Karnataka High Court
Mr. Srinivas vs Mrs. Renuka .R on 29 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 2792 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.2792 OF 2023 (CPC)
BETWEEN:
MR. SRINIVAS
S/O LATE VENKATARAMANAPPA
AGED ABOUT 66 YEARS
HOUSE NO.128/2/3
SRI BALAJI NILAYA
1ST MAIN ROAD, 25TH CROSS
MARUTHINAGAR, YELAHANKA
BANGALORE-560 064.
...APPELLANT
(BY SRI V.B. SIDDARAMAIAH, ADVOCATE)
AND:
MRS. RENUKA R.,
Digitally signed W/O MR. A. MANJUNATH
by SHARANYA T D/O RANGASWAMAIAH
Location: HIGH AGED ABOUT 42 YEARS
COURT OF
KARNATAKA R/AT HOUSE NO.95
POORNA VENKATRAO ROAD
RANASINGH PETE, BANGALORE-560053
REPRESENTED BY HER
GPA HOLDER - MRS HEMAVATHI P
W/O MR. RANGASWAMIAH
AGED ABOUT 66 YEARS
R/AT HOUSE NO.95
POORNA VENKATRAO ROAD
RANASINGH PETE, BANGALORE-560053.
...RESPONDENT
(BY SRI D. NAGARAJ, ADVOCATE)
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MFA No. 2792 of 2023
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 31.03.2023 PASSED ON
I.A.NO.1 IN OS.NO.166/2022 ON THE FILE OF THE SENIOR
CIVIL JUDGE, JMFC, GOWRIBIDANUR AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and also
the learned counsel for the respondent.
2. This Miscellaneous First Appeal is filed
challenging the order passed by the Trial Court in rejecting
I.A.No.1/2023 wherein an interim order has been sought
directing the defendant not to alienate the suit schedule
property till the disposal of the suit or from encumbering
or creating any 3rd party right.
3. It is the case of the plaintiff that the defendant
agreed to sell the property to an extent of 4 acres in
Sy.No.12/1 for sale consideration of Rs.3,60,00,000
(Rupees Three Crores and Sixty Lakhs only) and out of
that sale consideration, an amount of Rs.40,00,000/-
(Rupees Forty Lakhs only) was paid on the date of the
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agreement. It is the contention that later on 27 guntas of
land has been acquired by the National Highway Authority
of India for widening the Bangalore-Hindupur highway.
The plaintiff approached the defendant to execute the
regular registered sale deed in his favour by issuing legal
notice. Inspite of receipt of legal notice, the defendant has
not come forward to execute the registered sale deed but
again issued one more legal notice dated 08.08.2022.
Now, the defendant is making an attempt to alienate or to
create third party charges over the suit schedule
properties. If injunction is not granted, the plaintiff will be
put to irreparable loss.
4. The defendant appeared and filed the written
statement contending that plaintiff has never ready and
wiling to perform his part of contract. Though the
defendant requested the plaintiff to get registered the sale
deed paying remaining amount, the plaintiff fails to do so
and denied all the averments in the plaint.
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5. The Trial Court having considered the
averments of the plaint as well as the written statement
formulated the points that whether the plaintiff has made
out a prima facie case; the balance of convenience lies in
whose favour and if temporary injunction is not granted,
whether the plaintiff will put to irreparable loss. The Trial
Court taking into note of the material on record, even at
the time of arguing the matter, insisted the plaintiff to
deposit the remaining sale consideration so as to
compromise the matter. The plaintiff though took time,
has not deposited any amount which itself shows the
conduct of the plaintiff hence, the Trial Court comes to the
conclusion that the plaintiff is not entitled for the relief of
temporary injunction. The Trial Court comes to the
conclusion that that existence of prima facie case is sin
qua non for the issuance of an interim injunction, provided
two other conditions namely balance of convenience and
irreparable injury are satisfied and the same has not been
satisfied, hence, rejected the application. Thus, the
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present Miscellaneous First Appeal is filed before this
Court.
6. The counsel appearing for the appellant would
vehemently contend that no dispute with regard to the
sale consideration is concerned and also the part payment
of Rs.40,00,000/- is also concerned. The counsel also
would vehemently contend that immediately after 6
months in terms of the agreement, notice was issued on
15.03.2021. In terms of the agreement, phodi work was
done on 15.04.2021. But Hadubastu was not done and
application was given only in the month of May and
Hadubastu application was rejected on 20.05.2022 and in
view of the same, the sale did not takes place. However,
on 08.08.2022, notice was issued for cancellation of sale
agreement and hence immediately within 8 days, the suit
was filed. The counsel also brought to notice of this Court
to the valuation in terms of the government notification is
lesser than the agreed amount and agreed amount is
Rs.90,00,000/- per acre. Earlier it was only
Rs.12,80,000/- per acre and the same was increased as
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on the date is Rs.25,00,000/-. The counsel also brought to
notice of this Court the account extract wherein he
contend that he is having amount of Rs.4,11,00,000/- and
if the defendant places the document of Hudubastu, he is
ready to even get it registered the sale deed. The very
approach of the Trial Court is erroneous and ought not to
have insisted the plaintiff to deposit the amount and the
same is not permitted under law.
7. Per Contra, the counsel appearing for the
respondent would submits that in terms of the agreement,
the sale consideration was Rs.3,60,00,000/- and out of
that, Rs.40,00,000/- was paid and also the counsel would
vehemently contend that in the statement of objections,
categorically it is stated that both phodi work and
haddubasth work was done and produced the documents
in respect of phodi work is concerned to the extent of 4
acres. The counsel also would vehemently contend that all
work was done prior to the month of May. The counsel
also produced Annexure-R2 which shows that both the
parties have sat together on 27.05.2022 to settle the issue
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and when the demand was made to pay additional amount
of Rs.15/- lakh, both of them agreed to have the sale deed
in the month of August and in terms of the document at
Annexure-R2, the issue was sorted out. The counsel also
submits that this settlement was made on 27.05.2022
since earlier notice dated 20.05.2022 was also issued for
termination/cancellation of agreement of sale dated
08.10.2020 and consequent upon termination notice only,
the parties sat together and amicably settled the issues.
The counsel also submits that when the defendant was in
abroad, a request was made to fix the date, accordingly,
whatsapp message was also exchanged between the
parties. The counsel also produced the additional
statement of objections along with the documents and
referring those documents, the counsel would vehemently
contend that all work was completed but the plaintiff only
did not come forward to have the sale deed. The counsel
also submits that immediately after 27.05.2022, messages
were sent fixing the exact date of registration and the
plaintiff's son also given the reply stating that it should be
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in the month of August and also informed through
whatsapp message that need some confirmation. Hence,
confirmation was made in the whatsapp message itself
that he had discussed with the parents and exact date of
registration is 05.08.2022. The same is confirmed and
afterwards also made an effort but not confirmed the
same. When the date is fixed as 05.08.2022, the message
was also sent that they will be there with the family
members for registration and same is also confirmed, and
also even arrived to Bengaluru on 18.07.2022 itself and
confirmed that they are in Bengaluru and also asked to call
and thereafter, the plaintiff not responded to the
defendant and the defendant produced the Air ticket to
substantiate his contention and further contends that
inspite of he came from America, the plaintiff did not come
forward to have the sale deed. Hence, the legal notice
was sent on 08.08.2022 intimating the cancellation of sale
agreement and the suit is filed on 18.08.2022.
8. Having heard the learned counsel appearing for
the respective parties, it is not in dispute that the sale
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agreement was executed on 08.10.2020 and also it is also
not in dispute that six months time was fixed to have the
sale deed. It is also not in dispute that in terms of the
sale agreement, an amount of Rs.40/- lakh was paid. It is
also not in dispute that agreed extent to sell the property
is 4 acres. The counsel for the respondent also brought to
notice of this Court that inspite of work of phodi and
haddubasth in the month of April itself and thereafter in
view of the joint sitting on 27.05.2022 agreed to pay the
additional amount of Rs.15/- lakh and document is also
evident that settlement was arrived between the parties.
It is rightly pointed out by the respondent counsel that as
on the date of joint sitting on 27.05.2022 no discussion
was made with regard haddubasth work is not done and
even subsequent message exchanges between the parties
also, nothing is corresponding between the parties with
regard to rest of haddubasth work. Apart from that the
documents are produced before this Court which clearly
disclose that it was done in the month of April itself and
mahazar is also produced before the Court that is dated
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15.04.2021. Annexure-R2 is also clear with regard to
whatsapp conversations made between the parties and
date is also fixed on 05.08.2022 and also in view of the
date is fixed for registration, the defendant came to India
from America on 18.07.2022 itself in order to execute the
sale deed.
9. It is important to note that when the argument
was heard before the Trial Court, the Trial Court also
directed the plaintiff to deposit the amount before the
Court since the issue is with regard to not ready and
willing to perform the contract invoking Section 16(c) of
the Specific Relief Act to grant the relief but not deposited
the amount. The counsel for the respondent also brought
to notice of this Court to the explanation of Section 16 of
the Specific Relief Act that for the satisfaction of Section
16(c) is concerned, for the purpose of clause (c) it is clear
that where a contract involves the payment of money, it is
not essential for the plaintiff to actually tender to the
defendant or to deposit in court any money except when
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so directed by the court. When the Court directed to
deposit the amount, the plaintiff had not deposited the
amount. Though the counsel for the appellant brought to
notice of this Court to the account extract, no doubt, in the
month of January 2024, the appellant is having amount of
Rs.4,11,15,994/- in his account, but the Court has to take
note of the date of institution of the suit i.e., on
18.08.2022, and at that time, no money in the account
and also in the month of September, 2023, he is having
money of Rs.32,000/- that is on 16.09.2023. Even
statement of account is not produced for the date of filing
of the suit by the appellant. Having taken note of the
entire account for the year 2023 also it discloses that the
appellant is having only an amount in thousand not in
lakhs that is as on the date of passing the impugned order
by the Trial Court. Such material is considered by the
Trial Court and the Trial Court also taken note of the fact
that inspite of direction was given to deposit the amount,
no such attempt was made but only in the appeal memo,
it is contended that no such property of 4 acres is
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available and also there was an acquisition to certain
extent and remaining property is only 1 acre 32 guntas.
The appellant counsel has pointed out all these factors and
these factors is not earlier urged when both of them have
jointly sat on 27.05.2022 and subsequently when the date
has been fixed for registration of the document as
05.08.2022 and all these contentions are raised
subsequently when the legal notice was sent to cancelled
the agreement that is on 08.08.2022. Hence, I do not find
any force in the contention of the appellant counsel that
the Trial Court has committed an error in not granting the
relief of temporary injunction.
10. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
RHS/SN
