Karnataka High Court
Sahara Prime City Ltd vs Sri Shivashankar Dudhale on 4 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 8523 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 8523 OF 2023 (CPC)
BETWEEN:
1. SAHARA PRIME CITY LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT 1956,
HAVING ITS OFFICE AT 3RD FLOOR,
EXECUTIVE OFFICE HOTEL,
SAHARA STAR VILE PARLE,
MUMBAI, MAHARASHTRA - 400021
PRESENTLY REPRESENTED BY ITS
AUTHORISED SIGNATORY
SRI SATHIYAMOORTHY PALANIYAPPAN
SON OF PALANIYAPPAN
AGED ABOUT 42 YEARS
...APPELLANT
Digitally signed
by SHARANYA T (BY SRI. MADHUKAR DESHPANDE, ADVOCATE)
Location: HIGH AND:
COURT OF
KARNATAKA
1. SRI SHIVASHANKAR DUDHALE
SON OF GANGADHAR,
AGED ABOUT 55 YEARS
R/AT 'AMEESH CHS',
44/A/404, NEAR TILAK NAGAR
POLICE STATION,
CHEMBUR TILAK NAGAR
MUMBAI - 400089
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MFA No. 8523 of 2023
2. SRI DEEPAK KUMAR. B
SON OF BHAWARLAL KOTHARI,
AGE DBAOUT 41 YEARS
R/AT HOUSE NO 131, 11TH MAIN,
KAPILA MARGA, SIDDARTHANAGAR,
MYSORE - 570011
3. SAIN PROCESSING AND WEAVING
MILLS PVT. LTD.,
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT, 1956,
HAVING ITS OFFICE AT 3RD FLOOR,
EXECUTIVE OFFICE HOTEL,
SAHARA STAR, VILE PARLE,
MUMBAI, MAHARASHTRA - 400021.
REPRESENTED BY ITS
AUTHORIZED SIGNATORY
MR. DWARAKANATH GOVIND
4. SRI JAGESHWAR PRASAD
SON OF NANHE
AGED ABOUT 51 YEARS
R/AT RAIBHAN KHAND POST,
MOHANLAL GANJ,
UTTAR PRDESH - 226301
5. SRI RAVIPRATHAP SHAHI
SON OF VIJAY BHAHUDUR SHAHI,
AGED ABOUT 51 YEARS,
R/AT JANAKIPURAM
SECTOR D - II, LUCKNOW
UTTAR PRADESH - 226012
6. SRI ASHWIN KUMAR DUBEY
SON OF NARENDRANATH DUBEY
AGED ABOUT 44 YEARS
RESIDING AT HOUSE NO 239
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MFA No. 8523 of 2023
HARPUR NEW BASTHI BILLILA
NEAR DHUMBABA MANDIR,
UTTARPRADESH - 272131
...RESPONDENTS
(BY SRI. ASHISH RAM, ADVOCATE FOR C/R1)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 18.11.2023 PASSED ON
I.A.NO.1 IN OS.NO.385/2022 ON THE FILE OF THE VI
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MYSURU,
ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND
2 R/W SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for appellant and also the
learned counsel for respondents.
2. This Miscellaneous First Appeal is filed against
the impugned order dated 18.11.2023 passed on I.A.No.1
filed under Order XXXIX Rule 1 and 2 of CPC on the file of
VI Addl. Senior Civil Judge and JMFC, Mysuru in
O.S.No.385/2022 wherein the Trial Court restrained
defendants from alienating the suit scheduled property in
coming to the conclusion that the plaintiffs have made out
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prima facie case, balance of convenience and also
irreparable loss and injury.
3. The factual matrix of the case of the plaintiffs
before the Trial Court that the plaintiffs have entered into
an agreement of sale dated 07.05.2017 agreeing to
purchase the suit schedule property for total consideration
of an amount of Rs.38,56,00,000/- (Rupees Thirty Eight
Crores Fifty Six Lakhs only) which is inclusive of income
tax liability of Rs.20,16,00,000/- (Rupees Twenty Crores
Sixteen Lakhs only). In terms of agreement of sale, there
is a stipulated time to make the balance payment and also
the defendant has to comply with certain terms and
conditions as per agreement of sale. The defendant did not
come forward to execute the sale agreement. Hence,
sought for the relief of specific performance before the
Trial Court.
4. The plaintiffs inter-alia has sought for
temporary injunction praying the Trial Court to grant an
order of injunction restraining the defendants from
alienating the suit schedule property. The defendants have
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appeared and filed written statement contending that the
plaintiffs did not comply with the terms and conditions of
the agreement. They did not make the payment of
Rs.27,00,00,000/- (Rupees Twenty Seven Crores only).
The Trial Court considering the material on record prima
facie case and balance of convenience is found in favour of
the plaintiffs and granted the relief as sought by the
plaintiffs. Hence, the present Miscellaneous First Appeal is
filed before this Court.
5. The counsel appearing for the appellant would
vehemently contend that the Trial Court fails to consider
the recitals in the agreement of sale. No dispute with
regard to the agreement of sale. The counsel would
vehemently contend that payment of amount of
Rs.27,00,00,000/-(Rupees Twenty Seven Crores only) has
to be paid on 30.08.2017, but the said payment was not
made within the stipulated period. Immediately, on the
very next day, the appellant has issued legal notice for
cancellation of agreement of sale. The same was served
on the respondent and the respondent was given reply to
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the legal notice. The counsel also would submits that even
after cancellation of agreement on 31.08.2017, the
plaintiffs kept quite for a period of almost 5 years and filed
the suit in the year 2022. The Trial Court fails to consider
this aspect while granting the relief of temporary
injunction and erroneously comes to the conclusion that
there is a prima facie case and balance of convenience in
favour of the plaintiffs and the very approach is erroneous.
6. Per Contra, the counsel appearing for the
respondents/plaintiffs would vehemently contend that no
dispute with regard to the very execution of sale
agreement. The counsel also would submits that the suit is
filed for the relief of specific performance and brought to
notice of this Court that the terms and conditions of the
agreement has to be complied by the plaintiff i.e. to fix the
boundary from the concerned department. In terms of the
condition, the amount has to be payable by the plaintiffs.
7. The Trial Court taking into note of undisputed
document of sale agreement and also having considered
the payment of Rs.3,00,00,000/- (Rupees Three Crores
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only) at the time of sale agreement, rightly comes to the
conclusion that plaintiffs have made out the prima facie
case and balance of convenience in favour of the plaintiffs
and granted the relief of temporary injunction not to
alienate the suit schedule property.
8. Having heard the appellant's counsel and also
the counsel appearing for the respondents, no dispute with
regard to entering into a sale agreement between the
plaintiffs and defendants vide sale agreement dated
17.05.2017. Having perused the copy of sale agreement
also, there are conditions against each other. No doubt
total sale consideration is for an amount of
Rs.38,56,00,000/- (Rupees Thirty Eight Crores Fifty Six
Lakhs only) and an amount of Rs.3,00,00,000/- was paid.
The payment is also set-out in Clause No.(iii) of the sale
agreement. No doubt in terms of the clause No.3(iii) an
amount of Rs.27,00,00,000/- shall be paid on or before
30.08.2017 by the purchaser to the seller. The same is
also stated in Clause No.(iii) of the sale agreement.
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9. It is also brought to notice of this Court by the
respondents/plaintiffs that the duty is also cast upon the
seller before payment of Rs.27,00,00,000/- and the
purchaser is at liberty to give paper publication as well as
the seller has also agreed to fix the boundaries of the
entire land from the proper authority before payment of
Rs.27,00,00,000/-. However, the cost of which will be
incurred by the purchaser i.e., in terms of Clause No.7(iv).
Having considered the recitals of the sale agreement, it is
clear that both the parties have to comply with certain
terms and conditions.
10. It is also important to note that the suit is filed
for the relief of specific performance in the year 2022. It is
also not in dispute that immediately after 30.08.2017, the
defendant has issued the legal notice for cancellation of
sale deed. The Court has to look into the conduct of the
defendant also that he was not complied with the terms
and conditions as stipulated against him on the very next
day, he has issued a notice for cancellation of sale
agreement. It is important to note that the plaintiffs have
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not issued the notice to the defendant to fix the
boundaries as agreed. Inspite of notice of cancellation of
agreement was received in the year 2017 itself, no steps
were taken either for filing the suit immediately or for
demanding the defendants to comply with the terms and
conditions of the sale agreement. The Court has to take
said fact also into consideration. The plaintiffs have not
disputed the fact of issuance of notice of cancellation of
agreement and kept quite for a period of almost 5 years,
when such being the case, the counsel appearing for the
appellant would submits that no dispute with regard to the
payment of Rs.3,00,00,000/- and he is ready to deposit an
amount of Rs.3,00,00,000/- which he has received. There
is substance in the submission made by the counsel
appearing for the appellant since the Court has to look into
the conduct of plaintiffs, since they kept quite from 2017
to 2022 inspite of cancellation of sale agreement.
Thereafter only he has filed the suit, when such being the
case, having considered the payment of Rs.3,00,00,000/-
in the year 2017, it is appropriate to direct the appellant to
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deposit an amount of Rs.5,00,00,000/- (Rupees Five
Crores only) instead of Rs.3,00,00,000/- as submitted by
him.
11. Having considered the factual aspects and also
non performance by both the appellant and respondents, it
is appropriate to set-aside the order of the Trial Court in
granting the relief of temporary injunction. The Trial Court
fails to take note of the conduct of plaintiffs by
appreciating the material available on record in coming to
the conclusion that there is prima facie case, balance of
convenience in favour of the plaintiffs and ought to have
taken note of the conduct of each parties i.e., plaintiffs
and defendants. Hence, matter requires to be interfered
and set-aside the impugned order of the Trial Court
subject to the condition that appellant to deposit an
amount of Rs.5,00,00,000/- (Rupees Five Crores only)
before the Trial Court and the same is subject to the result
of the suit.
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12. The appellant is directed to deposit an amount
of Rs.5,00,00,000/- within one month from the date of this
order. Accordingly, the present Miscellaneous First Appeal
is disposed of.
Sd/-
JUDGE
RHS
