agreement and the First party shall execute in favour of the Second party a registered Agreement to Sell and attendant documents such as General Power of Attorney, Receipt, Will in respect of the property and affidavit of delivery of possession and shall also deliver actual, vacant and physical possession of the property to the Second party simultaneously.

8) That the Second party agrees that in the event of his failing to pay the balance sale consideration and complete the sale transaction, as stipulated in clause 5 and 6 above, within 60 days from the date of execution of this receipt cum agreement, the advance earnest money paid to the First party by way of this agreement shall stand forfeited. The Second party has entered this Agreement for buying the said property and if the First party fails to complete this agreement, the Second party will enforce the specific performance of this agreement."

15. I have heard Mr. Rakesh Tiku, learned senior counsel for

the plaintiff and Mr. Ved Prakash Sharma, learned counsel

for the defendants.

16. It was contended by Mr. Tiku, learned senior counsel on

behalf of the plaintiff that at the outset, the ex parte ad

interim stay was granted on 18.02.2008 in favour of the

plaintiff and since the case is at the stage of recording of

evidence, therefore, it will be just and proper in case the

stay which is granted in favour of the plaintiff, is confirmed

till the disposal of the suit as it would otherwise cause

serious prejudice to the plaintiff.

17. Secondly, it was contended by the learned senior counsel

that even on merits, a perusal of the agreement would

show that the defendants had to apply to the L&DO for

conversion of leasehold rights into freehold and the sale

deed was to be executed within a period of 60 days from

16.04.2005 when the part payment amounting to Rs. 40

lakhs was made to the defendants. It is contended that no

doubt under the terms and conditions of the agreement,

the defendants had applied but that application could not

be considered to be a valid application because it was

pointed out by the L&DO that there were deficiencies as it

did not have the share certificate and no objection

certificate of the society. It was stated that the plaintiff in

terms of the obligation deposited the necessary charges

and was following up the same with the said department.

It was contended by Mr. Tiku, that these deficiencies were

essentially two-fold. Firstly, the original share certificate

was not filed by the defendants and they had subsequently

on 03.12.2005 lodged a report with the police and till the

time the duplicate certificate was issued by the society, the

necessary conversion could not have taken place.

Secondly, it was stated that the conversion could not be

carried out by the L&DO on account of the fact that the

records of the society showed that late Shri B.C. Mittal, the

father of the defendants had made defendant no. 4 as the

sole nominee and, therefore, the record of the society had

to be got corrected in this regard because the sale of the

suit property was being effected by all the five defendants.

It is contended that on account of these deficiencies, the

plaintiff could not obtain conversion of leasehold rights to

freehold and consequently the occasion for the plaintiff to

pay the balance amount of sale consideration to the

defendants did not arise as the time in itself ceased to be

the essence of the contract.

18. So far as the second condition in clause 6 of the agreement

is concerned, which envisaged that in the event of the

conversion not taking place within a period of 60 days from

the date of execution of the agreement, i.e., 16.04.2005,

the plaintiff was still under an obligation to pay the

balance sale consideration within a period of 60 days from

the said date of execution of the agreement and the

defendants were under an obligation to execute the

necessary documents in favour of the plaintiff, this

eventuality did not come into operation as the defendants

did not have original share certificate and also did not get

the issue of nominee sorted out. It was further contended

that although originally the defendants were willing to

execute the document and transfer the possession of the

suit property but later on they backed out and

consequently the plaintiff could not be blamed for not

completing the transaction within a period of 60 days. It is

further contended by Mr.Tiku that the defendants

deliberately kept the plaintiff engaged in futile talks and in

the meantime, as the prices of the immovable property had

escalated beyond expectations, the defendants tried to

wriggle out of the agreement.

19. On the basis of the aforesaid submissions, it was

contended by the learned senior counsel that the plaintiff

has got a prima facie good case and that the balance of

convenience is also in favour of the plaintiff and that the

plaintiff will suffer an irreparable loss in case the ex parte

ad interim injunction granted on 18.02.2008 is not

confirmed during the pendency of the suit.

20. As against this, Mr. Sharma, learned counsel for the

defendants has contended that the plaintiff prima facie has

not come to the Court with clean hands and any person

who does not come to the Court with clean hands is not

entitled to get the discretionary relief of specific

performance much less the ad interim relief of injunction

under Order 39 Rule 1 and 2 CPC. The question of the

plaintiff having not come to the Court with clean hands is

sought to be shown by the learned counsel for the

defendants by urging that clauses 6 to 8 of the agreement

which form the backbone of the entire agreement would

show that the time was the essence of the contract which

was fixed as 60 days from the date of the execution of the

agreement, irrespective of the fact that whether the

conversion of the leasehold rights into freehold has been

done by the L&DO or not, the transaction ought to have

been completed within a period of 60 days. As against this,

the plaintiff knowing fully well that the lessor, namely,

L&DO had failed to complete the process of conversion of

leasehold rights into freehold within a stipulated period of

60 days, still did not pay the balance amount of Rs. 95

lakhs to the defendants and neither took the possession of

the suit property. This clearly shows that the plaintiff did

not have sufficient finance and he was only speculating in

the property by blocking the sale/disposal of the suit

property.

21. It has also been contended by the learned counsel for the

defendants that the defendants have specifically stated in

para 8 of the preliminary objections that they were

approached by one Rajinder, a property dealer, who had

purportedly purchased the rights under the agreement

dated 16.04.2005 from the plaintiff and that he was even

prepared to pay a reasonable escalation in the price of the

suit property to the defendants and this fact has not been

disputed by the plaintiff in the replication. This clearly

show that the plaintiff did not possess sufficient means or

funds to complete the transaction and also defaulted in

paying the balance amount of sale consideration

amounting to Rs. 95 lakhs within a period of 60 days from

the date of the execution of the agreement de hors as to

whether the conversion was carried out by the L&DO or

not.

22. So far as the conversion of the suit property from leasehold

to freehold is concerned, it is contended by Mr. Sharma

that conversion of the property from leasehold to freehold

was essentially the responsibility of the plaintiff and the

defendants had already given all necessary documents duly

completed along with their affidavits to the plaintiff himself

for the purpose of filing the same to the L&DO. The

plaintiff has failed to complete the transaction in terms of

the agreement and accordingly the defendants were

constrained to forfeit the entire amount paid to them by

the plaintiff on account of having not come forward to

perfect his title.

23. Learned counsel for the defendants has also relied upon

the following judgments :-



          (i)     Abdul Hamid & Anr. Vs. Nur Mohammad AIR 1976
                  Delhi 328
          (ii)    UOI Vs. M/s Jashan Mul & Co. Fruit and

Vegetable Merchanta, Subzimandi, Delhi AIR 1976 Delhi 335

(iii) K.L.Sethi Vs. S.Kishan Singh 159 (2009) DLT 464

(iv) Parwati Devi & Ors. Vs. DDA 159 (2009) DLT 467

(v) Sanjeev Narang Vs. Prism Buildcon Pvt. Ltd. 154 (2008) DLT 508 (DB)

(vi) Durga Periwal Vs. Punjab National Bank & Ors.

154(2008) DLT 514 (DB)

(vii) Man Kaur (Dead) by LRs. Vs. Hartar Singh Sangha (2010) 10 SCC 512

(viii) Vallayati Ram Mittal Pvt. Ltd. Vs. UOI & Anr.

(2010) 10 SCC 532

24. I have carefully considered the respective submissions of

the parties and gone through the record.

25. The first question to be considered is as to whether the

time was the essence of the contract or not, because that

factor is very important and crucial so far as the execution

of the documents in pursuance of the agreement in

question is concerned.

26. A bare perusal of the clauses 5, 6 and 8 of the agreement,

the contents of which are reproduced hereinbefore, clearly

shows that it was intended between the plaintiff and the

defendants that time would be the essence of the

agreement. This time was only two months, i.e., 60 days

from the date of the execution of the agreement which is

also not in dispute. The date of execution of the agreement

is 16.04.2005. Admittedly, the plaintiff has paid a sum of

Rs. 40 lakhs which has not been disputed by the

defendants but in terms of the agreement and the aforesaid

clauses, the entire transaction had to be completed within

a period of 60 days from the date of the signing of the

agreement. The case of the plaintiff is that the defendants

could not get the property converted from leasehold to

freehold within the said stipulated period of 60 days. Even

if it is assumed that the defendants were not able to get the

suit property converted from leasehold to freehold within a

period of 60 days as envisaged, time was the essence of the

contract as it was envisaged in the next clause

categorically that in the event of conversion not taking

place within a period of 60 days, the plaintiff was still

under an obligation to pay the balance sale consideration

of Rs. 95 lakhs and get necessary documents executed

from the defendants including the transfer of possession of

the suit property. The plaintiff cannot be permitted to rely

on clause (5) of the agreement for conversion of leasehold

rights into freehold and then contend as the same was not

done on account of certain deficiencies, the other portion of

the agreement which envisage that the transaction had to

be completed within a period of 60 days from the date of

signing of the agreement, does not come into operation.

27. I feel that even if it is assumed that for reasons justified or

unjustified, attributable to the defendants or not, the

L&DO either intentionally or unintentionally did not

complete the process of conversion of leasehold rights into

freehold, still the balance payment of Rs. 95 lakhs had to

be necessarily made to the defendants and the defendants

were under an obligation to have transferred the

possession and necessary documents to the plaintiff. This

was not done by the plaintiff. On the contrary, the plaintiff

kept on sleeping over the matter for almost three years till

the month of February/March 2008 when he filed the

present suit for specific performance and alternatively

claimed the damages to the tune of Rs. 1.30 crores. This

delay of nearly three years is sought to be explained by the

plaintiff by contending that he had approached the

defendant in the year 2006, 2007 and even in 2008 and as

the defendants were not trying to work out a solution to

the problem, therefore, he was left with no other alternative

but to file the suit for specific performance. The plaintiff is

stated to be a property broker by the defendants in the

written statement. This fact is not denied by the plaintiff.

They have disputed the financial capacity of the plaintiff to

be able to complete the sale transaction. The defendants

have also stated in the written statement that they were

approached by a gentleman by the name of Rajinder in the

month of December, 2007/January, 2008 who represented

to them that he had purchased the rights of the plaintiff

under the agreement dated 16.04.2005 and he was

prepared to go ahead with the transaction of purchase of

the suit property even though it entails the payment of

certain escalation charges on account of an increase in the

land rates. The replication filed by the plaintiff to this

averment of the defendants is curiously enough, silent

which clearly makes the Court to assume prima facie that

an averment which is made in the pleadings and has gone

un-rebutted, is deemed to have been admitted by the

plaintiff. Therefore, this clearly shows that even at the

time when the agreement was entered into, the plaintiff

was not in possession of sufficient means to go ahead with

the transaction although this is my prima facie view but

the plaintiff can always dislodge this fact by producing

evidence during the course of trial. But this is certainly a

factor to be taken into consideration coupled with the delay

in coming to the Court at the fag end of the limitation so

far as the prima facie case is concerned.

28. Mr. Tiku, learned senior counsel for the plaintiff has stated

that there are judgments of the Apex Court to the effect

that the financial capacity of the plaintiff for completing the

transaction has to be seen during the course of trial and it

is not necessary that the party who is seeking relief of

specific performance must be in possession of liquid cash

so as to complete the transaction. I agree with this

submission of the learned senior counsel for the plaintiff

but nevertheless at the same time, one cannot ignore the

fact that the plaintiff kept sleeping over the matter for a

period of about three years and choose file the matter

towards fag end of the three years of the limitation which

clearly indicates that he did not prima facie have the funds

available with him so as to make the balance payment of

Rs. 95 lakhs which was being repeatedly claimed by the

defendants.

29. The question that it is only during the course of the trial

that the plaintiff will be required to show to the Court that

he had sufficient means, in my opinion, has to be decided

in the facts of the present case where there are specific

allegations that the plaintiff being a speculator/property

broker was not in possession of sufficient funds so as to go

ahead with the transaction. This clearly, in my view,

shows that the plaintiff does not have any prima facie case.

The balance of convenience also cannot be said to be in

favour of the plaintiff inasmuch as the property rates are

sky-rocketing and there is no point in keeping the property

of the defendants blocked under litigation on the

assumption that the plaintiff will adduce evidence to prove

his case as well as sufficiency of funds to make the

payment. I, therefore, feel that both the question of prima

facie case as well as the balance of convenience not being

in favour of the plaintiff, the whole thing must be against

the plaintiff for the aforesaid reasons.

30. The last part which the plaintiff has to satisfy is that the

plaintiff will suffer an irreparable loss. I do not feel that if

the order of injunction is vacated, the plaintiff will suffer an

irreparable loss. Section 52 of the Transfer of Property Act

deals with the doctrine of lis pendens as has been

discussed above clearly lays down that any property which

is subject matter of a suit or a litigation, cannot be

permitted to be transacted without the permission of the

Court and would be transacted subject to the outcome of

the decision in the matter. This fact is also reiterated by

the Division Bench of our own High Court in case titled

Sanjeev Narang Vs. Prism Buildcon Pvt. Ltd. 154(2008)

DLT 508 (DB), where it has been observed as under:-

"11. We are conscious of the fact that under Section 52 of the Transfer of Property Act, 1882,

in case of pending suit in which right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may impose. Therefore, in order to strike a balance between the parties, the respondent is directed to inform the purchaser about the litigation pending between the parties in case the respondent wishes to dispose of the property during the pendency of the suit so that innocent purchaser may be aware about the pending litigation of the parties.

12. In view of the above, we are left with no option but to affirm the order passed by the learned Single Judge vacating the interim injunction.

13. We make it clear that any observation made herein shall be treated as tentative in nature and shall not constitute any expression of final opinion on the issues involved in Appellant's suit and shall have no bearing on the final merit of case and submissions of the parties in the suit."

31. The argument of the learned senior counsel is that since

the case is at the stage of recording of evidence, therefore,

he may be permitted to prove sufficiency of funds during

the course of trial. No doubt, there are judgments of the

Apex Court that a person need not have liquid cash

available with him all the time or till the time of filing of the

suit as this is a question to be decided on merits,

nevertheless, the facts of the case are such which clearly

show that prima facie there is no document on record to

show that after having paid a sum of Rs. 40 lakhs to the

defendants, the plaintiff had ever offered to pay the balance

amount of Rs. 95 lakhs in terms of the Clause 6 of the