Manoj Vinodchandra Shah vs Saumik Dilipbhai Mehta
2023 Latest Caselaw 5412 Guj

     C/AO/173/2022                                 JUDGMENT DATED: 11/07/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/APPEAL FROM ORDER NO. 173 of 2022

                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                  In R/APPEAL FROM ORDER NO. 173 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE S.V. PINTO

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                         MANOJ VINODCHANDRA SHAH
                                   Versus
                          SAUMIK DILIPBHAI MEHTA
==========================================================
Appearance:
MR TATTVAM K PATEL(5455) for the Appellant(s) No. 1
DEV D PATEL(8264) for the Respondent(s) No. 3
MR MEHUL SHARAD SHAH(773) for the Respondent(s) No. 2
MR. CHETAN G VADUKAR(6875) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                               Date : 11/07/2023

                              ORAL JUDGMENT

1. This appeal has been filed at the instance of the

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

appellant herein original plaintiff against the order passed

by the learned 2nd Additional Senior Civil Judge, Kalol,

whereby the learned Judge was pleased to dismiss the

application Exh.5 filed by the appellant herein original

plaintiff.

2. The facts leading to the filing of this appeal may

be summarized as follows: -

2.1 It is the case of the plaintiff that the property in

question is the lands being Survey Nos. 347 to 356, 359,

360, 361, 363, 364, 366, 367, 372, 374 to 379, 381/B,

2017, 2018, 2021 to 2024, 2026, 2028, 2030 in total

admeasuring 3,85,351.28 square meter paiki 3,34,448

square meter i.e. 4,00,000 square yard situated at mauje

village - Santej, Taluka & District - Kalol (hereinafter

referred to as "lands in question" for short).

2.2 It is also the case of the plaintiff that the

respondent no.2 society, being the original owner of the

subject lands, has executed one agreement to sell dated

29.04.2021 in favour of the respondent nos.1 and 3 and the

said agreement to sell clearly mentions that the respondent

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

nos.1 and 3 includes their heirs, successors, assignees etc.

as mentioned in the said agreement to sell. That as per the

said agreement to sell, the total area agreed to be sold was

4,00,000 square yards for total consideration fixed at

Rs.2,32,04,00,000/- and out of which, the said respondent

no.1 and 3 have made payments of Rs.1,00,000/- vide

cheque no.000122 dated 28.04.2021, Rs, 11,00,00,000/-

vide cheque no.000123 dated 28.04.2021 and

Rs.10,00,000/- in cash to the respondent / defendant no.2

society. That the said agreement to sell is signed by all the

parties and is duly notarised.

2.3 It is also the case of the plaintiff that the said

notarized deed dated 29.04.2021 entails the characteristic

of agreement to sale which was executed qua the subject

lands by the respondent - defendant no.2 in the favour of

the respondent nos.1 and 3 and as per the said agreement it

was the responsibility of the respondent / defendant no.2 to

get the title clear of the lands in question and to execute the

sale deed in the favour of the respondent / defendant nos. 1

and 3. That as per the terms of the said agreement to sell

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

dated 29.04.2021, neither of the parties (proposed

purchasers) were barred from transferring and/or assigning

their right over the subject lands on the basis of the said

agreement to sell in favour of a third party.

2.4 It is also the case of the plaintiff that thereafter,

on the basis of the said agreement to sell and as the rights

of the respondent nos. 1 and 3 derived under the agreement

to sell, the said respondent no.1 executed a deed of

assignment dated 17.05.2021 in the favour of the present

appellant qua 50% share / interest in the lands in question.

That the deed of assignment dated 17.05.2021 was executed

by the respondent/defendant no.1 in favour of present

appellant - plaintiff, who was one of the parties to the

agreement to sell dated 29.04.2021 and by this deed the

respondent no.1 agreed to assign his rights acquired

pursuant to and on the basis of the agreement to sell dated

29.04.2021. That as per the said agreement to sell dated

29.04.2021, the respondent no.1 was having 50% share in

the subject lands and said share was agreed to be assigned

in the favour of the present appellant - plaintiff. That by way

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

of the said assignment deed, the respondent no.1 agreed to

sell the suit land in favour of the appellant, which was

purchased through the agreement to sell dated 29.04.2021

and in view of the said assignment deed, the respondent

no.1 assigned his ownership rights in the favour of the

present appellant. That the said agreement was executed in

time and valid on the date of execution of said assignment

deed in the favour of the appellant and thereby, the

respondent no.1 agreed to assign rights in the suit land to

the extent of his share of 50% i.e. 200000 square yards out

of total area admeasuring 400000 square yards for a

consideration of Rs.8,00,00,000/- as per the said

assignment deed. It is the case of the plaintiff that the

execution of said deed of assignment in favour of present

appellant is not disputed.

2.5 It is the case of the appellant the original plaintiff

that repeatedly requests were made to the respondent nos.1

and 2 to act and perform in accordance with the terms of

the agreement to sale and deed of assignment, but none of

them adhered to the said request of the appellant original

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

plaintiff and therefore, the appellant original plaintiff was

constrained to issue a notice dated 02.02.2022 to comply

with the terms of deed of assignment and agreement to sell

and a request was made to execute the sale deed in the

favour of the appellant original plaintiff.

2.6 It is the case of the appellant - original plaintiff

that thereafter, since the respondent no.2, started acting

contrary to the original agreement dated 29.04.2021 and to

defeat the right, title and interest of the appellant original

plaintiff, has executed sale deed no.17901 dated 21.12.2021

of the lands in question paiki block no.363 admeasuring

20344 square meters in favour of the original defendant

no.4 in lieu of consideration of Rs.3,79,00,000/- and

another sale deed no.856 dated 17.01.2022 of the land paiki

Block No.366 admeasuring 20572 square meters in lieu of

consideration of Rs.3,83,00,000/- in favour of the

respondent no.4.

2.7 It is the case of the appellant - original plaintiff

that thereafter, the appellant was served with a copy of

caveat in context of the lands in question and therefore, the

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appellant herein was constrained to file Special Civil Suit

No.16 of 2022 seeking specific performance of agreement to

sell dated 29.4.2021 and 17.05.2021 and also an order

directing the respondent no.2 to execute the sale deed in

favour of the appellant and also prayed to pass order that

the sale deed dated 21.12.2021 executed by the respondent

no.2 in favour of the respondent no.4 is not binding upon

the appellant and also prayed to set aside sale deed no.856

dated 17.01.2022 and sale deed no.17901 dated 21.12.2021

and also filed an application for interim injunction under

Order 39, Rule 1 and 2 of the Code of Civil Procedure, 1908.

3. That the learned 2nd Additional Senior Civil Judge

rejected the interim injunction application at Exh.5 by an

order dated 20.9.2022 mainly on the ground that the deed

of assignment dated 17.05.2021 executed in the favour of

the appellant original plaintiff is without the consent of the

respondent/defendant no.2 society and the learned trial

court while rejecting the injunction application held that the

said assignment without consent is not valid.

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

4. Being aggrieved and dissatisfied with the said

order passed by the learned trial Court, the appellant

original plaintiff has filed the present Appeal from Order

before this Court.

5. Heard Mr.Dhaval Dave, learned Senior Advocate

assisted by Mr.Tattvam Patel, learned advocate for the

appellant and Mr.Mehul Sharad Shah, learned advocate for

the respondent No.2, Mr.Dev Patel, learned advocate for the

respondent No.3 and Mr.Chetan Vadukar, learned advocate

for the respondent No.4 and have examined the impugned

order of the learned trial court and also the averments and

contentions made in the application for injunction and the

objections thereto in depth and in detail. Though served,

none appears for the respondent No.1.

6. Mr.Dhaval Dave, learned senior counsel

appearing for the appellant submits that that the impugned

order dated 20.09.2022 passed by the learned trial Court is

perverse and bad in law and it has resulted in failure of

justice and irreparable injury to the appellant and submits

that the learned trial court has erred in discarding the deed

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of assignment executed in favour of the appellant. Mr.Dave

submits that the agreement to sell dated 29.04.2021 and

deed of assignment dated 17.05.2021 are not disputed and/

or denied by any of the party. Mr.Dave further submits that

the appellant at this stage relies upon paragraph no.2 at

Page No.14 and 15 (In Civil Application), wherein factum of

execution of assignment deed and receipt of consideration

from the appellant original plaintiff is admitted by the

defendant no.1 and the learned trial Court ought to have

appreciated that the consent of the defendant no.2 is not

required for execution of assignment deed in the favour of

the appellant original plaintiff and therefore, the learned

trial Court has misread the judgement in the case of

Khardah Company Lt. Vs. Ravmon & Co. reported in AIR

1962 SC 1810, more particularly, paragraph 7 to the

disadvantage of the appellant original plaintiff. Mr.Dave,

therefore, submits that considering the ratio laid down in

the above referred decision, rights arising under the

agreement is assignable and not forbidden under any law

and without any negative covenant assignment in the favour

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

of the appellant cannot be ignored in totality merely in the

absence of consent being obtained or not and therefore, the

learned trial Court ought not to have refused injunction

relying on the aforesaid judgement.

6.1 Mr.Dave further submits that in the case of

Kapilaben and Others Vs. Ashok Kumar Jayantilal

Sheth reported in (2020) 20 SCC 648 relied upon by the

learned trial Court while passing the impugned order to the

disadvantage of the appellant also cannot be sustained and

the learned trial Court ought to have appreciated that rights

under the contract are assignable unless the contract is

personal in its nature or incapable under law for such

assignment. Mr.Dave, therefore, submits that the learned

trial Court has misconstrued the said judgement and failed

to appreciate the rights and obligations arising out of a

contract of sale. In the case of the appellant, what was

assigned was right and not obligation and therefore, learned

trial Court ought to have allowed the injunction application

filed by the appellant original plaintiff.

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

6.2 Mr.Dave further submits that the appellant relies

upon the provisions of Section 15 of the Specific Relief Act

which clearly provides for who may obtain specific

performance and in view of the aforesaid provision, the

assignment deed is rightly executed in the favour of the

appellant and it is not barred under any law. In support of

his submission, Mr.Dave relies upon judgment in the case

reported in AIR 2004 SC 348 wherein in paragraphs 9 and

13, the Honourable Apex Court observed as under:

" 9. In our considered opinion, reading the document as a whole and particularly keeping in view the fact that a long period of ten years was fixed for obtaining reconveyance, no implied prohibition of transfer or assignment can be inferred in the document particularly in view of the clear provisions of section 15(b) of the Specific Relief Act 1963 which read as under:

"15. Who may obtain specific performance - Except as otherwise provided by this chapter, the specific performance of a contract may be obtained by-

(a) any party thereto;

(b) the representative in interest or the principal, of any party thereto;

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

Provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party."

13. In our considered opinion, in the absence of any words or expressions in the documents indicating prohibition on assignment or transfer of right of repurchase and in the face of clear provisions of section 15(b) of the Specific Relief Act, 1963 , an implied prohibition cannot be read into the terms of the documents. Merely because in the documents, there is mention of 'heirs' of the contracting parties but not their 'assignees' or 'transferees', the legal right of assignment available to the benefit of original contracting party under section 15(b) of the Act cannot be denied to it."

Mr.Dave, therefore, submits that in view of the decision

referred above, in the absence of express prohibition, the

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

assignment is a matter of right and consent of original party

and in the present case the respondent no.2 is not at all

required and relevant. Even otherwise, as per the original

agreement to sell dated 29.04.2021, the word "assignee" is

clearly mentioned and therefore intention of parties was to

include assignees and therefore, assignment being a matter

of right, the appellant is entitled to get the relief of

injunction and the learned trial Court has rejected the said

application contrary to the ratio laid down by the Hon'ble

Supreme Court.

6.3 Mr.Dave further submits that the learned trial

Court has ignored and failed to consider the factual aspects

and thereby, has committed a serious error in not granting

injunction by ignoring three important ingredients that lie at

the benefit of the appellant i.e. prima facie case, balance of

convenience and irreparable injury and that the learned

trial Court has erred in passing the impugned order on the

ground that there is no privity of contract between society

and the plaintiff and even in the execution of deed, prior

consent or subsequent intimation is not made to society by

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

the plaintiff. That the learned trial Court ought to have

appreciated that on bare perusal of the Agreement to Sell, it

does not expressly restrain a transfer of acquired rights over

the subject land in favour of a third party. That the

assignment of rights can be conferred by a party and in the

instant case, on perusal of the pleadings, it transpires that

the execution of the deed as well as the Agreement to Sell is

not denied and/or disputed by any of the party and

therefore, the learned trial Court ought to have appreciated

that such an admission of the execution of the Agreement to

Sell as well as Deed of assignment is sufficient enough to

establish the appellant's/plaintiff's prima facie case.

Further, the learned trial Court ought to have appreciated

that, the said Deed has not been cancelled / terminated by

its executor i.e. defendant no.1 and therefore, considering

the said fact, the appellant original plaintiff has a prima

facie case for grant of injunction and therefore, the said

application ought to have been allowed by the learned trial

Court.

6.4 Mr.Dave further submits that it is not the case of

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the defendant that, cheques towards consideration were

dishonoured but the cheques given by the plaintiff were not

deposited by the defendant no.1 and therefore, the learned

trial Court ought to have appreciated that there was never

any refusal, denial or incapacity on the part of appellant

original plaintiff to pay consideration amount and therefore,

non-deposit of cheques by the defendant may not be used to

the disadvantage of the appellant original plaintiff while

refusing the injunction application. Mr.Dave further

submits that the learned trial Court while passing the

impugned order has erred in holding that the plaintiff in

connivance with defendant no.1 intends to make complex

litigation in context of the lands in question and such

observation is ex-facie unwarranted and uncalled for at the

stage of deciding an application for grant of injunction

under Order 39 of the Code of Civil Procedure, 1908.

6.5 Mr.Dave further submits that the learned trial

Court has also erred in concluding that the defendant no.4

would suffer irreparable loss, if the injunction is granted

and the learned trial Court ought to have appreciated that

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the transaction in favour of the defendant no.4 has already

caused irreparable loss / injury to the plaintiff and by

refusing the injunction, the learned trial Court has allowed

the defendants to deal with the property, which ultimately

results into multiplicity of proceedings and divulgence of

interest of the lands in question and therefore, the learned

trial Court, considering the settled legal position, ought not

to have rejected the injunction with a view to avoid

multiplicity of proceedings.

6.6 Mr.Dave further submits that the notice dated

02.02.2022 issued to the defendant no.1 by the appellant

original plaintiff clearly refers to the agreement to sale and

assignment deed executed in favour of the appellant and

after issuance of this notice dated 02.02.2022 by the

appellant, the defendants unilaterally behind the back of

the appellant have cancelled the original agreement to sell

dated 29.04.2021 by executing cancellation agreement

dated 09.03.2022 which clearly transpires that, it was only

after receipt of notice by the appellant dated 02.02.2022,

the respondents in connivance with one another and with a

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view to frustrate right of the appellant have executed the

cancellation deed. Even the declaration executed on

09.03.2022 is after the notice dated 02.02.2022 and

therefore, a declaration of such a nature without involving

the present appellant original plaintiff unilaterally executed

between the respondents / defendants is in nature of a

sham and bogus documents cannot in any manner be relied

upon and looked into at the time of deciding an injunction

application. Those collusive documents would not frustrate

the rights of the appellant original plaintiff over the lands in

question. It is therefore, undisputed that the deed of

assignment is never disputed and therefore, after the

assignment agreement the respondent / defendant no.1

could not have executed the cancellation agreement. Thus,

the present being the case requires thorough trial and

pending the suit, the rights of the parties deserves to be

protected by allowing the injunction application filed by the

appellant.

6.7 In support of his submissions, Mr.Dave has relied

upon the following decisions.

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

(i) Maharwal Khewaji Trust (Regd.) Vs. Baldev Dass reported in (2004) 8 SCC 488;

(ii) Julian Educational Trust Vs. Sourendra Kumar Roy and Others reported in (2010) 1 SCC 379;

Mr.Dave, therefore, submits that considering the ratio laid

down by the Hon'ble Apex Court, the lands in question are

immovable property and unless case of extraordinary injury

being shown by the respondents / defendants, the learned

trial Court ought not to have rejected the injunction

application filed by the appellant. Mr.Dave lastly urges to

allow the present Appeal from Order and thereby, may be

pleased to allow the application Exh.5 filed by the appellant

in Special Civil Suit No.16 of 2022.

7. On the other hand, Mr.Mehul Sharad Shah,

learned advocate appearing for the respondent No.2 has

vehemently opposed the present appeal and has submitted

that the present appellant original plaintiff has no privity of

contract with the original defendant No.2- original owner of

the land. Mr.Shah further submits that the suit has been

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filed to create a cloud over the title and as on date, no

amount of the defendant Nos.1 and 3 is lying with the

defendant No.2. Mr.Shah has drawn the attention of this

Court towards the fact that not a single cheque of the

present appellant is cleared nor a single rupee is paid by the

present appellant to the original defendant Nos.1 & 3 under

the so-called Assignment Agreement and therefore, the suit

is nothing but an abuse of process of the Court.

7.1 Mr.Shah further submits that earlier the

defendant no.1 and 3 contacted the defendant No.2 -

Gulmarg Society to purchase the land and therefore, the

defendant No.2 had executed one Agreement to Sell

(banakhat) in favour of defendant No.1 and defendant No.3

on 29.04.2021 for a total consideration of Rs.232 Crores.

Mr.Shah further submits that on 28.04.2021 a cheque of

Rs.1 lakh and a cheque of Rs.11 crores was given and Rs.10

lakhs were paid in cash and after getting the signature on

the agreement, the defendant Nos.1 & 3 informed the

defendant No.2 not to deposit the cheques as they do not

have enough balance in the Bank Account. Mr.Shah

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further submits that the defendant No.2 received an amount

of Rs.90 lakhs from one Bansi Developers on three different

dates i.e. 21.06.2021, 30.06.2021 and 10.08.2021 through

RTGS on behalf of the defendant nos.1 and 3. However, the

defendant Nos.1 & 3 were not in a position to pay the

remaining amount and, therefore, they have returned the

original Agreement to Sell to the defendant No.2 showing

their unwillingness to continue with the agreement and,

therefore, the said sale agreement has been cancelled.

Mr.Shah further submits that when the defendant Nos.1 &

3 had returned the original agreement to sell document to

the defendant No.2 society and an amount of Rs.90 lakhs

was also returned by two cheques of Rs.45 lakhs each dated

10.03.2022 to the defendant Nos.1 & 3 to be paid back to

Bansi Developers and therefore, after 10.03.2022, the

defendant No.2 was not having any amount of the defendant

Nos.1 & 3 with account of the society.

7.2 Mr.Shah further submits that the respondent

No.2 received the notice dated 02.02.2022 from the

appellant whereby he came to know that the respondent

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No.1 alone had executed an alleged assignment deed dated

17.05.2021 in favor of the appellant without consent of the

respondent No.2 and 3 for his 50% share, arising out of the

agreement to sell. Mr.Shah further submits that the

defendant No.2 society also came to know that with a mala

fide intention, the defendant No.1 had also executed one

such agreement on 29.10.2021 in favour of Pratik Vaghela

and Maulesh Soni and thereafter they have also agreed to

cancel the agreement upon knowing the true and correct

facts and they have also executed registered declaration on

09.03.2022. Mr.Shah further submits that thereafter, the

respondent No.1 has executed declaration dated 09.03.2023

inter alia stating that such Assignment Deed was signed by

him under coercion as he had borrowed Rs.18 Lakhs from

the appellant. The respondent No.1 had specifically stated

that he has not received any amount of Rs.18 Lakhs

towards Assignment Deed and that the details of 13

cheques have been stated in the Assignment Deed but, not

a single cheque is deposited in the Bank as the appellant is

not having sufficient balance in the Bank and it is an

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admitted fact that the appellant has not paid any amount to

defendant No.1.

7.3 Mr.Shah further submits that thereafter the

respondent Nos.1 and 3 have executed a registered

declarations as well as cancellation agreement dated

09.03.2022 stating that they have no further right, title and

interest in the suit property and all the amount as

mentioned in the agreement dated 29.04.2021 has been

returned to or not paid by the respondent Nos.1 and 3 and

no amount remains to be repaid by the Respondent No.2

and that they were not able to arrange the rest of the fund

or perform their obligation under the said agreement and

therefore they have cancelled the said agreement dated

29.04.2021. Mr.Shah further submits that even before the

assignment deed being executed by the respondent no.1 in

favour of the appellant, Survey Nos. 372, 375, 376, 377,

378 and 379 have been sold in favour of the respondent

No.4 through registered sale deed on 06.04.2021 before the

execution of the alleged assignment deed on 17.05.2021 and

in all the respondent No.4 has purchased 17 survey

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numbers out of a total of 34 survey numbers mentioned in

the agreement to sell. Mr.Shah further submits that the

respondent No.4 had purchased the land after giving a

public notice and having taken a search report from the

sub-registry and therefore the respondent no.4 has become

the bonafide purchaser for consideration after public notice

for the said parcels of lands. Mr.Shah submits that the

appellant has preferred a suit seeking specific performance

of an agreement to which he is not a party and which has

already been cancelled by the parties thereto and the said

relief is sought based on an assignment deed which is not

only without consideration but also not valid in the eye of

law.

7.4 Mr.Shah further submits that it is settled

proposition of law that a party to a contract cannot assign

his obligation or liabilities without the consent of the other

party. In the present case, the defendant No.1, under

coercion, signed Assignment Deed even without the consent

of the defendant No.2 - original owner as well as the

defendant No.3 who is a partner of the defendant No.1. It is

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also clear that the present appellant - original plaintiff has

not given any cheque to the defendant No.1, though 13

cheques are referred to in the so-called Assignment Deed, it

is an admitted fact that not a rupee is deposited from the

account of appellant - original plaintiff. Mr.Shah further

submits that when the defendant Nos.1 & 3 had executed a

cancellation deed and had accepted the money paid to the

defendant No.2 back to their account and when the

cancellation deed of agreement to sell was executed, any

Assignment Deed executed by the defendant No.1 under

coercion, in favour of the plaintiff, has no value in the eye of

law. It is also an admitted fact that the present appellant -

original plaintiff has no privity of contract with the

defendant No.2 and, therefore, he cannot seek any relief

including the relief of specific performance against the

defendant No.2. Therefore, it is apparent that the suit is

filed merely with a mala fide intention to create a cloud over

the title, and this is nothing but a stone throwing activity to

extract money by creating a defective title and such kind of

practice is required to be deprecated in strong words by this

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

Court. Mr.Shah, therefore, submits that looking to the

above totality of facts and circumstances of the case and

also the evidence on record, the present Civil Application as

well as the Appeal from Order may kindly be dismissed at

its threshold in as much as the plaintiff is not having any

prima facie case in his favour and if an injunction is

granted, it would cause irreparable loss to the defendant

No.2 which cannot be compensated in terms of money and

also it would cause great prejudice to the defendant No.2,

more particularly, when there is no agreement executed by

the defendant No.2 in favour of the plaintiff and therefore,

the Appeal from Order may kindly be dismissed in the

interest of justice.

7.5 Mr.Shah further submits that the learned trial

Court has passed the impugned order considering the

evidence on record as well as essential ingredients like

prima facie case, balance of convenience and irreparable

loss and even otherwise there is no illegality, perversity or

error apparent on the record in the findings arrived at by

the learned trial Court in its impugned order and therefore

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

considering the ratio laid down by the Hon'ble Supreme

Court as well as this Court, no interference is warranted in

the present appeal from order at the behest of the appellant.

8. Mr.Dev Patel, learned advocate appearing for the

respondent No.3 submits that the appellant has not sought

relief for cancellation of the Cancellation Deed dated

9.3.2022 whereby the alleged agreement to sell stood

cancelled and therefore, when the appellant is seeking

specific performance of an agreement which does not exists

then, it cannot be said that he has prima facie case in his

favour. Mr.Patel further submits that the agreement dated

29.4.2021 does not demarcate and separate the rights and

liability of the respondent Nos.1 and 3 and therefore, the

respondent No.1 could not have assigned his rights and

obligations without the consent of the respondent No.3 as

such rights and liabilities are not assignable and the

appellant's case is based upon an assignment deed which

has been executed by the respondent No.1 in favour of the

appellant without taking the consent of the respondent No.2

and/or the respondent No.3 and therefore, the said

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

assignment amounts to novation and therefore, the same is

not valid.

9. Mr.Chetan Vadukar, learned advocate for the

respondent No.4 has also vehemently opposed the present

Appeal from Order by contenting that the impugned order

passed by the learned trial Court below at Exh.5 inter alia

rejecting plaintiff's application for temporary injunction, is

legal, just and does not require any interference.

Mr.Vadukar further submits that the impugned order has

been passed after considering the relevant factors as to

prima facie case, balance of convenience and irreparable

loss and said fact is clear from the point of determination

framed by the learned trial Court. In absence of any

illegality or irregularity, reliefs sought by the appellant

original plaintiff are not maintainable in the eye of law.

9.1 Mr.Vadukar further submits that so called MoU

which is under question was executed on 29.04.2021 and

the so called Assignment deed was executed on 17.05.2021

but the respondent No.4 has purchased land bearing Survey

Nos.372, 375, 376, 377, 378 & 379 on 06.04.2021 by way of

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

Registered Sale deeds out of the 34 survey numbers prior to

so called MoU and Assignment deed came in to the

existence. Mr.Vadukar further submits that the respondent

No.4 has also purchased total 17 survey numbers out of the

34 survey numbers i.e. lands in question owned by the

defendant no.2 herein by way of various registered sale

deeds on various dates and the respondent No.4 has

published a "Public Notice" to invite objections from the

public in the daily newspaper on 27.03.2021 for some of the

pieces and parcels of the captioned land and has also taken

a Sub-Registrar Search report and over and above the

respondent No.4 has obtained search of Revenue Records

from 1951 for all that pieces and parcels of land and from

the entire process the respondent No.4 has neither received

any objections nor any adverse remarks in the titles of the

aforesaid parcels of land which the respondent No.4 has

purchased, and thereafter got executed the Registered Sale

deeds in favour of the respondent No.4 by paying huge

amount towards consideration to the respondent no.2

herein.

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

9.2 Mr.Vadukar further submits that the respondent

No.4 did not find any Agreement to Sell and/or Deed of

Assignment and / or MoU executed in favour of the present

appellant nor in favour of the respondent Nos.1 and 3 in the

title search process, and after carefully examining the titles

of the lands in question, the respondent No.4 has proceeded

to execute the Sale deeds and thereby the respondent No.4

has become a bonafide purchaser of said parcels of land

with consideration. On the other hand the appellant has

failed to show his due diligence before entering into the so

called Assignment Deed dated 17.05.2021 and/or has not

followed the principle of "caveat emptor" while entering into

so called Assignment Deed dated 17.05.2021 and therefore

the suit is filed with a mala fide intention to create a cloud

over the title, and this is nothing but a stone throwing

activity to extract money by creating illusions of defective

title and such kind of practice is required to be deprecated

in strong words by this Court. Mr.Vadukar further submits

that the defendant no.1 and the appellant herein have acted

in collusion so as to entangle the suit land in the frivolous

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

litigation and thereby deny the benefits to the actual owners

of the suit land and therefore, present Appeal from Order is

required to be dismissed in the interest of justice.

9.3 Mr.Vadukar further submits that the so called

MoU/Agreement was nothing but mere understanding

between the parties and it is clear from the entire reading of

the so called Assignment dated 17.05.2021 that there was

no understanding between the parties as to what would be

the individual share of the respondent nos.1 and 3 in the

suit land and/or partners of equal shares. Mr.Vadukar

further submits that so called assignment agreement itself

says that it is executed without rights, titles, interest and

consideration therein and therefore, it is ab initio null and

void in the eye of law, more particularly, when the suit is

filed for specific performance of the said so called MoU

dated 29.04.2021 which is cancelled. Mr.Vadukar further

submits that in fact there is no cause of action that has

arisen for filing of the said suit against the respondent No.4

and the same is clear from the reliefs sought in the suit

itself.

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

9.4 Mr.Vadukar further submits that looking to the

totality of facts and circumstances of the case and also the

evidence on record, the factors of prima facie case, balance

of convenience and irreparable loss are not in favour of

appellant herein and if an injunction is granted, it would

cause irreparable loss to the defendant no.2 and the

respondent No.4, more particularly, when the respondent

No.4 has already owned and possessed by virtue of duly

executed Registered Sale deeds of the 17 survey numbers

out of the 34 survey numbers i.e. lands in question prior to

the institution of the suit, and the name of the respondent

No.4 has already been mutated in the revenue records for

all 17 survey numbers of land without any objection from

public, including appellant herein.

10. This Court in Jivraj Tea Limited Vs Dayalji

Vanravan Kotecha, reported in 2022(0)AIJEL-HC 244893

in paragraph 10 observed thus :

"10. It is well settled principles of law that in an

Appeal against exercise of 'discretion' by the

Court of first instance, the power of appellate

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Court to interfere with the exercise of discretion is

restrictive. Merely because on facts, the appellate

Court would have concluded differently from that

of the Court below, that would not, by itself,

provide justification for appellate Court to

interfere. To justify interference, the appellant

would have to demonstrate that the discretion

has been shown to have been exercised arbitrarily

or capriciously or perversely or where the Court

had ignored the settled principles of law

regulating grant or refusal of interlocutory

injunction. An appeal against the exercise of

discretion is an appeal on principle.........."

11. In Wander Limited and another Vs Antox

India P.Ltd, reported in 1990 (Supp) Supreme Court

Cases 727, the Honourable Apex Court in paragraph 14

observed thus :

"14. The appeals before the Division Bench were

against the exercise of discretion by the Single

Judge. In such appeals, the appellate court will

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

not interfere with the exercise of discretion of the

court of first instance and substitute its own

discretion except where the discretion has been

shown to have been exercised arbitrarily, or

capriciously or perversely or where the court had

ignored the settled principles of law regulating

grant or refusal of interlocutory injunctions. An

appeal against exercise of discretion is said to be

an appeal on principle. Appellate Court will not

reassess the material and seek to reach a

conclusion different from the one reached by the

court below if the one reached by the court was

reasonably possible on the material. The appellate

court would normally not be justified in

interfering with the exercise of discretion under

appeal solely on the ground that if it had

considered the matter at the trial stage it would

have come to a contrary conclusion. If the

discretion has been exercised by the Trial Court

reasonably and in a judicial manner the fact that

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

the appellate court would have taken a different

view may not justify interference with the trial

court's exercise of discretion. After referring to

these principles Gajendragadkar, J. in Printers

(Mysore) Private Ltd. v. Pothan Joseph: (SCR 721)

"...These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston ....the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case."

The appellate judgment does not seem to defer to this principle."

12. In view of the above settled principles of law, this

Court has very limited power to interfere with the order

passed by the learned trial Court and only in exceptional

circumstances, the Appellate Court can interfere with the

discretionary order passed by the learned trial Court. The

Appellate Court cannot reevaluate the entire evidence and

arrive at a conclusion contrary to the conclusion arrived at

by the learned trial Court unless the said order is found to

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

be invalid, illegal, arbitrary, perverse or contrary to the

settled principles of law. Keeping in mind the above

principles, this Court has only to see as to whether the

learned trial Court has committed any error in passing the

impugned order. At the same time, this Court is also

required to see whether the cardinal principles of law

governing the injunction i.e. prima facie case, balance of

convenience and irreparable loss are satisfied or not in

passing the order or not ?

13. From the record and submissions of the learned

advocates for the respective parties, the case of the plaintiff

mainly based on the deed of assignment dated 17.5.2022

whereby the respondent No.1 executed a deed of assignment

in favour of the appellant of 50% share / interest in the

lands in question and the appellant has filed the suit for

specific performance of contract of the agreement to sell

executed by the respondent No.2 in favour of the respondent

Nos.1 and 3 on 29.4.2021, the cancellation of sale deed

executed by the respondent No.2 in favour of the respondent

No.4 and for permanent injunction. That in fact, the

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appellant is not a party to the agreement to sell dated

29.4.2021 and is claiming specific performance as an

assignee executed on 17.5.2022. The agreement to sell

dated 29.4.2021 was cancelled by a deed on 9.3.2022 and

the respondent Nos.1 and 3 also gave declarations on

9.3.2022 to the effect that the agreement to sell dated

29.4.2022 has been cancelled and hence on the date of

filing of the suit, the agreement to sell was cancelled.

Moreover, the defendant No.2 had received an amount of

Rs.90 lakhs from one Bansi Developer on 21.6.2021,

30.6.2021 and 10.8.2021 through RTGS on behalf of the

defendant Nos.1 and 3 but as the defendant Nos.1 and 3

were not in a position to pay the amount of Rs.90 lakhs was

returned by two cheques of Rs.45 lakhs on 10.3.2022 and

the original agreement to sell was returned. This prima facie

proves that the agreement to sell dated 29.4.2021 was put

to an end and all the transactions between the defendant

Nos.1 and 3 and the defendant No.2 had ended on

10.3.2022 i.e. before the deed of assignment was executed

on 17.5.2022. That the respondent No.4 has purchased 17

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survey numbers out of the total 34 survey numbers after

going through the due process of giving a public notice in

the daily newspaper on 27.3.2021 and obtaining a Search

Report from the Sub Registrar's office has got executed the

sale deed on 29.4.2021 i.e. prior to the execution of the

assignment deed on 7.5.2021. That prima facie on

17.5.2021 the respondent No.1 - original defendant No.1

had no right or interest in the lands in question as all the

transactions with the original owner defendant No.2 had

been concluded and some of the lands were purchased by

the defendant No.4. Prima facie, it appears that the

respondent No.1 had executed the assignment deed on

17.5.2022 but had not received any amount from the

appellant and the appellant has not paid any amount to the

respondent No.2 and consideration is an important aspect

of a valid and concluded contract. It is also clear that there

is no privity of contract between the appellant and the

respondent No.2 and on the date of execution of the

assignment deed i.e. on 17.5.2022 no rights were in

C/AO/173/2022 JUDGMENT DATED: 11/07/2023

existence with the respondent No.1 which could be assigned

to the appellant.

14. In the facts and circumstances of the case, the

learned trial Court has prima facie appreciated all the

evidence in its proper perspective and all the ingredients of

prima facie case, balance of convenience and irreparable

loss have been considered in detail. Therefore, in the

considered opinion of this Court the impugned order passed

by the learned trial Court is found to be just and proper and

no illegality or perversity is committed by the learned trial

Court while passing the impugned order.

15. Under the circumstances, the present Appeal

from Order fails and the same is hereby dismissed. The

order dated 20.9.2022 passed below Exh.5 in Special Civil

Suit No.16 of 2022 by the learned 2 nd Additional Senior Civil

Judge, Kalol is hereby confirmed. There shall be no order as

to costs.

16. While parting with the order, it is clarified that

this Court has examined the impugned order passed by the

learned trial Judge within the limited scope of Order 43,

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Rule 1(r) of the Code of Civil Procedure whereas the main

controversy involved in the suit is at large before the trial

Court to be adjudicated through full fledged trial.

Therefore, the learned trial Judge shall not be influenced by

any observations recorded by this Court herein above while

deciding the suit at the end of trial. The findings recorded

by this Court are tentative in nature and the learned trial

Judge shall decide the case on merits as per the evidence

led by the parties during the course of trial and decide the

suit in accordance with law.

17. In view of the above, the Civil Application does

not survive and the same stands disposed of accordingly.

(S. V. PINTO,J) H.M. PATHAN