Karnataka High Court
Sri.M. Suresh vs Sri. Nagaraj Hegde on 2 April, 2024
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MFA No. 5081 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 5081 OF 2023 (CPC)
BETWEEN:
1. SRI.M. SURESH,
S/O SRI. D.MOHAN,
AGED ABOUT 62 YEARS,
R/A NO.E-II- 603 AND E- II 604,
WHITE HOUSE, DINNUR MAIN ROAD,
R.T.NAGARA POST,
BENGALURU- 560 032.
2. SMT.SURESKHA SURESH,
W/O SRI M.SURESH,
AGED ABOUT 55 YEARS,
R/AT NO.E-II-603 AND E-11-604,
WHITE HOUSE, DINNUR MAIN ROAD,
R.T.NAGARA POST,
BENGALURU- 560 032.
Digitally
...APPELLANTS
signed by BS (BY SRI. BHASKAR BABU H.J., ADVOCATE)
RAVIKUMAR
Location: AND:
HIGH
COURT OF
KARNATAKA SRI.NAGARAJ HEGDE,
S/O SRI.NAGAPATI HEGDE,
AGED ABOUT 53 YEARS,
R/AT NO E-I 102,
WHITE HOUSE,
DINNUR MAIN ROAD,
R.T. NAGARA POST,
BENGALURU -560032.
...RESPONDENT
(BY SRI. MURTHY K., ADVOCATE)
THIS MFA FILED U/O.43 RULE 1(r) R/W SEC.151 OF CPC,
AGAINST THE ORDER DT.10.07.2020 PASSED IN
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MFA No. 5081 of 2023
OS.NO.451/2017 ON THE FILE OF THE LXI ADDITIONAL CITY
CIVIL, SESSIONS JUDGE, BENGALURU CITY, (CCH-62),
REJECTING IA NO.X FILED U/O.39 RULE 4 R/W SEC.151 OF
CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendants in O.S.No.451/2017 on the file of
LXI Additional City Civil and Sessions Judge, Bengaluru
City have filed this appeal, challenging the correctness of
an order dated 10.07.2020, by which, they were
restrained from selling the properties mentioned in the
schedule to the agreement.
2. The suit in O.S.No.451/2017 was filed for
recovery of a sum of Rs.45,01,785/-. The plaintiff claimed
that the defendants had executed an agreement of sale to
sell two units in an apartment in terms of an agreement of
sale dated 11.06.2015 for a total sale consideration of
Rs.1,08,50,000/-. Since the terms mentioned in
agreements were not acceptable to the plaintiff, the
defendants agreed to furnish a modified draft. The plaintiff
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alleged that, later the defendants were postponing the
conclusion of the transaction on one or the other ground.
The defendants then offered to pay back the consideration
amount and accordingly a sum of Rs.90,00,000/- was
repaid. The plaintiff claimed that the defendants did not
pay a sum of Rs.18,50,000/- and they were therefore
liable to pay interest at the rate of 14.5% per annum and
consequently claimed that the defendants were liable to
pay a sum of Rs.45,01,785/- which included the interest
on a sum of Rs.18,50,000/-. Along with plaint, an
application under Order XXXIX Rule 1 and 2 of CPC, was
pled for an order of interim injunction to restrain the
defendants from encumbering or transferring the
properties mentioned in the schedule to the application.
3. The defendants contested the suit and claimed
that they had repaid a sum of Rs.90,00,000/- to the
plaintiff and therefore the defendants were not liable to
pay any money to the plaintiff. The application filed for
injunction was also contested by the defendants.
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4. The Trial Court after considering the
contentions urged in support of the application for
injunction, allowed the application in terms of impugned
order on the ground that, the plaintiff pleaded that except
the properties mentioned in the plaint, there were no
other properties available with the defendants and if those
properties are alienated, the plaintiff would not be in a
position to release the amount. It further held that, since
the defendants admitted the execution of the agreement
of sale and the fact that they were liable to pay a sum of
Rs.18,50,000/- and in view of the statement of the
plaintiff that the defendants had orally agreed to pay
interest at a rate of 1.5% per month, the defendants
cannot be permitted to alienate the properties mentioned
in the schedule to the application and consequently
confirmed the ex parte order of interim injunction granted
restraining the defendants from encumbering or alienating
the suit schedule properties. Being aggrieved by the said
order the defendants filed this appeal.
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5. The learned counsel for the defendants
contended that the suit was for recovery of a sum of
Rs.18,50,000/- along with interest and the properties
mentioned in the schedule to the application were not the
subject matter of the suit. He contends that, the plaintiff
was not interested in the properties mentioned in the suit
and hence no injunction could be granted restraining the
defendants from alienating or encumbering the properties
mentioned in the schedule.
6. He further contends that the plaintiff claimed
interest at 1.5% per month, which was not agreed and
therefore, the assumption of the Trial Court that the
plaintiff was liable to pay interest at a rate of 1.5% per
annum is incorrect. He further contends that the plaintiff
instead of taking recourse to Order XXXVIII Rule 5 of CPC
has filed the instant application for an order of injunction
restraining the defendants from encumbering or alienating
the suit schedule properties and therefore the impugned
order is liable to be interfered with.
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7. Per contra, the learned counsel for the plaintiff
contended that the plaintiff and the defendants were
friends and that the plaintiff accepted the offer made by
the defendants to sell the properties mentioned in the
schedule to the application. He contends that the plaintiff
had paid a sum of Rs.1,08,50,000/- from the year 2013
and onwards but the defendants had offered to refund the
said sum in the year 2017. Therefore, he contends that
the plaintiff had lost the opportunity and hence the
defendants were bound to recompense the plaintiff for the
loss suffered. He submits that the properties mentioned in
the schedule to the application were the properties which
were offered for sale to the plaintiff and therefore if the
defendants are not restrained from encumbering the
properties mentioned in the schedule to the application,
the plaintiff can not recover his money from the
defendants.
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8. I have considered the submissions made by the
learned counsel for the defendants and the learned
counsel for the plaintiff.
9. The suit is filed for recovery of a sum of
Rs.18,50,000/- along with interest, which as per the claim
of the plaintiff worked out to a sum of Rs.45,01,785/-. The
properties mentioned in the schedule to the suit were not
the subject matter of the suit. If at all, the plaintiff was
interested to secure the amount payable by the
defendants to the plaintiff, he must have taken recourse to
the provisions contained under Order XXXVIII Rule 5 of
CPC. He certainly could not have invoked Order XXXIX
Rule 1 and 2 to seek for an order of injunction to restrain
the defendants from alienating the properties mentioned in
the schedule to the application. If an application is filed
under Order XXXVIII Rule 5 of CPC, the defendants would
have an opportunity to furnish security to an extent of the
amount, as may be directed by the Court and it is only
upon failure on the part of the defendants to pay such
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security that an attachment would follow. In the case on
hand, the defendants have not admitted that they were
liable to pay interest at a rate of 1.5% per month. Like
wise, they also disputed that they were liable to pay a sum
of Rs.18,50,000/- as they alleged that the plaintiff was
also liable to pay certain money to them. Therefore, the
Trial Court without looking into these fundamental facts
could not have restrained the defendants from alienating
the properties mentioned in the schedule to the
application.
10. In that view of the matter, the impugned order
passed by the Trial Court is perverse and hence, warrants
interference. Consequently, this appeal is allowed. The
impugned order passed by the Trial Court is set aside. The
application filed by the plaintiff under Order XXXIX Rule 1
and 2 of CPC is dismissed. It is however open for the
plaintiff to file appropriate application seeking attachment
of the property of the defendants. If such an application is
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filed, defendants are entitled to put up all their defences
that are available in law.
Sd/-
JUDGE
GSR
