Delhi High Court
Meenu Upadhyay vs Kanwar Pal Singh & Anr on 24 April, 2014
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 929/2013
% Judgment dated 24.04.2014
MEENU UPADHYAY ..... Plaintiff
Through: Mr.Prateek Kumar and Mr.Suryajyoti Singh Paul,
Advs.
versus
KANWAR PAL SINGH & ANR ..... Defendant
Through: Mr.Vijay Chopra, Adv. for D-1.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
IA No.11516/2013
1.
Plaintiff has filed the present suit for recovery and damages for a sum of
Rs.32,35,000/-.
2. This is an application under Order XXXIX Rule 4 CPC filed by defendant
No.1 seeking vacation of the interim order dated 17.05.2013 which was
made absolute on 12.07.2013 by virtue of which defendant No.1 was
restrained from creating any third party interest in respect of property
bearing No.C-5/134, Area measuring 35 sq.m., Yamuna Vihar, Ilaqa
Shahdara, Delhi-110053.
3. Upon service, the defendants filed their written statements. It is submitted
by counsel for defendant No.1 that on the next date of hearing, before the
matter was taken up on its turn, the counsel for defendant No.1 left the
Court for a while and during that time the interim order dated 17.05.2013
was made absolute and the application was disposed of in his absence,
although no hearing took place which is evident from the reading of the
order dated 12.07.2013.
4. He further submits that the defendant No.1 is a government servant
(school teacher). He was in need of funds and had entered into an
agreement to sell with regard to his property bearing No.C-5/134, Area
measuring 35 sq.m., Yamuna Vihar, Ilaqa Shahdara, Delhi-110053. He
further submits that the plaintiff did not comply with her part of the
agreement, resultantly, the earnest money paid by the plaintiff to
defendant No.1 was forfeited in terms of clause 4 of the agreement
between the parties. It is further submitted that the plaintiff was not ready
and willing to perform her part of the agreement to sell which is evident
from the fact that on 07.11.2013, before this Court three months‟ time was
sought by the plaintiff to arrange for balance sale consideration which has
not been paid to the defendant No.1 till date.
5. Counsel for the defendant further submits that the averments made in the
application under Order XXXIX Rules 1 and 2 are misleading as the
plaintiff has made an averment that to preserve the suit property
injunction be granted. Counsel further submits that for the plaintiff to seek
injunction the case of the plaintiff would fall under Order XXXIX Rule
1(b) CPC and a bare reading of the application filed by the plaintiff would
show that the ingredients of Order XXXIX Rule 1(b) CPC are not made
out as the plaintiff has not made any averment that the defendant No.1 has
intention of selling his property to defeat the claim of his creditors. It is
further contended that the defendants No.1 and 2 are both in government
service (both are school teachers) and that there is no apprehension of
their fleeing from the jurisdiction of this Court to defeat the claim of the
plaintiff, neither are they chronic-litigants. Even on merits it is contended
by counsel for the applicant that no amount is due and payable and the
amount rightfully stands forfeited as the plaintiff did not have the
resources to make the balance payment.
6. Per contra counsel for the plaintiff submits that the plaintiff had paid
Rs.32,35,000/- to the defendants as earnest money under the agreement
to sell which has been usurped by defendant No.1. Counsel for the
plaintiff further submits that it is not the case that plaintiff is not willing to
perform her part of the contract but plaintiff has been unable to make the
arrangement for the balance sale consideration as she has not been able to
obtain a loan from the bank. Counsel for the plaintiff further submits that
in order to secure the earnest money so paid by the plaintiff to the
defendants the property should be restrained from being sold by the
defendants.
7. I have heard learned counsel for the parties and considered their rival
submissions. I have also carefully perused the application filed by the
plaintiff under Order XXXIX Rules 1 and 2 CPC. Paragraphs 8 and 9 of
the application read as under:-
"8. It is apparent on the face of record that despite clear
admission of the amount received the defendant No.1 has not
refunded the same. Further it is apprehended by the plaintiff
that the defendant No.1 may create a third party right/sell the
property which shall render the effort of the plaintiff in
getting a decree for recovery nugatory. It is further important
to preserve the suit property, namely built-up Double Storey
property bearing No.C-5/134, Measuring 35 sq.m., Yamuna
Vihar, Ilaqa Shahdara, Delhi-110053 till the disposal of the
suit.
9. That the plaintiff is entitled to an ex-parte order of
injunction against the defendants since if the notice of this
proceedings is given to the defendants in advance, they will
continue with their mala fide efforts to create a third party
interest or to sell the property to a third party, thereby
rendering the proceeding infructuous for all practical
purposes."
(Emphasis Supplied)
8. Order XXXIX Rule 1(b) CPC which lays down the circumstances under
which temporary injunction may be granted has been reproduced below:-
"1. Cases in which temporary injunction may be granted.-
Where in any suit it is proved by affidavit or otherwise-
(a) .....
(b) that the defendant threatens, or intends, to remove or
dispose of his property with a view to defrauding his creditors"
9. As per the averments made in the application filed by the plaintiff under
Order XXXIX Rule 1 & 2 CPC, plaintiff had sought an interim order to
preserve the „suit property‟ till the disposal of the suit to ensure that the
defendants are restrained from creating a third party interest or else the
proceedings in the present suit would be rendered infructuous for all
practical purposes. An impression is sought to be created by the plaintiff
in the application that the subject matter of the present suit or the „suit
property‟ in the present suit is the property bearing No.C-5/134, Area
measuring 35 sq.m., Yamuna Vihar, Ilaqa Shahdara, Delhi-110053, while
actually the present suit is merely a simple suit for recovery and not a suit
for specific performance. It may be noticed that even during the
pendency of the suit for recovery three months‟ time was granted to the
plaintiff to pay the balance amount, which has not been paid. Order dated
07.11.2013 reads as under:
" ORDER
07.11.2013
1. Learned counsel for the Plaintiff states that the Plaintiff
will require three months' time to arrange for the balance
sale consideration and this is without prejudice to the rights
and contentions of either party.
2. Learned counsel for Defendant No. 1 states that Defendant
No. 1 will give copies of the titled documents to the Plaintiff
to enable her to apply and obtain loan from the financial
institutions.
3. List on 24th April 2014.
4. It is made clear that if the Plaintiff is unable to arrange for
the balance sale consideration, the suit will proceed further.
5. The next dates before the Court and the Joint Registrar,
i.e., 5th December 2013 and 29th January 2014, stand
cancelled."
10. In my opinion, since the plaintiff has not sought specific performance of
the agreement to sell in the present suit, the property bearing No.C-5/134,
Area measuring 35 sq.m., Yamuna Vihar, Ilaqa Shahdara, Delhi-110053
cannot be termed as a suit property as averred by the plaintiff in the
application.
11. Secondly, in my view, the plaintiff has failed to lay down the foundation
and satisfy the basic ingredients of Order XXXIX Rule 1(b) CPC for grant
of interim injunction. The averments made in the application are general
and casual in nature and no specific averment has been made in the
application with regard to the creditor, if any, of the defendant, or any
specific averment that the defendants are likely to flee from the
jurisdiction of this Court. The plaintiff has not been able to establish that
the defendant no.1 has threatened or intends to remove or dispose of the
property in question with a view to defraud the plaintiff. As both the
defendants are government servants it cannot be said that they do not have
roots in the society or that they are likely to flee from the jurisdiction of
this Court or they are likely to sell the property to defraud the plaintiff or
to defeat the decree which may be passed in favour of the plaintiff.
12. Another factor which cannot be ignored is that the plaintiff has admitted
that the transaction could not be completed as the loan was not sanctioned
by the bank.
13. The plaintiff has not been able to establish a strong prima facie case,
balance of convenience is also not in favour of the plaintiff and in fact the
defendant shall suffer irreparable loss and injury in case the injunction
order is continued.
14. In my considered view, there is force in the submission made by counsel
for the defendant that in fact the order dated 12.07.2014 by which the
interim order was made absolute was passed in his absence and without
any hearing, which is evident from a bare reading of the order dated
12.07.2013. Even otherwise, there is no bar in seeking variation of an
interim order.
15. In view of the above, the orders dated 12.07.2013 and 17.05.2013 are
recalled. The interim orders are vacated. However in case the defendants
decide to sell the property they would inform the Court about the same. It
is made clear that no prior permission is required for sale, however, they
are directed to intimate the Court about the same.
IA No.17984/2013 Order XXII Rule 6 CPC
16. At request of counsel for the plaintiff adjourned to 03.09.2014.
CS(OS) No.929/2013
17. List before the Joint Register for admission/denial of documents on
13.08.2014. List before the Court for framing of issues on 03.09.2014.
Parties to bring suggested issues to the Court.
G.S.SISTANI, J.
APRIL 24, 2014 //dkb//
