Gujarat High Court

Jagdishbhai Maganbhai Desai vs Rashmi Buildcon on 25 September, 2023

Bench: S.V. Pinto

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/APPEAL FROM ORDER NO. 91 of 2023
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
                In R/APPEAL FROM ORDER NO. 91 of 2023
                                With
                 R/APPEAL FROM ORDER NO. 122 of 2023
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
               In R/APPEAL FROM ORDER NO. 122 of 2023
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              JAGDISHBHAI MAGANBHAI DESAI & 6 other(s)
                             Versus
                        RASHMI BUILDCON
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Appearance:
MR BHARGAV BHATT, ADVOCATE with MR RUTVIJ S OZA(5594) for the
Appellant(s) No. 1,2,3,4,5,6,7
 for the Respondent(s) No. 2.2,2.3,2.5
MR RASHESH SANJANWALA, SR ADVOCATE assisted by MR SUNIL S
JOSHI(2925) for the Respondent(s) No. 2,2.1
NOTICE SERVED for the Respondent(s) No. 1,2.4
==========================================================

 CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                          Date : 25/09/2023

                           ORAL ORDER

1. Appeal from Order No.91 of 2023 has been filed

at the instance of the appellants herein original plaintiffs

against the order passed by the learned Additional Senior

Civil Judge, Ahmedabad (Rural) at Mirzapur on 23.3.2023

whereby the learned trial Judge was pleased to dismiss the

applications at Exh.5 and Exh.27 filed by the appellants

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herein original plaintiffs in Special Civil Suit No.449 of

2022, whereas Appeal from Order No.122 of 2023 has been

filed at the instance of the appellants herein original

defendant Nos.2.1 to 2.3 against a portion specifically

paragraph No.8.5 and final order paragraph No.2 of the

order passed by the learned Additional Senior Civil Judge,

Ahmedabad (Rural) at Mirzapur on 23.3.2023 in Special

Civil Suit No.449 of 2022.

2. The facts leading to the filing of these appeals

may be summarized as follows: -

2.1 It is the case of the appellants - original plaintiffs

that they have filed Special Civil Suit No.449 of 2022 along

with interim injunction application at Exh.5 inter alia

praying that land situated at District Sub-District

Ahmedabad-7 (Odhav) Ta. Vatva (Old Taluka City) bearing

survey No. 137 admeasuring 23647 Sq. Mtr., survey No.

admeasuring 10927 Sq.Mtr., Survey No. 143 admeasuring

10825 Sq. Mtr., survey No. 183 admeasuring 20032 Sq.







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Mtr, and survey No. 184 admeasuring 18008 Sq. Mtr.,

totaling 93988 Sq. Mtrs. which is included in final plot No.1

of Town Planning Scheme no.112 (Odhav) and as per the

present F-form the measurement of the land is 56243

Sq.Mtrs., out of the aforesaid measurement, land

admeasuring 21514.85 Sq. Mtrs. converted into industrial

purpose may not be transferred, alienated or right, title or

interest be created on the aforesaid land by the original

defendants, their servants or agents in favour of any other

person, company, firm, society or to any other entity and

further prayed to direct that no mortgage, loan or any third

party rights be created, the possession of the aforesaid land

shall not be transferred or no development may be carried

out on the aforesaid land till the final disposal of Special

Civil Suit No.449 of 2022.

2.2 Upon receipt of the notice issued by the learned

trial court, the original defendants Nos.2.1 to 2.3 and 2.5

have appeared through their advocates and filed written

statement at Exhibit-15 to the plaint and reply to the

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interim injunction application at Exh.5. Thereafter, the

appellants - original plaintiffs have filed the affidavit-in-

rejoinder at Exh.18 to the written statement filed by the

respondents herein. The original defendant No.2.4 has

chosen not to appear in the suit proceedings though notice

was served and therefore, the learned Court has passed an

order to proceed ex-parte qua him. The original plaintiffs-

appellants herein have preferred an application at Exh.27

for granting status-quo till the Exh.5 application may not be

decided.

2.3 The learned Additional Senior Civil Judge,

Ahmedabad (Rural) at Mirzapur after hearing learned

advocates for the parties vide order dated 23.03.2023

decided the interim injunction application in Special Civil

Suit No.449 of 2022 and rejected the applications at Exh.5

and Exh. 27 and further directed the original defendant

Nos.1 and 2 to file an undertaking under Section 144 of the

Code of Civil Procedure as per paragraph 8.5 in respect of

the suit property within 15 days from the date of order

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dated 23.03.2023 and further, observed that in the event of

third party rights being created in the suit property, then in

the document of that transaction it should be mentioned

that the said transaction will be subject to outcome of the

aforesaid suit as the suit is pending before the learned trial

Court. The learned trial court further observed in the

operative portion of the order that any development or

construction on the suit property or transfer shall be

subject to the ultimate decision of the suit.

2.4 After the impugned order dated 23.03.2023, the

original defendant Nos.2.1 to 2.3 have preferred an

application under Section 151 of the Code of Civil

Procedure, 1908 praying for partial recall of the aforesaid

order passed below Exh.5 and Exh.27 in the suit along with

the application for interim stay of the operation of the part

of the order dated 23.03.2023 and thereafter, original

plaintiffs have filed objection to the aforesaid application

dated 05.04.2023 for recall. After that, an application for

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extension of time to comply with the directions issued by

the learned Trial Court was preferred on 07.04.2023.

2.5 Being aggrieved and dissatisfied with the

impugned order dated 23.03.2023 passed below the

applications at Exh.5 and Exh.27 in Special Civil Suit

No.449 of 2022, the appellants - original plaintiffs have

preferred the present Appeal from Order under Order 43

Rule 1 of the Code of Civil Procedure, 1908.

3. Learned advocate Mr.Bhargav Bhatt appearing for

learned advocate Mr.Rutvij Oza for the appellants - original

plaintiffs submits that the sale deed was executed between

the appellants - original plaintiffs and respondents with

specified consideration mentioned in the sale deed for the

portion of land from FP-1 Odhav, TP Scheme [the amount

which was deposited in the year 2015 as deposit through

RTGS and for the rest of amounts different numbers of

cheques were given with an understanding to deposit

requisite TDS in each appellants account]. Mr.Bhatt has

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further submitted that the sale deed neither expressly nor

impliedly suggests that the amount of consideration stated

at paragraph 5 of sale deed or the promise on the part of

respondents is not to be paid at all or to be paid in future

event and not stated about such understanding in the

written statement and therefore, the respondents have

purchased the suit land with the agreed price and paid the

consideration agreed in paragraph 5 of the sale deed by

tendering 21 cheques and have further agreed to deposit

amount of TDS in favour of each seller.

3.1 Mr.Bhatt has further submitted that the

respondents have requested not to deposit the cheques as

the land had become subject to a litigation between the

erstwhile owners i.e. the land owners and tenants as

referred in the written statement filed by the defendants -

respondents after execution of the sale deed and the

respondents have deferred the payments of cheques

mentioned in the sale deed and upon expiry of six months,

the appellants have returned the cheques for giving fresh as

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per terms mentioned in the sale deed and the respondents

have not executed fresh cheques in lieu of the expired

cheques, and therefore have failed to honour the part of

their promise to make the contract of sale complete.

Mr.Bhatt has further submitted that the appellants -

original plaintiffs had not given possession nor opted for

development permission from AMC for sub-division of plots

until the defendants have not asked him to do so and on

13.09.2021, the plaintiffs have paid the requisite tax to

Ahmedabad Municipality for unpaid tax in respect of FP-1

Odhav TP Scheme, and thereafter sought permission to

develop by subdivision of plots and in other words, the

plaintiffs have initiated process to complete the sale and

thereby made their promise good so as to make the contract

of sale meaningful upon the expectation that the defendants

- respondents will complete their part of promise and make

the sale complete as they have represented to give balance

consideration at the time of development of property.








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3.2           Mr.Bhatt has further submitted that the plaintiff

No.5 was shocked, when he has found that the defendants

have applied for RERA permission, without disclosing the

factum of unpaid considerations over the portion of land

they are holding from FP-1 Odhav TP Scheme and without

disclosing factum of pendency of tenancy proceedings and

therefore raised objections and later on after having

complete details from the plaintiff no.3, all plaintiffs have

issued notice as well as raised objections and the factum of

charge contemplated under section 55 [4] of the Transfer of

Property Act is admitted by the defendants in their reply

before the RERA. Mr.Bhatt has further submitted that the

defendants had raised a plea that at the time of execution of

the sale deed, it was agreed between the parties that the

balance consideration is to be paid upon the termination of

tenancy proceedings but such defense is untenable in light

of express provision of Section 92 of Evidence Act and at the

same time, the arrangements made upon the intervention of

the third parties as mentioned in the plaint with affidavit in

support is having admissibility in light of section proviso [4]

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as the same being distinct subsequent oral agreement and

in any way, the defence of the defendants and non-payment

of remaining consideration is neither genuine nor having

any legal bases. Mr.Bhatt has further submitted that

therefore, the plaintiffs have prayed for recovery of charge -

unpaid consideration together with interest and in the

alternate setting aside of the sale deed on the ground of

misrepresentation defined under section 18 of the Contract

Act, which renders the sale voidable at the option of party.

3.3 Mr.Bhatt has further submitted that during the

pendency of hearing of Ex.5 application, the objections were

raised before the RERA that developers have not disclosed

the charge amounting to encumbrance in violation of

Section 4[l][A] and thereby committed an offense under

Section 60 of the Act and the developer had materially

suppressed the title report and last two pages of the same

are deliberately not produce before the RERA. Mr.Bhatt has

further submitted that the RERA has completely ignored the

submissions and without dealing with it and without

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informing the appellants, the RERA had granted registration

of project in favour of defendants which is challenged by

way of filing Special Civil Application No.912 of 2023 and

the same is pending for adjudication. Mr.Bhatt has further

submitted that the impugned order suffers from infirmities,

surmises and conjectures and hence the same deserves to

be quashed and set aside. It is pertinent to note that

though the learned trial Court has recorded that it is an

admitted fact that the total amount of consideration is not

paid to the original plaintiffs and the same is clear from the

record. The learned trial Court has failed to appreciate the

fact that equity is in favour of the original plaintiffs when

the fact is clearly emerging that the total consideration

amount is not paid by the original defendants. Further, the

learned trial Court ought not to have come to the conclusion

that the prayer of the original plaintiffs to cancel the sale

deed is not required to be granted as from the record, it

prima facie appears that the original plaintiffs are not

entitled to get relief while it was clearly believed by the

learned trial Court that total consideration amount is not

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paid to the original plaintiffs and when in the prayer clause,

it was specifically mentioned by the original plaintiffs that

they are ready and willing to return the amount of part

consideration with 10% interest and hence, the impugned

order is in total ignorance of principle embodied in section

10 to 19 of the Contract Act dealing with void and voidable

contracts.

3.4 Mr.Bhatt has further submitted that the learned

trial Court ought to have appreciated the provisions of

Sections 54 and 55 of the Transfer of Properties Act as the

said provisions are very much clear that if the consideration

amount for the suit property is in pursuance of the sale

deed, then the said document will be null and void. The

learned trial Court has failed to appreciate the aforesaid

provisions of law when the learned trial Court has come to

the conclusion that total consideration amount is not paid

to the appellants herein by the respondents and hence, the

impugned order is required to be quashed and set aside in

the interest of justice. The learned trial Court has failed in

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appreciating the fact that the respondents have made false

claims and took false defenses to drag the appellants into

unscrupulous litigation with a view to grab the land without

paying the total consideration amount. The learned trial

Court had failed to appreciate the provisions of Section 55

of the Transfer of Property Act, which categorically states

that the unpaid amount of sale consideration is "charge"

over the property and conduct of the defendants clearly

suggests that the defendants are intending to transfer the

property to third party, without satisfying "charge".

3.5 Mr.Bhatt has further submitted that the learned

trial Court has not appreciated the overall facts and the

documents produced on record, which clearly reveals that

there is no such consensus arrived between the parties to

the sale deed that the original defendant will have to pay the

remaining consideration amount only after termination of

the litigation. The said defense is not in writing and original

defendants are taking a sham and bogus defense for not

paying a total consideration amount. The defense raised is

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also hit by express provisions of Sections 91 and 92 of the

Indian Evidence Act, 1872. Otherwise also the learned trial

Court had failed to appreciate the judgment passed in the

case of Rushabh Gayaprasad, which is binding precedent

upon the learned trial court and the decision in the

aforesaid case is also confirmed by the Hon'ble Apex court,

in as much as the petition against the judgment and order

passed in the case of Rushabh Gayaprasad is failed at

admission stage before the Hon'ble Apex Court.

3.6 Mr.Bhatt has further submitted that the conduct

of the parties can be gathered by the defense and pleading

of the parties. The sale deed was executed on 12.04.2016

and passing of possession as well as application for

development permission in the year 2021, was made upon

the misrepresentation of facts, which renders the sale

voidable at the option of parties as defined under the Indian

Contract Act. However, without applying judicious

consideration, the learned trial court had rejected the

injunction application. The defense of the original

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defendants that there exists understanding between the

parties to Sale of suit property to defer the part payments

till conclusion of all the proceedings initiated by the

erstwhile owners and therefore the original plaintiffs are not

entitled to recover the remaining sale consideration is not

only dishonest but difficult to comprehend by any man

having reasonable prudence. The original defendant's

further plea to the effect that they are entitled to sell the

suit property to third party with defective title and realize

the gain out of suit property, without satisfying the charge

over the property clearly reveals the ill-intention of the

original defendants to cause wrongful loss to the present

appellants and at the same time to derive wrongful gain

from the purchasers of shades.

3.7 Mr.Bhatt has further submitted that there was no

certificate granted by the RERA in favour of original

defendants at the time of institution of suit, and same was

granted only on 4.11.2022, without passing an order on the

objections raised by original plaintiffs and without

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communicating disposal of the objections to the appellants.

The appellants have challenged the aforesaid certificate

dated 4.11.2022 by way of a writ petition being Special Civil

Application No.912 of 2023 before this Court and in spite of

appraising the learned trial Court about all these salient

facts in details branding the defendants wrong doer, the

learned trial Court has rejected the injunction applications.

Mr.Bhatt has further submitted that though the learned

trial Court had arrived at the finding at paragraph 8.1 to the

effect that in light of averments made by original defendants

in their reply dated 06.08.2022 before the RERA at

paragraph 8[D], the amount stated in the sale deed is not

paid to the original plaintiffs - appellants and it is apparent

from the admission on the part of original defendants that

the defense taken by them is sham and bogus with an

intention to not pay the total consideration amount and

hence, the defense taken by the original defendants as

argued earlier is in contravention of Section 92 of the

Evidence Act.








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3.8           Mr.Bhatt      has      further      submitted          that       the

impugned order is unjust, illegal and perverse because mere

undertaking in terms of Section 144 of the Code, neither

guarantees nor ensures the payment of balance

considerations, when the defendants are creating third

party interests and allowing to pass the possession of the

property in favour of third party and hence the learned trial

Court ought to have directed the original defendants to

deposit sufficient security. Mr.Bhatt has further submitted

that the defendants have not paid price in full and by

paying about 40% of price, they have started developing the

suit land referred in the sale deed and the 60% land for

which consideration is not paid, the defendants have no

right or authority to develop the same nor derive gain out of

it by transferring the same to any third party. The act of

nonpaying the agreed sale consideration and developing the

same against the wish of plaintiffs renders the status of the

defendants as "wrong doer". In other words, the defendants

being wrong doers, deriving profit out of subject land which

they are not entitled to and therefore fruits they derive out

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of the subject land is required to be returned to the

plaintiffs on the basis of principle of unjust enrichment. In

support of his submission, Mr.Bhatt has placed reliance

upon paragraph-29 of the decision in the case of

Rameshwar & Ors. Vs. State of Haryana & others,

reported in (2018) 6 SCC 215 which reads as under.

"29 The decisions referred in the preceding paragraphs were delivered in the context of exercise of power under the provisions of the Act. In addition, there are few other decisions which were rendered in other fields but considered the issues regarding "fraud on power"; notable amongst them being: S. Pratap Singh v. The State of Punjab, (1964) 4 SCR 733, Express Newspapers Pvt. Ltd. and others v. Union of India and others, (1986)1 SCC 133 and observations by R.M. Sahai J in Shrisht Dhawan (Smt) v. Shaw Bros., (1992) 1 SCC 534, at page 553. The issue concerning unjust enrichment was dealt with by this Court very succinctly in Indian Council for Enviro-Legal Action v. Union of India, (2011) 8 SCC 161, at page 234 as under :

"151. Unjust enrichment has been defined as: "Unjust enrichment.-A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense."

See Black's Law Dictionary, 8th Edn. (Bryan A.

Garner) at p. 1573. A claim for unjust enrichment arises where there has been an "unjust retention of a benefit to the loss of another, or the retention

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of money or property of another against the fundamental principles of justice or equity and good conscience".

152. "Unjust enrichment" has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.

153. Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience". A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance". (Schock v. Nash, 732 A 2d 2017 (Delaware 1999), A 2d, 232-33.)

154. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. In the leading case of Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd., 1943 AC 32, Lord Wright stated the principle thus: (AC p. 61) "... Any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from

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remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution."

155. Lord Denning also stated in Nelson v. Larholt, (1948) 1 KB 339 as under: (KB p. 343)

"... It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular framework. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution, if the justice of the case so requires."

156. The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment.

........

159. Unjust enrichment is basic to the subject of restitution, and is indeed approached as a fundamental principle thereof. They are usually linked together, and restitution is frequently based upon the theory of unjust enrichment. However, although unjust enrichment is often referred to or regarded as a ground for restitution, it is perhaps more accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It is defined as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if

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retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.

160. While the term "restitution" was considered by the Supreme Court in South Eastern Coalfields Ltd. v. State of M.P., (2003) 8 SCC 648 and other cases excerpted later, the term "unjust enrichment" came to be considered in Sahakari Khand Udyog Mandal Ltd. v. CCE & Customs, (2005) 3 SCC 738. This Court said: (Sahakari Khand case, SCC p. 748, para 31)

"31. ... `unjust enrichment' means retention of a benefit by a person that is unjust or inequitable. `Unjust enrichment' occurs when a person retains money or benefits which in justice, equity and good conscience, belong to someone else."

161. The terms "unjust enrichment" and "restitution" are like the two shades of green-one leaning towards yellow and the other towards blue. With restitution, so long as the deprivation of the other has not been fully compensated for, injustice to that extent remains. Which label is appropriate under which circumstances would depend on the facts of the particular case before the court. The courts have wide powers to grant restitution, and more so where it relates to misuse or non-compliance with court orders."

3.9 Mr.Bhatt has lastly urged to allow the appeal by

setting aside the impugned order and to grant the

injunction as prayed for in the injunction application at

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Exh.5.

4. On the other-hand, learned senior advocate

Mr.R.S.Sanjanwala appearing for the defendant Nos.2.1 to

2.3 has vehemently opposed the present appeal by

contending that the sale deed contains a stipulation to the

effect that all the cheques of the total sale consideration of

Rs.17,45,45,000/- are handed over to the appellants by the

respondents and it has been stated therein that in any

event, if the vendee i.e. the appellants herein do not present

the cheques for encashment within limitation or for any

other reason, the amount of consideration is not received by

the appellants, the appellants would only be entitled to the

issuance of new cheques by the respondents herein.

Mr.Sanjanwala has drawn the attention of this Court

towards para 6 of the said sale deed to contend that the

possession of the suit land is handed over to the

respondents herein and in para 7 thereof, the appellants

have undertaken to indemnify the respondents for any loss

or damage on account of any litigation or dispute, etc. in

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respect of the suit land. Mr.Sanjanwala has further

submitted that the sale deed came to be executed on

12.4.2016 and for a long period of about 6 years, the

appellants/plaintiffs never demanded the outstanding sale

consideration only on account of the understanding reached

between the parties as aforesaid. Mr.Sanjanwala has also

drawn the attention of this Court that a number of litigation

are contested jointly by the appellants and the respondents

herein before the various forums including this Court as

well as the Hon'ble Supreme Court in respect of the suit

lands under the Tenancy Act, taken at the instance of the

original owners of the said lands and in none of the

proceedings, the appellants had never contended that such

an amount of consideration is due and payable.

4.1 Mr.Sanjanwala has further submitted that even

recently, in the year 2021, as the parties wanted to develop

the suit lands, a requisite application was moved by the

parties before the Ahmedabad Municipal Corporation for

sanction of such development and sub-division of the suit

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lands. The said application was opposed by one of the heirs

of the tenants and a detailed hearing took place before the

Assistant Municipal Commissioner (East Zone), AMC and

the said authority by an order dated 31.8.2021 overruled

such objections and forwarded the said request of sub-

division to the concerned department of the AMC and in the

course of hearing of the said objections also, the appellants

never raised any grievance with regard to the so-called

unpaid sale consideration. Mr.Sanjanwala has further

submitted that on 02.10.2021, the AMC has granted the

development permission in respect of the said land and

pursuant to such permission, the respondents started

developing the suit land and substantially carried out the

same and thereafter applied for requisite permission under

RERA Act in respect of the project proposed by the

respondents viz. Rashmi Growth Hub. Mr.Sanjanwala has

further submitted that on 21.5.2022, the appellants herein

have submitted written objections before the RERA

Authority to the issuance of such certificate in favour of the

respondents herein, for the first time, raising a ground that

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the respondent-firm has not paid the balance sale

consideration to the appellants/plaintiffs. It is pertinent to

note that in the said written objections, the appellants have

stated that the cheque of remaining sale consideration of

Rs.10,45,45,000/- is not handed over to the appellants by

the respondents, whereas the sale deed clearly stipulates

that all the cheques have been handed over to the

appellants. The RERA Authority after considering the

explanation/reply given by the respondents herein granted

such permission, leaving the appellants herein to ventilate

their grievance before the competent Civil Court.

4.2 Mr.Sanjanwala has further submitted that

various stipulations in the sale deed as well as conduct on

the part of the appellants and the attending circumstances

as narrated above clearly go to show that an understanding

was reached between the parties that the remaining sale

consideration would be payable only on termination of the

litigation initiated by the original owners under the Tenancy

Act and the same is evidenced from the conduct of the

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parties that the appellants never demanded the remaining

sale consideration from the execution of the sale deed i.e. in

the year 2016 till 2022 and it is only when the respondents

herein started developing the land, the appellants resiled

from the said understanding and raised the untimely

demand of the balance sale consideration in spite of the fact

that the litigation in respect of the said land under the

Tenancy Act is still pending before the Gujarat Revenue

Tribunal. Mr.Sanjanwala has further submitted that the

appellants have relied upon the provisions of Section 55(4)

(b) of the Transfer of Property Act in contending that they

are the unpaid seller and therefore have charge over the suit

land. It is respectfully submitted that the creation of charge

of unpaid seller is not absolute because a bare reading of

Section 55(4)(b) of the Transfer of Property Act goes to show

that the creation of such charge arises only in the absence

of a contract to the contrary. In the present case, as stated

above, there exists a contract to the contrary as there was

an understanding reached between the parties that the

remaining sale consideration was to be paid by the

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respondents to the appellants only after the finality of the

litigation under the Tenancy Laws.

4.3 Mr.Sanjanwala has further submitted that

assuming without admitting that the provisions of Section

54(4)(b) of the Transfer of Property Act are attracted in the

instant case, still however, the suit filed by the plaintiffs is

in relation to recovery of balance sale consideration. It is

respectfully submitted that one of the important ingredients

/ factors in granting the interim injunction is causing of

irreparable loss to the parties seeking such relief. In the

present case, as the suit is for recovery of money, no

irreparable loss is going to be caused to the

appellants/original defendants, in the event of refusal of

prayer of interim injunction made by the appellants.

Mr.Sanjanwala has further submitted that within the

knowledge of the plaintiffs, who are the owners of an

adjoining land to the suit land, the construction over the

suit land was commenced by the respondents herein after

02.10.2021 i.e. grant of development permission and by the

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time, the suit came to be filed in October-2022, substantial

construction was over and by the time, the application for

interim injunction, i.e. Exh.5 came to be heard and decided,

the construction was already completed and in respect of

number of units, the third party rights came to be created

and that the details thereof were given by the defendants

before the learned Trial Judge. Further, in the course of

hearing of application Exh. 5, the respondents herein gave a

purshis before the learned Trial Judge that the respondents

herein have completed 100% construction and spent

Rs.18,27,58,179/- in the said construction and put up 303

units on the said land and have executed registered

agreements to sell in relation to 35 units in favour of third

parties and have received bookings of 115 units. In the

course of hearing of an application Exh. 5 filed before the

learned Trial Judge, the respondents herein had stated at

bar that the respondents herein are ready and willing to

incorporate a clause in the sale deeds disclosing the

pendency of the present civil suit in all the sale deeds which

the respondents would henceforth execute. Thus, the

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original plaintiffs are guilty of delay and laches and the

principles of acquiescence and therefore not entitled to any

equitable prayer for interim injunction. Mr.Sanjanwala has

drawn the attention of this Court towards the decision of

the Hon'ble Apex Court reported in (2009) 11 SCC 229 to

contend that conduct of party is very much relevant in

deciding any application filed under Order 39 Rule 1 and 2

of CPC. Mr.Sanjanwala has also drawn the attention of this

Court towards the decision of the Hon'ble Apex Court

reported in (2008) 11 SCC 1 to contend that conduct of

parties is also a relevant factor in deciding equitable relief of

injunction and a person seeking injunction after long lapse

of time by allowing the other party to deal with the property

exclusively is ordinarily not entitled to injunction.

Mr.Sanjanwala has further submitted that the relief for

cancellation of sale deed cannot be granted in favour of the

appellants / original plaintiffs in as much as the Hon'ble

Apex Court in (2020) 7 SCC 366 in the case of Dahiben vs.

Arvindbhai and others in paras 29.8, 29.9, 29.16 and 29.17

has laid down the principles that the non-payment of part of

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sale price would not affect the validity of the sale and sale

could not be invalidated on this ground.

4.4 Mr.Sanjanwala has further submitted that the

judgment of this Court reported in 2022 (0) AIJEL-HC-

24117 in the case of Rushabhbhai Gayaprasad Jain vs.

Rameshbhai Bhimjibhai Koladiya relied upon by the

appellants herein has no application to the facts of the

present matter in as much as the same does not take into

consideration the binding decision of the Hon'ble Apex

Court reported in (2020) 7 SCC 366 and therefore, the same

cannot be relied upon. It is submitted that this Court in the

judgment rendered in Appeal from Order No.51 of 2021

dated 18.2.2022, after taking into consideration the

judgment of the Hon'ble Apex Court in the case of Dahiben

(supra), has refused to grant injunction on the ground of

non-payment of sale consideration as well as creation of

charge under Section 55(4)(b) of the Transfer of Property

Act. Mr.Sanjanwala has further submitted that the Hon'ble

Calcutta High Court in the judgment reported in 1932 SCC

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Online Cal 52 has laid down the principles that under

proviso 3 to Section 92 of the Evidence Act notwithstanding

an admission in the sale deed that the consideration has

been received, it is open to the vendor to prove that no

consideration has actually been paid and it was no

infringement of Section 92 for a court to accept proof that

by a collateral agreement between the vendor and the

purchaser, the consideration money remained with the

purchaser for the purposes and the conditions agreed upon

between the parties. So far as the contention on the part of

the appellants as regards the principles of undue

enrichment is concerned, it is respectfully submitted that

as the said principles have no application at all and

especially in view of the contract to the

contrary/understanding between the parties, as narrated

above, the said principles has no application. Lastly,

Mr.Sanjanwala has urged this Court to dismiss the appeal.

5. Whereas the Appeal from Order No.122 of 2023 is

filed being aggrieved by the observations made in paragraph

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No.8.5 and final order paragraph No.2 of the impugned

order.

6. 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

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

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regulating grant or refusal of interlocutory

injunction. An appeal against the exercise of

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

7. 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

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

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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

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

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due only to the application of well settled principles in an individual case."

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

8. 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

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

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convenience and irreparable loss are satisfied or not in

passing the order or not ?

9. From the record and submissions of the learned

advocates for the respective parties, the case of the plaintiff

mainly based on the sale deed executed between the

appellants - original plaintiffs and respondents with

specified consideration mentioned in the sale deed for the

portion of land from FP-1 Odhav, TP Scheme. It appears

that that the sale deed contains a stipulation to the effect

that all the cheques of the total sale consideration of

Rs.17,45,45,000/- are handed over to the appellants by the

respondents. It also appears that the possession of the suit

land is handed over to the respondents herein and the

appellants have undertaken to indemnify the respondents

for any loss or damage on account of any litigation or

dispute, etc. in respect of the suit land. It is pertinent to

note that the sale deed came to be executed on 12.4.2016

and for a long period of about 6 years, the

appellants/plaintiffs never demanded the outstanding sale

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consideration only on account of the understanding reached

between the parties. It is the contention of learned senior

advocate Mr.Sanjanwala that a number of litigations are

contested jointly by the appellants and the respondents

herein before the various forums including this Court as

well as the Hon'ble Supreme Court in respect of the suit

lands under the Tenancy Act initiated at the instance of the

original owners of the said lands and in none of the

proceedings, the appellants had never contended that such

an amount of consideration is due and payable. It also

appears that in the year 2021, as the parties wanted to

develop the suit lands, a requisite application was moved by

the parties before the Ahmedabad Municipal Corporation for

sanction of such development and sub-division of the suit

lands and the same was opposed by one of the heirs of the

tenants and a detailed hearing took place before the

Assistant Municipal Commissioner (East Zone), AMC and

the said authority by an order dated 31.8.2021 overruled

such objections and forwarded the said request of sub-

division to the concerned department of the AMC and in the

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course of hearing of the said objections also, the appellants

never raised any grievance with regard to the so-called

unpaid sale consideration and on 02.10.2021, the AMC has

granted the development permission in respect of the said

land and pursuant to such permission, the respondents

started developing the suit land and substantially carried

out the same and thereafter applied for requisite permission

under RERA Act in respect of the project proposed by the

respondents viz. Rashmi Growth Hub. It appears that on

21.5.2022, the appellants submitted written objections

before the RERA Authority to the issuance of such

certificate in favour of the respondents herein raising a

ground that the respondent-firm has not paid the balance

sale consideration to the appellants/plaintiffs but the sale

deed clearly stipulates that all the cheques have been

handed over to the appellants. It appears that the RERA

Authority after considering the explanation/reply given by

the respondents herein granted such permission.








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10. 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. It is pertinent to

note that Section 144 of CPC would not be applicable to the

facts of the present case as the main suit is pending for

adjudication before the learned trial Court. The principle of

doctrine of restitution is that on the reversal of a decree, the

law imposes an obligation on the party to the suit who

received the benefit of the decree to make restitution to the

other party for what he has lost. In the present case, the

final decree is yet to be passed as the main suit itself is

pending for adjudication before the learned trial Court.








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11. Under the circumstances, the present Appeal

from Order fails and the same is hereby dismissed. The

order dated 23.3.2023 passed below Exhs.5 and 27 in

Special Civil Suit No.449 of 2022 by the learned Additional

Senior Civil Judge, Ahmedabad (Rural) is hereby confirmed.

12. Appeal from Order No.122 of 2023 stands

allowed. The portion i.e. paragraph No.8.5 and final

paragraph No.2 of the impugned order dated 23.3.2023

passed below Exhs.5 and 27 in Special Civil Suit No.449 of

2022 by the learned Additional Senior Civil Judge,

Ahmedabad (Rural) is hereby quashed and set aside.

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