Wholcom Trading Private Limited vs Sri V. Prasad
2021 Latest Caselaw 1938 Kant

                                       COMAP. No.56 OF 2021
                            1




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF APRIL, 2021
                       PRESENT
   THE HON'BLE MR. ABHAY S. OKA, CHIEF JUSTICE
                         AND
   THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
                   COMAP. No.56 OF 2021
BETWEEN:

WHOLCOM TRADING PRIVATE LIMITED
HAVING ITS OFFICE AT 199/1
HSR LAYOUT, SECTOR-1, AGARA VILLAGE
SARJAPURA ROAD, 2ND FLOOR, CABIN A
22ND MAIN ROAD, BEGUR HOBLI
BENGALURU - 560 102
REP. BY ITS MANAGING DIRECTOR
MR. BHADRAVATHI SATYANARAYAN GANESH         ... APPELLANT

(BY SRI. G. KRISHNAMURTHY, SENIOR COUNSEL FOR
   SRI. SIMHA DUTTA.S, ADVOCATE)

AND:

SRI. V. PRASAD
S/O LATE Y. VENKATAPPA
AGED ABOUT 49 YEARS
RESIDING AT NO.1/C
GIDDAPANAHALLI VILLAGE
SULIBELE HOBLI, HOSKOTE TALUK
BENGALURU RURAL DISTRICT-560 067          ... RESPONDENT

(BY SRI. ASHOK HARANAHALLI, SENIOR COUNSEL FOR
   SRI. M.S.DEVARAJU, ADVOCATE FOR C/RESPONDENT-PH)

      THIS APPEAL IS FILED UNDER SECTION 13(1A) OF THE
COMMERCIAL COURTS ACT, 2015 READ WITH SECTION 104 AND
ORDER XLIII RULE 1(R) OF THE CPC 1908, PRAYING TO ALLOW
THIS APPEAL AND MODIFY THE ORDER DATED 25.02.2021 AND
SET ASIDE THE FOUR CONDITIONS IMPOSED BY THE HON'BLE X
                                          COMAP. No.56 OF 2021
                              2




ADDL. DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU THROUGH ORDER DATED 25.02.2021 ON
I.A.NO.1 FILED UNDER ORDER XXXIX RULE 1 AND 2 OF THE CPC,
1908 IN COMM.O.S.NO.753/2021, IN THE INTEREST OF EQUITY AND
JUSTICE.

                            *****

     THIS APPEAL COMING ON FOR ADMISSION AND HAVING
BEEN RESERVED FOR ORDERS ON 08.04.2021, THIS DAY,
SURAJ GOVINDARAJ J., PRONOUNCED THE FOLLOWING:

                        JUDGMENT

1. The Appellant is before this Court seeking modification

of the order dated 25.02.2021 passed by the X Addl.

District and Sessions Judge, Bangalore Rural District,

Bangalore in his order dated 25.02.2021 on IA-3 filed

under Order 39 Rule 1 and 2 of Code of Civil

Procedure, 1908 (for short 'CPC') in COM. OS. No.

753/2021 by setting aside the conditions imposed in the

said order.

2. COM.OS. No. 753/2021 is filed by the Appellant herein

seeking a declaration that the cancellation of the lease

dated 18.06.2020 made and executed on 23.10.2020

registered as document No.HSK-1-05788-2020-21 is COMAP. No.56 OF 2021

void and not binding on the Plaintiff. An application

under Order 39 Rule 1 and 2 had been filed seeking for

an order of temporary injunction restraining the

defendants therein or anybody acting on their behalf

from creating any right, title or interest in the suit

schedule property.

3. The suit schedule property is an office space measuring

2,01,706 sq.ft with common area of 1,45,560 sq.ft in a

building constructed in property bearing No.119,

Ekarajapura, Near Sun Pharma Factory, Hoskote-

Siddlaghatta Road, Sulibele Hobli, Hoskote Taluk,

Bengaluru Rural District, Bengaluru.

4. The case of the appellant/plaintiff is that:

4.1. The aforesaid property belongs to the Defendant,

the Defendant having partially constructed a

warehouse being desirous of leasing the same

had approached a real estate agency, the Real

estate agency had approached the Plaintiff to COMAP. No.56 OF 2021

take the said property on lease, the Plaintiff after

inspecting the warehouse, was satisfied with the

location and the structure of the warehouse, and

as such, upon negotiation, a lease agreement

came to be executed on 18.06.2020 whereunder

the Plaintiff had agreed to pay a security deposit

of Rs.1,17,99,800/- and a monthly rental of

Rs.39,33,267/-.

4.2. The said security deposit was to be paid in three

instalments of Rs.39,33,267/-, the first instalment

was paid at the time of execution of the lease,

which had been paid on 18.6.2020, the second

instalment to be paid on completion of the work

relating to installation of fire hydrant system and

issuance of 'No objection certificate' and third

instalment was to be paid on all necessary

statutory compliance with the physical possession

of the warehouse would be handed over to the

Plaintiff.

COMAP. No.56 OF 2021

4.3. Plaintiff contends that the lease agreement was

signed and executed by the representative of

Plaintiff viz., Prithvi Kowshik, who was the

employee of the Plaintiff, who tendered his

resignation on 12.09.2020.

4.4. While awaiting the compliance of the obligation by

Defendant, the Plaintiff received a letter in July

2020 from some of the local villagers alleging that

there are certain illegalities in the construction of

the warehouse, there was an encroachment of

certain properties, including a kaludari (footpath),

as regards which a proceeding is pending in a

Court of law.

4.5. On receipt of the said information/complainant,

Plaintiff had approached Defendant seeking for

an explanation towards which no proper

explanation was issued by Defendant. It is

alleged that the Plaintiff thereafter on enquiry COMAP. No.56 OF 2021

became aware of two different plan sanctions

obtained by Defendant, one from the local

panchayat and the other from Hoskote Planning

Authority, certain other litigations between the

Defendant and neighbouring landowners and as

such, the Plaintiff sought for further clarification

from the Defendant. As regards this also, no

information or clarification was received.

4.6. At this juncture, Plaintiff came to know or became

aware of the fact that the Defendant in conspiracy

with the former employee of the Plaintiff viz.,

Mr.Prithvi Kowshik, who resigned on 12.09.2020,

had got executed a cancellation of the lease deed

on 23.10.2020 and got the same registered in the

office of the jurisdictional sub-registrar's office.

4.7. In the said cancellation agreement, there was a

mention of Demand Draft bearing No;. 970671 COMAP. No.56 OF 2021

drawn on Canara Bank, Hokote having been

handed over to the said Prithvi Kowshik.

4.8. The cancellation of lease deed being illegal and

impermissible, the Plaintiff coming to know of the

fact that the Defendant was seeking to defraud

the Plaintiff of its legal rights under the registered

lease agreement had filed COM. OS. No.

753/2021 seeking a declaration that the

cancellation of the lease deed is void and not

binding on the Plaintiff.

5. On service of notice, Defendant entered appearance

and denied all the allegations made by Plaintiff. The

Defendant contended that

5.1. Mr.Prithvi Kowshik authorised signatory on behalf

of Plaintiff, had approached Defendant for

cancellation, and it is in that background the

agreement has been cancelled.

COMAP. No.56 OF 2021

5.2. Be that as it may, the petitioner does not have

any objection to cancel the cancellation subject to

Plaintiff making payment of the due amounts and

taking over the property and making payment of

the due rentals thereon.

5.3. As regards the other allegations regarding

encroachment of the property and or the plan

sanctions, the same was denied by the

defendants.

5.4. It was contended by Defendant that Defendant

has been ready and willing to perform his part of

the obligations. It is in fact the Plaintiff who was

unable to perform its obligation, that the Plaintiff

did not have the wherewithal to go ahead with the

lease agreement, they did not have the solvency

or financial ability to comply with the same. It is

for this reason the lease deed came to be

cancelled.

COMAP. No.56 OF 2021

5.5. Defendant, having borrowed a huge amount of

monies from third parties, is required to return the

said monies, and it is for this reason the

Defendant was looking out for prospective

lessees. If Plaintiff were to go ahead with the

lease and make payment of the amounts due,

Defendant would not deal with the property and

was ready to restore the lease deed dated

18.06.2020 and make available the same to

Plaintiff for its use. On similar grounds,

objections to interlocutory application was also

filed.

6. After hearing the parties, the trial Court came to a

conclusion that the Plaintiff had made out a prima facie

case in its favour and also came to a conclusion that

there are doubtful circumstances surrounding the

execution of cancellation of lease deed on 20.03.2020;

hence, the balance of convenience was also held to be

in favour of the Plaintiff, but, however, the trial Court COMAP. No.56 OF 2021

also recognised the fact that granting of an injunction as

sought for is likely to cause loss to the Defendant. In

view thereof, the trial court allowed the application for

grant of a temporary injunction by imposing the

following conditions:

6.1. The Plaintiff shall return DD No.970671 dated.

23.10.2020 for Rs.39,33,267/- to the defendant.

6.2. The Plaintiff shall deposit 2nd and 3rd installments of security deposit totally amounting to Rs.78,66,534/- before the Court.

6.3. The Plaintiff shall deposit agreed rent of the suit schedule property i.e. Rs.39,33,267/- per month before the Court from 2.1.2021 till 28.02.2021.

6.4. The Plaintiff shall continue to deposit agreed monthly rent as and when it becomes due on or before 5th day of succeeding month till disposal of the suit.

On such return of DD, the Defendant is at liberty to get it cancelled and to use the amount. On such deposit of amount as per condition No.2 & 3, same shall be kept in F.D. in any nationalised bank in the name of the Court and the succeeding party can claim the rent portion with interest. If the suit schedule property is occupied by the Plaintiff, the security deposit amount and its interest shall go to the Defendant or otherwise, it will be refunded to the Plaintiff.

The Plaintiff shall comply the above condition no.1 to 3 on or before next date of hearing. If he fails to COMAP. No.56 OF 2021

comply any of the conditions, T.I. stands automatically cancelled.

7. It is aggrieved by the same that Plaintiff is before this

Court on appeal seeking to set aside the conditions

imposed in the order as extracted hereinabove.

8. Sri.G.Krishnamurthy, learned Senior counsel for the

Appellant, would submit that:

8.1. The Appellant has filed a suit seeking for a

declaration that the cancellation of the lease deed

is bad in law. The trial Court having come to a

conclusion that a prima facie case is made out by

the Plaintiff, balance of convenience lies in favour

of the Plaintiff and that the hardship that may be

caused to the Plaintiff cannot be compensated in

terms of money, it was not permissible for the trial

Court to impose the conditions so imposed by the

trial Court.

8.2. The Appellant is only aggrieved by the conditions,

the conditions not being required to be so

imposed, he submits that the said conditions are COMAP. No.56 OF 2021

required to be deleted from the order dated

25.02.2021.

8.3. The Demand Draft dated 23.10.2020 has not

been received by the Plaintiff inasmuch as the

said Demand Draft is stated to have been handed

over to Sri.Prithvi Kowshik on 23.10.2020, when,

in fact, the said Prithvi Kowshik had resigned from

the services of the Plaintiff on 12.09.2020 itself.

Since Sri.Prithvi Kowshik is no longer in the

employment of the Plaintiff, and the Demand

Draft had been handed over to him post his

resignation; the Plaintiff is not in a position to

obtain the Demand Draft from Sri.Prithvi Kowshik

and hand it over to Defendant. Be that as it may

he submits that the Defendant being in touch with

said Prithvi Kowshik, it is the Defendant who can

approach said Prithvi Kowshik and obtain the

Demand Draft. The Appellant has neither COMAP. No.56 OF 2021

received the Demand Draft nor encashed the

same.

8.4. The Plaintiff is ready to deposit the second and

third instalments of the security deposit; however,

imposition of the condition of payment of rentals

every month without being able to make use of

the said premises would cause grave and

irreparable harm to the Plaintiff. The Defendant

has not complied with the terms and conditions of

the lease deed; without such compliance, the

Plaintiff is unable to take possession of the

property.

9. Per contra, Sri. Ashok Haranahalli, learned Senior

counsel appearing for the respondent-defendant, would

submit that:

9.1. The respondent-defendant is still ready and

willing to hand over the property, subject matter of

the lease agreement, to the Plaintiff by restoring COMAP. No.56 OF 2021

the cancelled lease agreement. The Plaintiff, if so

interested, can always take possession of the

property and make payment of the due amounts.

9.2. He further submits that the Defendant has

complied with all the obligations, has put up

construction by investing huge amounts of

money, the only manner in which the interest of

the Defendant can be safeguarded is by way of

conditions imposed by the trial Court. If the

Plaintiff were to fail to establish its contentions,

more so when the Defendant is willing to restore

the Lease Deed and the suit is dismissed, then

the Defendant would neither have been able to

make use of his property, nor rent the property

and furthermore, the Defendant would not have

earned any money out of the property during the

interregnum, The trial Court has therefore rightly

imposed the conditions as done.

COMAP. No.56 OF 2021

9.3. As regards the Demand Draft dated 23.10.2020,

he submits that the Defendant has obtained

Demand Draft from its Bankers and given it to Sri.

Prithvi Kowshik, representative of the Plaintiff.

Said Demand Draft is made out in the name of

the Plaintiff. Therefore, the Plaintiff cannot now

contend that condition No.1 cannot be complied

with. It is for the Plaintiff to obtain the demand

draft from its employee and return it to the

Defendant.

9.4. If the Plaintiff neither wants to take possession of

the land and building nor make payments of the

amounts due in the lease deed, the interest of

Defendant would suffer irreparably, and there is

no manner of the Defendant being able to make

good the losses which would be caused to the

Defendant, as such he submits that the appeal as

filed may be dismissed.

COMAP. No.56 OF 2021

10. Heard Sri.G.Krishnamurthy, learned Senior counsel for

Sri.Simhadutta.S, learned counsel for the Appellant and

Sri.Ashok Haranahalli, learned Senior counsel for

Sri.M.S.Devaraju, learned counsel for the respondent.

Perused papers.

11. The points that would arise for our determination are:

i) Whether while granting interim injunction on

an application filed under Order 39 Rule 1 and

2 CPC, the Commercial Court can impose

conditions?

ii) Whether the conditions imposed by the

Commercial Court are proper and correct or

do they require interference at the hands of

this Court?

iii) What order?

12. Answer to Point No.1: Whether while granting interim injunction on an application filed under Order 39 Rule 1 and 2 CPC, the Commercial Court can impose conditions?

COMAP. No.56 OF 2021

12.1. The facts as stated above are not in dispute

except firstly Plaintiff alleging that the Defendant

has not discharged all its obligations whereas the

defendants alleging that it has discharged all the

obligations; secondly, that the cancellation of the

lease deed was got executed through Sri. Prithvi

Kowshik, who is no longer an employee of the

Plaintiff; and thirdly that the conditions imposed

are onerous, ought not to have been imposed.

12.2. The execution of the lease agreement,

registration of the lease agreement, the payments

required to be made under the same are not in

dispute.

12.3. As stated earlier, the agreement between the

parties was to the effect that the Defendant would

construct the building, obtain necessary

permissions and licences and lease it out to the

Plaintiff. The construction made is not in dispute;

however, the Plaintiff contends that Defendant COMAP. No.56 OF 2021

has not obtained necessary permissions and

licences and as such, the Plaintiff is unable to

take possession of the property.

12.4. Suit has been filed seeking for a declaration that

the cancellation of the lease deed is void and not

binding on the Plaintiff, and in the said suit, an

injunction is sought for restraining the defendants

from creating any right, title and interest in the suit

schedule property, thereby implying that the

property is required to be maintained in status-

quo without the Defendant being able to use the

property by way of letting it out to any one else or

selling the property. If the Plaintiff wants an

equitable relief, he must do equity by complying

with his part of the agreement by depositing the

monthly rentals. But, the Plaintiff is not willing to

do so.

12.5. A Court while dealing with a matter of granting an

injunction against the Defendant restraining the COMAP. No.56 OF 2021

Defendant from doing any particular act, if the

said injunction order were to have the effect of

causing any harm, injury or loss to the Defendant

even though on a comparative analysis the harm,

loss and injury caused to the Plaintiff may be

more than that which would be caused to the

Defendant, it is but required that the said harm

loss and injury that may be caused to the

Defendant on account of passing of an order of

injunction be compensated in the event of the

Plaintiff failing in his suit.

12.6. This being so since if not for the order passed by

a Court of law there would be no loss, harm

caused or likely to be caused to such Defendant.

The Apex Court in the case of Wander Ltd. And

Another -v- Antox India P.Ltd. [(1990) 1 SCC

727] at para 5 has held as under:

"5. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the Plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The COMAP. No.56 OF 2021

Court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injucntion, it is stated is to protect the Plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the Defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the "balance of convenience lies". The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie. The Court also, in restraining a defendant from exercising what he considers his legal right but what the Plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the Defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the Defendant is yet to commence his enterprise, are attracted."

12.7. The Apex Court in the case of

M/s Gujarat Pottling Co.Ltd. & Others -v- The

Coca Cola & Co. & Others-[(1995) 5 SCC 545]

at para 43 has held as under:

43. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the discretion the Court applies the following tests -- (i) whether the Plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the Plaintiff; and (iii) COMAP. No.56 OF 2021

whether the Plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the Plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the Plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the Plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the Defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the "balance of convenience" lies. [See: Wander Ltd. v. Antox India (P) Ltd. (SCC at pp. 731-32). In order to protect the Defendant while granting an interlocutory injunction in his favour the Court can require the Plaintiff to furnish an undertaking so that the Defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial.

12.8. Thus, while granting an order of injunction, it is

the bounden duty of any Court of law to consider

the comparable damage, loss or injury that may

be caused both to the Plaintiff and/or the

Defendant and it would be the duty of the Court to

protect the Defendant from any losses which may COMAP. No.56 OF 2021

be caused on the Plaintiff failing in the suit, such

losses being caused on account of the injunction

issued on an application being made by such a

plaintiff.

12.9. We cannot agree with the contentions of

Sri.G.Krishnamurthy, learned Senior counsel that

since prima facie case, the balance of

convenience and irreparable injury has been held

to be in favour of the Plaintiff, injunction order

ought to have been issued without imposing any

conditions. As stated earlier, it may be that the

irreparable comparative injury caused to the

Plaintiff is greater than that which may be caused

to the Defendant, however, when there is any

injury which is likely to be caused to the

Defendant, it would but be required for a Court of

law while granting an order of injunction to

impose such conditions as may be necessary to

safeguard the interest of the Defendant against COMAP. No.56 OF 2021

whom an injunction order is passed, in the event

of the Plaintiff not succeeding in the suit.

12.10. We, therefore, answer Point No.1 by holding

that while granting an interim injunction on an

application filed under Order 39 Rule 1 and 2

CPC, the Commercial Court can impose

conditions on the Plaintiff while granting an

order of injunction so as to protect the

Defendant in the event of the Plaintiff not

succeeding.

13. Answer to Point No.2: Whether the conditions imposed by the Commercial Court are proper and correct or do they require interference at the hands of this Court?

13.1. The subject matter of the contract has been

explained hereinabove. Suffice it to say that

there was a lease deed entered into between the

Plaintiff and Defendant under the said lease

deed; there were various obligations to be

performed by both the parties; the defendant-

owner was to construct and hand over the COMAP. No.56 OF 2021

premises after obtaining the necessary

permission. Plaintiff was required to make a

deposit of a certain security amount and make

payment of the monthly lease rentals.

13.2. Though Plaintiff alleges that the Defendant has

not complied with its obligations, the Defendant

contends that the Defendant has complied and is

ready to hand over the constructed area to

Plaintiff. This is again refuted by Plaintiff.

13.3. The veracity of these facts cannot be ascertained

at the Interlocutory stage and the same would

require a trial to be held and these aspect to be

determined. It is in such circumstances,

aforesaid conditions have been imposed by the

trial Court while granting an order of injunction in

favour of the Plaintiff restraining the Defendant

from creating any encumbrance or dealing with

the property, subject matter of the lease.

COMAP. No.56 OF 2021

13.4. Thus it cannot be disputed that on the passing of

an order of injunction, the Defendant would be

unable to make use of the property which the

Defendant would normally have been able to

make use of. Admittedly, the rentals per month

for the property has been agreed upon between

the parties. Thus, the loss which may be caused

has been determined and agreed upon by the

parties. It is for this reason that the trial Court,

while granting an order of injunction in order to

protect the interest of the Defendant, has

imposed the conditions.

13.5. The first condition as regards return of the

Demand Draft as on today has been rendered

academic inasmuch as the Demand Draft dated

23.10.2020 has spent itself and has expired. The

Defendant, therefore, would be in a position to

seek for cancellation of the said Demand Draft

and remittance of the amount into its accounts, if COMAP. No.56 OF 2021

there are any documents required to be executed

by the Plaintiff like a letter etc., the Plaintiff is

directed to execute such documents to enable the

Defendant to cancel the Demand Draft

No.970671 dated 23.10.2020 and for remittance

of the amount covered thereunder into its

account.

13.6. The second condition as regards deposit of the

second and third instalments of the security

deposit is in terms of the lease deed entered into

between the parties; the trial Court has only

directed to deposit the said amounts in the Court,

needless to say, the same would not, for now, be

made available to the defendants. Hence, we

find no infirmity in this condition also.

13.7. The third and fourth conditions are as regards the

deposit of the monthly rentals as agreed upon

under the lease deed. This being for the reason COMAP. No.56 OF 2021

that Defendant would not be able to earn from the

said property, while Defendant is prevented by

order of injunction from leasing or dealing with the

property. If not for the order of injunction the

Defendant would have been in a position to lease

out the property and earn rentals, thought

Defendant has agreed to reinstate the lease

deed, the Plaintiff has expressed its inability to

take possession of the property on account of the

Defendant not having discharged its obligations.

Whether each of the parties has discharged its

obligation or not would be decided after

completion of the trial. It is to secure the interests

of both parties that the third condition is imposed.

We find no infirmity in this condition also.

13.8. However, taking into consideration that as per

the order of the trial Court the said amounts have

to be deposited by the next date i.e. 17.04.2021

and the Plaintiff has been before this Court from COMAP. No.56 OF 2021

22.03.2021 prosecuting the above appeal, we are

of the considered opinion that the time to comply

with the said condition would be required to be

extended and as such, the same is extended by a

further period of one month from 17.04.2021.

The amounts stated in condition No.2, 3 and 4 to

be deposited by the Plaintiff by 17.05.2021.

Needless to state that if such amounts are not so

deposited by that date, the interim order of

injunction granted by the trial Court will

automatically stand vacated. On such deposit

being made, the same would be kept in a fixed

deposit initially for a period of one year and

renewed from time to time until the resolution of

the matter. In the event the order of injunction

stands vacated on account of non-compliance of

the above conditions, if any third party rights are

created by Defendant, the same will be subject to

the final outcome of the suit.

COMAP. No.56 OF 2021

14. Answer to Point No.3: What order?

14.1. The order of the trial Court dated 25.02.2021 is

modified as under:-

14.1.1. The order of temporary injunction

restraining the Defendant from creating any

third party rights is confirmed.

14.1.2. There would be no requirement for the

Plaintiff to return DD No.970671 dated

23.10.2020 for a sum of Rs.39,33,267/- to

the Defendant.

14.1.3. The Defendant may however approach the

concerned Bank for cancellation of the said

DD and credit the amount covered under

the said DD into its account. In this

connection, if any documents are required

to be executed by the Plaintiff as required

by the Bank, the Plaintiff shall execute such

documents.

COMAP. No.56 OF 2021

14.1.4. The second condition requiring the Plaintiff

to deposit the second and third installments

of security deposit totally amounting to

Rs.78,66,534/- remains unaltered.

14.1.5. The third condition requiring the Plaintiff to

deposit the agreed rent of the suit schedule

property i.e., Rs.39,33,267/- per month

from 02.01.2021 till 28.02.2021 remains

unaltered.

14.1.6. The fourth condition requiring the Plaintiff to

deposit the further monthly rent as and

when it becomes due on or before 5th day

of succeeding month till disposal of the suit

remains unaltered.

14.1.7. On deposit of the aforesaid amounts, the

same shall be remitted into a fixed deposit

in any of the nationalised Bank in the name

of the Court and renewed from time to time

until the disposal of the suit.

COMAP. No.56 OF 2021

14.1.8. The succeeding party shall be entitled to

receive the said amount along with interest.

14.1.9. In the event of the deposits not being made

by Plaintiff, the injunction order will stand

vacated, any third party rights created by

the Defendant would however be subject to

the result of the suit.

With the above observations, the appeal is partly

allowed.

No order as to costs.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

ln