Karnataka High Court
Smt. Savithri vs Shri R.V.Datta Rajesh on 24 May, 2023
Bench: H.P.Sandesh
-1-
MFA No. 1538 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 1538 OF 2018 (CPC)
BETWEEN:
1. SMT. SAVITHRI
W/O. SHRI RAVINDRA
AGED ABOUT 39 YEARS,
R/AT KITHAGANUR VILLAGE
BIDARAHALLI HOBLI
BENGALURU RURAL DISTRICT
2. SMT. CHOWDAMMA
W/O. SHRI NARAYANASWAMY
AGED ABOUT 46 YEARS
R/AT NO.131/A
NEAR RAJARAJESHWARI TEMPLE
6TH CROSS, K.R. PURAM POST
BENGALURU-560 036.
Digitally signed
by SHARANYA T 3. SMT. SHOBHA
Location: HIGH W/O. SHRI T. DEVARAJU
COURT OF
KARNATAKA D/O. SHRI JAYARAMAPPA
AGED ABOUT 40 YEARS
R/AT THIMMASANDRA
WARD NO.31, CHINTAMANI TOWN
CHIKKABALLAPURA DISTRICT.
4. SMT. HEMAVATHI
W/O. SHRI T. DEVARAJU
D/O. JAYARAMAPPA
AGED ABOUT 37 YEARS
R/AT THIMMASANDRA
WARD NO.31,
-2-
MFA No. 1538 of 2018
CHINTAMANI TOWN
CHIKKABALLAPURA DISTRICT.
5. SHRI J. MANJU
S/O. SHRI JAYARAMAPPA
AGED ABOUT 39 YEARS
R/AT KITHAGANUR VILLAGE
BIDARAHALLI HOBLI
BENGALURU RURAL DISTRICT.
...APPELLANTS
(BY SRI ABHINAV R., ADVOCATE FOR
SRI CHANDRASHEKHAR PATIL, ADVOCATE)
AND:
1. SHRI R.V. DATTA RAJESH
S/O. SHRI CHIKKA VENKATAPPA
AGED ABOUT 33 YEARS,
R/AT NO.120, S.L.V. NILAYA
RAMPURA, VIRGO NAGAR
BENGALURU-560 049.
...RESPONDENT
THIS MFA IS FILED U/O.43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED 16.12.2017 PASSED ON I.A.NO.1 IN
O.S.NO.1390/2015 ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT,
BENGALURU, PARTLY ALLOWING I.A.NO.1 FILED U/O.39 RULE
1 & 2 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and learned
counsel for the respondent.
MFA No. 1538 of 2018
2. This appeal is filed against the order passed on
I.A.No.1 filed under Order 39, Rule 1 and 2 of CPC to restrain
the defendants from alienating or encumbering the suit
schedule properties to any third party, till the disposal of the
suit.
3. The main contention of the plaintiff in the suit is
that there was a sale agreement for an amount of
Rs.1,08,20,600/- and received an advance amount of
Rs.16,23,090/- and also subsequently, received an amount of
Rs.18,00,000/- and in all, the defendants have received an
amount of Rs.34,23,090/-. But, the defendants are not ready
to execute the sale deed. Hence, he issued legal notice on
29.04.2015 calling upon the defendants to execute the sale
deed by receiving balance consideration amount. But, the
defendants have given an untenable reply. Even though he
was always ready and willing to perform his part of agreement,
but, the defendants are not ready to execute the sale deed.
Hence, he filed the suit. The plaintiff inter-alia has also sought
for an order of temporary injunction restraining the defendants
from alienating or encumbering the suit schedule properties to
any third party.
MFA No. 1538 of 2018
4. The defendant No.5 has appeared and filed the
written statement and memo adopting the written statement as
objection to I.A.No.1. The defendant Nos.1 to 4 have also filed
memo and adopted the written statement and objection
statement of defendant No.5. It is contended that the suit
itself is not maintainable and the same is barred by limitation.
It is also contended that the sale agreement was executed in
the year 2009, but the suit was filed in the year 2015. It is
further contended that the purchaser has to purchase the
property within 9 months from the date of agreement. But, the
plaintiff has not come forward to purchase the property. The
defendants have issued a notice to the plaintiff on 15.07.2011
calling upon him to pay the balance amount. But, the plaintiff
has given false reply. The cheque given by the plaintiff for
Rs.5,00,000/- dated 26.10.2013 was bounced. Hence, the
plaintiff is not entitled for the relief of temporary injunction.
5. The Trial Court, after considering the pleadings of
the parties i.e., the plaintiff and the defendants, having taken
note of the material on record, given a finding that as per the
plaintiff, the defendants have agreed to sell the suit property
for Rs.1,08,20,600/- and have received an amount of
MFA No. 1538 of 2018
Rs.16,23,090/- on the date of agreement and thereafter,
received an amount of Rs.18,00,000/- through different
cheques, subsequent to the issuance of legal notice and in all,
the defendants have received an amount of Rs.34,23,090/-.
However, the very allegation against the defendants is that
they have not come forward to execute the sale deed, inspite of
receiving the amount and the plaintiff had also issued legal
notice before filing the suit.
6. Having taken note of the fact that inspite of the
defendants themselves having issued the legal notice dated
15.07.2011 that too, for payment of the balance amount and
subsequently, acknowledged the receipt of amount of
Rs.18,00,000/- and having considered the fact that earnest
money of Rs.16,23,090/- was also received on the date of
agreement, in all amounting to Rs.34,23,090/- and subsequent
payments are also received till 2013 and suit was filed in 2015,
the issue whether the suit is in time and whether payments are
made by the plaintiff to the defendants or not has to be
considered during full-fledged trial. There is no dispute with
regard to the execution of the sale agreement and the dispute
MFA No. 1538 of 2018
between the parties is only with regard to the readiness and
willingness to perform their part of the contract.
7. When such being the material on record, I do not
find any error committed by the Trial Court in passing an order
of temporary injunction restraining the defendants from
alienating or encumbering the suit schedule properties to any
third party, till the disposal of the suit. The Trial Court also,
while passing the order has taken note of the amount of
Rs.34,23,090/- which was received by the defendants and
comes to the conclusion that, if the property is alienated, the
plaintiff will be put to loss and it will lead to multiplicity of
proceedings and therefore, granted an order of temporary
injunction in favour of the plaintiff restraining the defendants
from alienating or encumbering the suit schedule properties to
any third party. Hence, I do not find any merit in the appeal to
interfere with the order passed by the Trial Court.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE
ST
