Gujarat High Court
Rohitbhai Harkishandas ... vs Sanjaybhai Geesabhai Parekh on 25 September, 2023
Bench: S.V. Pinto
NEUTRAL CITATION
C/AO/118/2022 JUDGMENT DATED: 25/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 118 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/APPEAL FROM ORDER NO. 118 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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ROHITBHAI HARKISHANDAS CHADARWALA
Versus
SANJAYBHAI GEESABHAI PAREKH
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Appearance:
MR DHAVAL D VYAS(3225) for the Appellant(s) No. 1,2
for the Respondent(s) No. 1,2,3,4,5
DHAIRYA J PATEL(10110) for the Respondent(s) No. 1,2,3,4,5
MR MJ MEHTA(5797) for the Respondent(s) No. 10,11,12,13,14,6,7,8,9
MR NIRAD D BUCH(4000) for the Respondent(s) No. 10,11,12,13,14,6,7,8,9
MR SAURABH J MEHTA(2170) for the Respondent(s) No.
10,11,12,13,14,6,7,8,9
MRS. BHAVINI N. BUCH(5403) for the Respondent(s) No.
10,11,12,13,14,6,7,8,9
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 25/09/2023
Page 1 of 12
Downloaded on : Sat Sep 30 20:34:15 IST 2023
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C/AO/118/2022 JUDGMENT DATED: 25/09/2023
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ORAL JUDGMENT
1. This appeal has been filed by the appellants - the original
plaintiffs against respondent Nos. 1 to 14 - the original
defendants against the order passed by the learned Principal
Senior Civil Judge, Bharuch below Exh.5 in Special Civil Case
No. 6 of 2020 on 16.04.2022, whereby, the learned Principal
Senior Civil Judge, Bharuch was pleased to reject the
application for interim injunction of the plaintiffs. The
parties are hereinafter referred to as the plaintiffs and the
defendants in their rank and character as they stood in the
original suit for the sake of convenience, clarity and brevity.
2. The facts leading to filing this appeal are summarized are as
under:
2.1 That the plaintiffs filed the suit for recovery of
Rs.2,76,57,573/- and permanent injunction against the
defendants mainly stating that the defendants were the
owners of the land situated in village Tavara, Taluka and
District Bharuch bearing Block No. 46/paiki/1 and
46/paiki/2 admeasuring 18000 Sq. Mtrs. and one
Memorandum of Understanding was executed between the
parties on 19.10.2017 and moreover, one Power of Attorney
was also executed on 19.11.2015. That as per the
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Memorandum of Understanding, the plaintiffs had to pay an
amount of Rs.1,96,85,105/- for Development Permission
Number 1169 dated 24.19.2017 and the said amount was
paid by the plaintiffs on 24.10.2017 and accordingly, the
said suit property was to be sold to the plaintiffs. That an
amount of Rs.1,96,85,105/- was to be repaid to the plaintiffs
and the same has not been repaid by the defendants and
hence, the plaintiffs gave a notice through an advocate on
03.10.2019, but, the same was not replied by the defendants.
That the defendants have sold the said suit property to other
persons and the defendants are the owners of the properties
mentioned below.
(1) Agricultural land bearing Revenue Survey No. 142/B
admeasuring 4400 sq.mtrs. situated at village Tavara,
Taluka and District Bharuch.
(2) Bungalow No. 41 belonging to Sanjaybhai Gisabhai
Parekh and Bungalow Nos. 31 and 40 belonging to
Amrutbhai Gisabhai Parekh in S.L.D. Homes situated in
the land bearing Revenue Survey No.36 at Village
Bholav, Taluka and District Bharuch.
(3) Bungalow No. 10 belonging to Gisabhai Maganbhai
Parekh in Radhakrishna Co-operative Housing Society
Ltd. situated in the land bearing Survey No. 27 at
Village Maktampura, Taluka and District Bharuch.
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(4) Two shops in the name of "Ashapuri Jwellers' situated
at Dholikui Bazaar, Bharuch and Dandiya Bazaar.
(5) The land bearing Survey No. 400/A/1 (New Revenue
Survey No. 1314) admeasuring 22013 sq.mtrs situated
at village Zanor, Taluka and District Bharuch
belonging to Vikrambhai Govindbhai Parekh.
2.2 The plaintiffs have sought permanent injunction on the
above-mentioned properties of the defendants and also filed
an application for interim injunction to restrain the
defendants from transferring or creating any rights or
changing the properties in any manner till the final disposal
of the suit.
2.3 The defendants were duly served with the notice and the
defendant Nos. 7 to 14 appeared and filed the written
statement at Exh.16. The learned Trial Court, after
considering the documents submitted by the parties and the
submissions made by the learned advocates for the respective
parties, was pleased to reject the application for interim
injunction of the plaintiffs.
2.4 Being aggrieved and dissatisfied with the said order, the
appellants - original plaintiffs have filed the present appeal
and have mainly contended that the plaintiffs have proved
their prima-facie case, and hence, there is no question of
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balance of convenience and irreparable loss in favour of the
defendants. The defendants intend to dispose of the disputed
suit properties with a view to defraud the legitimate dues of
the plaintiffs. That the learned Trial Court has not passed a
legal order and the same is required to be quashed and set
aside and the appeal of the appellants may be allowed.
3. Heard learned advocate Dhaval Vyas for the appellants and
learned advocate Mr. Kashyap Joshi for learned advocate Mr.
Dhairya Patel for the respondent Nos. 1 to 5 and learned
advocate Mr. Suarabh Mehta for respondent Nos. 6 to 14.
3.1 Learned advocate Mr. Dhaval Vyas has submitted that the
plaintiffs have a prima-faice case and a huge amount of Rs.
2,76,57,573/- is pending to be recovered from the
defendants and the defendants intend to dispose of the
disputed suit properties with a view to defraud the legitimate
dues of the plaintiffs and hence, they may be restrained from
transferring the disputed suit properties.
3.2 Learned advocate for the appellants - plaintiffs has relied
upon the following citations:
1. Tata Chemicals Limited Vs. M/s. Kshitish Bardhan
Chunilal Nath and Ors. reported in AIR 2019 Calcutta
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2. Santosh Promoters Pvt. Ltd. and Ors. Vs. Intrasoft
Technologies Ltd. reported in 2016 SCC Online Cal
8668.
3.3 Learned advocate Mr. Kashyap Joshi for learned advocate Mr.
Dhairya Patel and learned advocate Mr. Suarabh Mehta for
the respective respondents have submitted that the plaintiffs
have filed the suit only for recovery of the money and the
plaintiffs cannot be granted any order of injunction. The
plaintiffs have preferred an application for attachment under
Order-38 Rule 5 & 6 of the Code of Civil Procedure at Exh. 6
and the same is pending before the learned Trial Court. That
even if the Memorandum of Understanding is perused, there
is no legal right created for refund of any amount, and
therefore, the learned Trial Court has rightly held that prima-
facie case, balance of convenience and irreparable loss are in
favour of the defendants and hence, no order of interference
is required in the order passed by the learned Trial Court.
4. At this juncture, it is appropriate to refer the Order - XXXIX
Rule 1 and 2 of the Code of Civil Procedure which reads as
under:
1. Cases in which temporary injunction may be granted.--
Where in any suit it is proved by affidavit or otherwise:--
(a) that any property in dispute in a suit is in danger of being
wasted, damaged or alienated by any party to the suit, or
wrongfully sold in execution of a decree, or
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(b) that the defendant threatens, or intends, to remove or
dispose of his property with a view to [defrauding] his
creditors,
[(c) that the defendant threatens to dispossess, the plaintiff or
otherwise cause injury to the plaintiff in relation to any
property in dispute in the suit,]
the Court may by order grant a temporary injunction to restrain
such act, or make such other order for the purpose of staying
and preventing the wasting, damaging, alienation, sale, removal
or disposition of the property 5 [or dispossession of the plaintiff,
or otherwise causing injury to the plaintiff in relation to any
property in dispute in the suit] as the Court thinks fit, until the
disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance of breach.--
(1) In any suit for restraining the defendant from committing
a breach of contract or other injury of any kind, whether
compensation is claimed in the suit or not, the plaintiff may, at
any time after the commencement of the suit, and either before
or after judgment, apply to the Court for a temporary injunction
to restrain the defendant from committing the breach of
contract or injury complained, of, or any breach of contract or
injury of a like kind arising out of the same contract or relating
to the same property or right.
(2) The Court may by order grant such injunction, on such
terms as to the duration of the injunction keeping an account,
giving security, or otherwise, as the Court thinks fit. "
5. The plaintiffs have claimed the amount due from the
defendants on the basis of the Memorandum of
Understanding that was executed between the parties on
19.07.2017 and if the same is perused, the Memorandum of
Understanding states that the amount of Rs.1,96,85,105/-
has to be paid for the Development Permission Number 1169
dated 24.09.2017 and the plaintiffs had to pay the said
amount. Moreover, the Power of Attorney was also executed
by the plot holders in favour of one Pritank Govindbha
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Parekh on 19.11.2015 in the presence of Notary and all the
Non-Agricultural Land Permission and Development
Permission were done in the Government on behalf of the
plot holders. The document does not state that the amount
had to be repaid with interest in any manner and it is the say
of the defendants that the Memorandum of Understanding
does not create any legal rights to recover the said amount
from the defendants. As per the say of the defendants, the
registered sale deeds have been executed in favour of the
other parties and all the deeds have been witnessed by the
plaintiff No.1 and whatever amount was paid by the
defendants has been settled between them. Moreover, as per
the say of the defendants, the plaintiffs were well aware that
the registered sale deeds have been executed but those
purchasers have not been made parties to the suit and the
registered sale deeds have been executed in April, 2018 and
the present suit has been filed in February, 2020. The learned
Trial Court has also observed that the plaintiffs are seeking
injunction on the properties belonging to the defendants and
if any order of injunction is passed, it would create an
irreparable loss to the defendants, which would not be
compensated in terms of the money to the defendants and
also, the plaintiffs have not proved their prima-facie case.
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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 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 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)
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"...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."
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 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 plaintiffs is mainly
based on the Memorandum of Understanding dated
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19.10.2017 and the plaintiffs are seeking injunction on the
properties belonging to the defendants but are not the subject
matter of the suit. It is the settled principles of law that in
exercise of powers under Section 151 of the Code, the Court
can pass an order, which is not in conflict that the substantial
rights of the parties are necessary on end of jurisdiction but
fall the order to be passed. The plaintiffs themselves made out
the prima facie case and only if the prima-facie case is made
out, there is no bar granting the injunction under Order 39
Rule 1(B) of the Code in the suit for recovery of the
outstanding amount. As submitted by the learned advocates
for the respective parties, the plaintiffs have not enabled to
show that there existing any threat that the defendants are
seeking to alienate vest or damage any rights of the parties
which are unknown to defraud the plaintiffs and it is also on
record that the plaintiffs have filed the application under
Order 38 Rule 5 of the Code of Civil Procedure.
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
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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.
11. Under the circumstances, the present Appeal from Order fails
and the same is hereby dismissed. The order passed by the
learned Principal Senior Civil Judge, Bharuch below Exh.5 in
Special Civil Case No. 6 of 2020 on 16.04.2022 is hereby
confirmed. There shall be no order as to costs.
12. Learned trial Court is hereby directed to dispose of the suit on
its own merits and without being influenced by any
observations made by this Court as well as order passed by
this Court.
13. In view of the order, civil application if any pending, the
same stands disposed of.
Sd/-
(S. V. PINTO, J)
F.S.KAZI.....
