Karnataka High Court
Sri. Vishvas Gopichand vs Sri. Mahaveer Kumar on 19 July, 2023
Bench: H.P.Sandesh
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MFA No. 6927 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 6927 OF 2022 (CPC)
BETWEEN:
1. SRI VISHVAS GOPICHAND
S/O. LATE GOPICHAND M,
AGED ABOUT 39 YEARS,
NO.566, UNITY GRACE,
FLAT 201, 2ND FLOOR,
10TH 'A' MAIN, 5TH BLOCK,
JAYANAGAR,
BENGALURU-560 041.
...APPELLANT
(BY SRI PATIL BHARATI TAMMANAGOUDA, ADVOCATE)
AND:
Digitally signed
1. SRI MAHAVEER KUMAR
by SHARANYA T S/O. LATE DEVICHAND,
Location: HIGH AGED ABOUT 48 YEARS,
COURT OF R/AT NO.30, 1ST FLOOR,
KARNATAKA
MESCO BUILDING,
GANIGARAPETE,
BENGALURU-560 002.
2. SMT. REKHA DEVI
W/O. RAJESH KUMAR,
AGED ABOUT 41 YEARS,
R/AT NO.46/1, 2ND CROSS,
SAURASTRAPET,
NEAR JAIN TEMPLE,
AKKIPET,
BENGALURU-560 053.
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MFA No. 6927 of 2022
3. SRI RAJESH KUMAR
S/O. VIMAL CHANDJI
AGED ABOUT 46 YEARS
R/AT NO.46/1, 2ND CROSS,
SAURASTRAPET,
NEAR JAIN TEMPLE,
AKKIPET,
BENGALURU-560 053.
4. SMT. KALADEVI
W/O. ASHOK KUMAR
AGED ABOUT 36 YEARS
R/AT NO.15, FLAT NO.101
MOHAN KHEDA APARTMENT
MILL ROAD, COTTONPET
BENGALURU-560 053.
5. SRI UGAM CHAND
S/O. TRILOKCHAND
AGED ABOUT 63 YEARS
NO.63/8, 3RD FLOOR
RAMA IYENGAR ROAD
V.V. PURAM
BENGALURU-560 004.
6. SMT. LEELA DEVI
AGED ABOUT 59 YEARS
W/O. UGAMCHAND
NO.63/8, 3RD FLOOR
RAMA IYENGAR ROAD
V.V.PURAM
BENGALURU-560 004.
7. SRI PRADEEP KUMAR
S/O. NAINMAL
AGED ABOUT 45 YEARS
R/AT No.32, 1ST FLOOR
'RAVI PRABHA'
SUBRAMANYA SWAMY
TEMPLE STREET
KUMARA PART WEST
BENGALURU-560 020.
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MFA No. 6927 of 2022
8. M/S. MIND WORK VENTURES, LLP,
A LIMITED LIABILITY PARTNERSHIP FIRM
FLAT NO.16, 101
MOHAN JINESWARA APARTMENT
MMV ROAD, VASAVI TEMPLE ROAD
BENGALURU-560 004
REPRESENTED BY ITS PARTNER
SRI KAMLESH KUMAR M. JAIN.
9. SMT. BHARATHI P.
W/O. PRAVEEN KUMAR
AGED ABOUT 45 YEARS
R/AT NO.34/2, 1ST FLOOR
MBT STREET, NAGARATHPETE CROSS
BENGALURU - 560 002.
10. RAJENDRA KUMAR
AGED ABOUT 46 YEARS
S/O. FUTERMAL
R/AT NO.31, CHOWL GALLI
CUBBONPET
BENGALURU-560 002.
11. SRI PARASMAL
AGED ABOUT 36 YEARS
SON OF BAGARAM
NO.70, MEGHVALOKA MOHALLA
BHINMAL, JALOR
RAJASTHAN-343 029.
...RESPONDENTS
(BY SRI SOMNATH H.S., ADVOCATE FOR R1 TO R11)
THIS MFA IS FILED U/O.43 RULE 1(r) OF CPC, AGAINST
THE ORDER DT. 10.06.2022 PASSED ON IA NO.1 IN
O.S.NO.698/2022 ON THE FILE OF THE LXIX ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-70),
DISMISSING I.A.NO.1 FILED U/O.39 RULE 1 AND 2 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the respondents.
2. This appeal is filed challenging the order dated
10.06.2022 passed on IA No.1 in O.S.No.698/2022 on the file
of the LXIX Additional City Civil and Sessions Judge, Bengaluru,
(CCH-70), dismissing IA No.1 filed under Order 39, Rule 1 and
2 of CPC.
3. The factual matrix of the case of the plaintiff before
the Trial Court is that he had filed the suit for the relief of
declaration to declare that the sale deed dated 16.12.2019
executed by the plaintiff in favour of defendant No.1 and others
in respect of plaint schedule 'B' property as null and void and
the same is not binding on the plaintiff and direct the defendant
No.1 and others to deliver the vacant physical possession of the
plaint 'B' schedule property to the plaintiff and also to direct the
defendants to pay Rs.1,13,13,090/- with interest at 18% per
annum from the date of registration of schedule 'B' property
i.e., on 16.12.2019 till realization and also pass an order of
permanent injunction restraining the defendant Nos.1 to 10
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from alienating, encumbering, mortgaging and putting up
construction in plaint schedule 'B' property in the interest of
justice.
4. The main contention urged in the application is that
property devolved from ancestral Sri D. Lakshmaiah. The
plaintiff submits that during the life time of his father totally
840 sq. ft. is purchased and the plaintiff purchased 351 sq. ft.
from schedule 'A' property from legal heirs of late Gopichand
his father, his mother and sisters and became the absolute
owner to the tune of 1,191 sq. ft. in total of schedule 'B'
property. The plaintiff in Para No.19 of his pleadings stated
that suit schedule 'B' property is worth of Rs.2,69,02,710/-.
However, the defendants agreed to pay balance amount of
Rs.1,13,13,090/- towards further consideration. In terms of
agreement of sale executed by Sri S. Deepak and Smt. Brinda
Ramakrishna in favour of defendant No.1. However, as he
failed to honour the same, out of the entire consideration, only
Rs.84,43,000/- is agreed to transfer right of the property, in all
the entire sale consideration is Rs.4,66,58,800/-. The
defendant No.1 had issued cheque bearing No.000591 dated
02.04.2019 for sum of Rs.30,00,000/- and cheque bearing
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MFA No. 6927 of 2022
No.0005120 dated 02.04.2019 for a sum of Rs.30,00,000/-
drawn on Lakshmi Vilas Bank and by way of cash
Rs.20,00,000/- is agreed. The balance sale consideration of
Rs.3,86,58,800/- was agreed to be paid at the time of
registration. The plaintiff submits that cheque bearing
No.000529 dated 06.04.2019 was returned with 'funds
insufficient'. Accordingly, he obliged to come up with this suit.
The plaintiff has filed private complaint in PCR No11818/2020
for a sum of Rs.8,08,195/-. Therefore, unless the amount due
to the plaintiff is realized, the defendants are to be restrained.
5. The defendants appeared and filed the written
statement contending that sale deed dated 16.12.2019 is
executed by the plaintiff along with this father, mother and
sisters after the entire sale consideration is received and they
have also acknowledged the receipt of the same. The sisters of
the plaintiff are not challenging the said sale deed, but the
plaintiff has intentionally not made his mother Smt. Sharada
Gopichand and sister Preethi Gopichand as parties in the suit
and hence, the suit is barred by non-joinder of proper and
necessary parties. The plaintiff has no right to challenge the
said sale deed. The defendants are in possession and
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enjoyment of the suit schedule 'B' property. Due to Covid-19,
pandemic, the defendants could not pay the amount to the
plaintiff. Hence, the plaintiff has filed the complaint in
C.C.No.11818/2020. The defendant Nos.1 to 6 have purchased
the property for valuable consideration and balance of
convenience lies in favour of the defendants.
6. The Trial Court, having considered the averments of
the plaint, the application and the objection statement and also
the relief sought in the suit i.e., for declaration to declare the
sale deed as null and void and decree for refund of amount and
permanent injunction, the Trial Court comes to the conclusion
that multiple reliefs cannot be sought in one application, i.e.,
not to alienate the suit schedule 'B' property and not to
interfere with possession and putting up any construction.
However, the Trial Court also observed that injunction has been
sought with regard to suit schedule 'A', 'B' and 'C' properties
but, the interim prayer is made only with regard to suit
schedule 'B' schedule property. The entire title deeds are given
to the defendants by the plaintiff can be decided only on trial
and therefore, the prayer cannot be granted. The Trial Court
also observed that, on going through the entire material on
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record and discussions made, comes to the conclusion that no
prima facie case, hardship and balance of convenience is made
out in favour of the plaintiff. Hence, rejected the application
and hence, the present appeal is filed.
7. Learned counsel appearing for the appellant would
vehemently contend that in the sale agreement, there are three
instances with regard to selling of property measuring 887
sq.ft. and consideration is fixed at Rs.2,69,02,710/- in respect
of suit schedule 'B' property and an amount of
Rs.1,13,13,090/- is agreed to be paid in respect of agreement
of sale executed by Sri S. Deepak and Smt. Brinda
Ramakrishna in favour of purchaser vide sale agreement dated
11.03.2019 and they have also agreed and authorized the
purchaser to pay the above said sum in respect of the property
measuring 373 sq.ft. i.e., 1/9th share which Sri Deepak and
Smt. Brinda Ramakrishna in favour of the vendor herein and
also the purchaser agreed to pay to the vendor another sum of
Rs.84,43,000/- where the vendor has agreed to transfer the
right of the property purchaser in the above clause. In order
and sum of the above grant total 1,191 sq.ft., the grand total
consideration payable by the purchaser to the vendor is
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Rs.4,66,58,800/- in all for which the purchaser has agreed.
When such averments are made in the agreement itself, not
paid the entire amount including Rs.1,13,13,090/-. The
counsel also submits that the sale consideration of
Rs.2,69,02,710/- is only in respect of 887 sq.ft. and remaining
consideration is in respect of 373 sq. ft.. Hence, sought for
the relief not to alienate the property and also not to put up
any construction.
8. On the other hand, learned counsel for the
respondents brought to notice of this Court that sale deed was
executed subsequent to the sale agreement i.e., on 16.12.2019
and entire sale consideration has been paid and the dimension
mentioned in the sale deed is 1,191 sq. ft. and though the
learned counsel for the appellant submit that entire sale
consideration is not paid, the same is only in respect of 887 sq.
ft. and not in respect of 1,191 sq. ft. The counsel for the
appellant also would vehemently contend that the same is not
objected while executing the sale deed and when entire sale
consideration is not paid, the relief is sought for declaration of
sale deed as null and void, the Trial Court failed to consider the
prayer made in the application. The counsel for the
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respondents, in support of his contention, filed the statement of
objection and also produced the sale deed dated 16.12.2019,
wherein it is specifically mentioned that entire measurement in
the suit schedule 'B' property is 1,191 sq. ft.
9. The counsel also would contend that after
registration of the plaint, complaint was filed and thereafter,
the parties entered into a Memorandum of Understanding
('MOU' for short) on 03.09.2021 and this plaintiff is also a party
to the said MOU, wherein also it is specifically stated that the
parties have no claim against each other and the appellant is
also not disputing this document but, only counsel contends the
same is in respect of receipt of an amount of Rs.8,08,135/-.
But, when the document of sale deed was executed in the year
2019 itself in terms of the earlier sale agreement and
subsequently, this document came into existence and though
this document is not relied upon before the Trial Court, the
Court has to take note of the sale deed which was already
executed by the plaintiff in favour of the defendants and when
the document is a registered document, now the learned
counsel for the appellant cannot contend that there is a prima
facie case to grant the relief of temporary injunction not to
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alienate and not to put up construction and prima facie, the
material discloses that the plaintiff has executed the sale deed
on 16.12.2019 itself.
10. When such being the case, the Trial Court also,
while considering the case of the plaintiff, discussed in detail in
Para Nos.11 and 12 and prayer is also made only with regard to
suit schedule 'B' property and the Trial Court also taken note of
the fact that entire sale consideration is paid to the defendants
when the sale deed was executed and whether the amount is
paid or not is a matter of trial and unless the plaintiff makes
out a prima facie case and when already there was a sale deed
in favour of the defendants, granting the relief as sought in the
application does not arise and the dispute with regard to non-
payment of amount has to be considered by the Trial Court
during trial and unless, the balance of convenience lies in
favour of the appellant-plaintiff is made out , I do not find any
reason to set aside the order of the Trial Court and grant the
relief as sought in the application and there is no merit in the
appeal to reverse the findings of the Trial Court.
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11. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
ST
