Karnataka High Court
M/S. Sanjeevini Developers vs Sri. Mohan Das. R on 23 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2024 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.4659/2022 (CPC)
BETWEEN:
1. M/S. SANJEEVINI DEVELOPERS
REGISTERED PARTNERSHIP FIRM,
CORPORATE OFFICE AT 'SANJEEVINI',
CANARA BANK ROAD,
KONANAKUNTE CROSS,
BENGALURU-560 062,
REPRESENTED BY ITS PARTNERS.
2. SRI. C. ANJANAPPA
SON OF LATE CHIKKA SANJIVAPPA,
AGED ABOUT 63 YEARS,
RESIDING AT 'SANJEEVINI',
CANARA BANK ROAD,
KONANAKUNTE CROSS,
BENGALURU-560 062.
3. SRI. B. LAKSHMAN
SON OF LATE BYATARALAPPA,
AGED ABOUT 57 YEARS,
RESIDING AT KONANAKUNTE VILLAGE,
NEAR GANESHA TEMPLE,
KANAKAPURA ROAD,
BENGALURU-560 062.
4. SRI. HANUMANTHRAJU. C
SON OF LATE CHIKKA SANJIVAPPA,
AGED ABOUT 64 YEARS,
RESIDING AT 'SANJEEVINI',
CANARA BANK ROAD,
2
KONANAKUNTE CROSS,
BENGALURU-560 062,
5. SRI. SURESH ANJANAPPA
SON OF SRI. ANJANAPPA,
AGED ABOUT 38 YEARS,
RESIDING AT 'SANJEEVINI',
CANARA BANK ROAD,
KONANAKUNTE CROSS,
BENGALURU-560 062.
... APPELLANTS
(BY SMT. S.SUSHEELA, SENIOR COUNSEL FOR
SRI RAGHAVA P., ADVOCATE)
AND:
SRI. MOHAN DAS R.,
SON OF LATE G.RAMA VARMA,
AGED ABOUT 75 YEARS,
RESIDING AT H.GOLLAHALLI VILLAGE,
KENGERI HOBLI,
BENGALURU SOUTH TALUK,
BENGALURU-560 060.
... RESPONDENT
(BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI PRASANNA B.K., ADVOCATE FOR C/R)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 01.06.2022 PASSED ON I.A. NO. 1
IN O.S.NO.1015/2020 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.11.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
3
CAV JUDGMENT
This miscellaneous first appeal is filed against the order of
rejection of I.A.No.1 filed under Order 39 Rules 1 and 2 of CPC
vide dated 01.06.2022 in O.S.No.1015/2020 by the III Additional
Senior Civil Judge, Bengaluru Rural District, Bengaluru.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the
plaintiff/appellant before the Trial Court that the plaintiff and
defendant/respondent have entered into an agreement of sale in
respect of the suit schedule property bearing Sy.No.6/1 situated
at K Gollahalli village, Hemmigepura Dhakale, Kengeri hobli,
Bengaluru South taluk to the extent of 5 acres which is morefully
described in the schedule of the plaint as well as in IA. The total
consideration amount was Rs.10,75,00,000/-. On the date of
agreement, the plaintiff paid the advance amount of
Rs.1,50,00,000/- and paid another Rs.1,00,00,000/- by way of
cash under receipt dated 29.11.2012. It is also contended that
also paid the additional amount on different dates i.e., on
26.12.2012, 03.01.2013, 06.01.2013, 12.02.2013 and
23.03.2013 and in all made the payment of Rs.3,35,00,114/-
and also invested huge amount for the development of the
property including leveling of land, formation of roads, drainage
system, tanks and borewells, water lines, sewage pipes and
other civic amenity installations by spending an amount of
Rs.75,00,000/-. It is contended that there was a condition to
get the plan approval by the defendant and though plan was
sanctioned, later it was cancelled and the defendant has kept the
plaintiff in dark about the cancellation of the same. When the
plaintiff came to know the said fact, he had informed that the
defendant had reapplied for sanction. As per the terms of the
sale agreement, the plaintiff approached the defendant time and
again to know the status of the layout approval and additional
payment was also made, but the defendant not heeded to his
request and chose to remain aloof without fulfilling his
obligations of getting required approval.
4. It is also contended that the plaintiff is ready to pay
the balance consideration of Rs.7,39,99,886/-. It is contended
that the defendant has issued a legal notice dated 11.11.2016
seeking from the plaintiff firm to pay the balance sale
consideration and get the sale deed registered and reply was
given on 06.12.2016 for which, the defendant issued a rejoinder
on 04.01.2017. In reply, the plaintiff firm issued sur-rejoinder
on 10.02.2017. When the defendant fails to perform his part of
contract, notice was issued on 20.06.2020 and filed the suit for
the relief of specific performance of contract and to declare that
the sale agreement is valid and alternatively, direct the
defendant to return the advance sale consideration of
Rs.3,35,00,114/- and a sum of Rs.75,00,000/- which was
invested by the plaintiff for the development of the layout in the
schedule property with 18% interest per annum. The plaintiff
also filed an application praying the Trial Court to restrain the
defendant from alienating or creating encumbrance over the
application schedule property and in support of the application,
an affidavit is sworn to reiterating the grounds urged in the
plaint and prayed the Court to grant the relief.
5. The defendant appeared and filed the written
statement admitting the execution of the sale agreement and
denied the averments made in the plaint. But admitted the
ownership over the suit schedule property and also admitted the
fact of entering into the sale agreement. It is contend that only
he has received an amount of Rs.1,00,000/- under receipt dated
29.11.2012 apart from the advance received on the date of sale
agreement. It is also contended that in terms of clause-2(a) to
(e) of agreement of sale, the plaintiff had agreed to pay the
balance sale consideration on different dates and within 180
days from the date of approval of layout plan and to obtain
registered sale deed at their cost. The time is essence of
contract. It is contend that defendant by spending huge
amount, obtained the approved plan on 29.09.2012 and
subsequently, amount was not paid as agreed and the same was
also brought to notice of the plaintiff. The endorsement dated
03.04.2009, 22.01.2013 and 04.02.2013 stated that the
Karnataka Industrial Area Development Board has not issued
any notification under Section 28(1) or 28(4) of K.I.A.D.B. Act in
respect of the suit schedule property. Despite repeated request
and demand, the plaintiff failed to perform his part of contract
and committed breach of terms of the agreement of sale. As per
clause 13 of the agreement of sale, the defendant has to fence
the schedule property at the cost of the plaintiff and hand over
the possession to the plaintiff. Despite repeated request, the
plaintiff failed to pay the cost and clause-5 of the agreement of
sale is clear that transactions have to be completed within six
months from the date of approval of the layout plan. When the
plaintiff committed default in payment, there is a clear breach on
the part of the plaintiff, hence, the question of granting the relief
does not arise. It is also contend that the spending of
Rs.75,00,000/- by the plaintiff is an imaginary one and same is
baseless. The defendant himself issued a notice on 11.11.2016
cancelling the agreement. When the time is essence of contract,
the question of granting any relief does not arise and also the
notice itself sufficient to forfeit the advance amount. Hence, the
plaintiff is not entitled for any relief. The defendant has filed
separate statement of objections to the IA reiterating the
averments of the written statement.
6. The Trial Court having considered the grounds urged
in the application as well as the objections, formulated the
following points:
1. Whether the plaintiff has made out a prima facie case?
2. In whose favour, balance of inconvenience lies?
3. To whom irreparable loss will be caused?
4. What order?
7. The Trial Court having considering the pleadings of
the parties and also on perusal of the material available on
record, answered Point No.1 as negative and answered Point
Nos.2 and 3 in favour of the defendant and rejected the I.A.No.1
filed by the plaintiff for temporary injunction. Being aggrieved
by the said order, the present appeal is filed before this Court.
8. The learned counsel for the appellants would
vehemently contend that the defendant not disputed the very
execution of the sale agreement; payment of Rs.3,35,00,114/-
by the plaintiff and invested of Rs.75,00,000/- for development
of the suit schedule property for leveling the property. The
counsel also submits that amounts are paid up to 23.03.2013
and last payment was Rs.5,00,000/-. The counsel also submits
that though the time is essence of contract, same is six months
from the date of approval from the authority, the fact that
approval was given on 29.09.2012 and withdrawn on
01.01.2013 and the said fact also not in dispute. The counsel
also submits that the Trial Court fails to consider the three
cardinal principles while rejecting the relief of temporary
injunction application. Admittedly, there is no approval and
limitation is a mixed question of fact and law. The plaintiff also
sought for alternative relief stating that the defendant had
started selling the property. Hence, sought for an order of
temporary injunction. The Trial Court fails to appreciate the said
fact when there is an agreement which is not disputed and
admittedly there is no approval and time is also essence of the
contract, only after six months of the approval. The Trial Court
failed to consider all these facts. The counsel also submits that
alternative relief is also sought for refund the amount with
interest stating that when the property is sold, it is very difficult
to recover the same and the document also reveals said fact.
Hence, seeks interference of this Court with the order of the Trial
Court.
9. In support of the arguments, the learned counsel for
the appellants relied upon the judgment reported in
MANU/SC/0715/1991 in the case of DALPAT KUMAR AND
OTHERS vs PRAHLAD SINGH AND OTHERS and brought to
notice of this Court paragraph 4 wherein it is held that Order 39
Rule 1(c) provides that temporary injunction may be granted
where, in any suit, it is proved by the affidavit or otherwise, that
the defendant threatens to dispossess the plaintiff or otherwise
cause injury to the plaintiff in relation to any property in dispute
in the suit, the Court may be order grant a temporary injunction
to restrain such act or make such other order for the purpose of
staying and preventing or dispossession of the plaintiff or
otherwise causing injury to the plaintiff in relation to any
property in dispute in the suit as the Court thinks fit until the
disposal of the suit or until further orders.
10. The counsel also brought to notice of this Court
paragraph 5 of the said judgment wherein also discussed with
regard to the prima facie case which needs adjudication at the
trial, so also the irreparable injury and balance of convenience.
11. The counsel also relied upon the judgment reported
in MANU/SC/0494/1999 in the case of COLGATE
PALMOLIVE (INDIA) LIMITED vs HINDUSTAN LEVEL
LIMITED and brought to notice of this Court paragraph 23 of
the said judgment wherein discussion was made with regard to
certain specific consideration in the matter of grant of
interlocutory injunction. The basic being-non-expression of
opinion as to the merits of the matter by the Court, since the
issue of grant of injunction usually, is at the earliest possible
stage so far as the time frame is concerned and ... extent of
damages being an adequate remedy; protect the plaintiff's
interest for violation of his rights though however having regard
to the injury that may be suffered by the defendants by reason
therefore and the Court while dealing with the matter ought not
to ignore the factum of strength of one party's case being
stronger than the others; no fixed rules or notions ought to be
had in the matter of grant of injunction but on the facts and
circumstances of each case - the relief being kept flexible; the
issue is to be looked from the point of view as to whether on
refusal of the injunction the plaintiff would suffer irreparable loss
and injury keeping in view the strength of the parties case,
whether the grant of refusal of injunction will adversely affect
the interest of general public.
12. The counsel also relied upon the judgment reported
in MANU/SC/0472/1995 in the case of GUJARAT BOTTLING
CO. LTD. AND OTHERS vs COCA COLA COMPANY AND
OTHERS and the counsel brought to notice of this Court
paragraph 46 wherein discussion was made with regard to prima
facie, balance of convenience and irreparable loss.
13. The counsel also relied upon the judgment reported
in MANU/SC/0258/1963 in the case of FATEH CHAND vs
BALKISHAN DAS and brought to notice of this Court paragraph
15 wherein discussion was made with regard to Section 74 of the
Indian Contract Act where the contract names a sum to be paid
in case of breach, where the contract contains any other
stipulation by way of penalty and also not concerned to decide
whether a convenant of forfeiture of deposit for due performance
of a contract falls within the first class. The measure of
damages in the case of breach of a stipulation by way of penalty
is by Section 34 reasonable compensation not exceeding the
penalty stipulated for. And brought to notice of this Court
paragraph 16 wherein also discussion was made regarding
stipulation for forfeiture of amounts deposited or paid under the
contract.
14. The counsel also relied upon the judgment of the
High Court of Gujarat decided on 19.07.2021 in First Appeal
No.1810/2021 between SARFARAZ ABDULSATTAR PATEL vs
CHIMANBHAI PURSHOTTAMBHAI PATEL and brought to
notice of this Court discussion made in paragraphs 52 and 53
and Article 54 and 62 and both Articles are distinct and operate
in different fields.
15. The counsel also relied upon the judgment reported
in MANU/RH/0004/1987 in the case of ANCHI AND OTHERS
vs MAIRA RAM and brought to notice of this Court paragraph 9
wherein discussion was made with regard to Section 55 of the
Transfer of Property Act which deals with rights and liability of
buyer and seller and sub-clause (b) of sub-Section 6 unless he
has improperly declined to accept delivery of the property, to a
charge on the property, as against the seller and all persons
claiming under him, to the extent of the seller's interest in the
property, for the amount of any purchase - money properly paid
by buyer in anticipation of the delivery.
16. The counsel also relied upon the judgment reported
in MANU/WITNESS BOX/0061/1978 in the case of SAIDUN
NESSA HOQUE AND OTHERS vs CALCUTTA VAPAR
PRATISTHAN LTD. and brought to notice of this Court
paragraph 44 wherein discussion was made with regard to
Section 55 of the Transfer of Property Act under the moment
earnest money is paid it forms a charge on the immovable
property. The buyer will be entitled to the statutory charge in
respect of the purchase money unless he has improperly
declined to accept delivery of the property.
17. The counsel also relied upon the judgment reported
in MANU/SC/1097/2003 in the case of VIDEOCON
PROPERTIES LTD., vs DR.BHALCHANDRA LABORATORIES
wherein also discussion was made Section 55 of the Transfer of
Property Act with regard to the buyer's charge engrafted in
clause (b) of paragraph 6 of Section 55 of T.P. Act would extend
and enure to the purchase-money or earnest money paid before
the title passes and property has been delivered by the
purchaser to the seller, on the seller's interest in the property
unless the purchaser has improperly declined to accept delivery
of property and brought to notice of this Court the details
discussion made in paragraph 15 of the judgment.
18. Per contra, the learned counsel appearing for the
respondent/defendant in his arguments would vehemently
contend that an amount of Rs.2,50,00,000/- was received and
disputed the receipt of total amount of Rs.3,35,00,114/- as
contended by the appellants. The counsel would vehemently
contend that the plan was approved on 29.09.2012 itself but,
the appellant has not paid the amount in terms of the agreement
and hence, forfeited the amount and terminated the agreement
in the year 2016 itself by causing notice.
19. The counsel would vehemently contend that the suit
was filed in the year 2020 with an intention to lock the property
and the Trial Court has taken note of the said fact into
consideration and rightly comes to the conclusion that the
plaintiff has not made out any prima facie case. The counsel
also brought to notice of this Court clause-5 of the agreement
which is very clear that six months from the date of approval of
the layout plan from the concerned authority. The defendant
further agreed that time is essence to adhere the terms and
conditions of the agreement. The counsel also would vehemently
contend that the plaintiff failed to perform his part of obligations
and hence, issued legal notice and terminated the agreement
and entire amount is forfeited.
20. It is also specifically contended that the defendant is
at liberty to form layout and deal with schedule property as he
likes and reserves his right to proceed against for recovery of
loss. The counsel also would vehemently contend that the
plaintiff falsely contend that the defendant issued a legal notice
and demanded to pay the balance amount. The counsel would
vehemently contend that after lapse of eight years, the appellant
has field the suit for specific performance of contract and sought
temporary injunction and the plaintiff never had benefit of
temporary injunction and hence, the Trial Court rightly rejected
the same making an observation that time limit is fixed for six
months. The plaintiff never took action immediately after plan is
approved. The counsel also contends that suit is barred by
limitation and there is no prima facie case and the plaintiff fails
to substantiate his readiness and willingness. It is contended
that the defendant executed a registered GPA dated 20.03.2020
in favour of one P Nagaraj by receiving the consideration amount
of Rs.13,03,71,000/-, now he is developing the property. In
order to defeat his right and for taking advantage of escalation
of the land value, the plaintiff filed the suit on 05.10.2020.
Hence, it does not require any interference.
21. The counsel for the respondent in support of his
arguments relied upon the judgment reported in (1999) 8 SCC
587 in the case of SHAKUNTALA (SMT) vs NARAYAN
GUNDOJI CHAVAN AND OTHERS wherein the Apex Court held
that notice issued by the defendant for refusal to perform his
part of the contract held limitation period of three years will
commence from the date of such notice and brought to notice of
this Court discussions made in paragraphs 7 and 8.
22. The counsel also relied upon the judgment reported
in (2011) 9 SCC 126 in the case of KHATRI HOTELS
PRIVATE LIMITED AND ANOTHER vs UNION OF INDIA
AND ANOTHER and referring this judgment, the counsel would
vehemently contend that Article 58 of the Limitation Act is very
specific that the legislature has designedly made a departure
from the language of Article 120 of the 1908 Act. The word
"first" has been used between the words "sue" and "accrued".
This would mean that if a suit is based on multiple causes of
action, the period of limitation will begin to run from the date
when the right to sue first accrues. To put it differently,
successive violation of the right will hot give rise to fresh cause
and the suit will be liable to be dismissed if it is beyond the
period of limitation counted from the day when the right to sue
first accrued.
23. The counsel also relied upon the judgment reported
in (2008) 11 SCC 1 in the case of MANDALI RANGANNA AND
OTHERS vs T RAMACHANDRA AND OTHERS and referring
this judgment brought to notice of this Court paragraph 22
wherein discussion was made with regard to grant of injunction
is an equitable relief. A person who had kept quiet for a long
time and allowed another to deal with the properties exclusively,
ordinarily would not e entitled to an order of injunction. The
Court will not interfere only because the property is a very
valuable one. However, oblivious of the fact that grant or refusal
of injunction has serious consequence depending upon the
nature thereof. The Courts dealing with such matters must
make all endeavours to protect the interest of the parties. For
the said purpose, application of mind on the part of the Courts is
imperative.
24. The counsel also relied upon the judgment reported
in (2015) 8 SCC 390 in the case of FATEHJI AND COMPANY
AND ANOTHER vs L M NAGPAL AND OTHERS wherein held
that suit for specific performance of agreement to sell
immovable property, bar of limitation of three years prescribed
under Article 54 as to filing of suit, applicability in present case,
rejection of plaint on ground of limitation propriety discussed.
25. The counsel also relied upon the judgment reported
in 2022 LIVELAW (SC) 588 in the case of U N
KRISHNAMURTHY (SINCE DECEASED) THR. LRS. vs A M
KRISHNAMURTHY and the counsel referring this judgment
would vehemently contend that the Apex Court discussed the
readiness and willingness invoking Section 16(c) of the Specific
Relief Act for granting relief of specific performance and the
Court is obliged to take judicial notice of the phenomenal rise in
the price of real estate. Having paid an insignificant amount the
plaintiff was not entitled to discretionary equitable relief of
specific performance.
26. The counsel also relied upon the judgment reported
in LAWS (KAR)-2017-5-16 in the case of MADHUKAR G
ANGUR vs MADHUSUDHAN MISHRA and brought to notice of
this Court Section 38 of the Specific Relief Act does not permit a
plaintiff to file a suit for permanent injunction and unless plaintiff
pleads that there was an obligation made by law upon the
defendant and also held that plaintiff does not have a prima facie
in his favour and the Trial Court is not justified in concluding that
plaintiff has balance of convenience in his favour.
27. In reply to the arguments of the counsel for the
respondent, the counsel for the appellants would vehemently
contend that there is no any forfeiture clause in the agreement.
Even after the withdrawal of the plan also, the defendant
withdrew the amount. The plan was withdrawn on 01.01.2013
and amounts are paid subsequently up to March 2013 and
specifically pleaded for having made the payment and the same
is not denied by the defendant. The counsel further contend that
though the defendant contend that amount was paid in favour of
his son and the same is for different purposes, nothing is placed
on record to substantiate the same. Admittedly, the amounts
were received by the defendant even after the withdrawal of the
plan also and the same has not been taken note of by the Trial
Court. The Trial Court fails to take note of the fact that there is
no approval of plan and unless approval of plan is produced, the
question of limitation does not arise.
28. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material available
on record as well as the principles laid down in the judgments
referred supra, the point that would arise for the consideration of
this Court are:
1) Whether the Trial Court committed an error
dismissing the application filed under Order 39 Rules
1 and 2 of CPC vide order dated 01.06.2022 and
whether it requires interference of this Court?
2) What order?
Point No.1:
29. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material available
on record, it discloses that there is no dispute that the property
originally belongs to the family of the defendant and the
defendant got the property by way of gift. It is also not in
dispute that he had entered into an agreement of sale for
Rs.10,75,00,000/-. It is also not in dispute that under the sale
agreement, an amount of Rs.1,50,00,000/- was paid. It is the
contention of the appellant that they made the payment of
Rs.3,35,00,114/-. The contention of the defendant is that he
only had received an amount of Rs.2,50,00,000/- and disputed
regarding receipt of remaining amount. But he plaintiff has
produced the bank statement for having made the payments
through cheques. The counsel for the respondent would contend
that some payments are made in favour of his son and the same
is in respect of different transaction. But no such document is
placed before the Court to prove the same that the same is in
respect of different transaction. It is also important to note that
in terms of the agreement, there is a mention with regard to
delivery of possession as on the date of agreement for the
purpose of development in terms of clause - 7 that the first
party agreed and today handed over the possession of the suit
schedule property to the second party to develop and form
layout as per the plan approved by the concerned authority.
Hence, it is clear that possession was delivered for the purpose
of development.
30. It is also important to note that in terms of claue-5,
both have agreed and fixed the time for agreement for six
months from the date of approval of the layout plan from the
concerned authority and further agreed time is essential to
adhere the terms and conditions to this agreement. It is also
important to note that after the approval of the plan, time is also
stipulated to make the payment within 180 days. The first
payment on furnishing of the plan i.e., Rs.1,00,00,000/- within
30 days and second payment is Rs.1,00,00,000/- after 60 days
and third additional payment after 90 days to the tune of
Rs.2,00,00,000/- and remaining Rs.2,50,00,000/-, 135 days
from the date of approval of layout plan and as full and final
settlement to be made remaining amount within 180 days. The
details are also given in the agreement itself.
31. Now, the question before this Court is that in terms
of the agreement, Rs.10,75,00,000/- is the total consideration.
It is also not in dispute that plan was approved on 29.09.2012
and thereafter, for payment is concerned, six months time was
stipulated. It is also important to note that within a span of
three months, the plan was withdrawn i.e., on 01.01.2013. The
defendant also not disputes the said fact. But it is the
contention of the defendant that they have informed that no
steps are taken for acquiring the property and intimated the
same but the fact is that once it was withdrawn, the same has to
be re-sanctioned and no such material is placed before the Court
to show that for having re-sanctioned the plan. Once it was
cancelled, it has to be re-obtained and duty cast upon the
defendant to obtain the same and communicate the same to the
plaintiff to complete the transaction. Till date, no such plan was
obtained by the defendant. When the time stipulation is very
clear, six months time is given to conclude the contract, in terms
of the agreement from the date of approval of plan, when there
is no re-sanction of plan, the Trial Court ought to have taken
note of the said fact. But the Trial Court made an observation in
paragraph 14 that plaintiff did not take nay legal action against
the defendant, after expiry of the agreed period. The plaintiff
did not take any legal action against the defendant after
correspondence of the letters also. The defendant has to first
make out his case that he had obtained the plan and only he
relies upon the approved plan on 29.09.2012 and when the
same was cancelled, he cannot rely upon the earlier sanction of
plan and the same was not valid and the Trial Court failed to
take note of the said fact into consideration. The Trial Court also
while coming to the conclusion that the plaintiff has not made
out prima facie case, held that the plaintiff instituted the suit in
the month of October 2020 but not taken any action from 2012
to 2020 and the said observation is erroneous.
32. The plaintiff specifically pleaded in the plaint as well
as in the reply to the notice that he had made the payment and
even the defendant has received the amount subsequent to the
withdrawal of the plan. The plan was withdrawn on 01.01.2013,
the payments were made on 03.01.2013, 06.01.2013,
12.02.2013, 23.03.2013 and the last payment was made to the
tune of Rs.5,00,000/- and the defendant continued to receive
the amount even after cancellation of the approved plan. The
bank statement also produced to show that the defendant has
encashed the said amount and the same were also drawn
through the Vishweshwarayya Co-operative Bank Limited. But
the defendant did not give any explanation for receiving the said
amounts and said payments were also made in favour of the
defendant only. The defendant only contends that one of the
payments is made in favour of his son and the same is in respect
of different transaction. But not placed any material before the
Court to prove the same. But the fact is that even after
cancellation of plan also, the defendant went on receiving the
amount and when the cancellation of plan came to the
knowledge of the plaintiff, the plaintiff did not make the payment
and insisted for obtaining fresh approval of plan from BMICAPA.
But the defendant has not produced any material before the
Court to show that he has obtained new plan after the
cancellation. When such being the case, the Trial Court ought to
have taken the note of said fact into consideration.
33. No doubt, the plaintiff has sought for the relief of
specific performance based on the agreement and apart from
that sought for the relief of refund of the amount with 18%
interest. It is the contention of the defendant that notice was
issued with regard to the cancellation of agreement and
forfeiture. But, on perusal of the agreement, it discloses that
there is no forfeiture clause. Thus, the defendant cannot
unilaterally cancel the agreement without obtaining the fresh
approved plan. These are the issues which have to be
considered by the Trial Court to know the fact that on whose
instance, there was a breach and the same is a matter of trial.
34. The material available on record discloses that there
is an agreement and also the payment of earnest money and
there is a clasue-5 in the agreement that discloses period for
specific performance as six months after getting the approval.
The material discloses that approval was given on 29.09.2012
and the same was cancelled on 01.01.2013 and no fresh
approval is obtained by the defendant in terms of clause - 5 of
the agreement. But the defendant contend that no payment was
made. On perusal of clause-5 and other conditions, it is clear
that after the approval, then only the plaintiff has to make the
payment within six months and to get the sale deed registered.
35. The main contention that there was a delay in filing
the suit and the same is a mixed question of fact and law and
with regard to breach also, the parties have to adduce their
evidence and the Court has to take note of the fact that at
whose instance, there was a breach. The fundamental condition
in the agreement is clause - 5 that time is essence of contract
for completion of contract and only on getting the approval, time
is also stipulated for payment and maximum period is 180 days.
But plan was cancelled within a period of three months from the
date of the approval and period of six months also not elapsed
and even after approval of plan and after cancellation of
approved plan also continued to receive the amount from the
appellant. No doubt, the principles laid down in the judgments
referred supra are with regard to Article 54 and Section 55 of the
Transfer of Property Act and Section 16(c) of the Specific Relief
Act for readiness and willingness. Readiness and willingness only
comes into play after the conditions are fulfilled. In the case on
hand, primarily, the condition of the agreement has not been
fulfilled i.e., no approved plan at all. Even assuming that the
plaintiff is not entitled for the relief of specific performance,
alternative relief is also sought for refund of the amount with
18% interest. If the property is sold, it will cause prejudice to
the plaintiff who had approached the Court for the relief of
specific performance and even for alternative relief.
36. It is also settled law that while passing an order of
injunction, the Court should take note of the material available
on record while appreciating the case for exercising the
discretion. In the judgment referred by the counsel for the
respondent itself in the case of NANDALI RANGANNA in
paragraph 22 it is held that a person who had kept quiet for a
long time and allowed another to deal with the properties
exclusively, ordinarily would not be entitled to an order of
injunction. The Court will not interfere only because the
property is a very valuable one. However, oblivious of the fact
that grant or refusal of injunction has serious consequence
depending upon the nature thereof. The Courts dealing with
such matters must make all endeavours to protect the interest of
the parties. The said principle is very clear that the Court has to
protect the interest of the parties. In the case on hand, when
there is an agreement and the same is not disputed, clause-5 is
very clear that approval must be obtained by the defendant,
there is no such approval and approval which was given also
withdrawn and thereafter, not made any efforts to get the
approval. It is also contended by the defendant that the
payments were not made but in the absence of approval, the
question of making payment does not arise. All these factors
has to be considered by the Trial Court, thus, the matter
requires full pledged trial. The Trial Court lost sight on all these
materials while considering the discretionary relief of temporary
injunction and rejected the same in coming to the conclusion
that the plaintiff has not made out the prima facie case.
37. The learned counsel for the respondent relied upon
several judgments referred supra i.e., SHAKUNTALA's case and
also the case of KHATRI HOTELS PRIVATE LIMITED and so
also the case of FATHHJI wherein discussed with regard to
Article 54 of the Limitation Act. Admittedly, the notice was
issued, reply was given and re-joinder also issued and sur-
rejoinder also given. When notices were exchanged and also
when clause-5 is very clear with regard to performance of
agreement subject to obtaining of approval, admittedly, no such
approval is obtained by the respondent. The same is mixed
question of fact and law. At the stage of considering the
discretionary relief of temporary injunction, the Court has to
exercise its discretion when there is no dispute with regard to
the execution of the agreement and also acknowledging the part
payment. The Court also take note of approval and cancellation
of and even after the cancellation of the approval, continued to
receive the amount and failed to get the fresh order of approval.
These are the aspects which have to be considered during the
course of the trial and it requires full pledged trial. The
documents are produced before the Court to show that the
defendant started to sell the property and when the said fact
came to know, the appellant filed the suit and sought the relief
and same ought to have been taken note of by the Trial Court.
But the Trial Court rejected the application only on the ground
that the plaintiff has not acted upon. But fails to take note of
claue-5 of the agreement wherein specific stipulation is made
that time runs for a period of six months from the date of
approval. Admittedly, there is no such approval before the
Court.
38. The counsel for the appellant also relied upon several
judgments referred supra wherein discussion was made with
regard to prima facie case, balance of convenience and
irreparable loss for considering the application for grant of
temporary injunction and also discussed Article 54 and 62 of the
Limitation Act which indicates that both these Articles are
distinct and operate in different fields for the relief of specific
performance as well as for refund of money since alternative
relief is also sought.
39. In the case on hand, when the agreement was
admitted and apart from that receipt of part sale consideration
also admitted and also admitted that no approval was obtained
as stipulated in clause-5 of the agreement, the Trial Court ought
to have taken note of these facts into consideration and also the
receipt of amount after approval and also cancellation. The
appellant has filed the suit for the relief of specific performance
and also sought for the relief of refund of the amount. On
perusal of the agreement, there is no clause for forfeiture.
Though, the counsel for the respondent contends that amount
has been forfeited, the same is against the terms of the
agreement when no such recital is made in the contract. The
defendant also cannot enjoy the money of the plaintiff which he
had received and acknowledged and primarily he did not obtain
the approval from the concerned authority after the cancellation
of the earlier approval. The Trial Court ought to have taken note
of these facts into consideration while rejecting the application.
Thus, the Trial Court fails to apply its judicious mind in
considering the material available on record particularly recital of
agreement and the same has not been discussed. The Trial
Court has not passed reasoned order except coming to the
conclusion that the plaintiff did not act and failed to take note of
the obligation on the part of the defendant in performing his
obligation of getting the approval. Hence, it requires interference
of this Court. Accordingly, I answer the above point as
affirmative.
Point No.2
40. In view of the discussions made above, I pass the
following:
ORDER
The miscellaneous first appeal is allowed.
The impugned order dated 01.06.2022 passed on I.A.No.1
filed under Order 39 Rules 1 and 2 of CPC in O.S.No.1015/2020
by the III Additional Senior Civil Judge, Bengaluru Rural District,
Bengaluru is set aside. Consequently, I.A.No.1 is allowed
restraining the defendant/respondent from alienating the suit
schedule property which is morefully described in the application
of the suit, till the disposal of the suit.
Sd/-
(H.P. SANDESH)
JUDGE
SN
