Gujarat High Court
Narendra Lalitnarayan Bhagat vs Malti Girish Mulchandani on 1 October, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4539 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 4539 of 2024
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NARENDRA LALITNARAYAN BHAGAT
Versus
MALTI GIRISH MULCHANDANI
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Appearance:
PRATEEK S BHATIA(8629) for the Petitioner(s) No. 1
MR MANOJ N POPAT(671) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 01/10/2025
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Mr.
Rishabh Jain for learned advocate Mr. Manoj N. Popat waives
service of notice of rule on behalf of respondent. With the
consent of the parties, the matter is taken up for hearing.
2. Heard learned senior advocate Mr. Dhaval D. Vyas with
learned advocate Mr. Prateek S. Bhatia for the petitioner and
learned advocate Mr. Rishabh Jain for learned advocate Mr.
Manoj N. Popat for the respondent.
3. The present writ application is filed under Article 227 of
the Constitution of India seeking following reliefs :-
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"a) YOUR LORDSHIPS may be pleased to quash and set aside the
Order dated 08.01.2024 passed by 10 th Additional District Judge,
Vadodara in Regular Civil Appeal No. 240 of 2023 in the interest of
justice; (Annexure-A)
b) Pending admission, hearing and final disposal of the present
Petition, YOUR LORDHISPS may be pleased to stay the further
implementation, execution and operation of the judgment and decree
dated 27.07.2023 passed by 25 th Additional Senior Civil Judge,
Vadodara in Special Civil Suit No.241 of 2018; (Annexure-C)
c) Ad interim reliefs in terms of Para (b) may be kindly granted;
and
d) Such other and further reliefs may be granted in the interest of
justice."
4. The parties will be referred as far as possible as per
their original position in the suit.
Facts of the case
5. The petitioner herein is original defendant No.1
(hereinafter referred to as defendant) of Regular Civil Suit
No. 241 of 2018 filed by the respondent herein - original
plaintiff before the Principal Senior Civil Judge, Vadodara,
seeking specific performance of Registered Agreement to
Sell (hereinafter referred to as 'ATS') executed by the
petitioner in favour of respondent on 07.01.2016.
5.1 It is the case of the plaintiff that the aforesaid ATS
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renewed from time to time and all such renewal were duly
registered with Sub Registrar Office. As the defendant
refused to perform his part of agreement, the suit came to
be filed.
5.2 The notice/ summon of suit came to be served upon
defendant. Neither the defendant appeared in-person or
through Advocate nor filed any written statement, thereby,
the suit proceeded ex-parte against him.
5.3 The defendant No.2 happens to be Bank, through his
Manager appeared pursuance to the notice / summon issued
by the trial Court, having filed its written statement at Exh.
14 but thereafter, plaintiff vide her application below Exh. 25
deleted defendant No.2 from the array of the parties in the
suit, which was accepted by the trial Court.
5.4 The trial Court appears to have framed several issues.
The oral as well as documentary evidence so led by the
plaintiff, which remained uncontroverted as defendant did
not contest such evidence having not cross examined the
plaintiff.
5.5 After appreciating the evidence on record, the trial
Court came to the conclusion that pursuance to the ATS
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executed by the defendant in favour of plaintiff, defendant
having received Rs. 30 lakhs and so also plaintiff having paid
loan of Rs. 8,66,969/- on 22.07.2021, only amount left to be
paid by the plaintiff would be Rs. 1,33,031/- which was also
paid/deposited by her on 30.03.2022, plaintiff fulfilled her
obligation as per ATS.
5.6 Thus, in view of the aforesaid, the trial Court vide its
judgment and decree dated 27.07.2023, allowed the suit in
favour of the plaintiff. The defendant was directed to
execute the registered sale deed in relation to suit property
in question and also directed to hand over peaceful and
vacant possession of the suit property to the plaintiff.
Consequently, the defendant permitted to withdraw Rs.
1,33,031/- deposited by the plaintiff.
5.7 Such judgment and decree was carried by the
defendant before the appellate Court by way of Regular Civil
Appeal No. 240 of 2023 wherein filed an injunction
application below Exh. 5 under Order 41 rule 5 of CPC, which
came to be rejected by the appellate Court vide its order
dated 08.01.2024, which is impugned in the present writ
application.
Submission of the petitioner-defendant
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6. Learned senior advocate Mr. Dhaval D. Vyas with
learned advocate Mr. Prateek Bhatia would submit that
there are disputed question of fact and law involved in the
appeal, once admitted by the appellate Court, which ought
to have granted injunction in favour of defendant.
6.1 Learned senior advocate Mr. Vyas would further submit
that ATS alleged to have been executed by the defendant in
favour of plaintiff, was renewed from time to time which
itself suggests that the plaintiff was not ready and willing to
perform her part of agreement, which dis-entitled plaintiff
to get relief/ specific performance as executed by the trial
Court.
6.2 Learned senior advocate Mr. Vyas would further submit
that the suit property is a house, owned by defendant and if
the decree impugned in the appeal would not be stayed, not
only there would be an execution of registered sale-deed of
house of defendant but also he required to hand over the
possession of the suit property to the plaintiff. It is
submitted that considering the hardship and inconvenience
caused to defendant and his family members would be much
more than plaintiff and on that count also, injunction as
prayed for, requires to be granted.
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6.3 Learned senior advocate Mr. Vyas would further submit
that defendant had no intention not to contest the suit but
as reasons set out in the memo of appeal, that due to
business purpose, the defendant was out of his house for
quite long time, did not remain present before the trial
Court to contest the suit. It is respectfully submitted that
one opportunity may be given to the defendant to contest
the suit on merit, inasmuch as there are vital facts which are
unnoticed by the trial Court while decreeing the suit.
6.4 Learned senior advocate Mr. Vyas would further
humbly request this Court to grant an order of injunction by
directing the parties to maintain status quo, otherwise
according to him, there would be an irreparable loss caused
to defendant, which may not be compensated in terms of
money, in a case where he succeeds in his appeal.
6.5 Lastly, learned senior advocate Mr. Vyas, under the
instruction of his client, would state that as the defendant is
ready and willing to deposit the amount so paid/deposited
by plaintiff within time granted by this Court and on such
condition also this Court may grant injunction.
6.6 Making the above submission, learned senior advocate
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Mr. Vyas would request this Court to allow the present writ
application.
Submission of the respondent-original plaintiff
7. Per contra, learned advocate Mr. Rishabh Jain for
learned advocate Mr. Manoj Popat would submit that there
is no error much less any error of law committed by the
appellate Court while refusing injunction. It is submitted that
the conduct of the defendant would dis-entitle him to get
any relief in the matter.
7.1 Learned advocate Mr. Jain would further submit that
the defendant having not contested the suit, all facts and
evidence led by plaintiff remain uncontroverted during the
trial of the suit. It is respectfully submitted that once the
plaintiff paid/deposited the entire sale consideration, having
noticed by the trial Court as recorded in the judgment, she
was entitled to get decree of specific performance.
7.2 Learned advocate Mr. Jain would further submit that
ATS was initially executed on 07.01.2016 which was renewed
from time to time and all such renewal were registered
before the Sub Registrar office, it would be incorrect to
submit by the defendant that there was lapse on the part of
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the plaintiff in performing her obligation rather the plaintiff
did every thing as per terms of agreement, paid the loan
amount to the bank.
7.3 Learned advocate Mr. Jain would further submit that
the appellate Court has not exercised its discretion in favour
of the defendant, inasmuch as it did not find any prima facie
case or irreparable loss in his favour and this Court should
not interfere with such discretionary order while exercising
its power under Article 227 of the Constitution of India.
7.4 Learned advocate Mr. Jain would humbly submit that
when defendant chooses not to contest the suit filed by
plaintiff and decree passed by the trial Curt is valid in law, as
a matter of course, such decree should not be stayed by this
Court by imposing any condition upon the defendant.
7.5 Making the above submission, learned advocate Mr.
Jain would request this Court not to entertain the present
writ application.
8. No other and further submissions have been made by
any of the parties.
Analysis
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9. The facts which are stated hereinabove are not in
dispute. This writ application is filed against refusal to grant
an injunction in favour of plaintiff, happens to be appellant
in Regular Civil Appeal No. 240 of 2023 by the appellate
Court. The defendant is facing decree of specific
performance, thereby he was directed to hand over peaceful
and vacant possession of the suit property to the plaintiff
and allow to withdraw the balance sale consideration so
deposited by the plaintiff, apart from execution of sale-deed.
10. The suit was not contested by the defendant for any
reason best known to him. The plaintiff appears to have led
oral as well as documentary evidence to prove her case. At
this stage, this Court would not like to discuss the merit of
the appeal and also would not like to observe anything about
validity of decree in question by the trial Court as it is subject
matter of the aforesaid appeal.
11. At the same time, this Court is not oblivious of the fact
and conduct of the defendant which dis-entitled him to get
equitable and discretionary relief in his favour, inasmuch as
despite having knowledge of suit in question, not bothered
even to appear and filed written statement. This in-different
behaviour of defendant would not entitle him to get
injunction as prayed in the appeal.
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12. As such, none of the submissions sofar made by the
learned senior advocate Mr. Vyas would appeal to this Court
inasmuch as in absence of any pleading / evidence on the
part of the defendant on record before the trial Court, it
would be difficult to appreciate his submission sofar made
on merits of the claim. Even otherwise, such aspect needs to
be looked into by the appellate Court while finally deciding
the aforesaid appeal.
13. Sofar as the offer made by the defendant, thereby now
ready and willing to pay / deposit the amount so deposited
by the plaintiff is concerned, such aspect could have been
agitated before the appellate Court when sought for relief
of injunction. It appears that no such endeavour ever made
by the defendant before the appellate Court concerned.
14. Be that as it may, the amount so paid/deposited by the
plaintiff pursuance to ATS executed between the parties in
the year 2016. Whereas, value of suit property as on date,
may be higher than what was paid/ deposited by the
plaintiff.
15. In light of the aforesaid peculiar facts and
circumstances of the case, this Court would not like to
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accept such offer made by the defendant, otherwise it
amounts to stall the execution proceedings which are at the
verge of culmination with the registration of sale-deed and
taking over possession of suit property from the defendant.
16. At the same time, it is also required to be observed
here that ultimately, if defendant succeeds in his aforesaid
appeal, whereby appellate Court quash and set aside the
judgment and decree impugned in the appeal passed by the
trial Court, defendant can request the appellate Court to
pass an appropriate order of restitution of suit property by
placing reliance of Section 144 of CPC.
17. It would be gainsaid that this Court ordinarily should
not interfere with the discretionary order passed by the trial
Court/ appellate Court either granting/ refusing to grant
injunction unless such order is either erroneous, perverse,
arbitrary or contrary to settle legal position of law. None of
such ingredients sofar made out in the case on hand, this
Court having its limited jurisdiction under Article 227 of the
Constitution of India, would not like to interfere with the
impugned order, as this Court not found any irregularity or
illegality in the order impugned in the present writ
application. [See : Sameer Suresh Gupta TR PA Holder vs.
Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 (Para
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6 and 7) and Garment Craft v. Prakash Chand Goel,
reported in (2022) 4 SCC 181 (Para 15 and 16)].
18. The upshot of the aforesaid discussions and reasons, I
do not find any merit in the present writ application, which
requires to be rejected, which is hereby rejected.
Consequently, the impugned order dated 08.01.2024 passed
by 10th Additional District Judge, Vadodara in Regular Civil
Appeal No. 240 of 2023 is hereby confirmed. Civil Application
stands disposed of accordingly. Rule discharged.
(MAULIK J.SHELAT,J)
SALIM/
