Karnataka High Court
Sri Shyam Pahlaj Nichani vs Sri Sharavanakrishnan on 28 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 4300 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.4300 OF 2024 (CPC)
BETWEEN:
1. SRI SHYAM PAHLAJ NICHANI,
S/O LATE SRI PAHALAJ CHOITHARAM NICHANI,
AGED ABOUT 62 YEARS,
RESIDENT OF NO.17,
RADHAKRISHNA VILLA,
3RD CROSS, RMS LAYOUT,
SANJAY NAGAR,
RMV EXTENSION II STAGE,
BENGALURU-5600094.
2. SRI ANIL PAHLAJ NICHANI,
S/O LATE SRI PAHALAJ CHOITHARAM NICHANI,
AGED ABOUT 57 YEARS,
RESIDENT AT NO.430,
HENDRON PLACE, APHARETA,
Digitally signed GEROGIA 30005,
by DEVIKA M UNITED STATES OF AMERICA.
Location: HIGH REPRESENTED BY HIS GPA HOLDER
COURT OF
KARNATAKA SRI SHYAM PAHLAJ NICHANI.
ADDRESS AS ABOVE IN CAUSE TITLE
OF APPELLANT No.1.
...APPELLANTS
(BY SRI. BRIAN REGO AND
SMT. KAVITHA JUDITH SALDANHA, ADVOCATES)
AND:
1. SRI SHARAVANAKRISHNAN,
S/O SRI G.S.CHOKKALINGAM,
AGED ABOUT 42 YEARS,
RESIDING AT NO.17, 8TH CROSS,
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MFA No. 4300 of 2024
MUNESHWARA LAYOUT,
HARALUKUNTE, KUDLU GATE,
BENGALURU-560068.
...RESPONDENT
(BY SRI. ABHINAV RAMANAND A., ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC, AGAINST THE ORDER DATED
18.03.2024 PASSED ON I.A.NO.1 IN O.S.NO.4827/2023 ON THE
FILE OF THE IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU CCH-5, ALLOWING THE APPLICATION FILED
UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellants and the
learned counsel for the respondent.
2. The present miscellaneous first appeal is filed
against the order dated 18.03.2024 passed on I.A.No.1 in
O.S.No.4827/2023, allowing of the application filed under Order
39 Rules 1 and 2 of CPC granting the relief of temporary
injunction in favour of the plaintiff restraining the defendants
from alienating, encumbering or creating third party rights over
the plaint schedule property, pending disposal of the suit.
3. The plaintiff before the Trial Court while seeking the
interim relief contended that the defendants are the absolute
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owners of the schedule property. The defendants intended to
sell the said suit schedule property and accordingly he entered
into an agreement of sale for consideration of Rs.1,95,30,000/-.
He had paid Rs.48,82,500/- as advance amount. In pursuance
of the sale agreement, various measures were undertaken by
him for completing the sale transaction and certain formalities
were to be undertaken for the purposes of sanction of bank
loans. The bank loans were approved. It is further submitted
that his obligation is based on the performance of the
obligations of the defendants, was forced to wait till the
defendants perform their part of the contract. He had issued a
reminder notice dated 27.05.2023 to come forward to register
the sale deed in respect of the schedule property and
accordingly register the sale deed in respect of the schedule
property in favour of him by clearly indicating that he is ready
and willing to get the date fixed for registration of the sale deed
within 15 days from the date of receipt of the general power of
attorney from defendant No.2 and upon proper adjudication
from the District Registrar. In the reply notice dated
05.06.2023, the defendants have admitted that they are ready
and willing to complete the transaction and that only a
confirmation is required from his side. The defendant No.1 was
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to secure either a fresh general power of attorney or a corrected
general power of attorney and therefore it was for the
defendants to take appropriate steps in the matter. He had also
got a loan sanction from L & T Finance Ltd. There was no other
obligation that was required to be performed from his side.
However, shockingly, the defendants sent a legal notice dated
09.06.2023, claiming that upon completion of two months of
time, the sale agreement stood cancelled by efflux of time. The
defendants have also sought to retain 10% of the advance
amount paid by him. The defendants have unilaterally remitted
an amount of Rs.42,94,250/- by depositing the Cheque directly
into the bank account of the plaintiff without informing him. The
unilateral deposit of Cheque by the defendants without even
giving a basic intimation speaks the volume and the manner in
which the defendants have acted. It is the contention that he
had sent an appropriate reply notice dated 23.06.2023
answering all the contentions of the defendants. He always
been ready and willing and even to this day, is in continuous
readiness and willingness to complete his obligations under the
agreement. The conduct of the defendants in not executing the
sale deed amounts to breach of contract and refusal to perform
the terms of the agreement dated 09.04.2023. Hence, without
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any other alternative, the plaintiff filed a suit for the relief of
specific performance.
4. The defendant No.1 filed the objection statement
contending that the plaintiff is not coming forward to have the
sale deed and the defendants are law abiding persons and are
absolute owners and they are in possession and enjoyment of
the vacant property. It is also the contention that the plaintiff is
a salaried employee working in a private company in Bengaluru.
In order to meet his legal and financial necessities, he offered to
sell and convey the schedule property and in turn, the plaintiff
accepted to purchase the schedule property for a valuable sale
consideration of Rs.1,95,30,000/-. Accordingly, the plaintiff
being fully satisfied with the title of the property and the
documents provided for his legal opinion, entered into a sale
agreement with the defendants on 09.04.2023, as per the terms
and conditions laid down in the sale agreement with a
stipulation that the sale deed would be registered within two
months from the date of the sale agreement. The defendants
also not disputes that the plaintiff had paid an amount of
Rs.48,82,500/- as advance amount. Subsequently, there was
some hesitation by the plaintiff, probably due to financial
constraints, to buy all the three and half sites and the plaintiff
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said that he will buy one and half sites and his assigns will buy
the balance two sites. It is further contended that, as this, with
proper assignment deed, was is line with the stipulation of the
sale agreement, the defendants agreed for the same with a
condition that all the 3½ sites be registered at the same time.
Surprisingly, no assignment deed was submitted on behalf of
the assigns by the plaintiff even till this day. The plaintiff also
mentioned that he would like to make some additional
agreement with some other people for the schedule property for
banking purposes clearly failing to prove his readiness to
perform his part of contract at the initial stage itself. He did not
agree for any of this and replied by e-mail accordingly. On
18.04.2023, the plaintiff requested him to make a separate
additional sale agreement in favour of one Mrs. Lavanya, who
was a total stranger to the sale agreement dated 19.04.2023,
for part of the land (one site) covered in the sale agreement,
that too at a much higher price, than the one mentioned in the
sale agreement dated 09.04.2023. He did not find this in order
and rightly questioned the premise and need of having two sale
agreements for the same property, that too at a higher price,
when the sale agreement dated 09.04.2023 was in subsistence.
The defendants also contend that the defendants left with no
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other option and respecting the demand made by the associate
of the plaintiff, he agreed to cancel the subject sale agreement.
On 13.05.2023, the representatives of the plaintiff had put up a
sale notice and contend that the action of the plaintiff is against
clause No.9 of the sale agreement dated 09.04.2023 and hence
contend that the plaintiff is not entitled for any relief as sought
in the plaint.
5. The Trial Court having taken note of the plaint
averments and also the written statement, formulated the
points. Having considered the contentions and pleadings of the
parties, the Trial Court relied upon the judgment in the case of
L.K. RAJU v. R. SRINIVAS RAJU reported in 2014 SCC
Online Kar 4730, wherein it is observed that the agreement in
question is a registered agreement of sale. The question as to
whether the intention between the parties was to sell and
purchase the property or merely a loan transaction needs to be
determined by the Trial Court after recording the evidence.
Such intention cannot be gathered merely on the basis of
pleadings. The Trial Court taking note of the principles laid
down in the said judgment comes to the conclusion that in the
case on hand, the Court has to decide the intention of the
parties after recording the evidence and it cannot be gathered
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upon the pleadings of the parties and if temporary injunction is
not granted, then it will create multiplicity of proceedings and
hence comes to the conclusion that the plaintiff has made out
the case.
6. The learned counsel for the appellants would
vehemently contend that the Trial Court failed to take note of
the readiness and willingness of the appellants and the Trial
Court failed to appreciate that clause No.12 of the sale
agreement clearly states that the plaintiff has to provide the
draft format of GPA for registration of the sale deed. However,
the plaintiff has sent the draft format for GPA only on
28.05.2023, which is nearly 50 days after the date of sale
agreement. The Court has to take note of the conduct of the
plaintiff, which clearly demonstrates that the plaintiff was
unwilling to go ahead with the sale deed. The learned counsel
contend that the Trial Court failed to consider and appreciate
that the defendants have time and again requested the plaintiff
for the draft copy of the sale deed and also failed to appreciate
that clause No.9 of the sale agreement clearly states that the
purchaser should not do any cleaning, marking or any such
activity on the site until all the sites are registered through the
sale deed. The Trial Court committed an error in considering the
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date mentioned in the GPA, as there is a mismatch in date in
words and numbers. However, by practice, in these types of
instances, the date in words, which is mentioned as sixth day of
June Two Thousand and Twenty Three, would be taken as
correct. The learned counsel contend that the Trial Court failed
to take note of the fact that defendant No.1 is a senior citizen
and the defendants are in urgent need of the sale consideration
and the plaintiff did not come forward to pay the amount and
these are the aspects which has not been considered by the Trial
Court.
7. Per contra, the learned counsel for the respondent
would vehemently contend that there is no dispute with regard
to the fact that there is an agreement and while considering
whether the plaintiff is ready or not, the same cannot be
considered at the time of considering the application and the
relief sought is not to alienate the schedule property.
Admittedly, when there is an agreement and parties have also
not disputed the same, the Trial Court rightly granted the relief
of temporary injunction not to alienate the schedule property
and the same is to prevent multiplicity of proceedings and only
to see prima facie case whether there is an agreement or not
and accordingly the Trial Court allowed the I.A.
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8. In reply to the arguments of the learned counsel for
the respondent, the learned counsel for the appellants brought
to the notice of this Court Annexure-G document No.7 with
regard to financial sanction and read the terms and conditions
also. Taking into note of the same, the learned counsel would
contend that if such loan is availed, no material is placed on
record to show as to how the plaintiff will repay the balance
amount.
9. Having heard the learned counsel for the appellants
and the learned counsel for the respondent and also the
material on record, in the plaint it is specifically pleaded with
regard to the agreement as well as notice issued to the
respondent. It is also brought to the notice of this Court the
prayer sought in the suit i.e., to declare that the purported
cancellation of the agreement of sale deed dated 09.04.2023 as
indicated in the legal notice dated 09.06.2023 is illegal and
unsustainable in law and also sought for the relief of specific
performance directing the defendants to execute a registered
sale deed in terms of the agreement of sale dated 09.04.2023.
No doubt, the defendants appeared and filed the written
statement denying the contentions of the plaintiff and also
particularly with regard to Section 16(c) of the Specific Relief Act
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regarding readiness and willingness in performing his part of
duty. Having considered the material on record, particularly the
pleadings of the plaintiff and also the contention of the
defendants, in a suit for specific performance, when the suit is
filed based on the sale agreement, the Court has to take note of
whether there is a dispute with regard to the very execution of
the sale agreement and in this case, there is no dispute with
regard to the very execution of sale agreement. No doubt, the
defendants have set out the grounds that the plaintiff is not
entitled for the relief, as he was not ready and willing to perform
his part of the contract and this aspect has to be considered
only on merits after recording the evidence and it requires a full-
fledged trial.
10. The main contention of the learned counsel for the
appellants that the Trial Court failed to appreciate the material
on record, particularly readiness and willingness, at this
juncture, cannot be accepted. The Trial Court taken note of the
factual aspect that there was an agreement of sale and also
having made the part payment to the extent of Rs.48,82,500/-
at the time of agreement and also taken note of the fact that
the plaintiff has availed the loan and loan was sanctioned. The
learned counsel for the appellants not disputes the fact that loan
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was sanctioned and brought to the notice of this Court the
conditions imposed in the sanction letter of loan. When such
materials are available before the Court and when the document
of sale agreement is not disputed, I do not find any error
committed by the Trial Court in granting such a relief and the
same is with an intention to protect the rights of the parties and
if injunction is not granted, it leads to multiplicity of
proceedings. Hence, the interim arrangement of temporary
injunction is granted taking note of the averments made in the
sale agreement. The grounds which have been urged by the
appellants with regard to readiness and willingness and conduct
of the plaintiff in making the payment and the contention that
the plaintiff did not act in terms of the agreement, has to be
considered only in a full-fledged trial. Hence, I do not find any
error committed by the Trial Court to interfere with the findings
of the Trial Court in granting such a relief.
11. Accordingly, the miscellaneous first appeal is
dismissed. The Trial Court is directed to dispose of the matter
expeditiously.
Sd/-
(H.P.SANDESH)
JUDGE
MD
