Karnataka High Court
Sri G Huliyappa vs Mr R Gangadhar on 10 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS FIRST APPEAL NO.7780/2024 (CPC)
BETWEEN:
1. SRI G. HULIYAPPA
S/O LATE SRI. GANGANNA
AGED ABOUT 65 YEARS,
RESIDING AT NO.55/1,
NEW NO.3, 4TH CROSS,
1ST STAGE, MICHAEL PALYA,
NEAR CMH HOSPITAL,
INDIRANAGAR,
BANGALORE-560038. ... APPELLANT
(BY SRI P.B.RAJU, ADVOCATE)
AND:
1. MR. R. GANGADHAR
S/O R. RAVINDRA NAIDU,
AGED ABOUT 43 YEARS,
R/AT NO.119,
AKSHAYA PEDSTONE,
SEEGEHALLI MAIN ROAD.
OPP. SHELL PETROL PUMP.
SEEGEHALLI,
BENGALURU-560 067.
2. MR. M. SOMASHEKAR
S/O M. KRISHNAMURTHY
AGED ABOUT 41 YEARS
RESIDING AT NO.405,
2
VIKYATH SPRING APARTMENT
5TH RIGHT CROSS, ALFA GARDEN
KODIGEHALLI MAIN ROAD
AYYAPPA NAGAR, K.R.PURAM
BANGALORE-560036.
3. MR. GAJENDRA
S/O M. KRISHNAPPA
RESIDING AT NO.113/2,
OXFORD SCHOOL ROAD
NEW THIPPASANDRA
BANGALORE-560075.
4. MR. H.M. VIJAY KUMAR
S/O MUNIYAPPA
RESIDING AT NO.6
SWETHA BHAVANA
8TH CROSS 'A' BLOCK
AECS LAYOUT, KUNDALAHALLI
BANGALORE 560037. ... RESPONDENTS
(BY SRI T. SURYANARAYANA, SENIOR COUNSEL &
SRI PRASHANTH MURTHY, ADVOCATE FOR
SRI SANDEEP LAHIRI &
SMT. DEEPIKA JOSHI, ADVOCATES FOR C/R1;
SRI LOKESH R. & SRI ANAND K., ADVOCATES FOR
C/R2 ON I.A.NOS. 1 & 2;
SRI V.VISHWANATH, ADVOCATE FOR R3 & R4)
THIS M.F.A. IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 23.10.2024 PASSED ON
I.A.NOs.1 AND 2 IN O.S.NO.25485/2024 ON THE FILE OF THE
COURT OF THE LXXII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, MAYO HALL BENGALURU CCH-73, DISMISSING THE
IA.NOS.1/2024 AND 2/2024 FILED UNDER ORDER 39 RULE 1
AND 2 R/W SECTION 151 OF CPC.
3
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.01.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard learned counsel for the appellant, learned Senior
counsel for caveator-respondent No.1, learned counsel for
caveator-respondent No.2 and learned counsel for respondent
Nos.3 and 4.
2. This miscellaneous first appeal is filed under Order
43 Rule 1(r) read with Section 151 of CPC challenging the order
passed by the Trial Court in O.S.No.25485/2024 dated
23.10.2024 rejecting I.A.Nos.1/2024 and 2/2024 filed under
Order 39 Rule 1 and 2 of CPC.
3. The factual matrix of the case of the
appellant/plaintiff is that the appellant filed the suit seeking the
relief of declaration to declare that two agreement of sale
entered into between the plaintiff and defendant No.1 dated
06.12.2023 as null and void and unenforceable against the
plaintiff and the suit schedule property. The plaintiff also sought
the relief of declaration to declare that two General Power of
Attorneys dated 06.12.2023 are duly cancelled and
unenforceable against the plaintiff and the suit schedule property
and restrain the defendants from making any claims as against
the plaintiff or against the suit schedule property on the basis of
two agreement of sale dated 06.12.2023 or two General Power
of Attorneys dated 06.12.2023 and disturbing the plaintiff's
peaceful possession and enjoyment over the suit schedule
property permanently and direct the defendants to execute a
document before the jurisdictional Sub-Registrar to cancel two
agreement of sale dated 06.12.2023 and two General Power of
Attorneys dated 06.12.2023 and if the defendants fail to execute
the cancellation of the same, the Court may pleased to execute
the same through the process of the Court and pay the cost.
4. While seeking such reliefs', the plaintiff also filed two
applications i.e., I.A.Nos.1/2024 and 2/2024 to restrain the
defendants from interfering with peaceful possession and
enjoyment of the suit schedule property and also not to create
any third party rights in respect of the suit schedule property
against the defendant Nos.1 and 2, till the disposal of the suit.
5. In support of these applications, the plaintiff has also
filed affidavits contending that plaintiff is the absolute owner in
possession of the property in Sy.No.56/2 which is morefully
described in the schedule to the suit. He had purchased the
same from his erstwhile owner under the registered sale deed
dated 09.12.2004. The revenue documents are standing in his
name. It is also contended that 20 guntas of land had gone for
Indian Railway Road as per the Government Order. The
defendant Nos.3 and 4, instead of purchasing the property in
terms of the Court compromise, they brought defendant No.1
and forced him to execute two sale agreements dated
06.12.2023 in favour of defendant Nos.1 and 2, General Power
of Attorneys in favour of defendant No.2, in order to overcome
the Court decree and also put an end to the earlier compromise
and its agreed terms. The amount which was paid in the above
first sale agreement, the Court compromise cannot be adjusted
in the second time sale agreement, since it is a separate
agreement for new terms with a new purchasers, all these
techniques were played by the defendant Nos.3 and 4, in order
to delay the sale process and not to clear the sale price on the
property to plaintiff and also to cheat the plaintiff. The total sale
consideration as agreed in the Court compromise was
Rs.7,35,00,000/-. The alleged cheques referred in the sale
agreement dated 06.12.2023 are not handed over to the plaintiff
and it is all fake story created by the defendants in order to
cheat the plaintiff with collusion, the plaintiff bank statement on
the alleged Cheques are not given to the plaintiff. The amount
mentioned in the sale agreements are not reached to the
plaintiff, hence the plaintiff has terminated the contract and sale
agreement entered with the defendant No.1 and the General
Power of Attorneys are also cancelled as per law and procedure.
The amount paid in the sale agreement dated 06.12.2023 is
forfeited by plaintiff in terms of the contract as defendant No.1
or the consenting witness have again breached the terms of the
Court compromise and the sale agreements dated 06.12.2023
6. It is also contended that the defendant No.1 has not
communicated to the plaintiff that he was ready and willing to
purchase the suit schedule property and clear the sale price as
per the sale agreement. From 2019 till 2024, the plaintiff is
facing litigation of selling his property. Under the circumstances,
on the negligence of the defendants, the plaintiff having no other
way, has terminated the sale agreement and agreement of sale
is unenforceable by the recitals of the same as per the conditions
bound by the parties. The defendant No.2 is threatening the
plaintiff saying that he will execute some deed or documents by
using the General Power of Attorneys which was cancelled by
him as per law and procedure. As stated above, the defendant
No.2 is trying to create third party rights in respect of the suit
schedule property and also trying to interfere with the
possession and enjoyment of the suit property by the plaintiff
and also trying to construct compound wall and digging the bore
well in the suit schedule property. Hence, sought for the relief of
temporary injunction.
7. In pursuance of the suit summons, the defendant
No.2 appeared and filed the written statement and defendant
Nos.2 to 4 adopted the same as objections to the applications.
The defendant No.1 filed common objections to the applications
and admitted that plaintiff was the absolute owner of the suit
schedule property and has entered into agreement of sale dated
05.01.2019 in respect of suit property with the defendant Nos.3
and 4 and few others. The plaintiff had further entered into an
agreement dated 05.01.2019 with the defendant Nos.2 and 3 to
sell the Transferable Development Rights accrued in portion of
the suit schedule property. However, the plaintiff failed to
conclude the transaction in agreements dated 05.01.2019,
constraining the defendant Nos.3 and 4 to file a suit for specific
performance in O.S.No.4105/2021 and in the said suit,
compromise was entered between the parties. In view of the
said compromise, the plaintiff herein except to the extent
mentioned above, stand extinguished and the defendant Nos.3
and 4 have got absolute rights.
8. It is contended by the defendant No.1 that in terms
of the agreement dated 06.12.2023, he is a nominee of
defendant Nos.3 and 4 and in the same agreement, the
defendant Nos.3 and 4 are confirming parties and have received
consideration. In pursuance to the said compromise petition, the
suit is disposed off and a compromise decree is drawn and the
same is not challenged in any proceedings till date.
Subsequently, in furtherance to the said compromise petition,
the defendant Nos.2 and 3 have nominated the defendant No.1
to purchase the suit property herein and the Transferable
Development Rights by paying the sale consideration and
accordingly, the subject two agreements of sale dated
06.12.2023 were entered into between the plaintiff and
defendant No.1. The plaintiff having consented to the nomination
is estopped from denying the same. The defendant No.1 has
entered into agreement of sale to purchase the suit property for
sale consideration of Rs.5,33,00,000/- payable to the plaintiff
and the defendant Nos.3 and 4 are consenting witness to the
said sale agreement. The sale consideration has been paid to the
plaintiff by way of cheques and the said cheques have been
encashed by the plaintiff and others.
9. It is contended that notice is issued within the time
frame of 90 days as per the said agreements of sale to complete
registration, whereby the defendant No.1 has confirmed that the
said funds are ready and that the plaintiff can resolve the
pending disputes in O.S.No.1350/2023, pending between the
plaintiff and others over the suit schedule property and can
undertake his obligations and thereby encash the same. The
failure on the part of the plaintiff to clear the title and failure to
handover the original title deeds of the suit schedule property as
well as procure confirmation deeds in favour of the defendant
No.1 by the plaintiff in O.S.No.1350/2023, the execution and
registration of sale deed was pending. Even the plaintiff was also
required to demarcate the extent of land retained by him and
erect a boundary fence after conducting a joint survey. The
obligations are pending at the hands of plaintiff and as such,
defendant No.1 has issued notice within the time frame of
agreement to sell. The sale consideration has been paid by the
defendant No.1 to the plaintiff by way of DD and it has been duly
encashed by the plaintiff. The defendants have developed a
layout of plots and in fact, sold a few plots by way of registered
sale deeds prior to the grant of interim order by this Court.
When the defendant No.1 has been put in possession of the suit
property and both the parties have acted upon two agreements
of sale dated 06.12.2023 and when the defendant No.1 has
invested huge money to improve the suit property and thereby
third party rights are created, now, the plaintiff is estopped from
wriggling out of his obligations. The defendant No.1 is always
ready and willing to perform his obligations.
10. The defendant No.2 has filed written statement and
filed a memo to adopt his written statement as objections to
I.A.Nos.1/2024 and 2/2024 filed by the plaintiff. It is contended
that plaintiff has not proved the fact that he is in possession and
enjoyment of the suit schedule property and even otherwise,
such being the factual position, on account of latches on the part
of the plaintiff regarding ill-intention of the plaintiff to deprive
the statute itself exchequer to suit so prayed by the plaintiff is
liable to be dismissed and contend that the plaintiff has not
approached the Court with clean hands, when he is not in
possession of the property. The plaintiff has also made false
claim only to make wrongful gain. The plaintiff is not at all in
possession of the defendants' property or any portion thereof.
When the plaintiff is not at all in possession of the defendants'
property or any portion thereof, he cannot seek for the relief of
declaration and also for an order of temporary injunction.
11. The defendant No.4 also filed the written statement
and the same has been adopted by the defendant No.3 by filing
a memo and defendant Nos.3 and 4 also reiterated the claim of
the plaintiff as contended by defendant Nos.1 and 2 by filing
statement of objections.
12. The Trial Court having taken note of the pleadings of
the parties, formulated the points with regard to cardinal
principles of law in respect of grant of temporary injunction as
prayed in I.A.Nos.1/2024 and 2/2024 and answered the points
as 'negative', in coming to the conclusion that the plaintiff has
not made out prima facie case and while rejecting the
applications, comes to the conclusion that, it appears that
already the defendant No.1 has invested huge amount over the
suit property and for the Transferable Development Rights. Such
being the fact, at this stage, if the defendants are restrained
from creating any third party rights over the suit schedule
property, definitely the defendants will be put to great hardship
and irreparable loss. Further, the documentary evidence as well
the contents of objections and written statement filed by the
defendants themselves speaks that, already a huge money has
been paid by the defendants to the plaintiff and possession of
the suit schedule property has been handover to the defendants
and already made some developments and improvements in the
schedule property. Being aggrieved by this order, present
miscellaneous first appeal is filed before this Court by the
plaintiff.
13. Before considering the arguments of the learned
counsel for the parties, it is important to note that learned
counsel for the appellant/plaintiff has filed a memo restricting his
prayer only in respect of 'A' schedule property against defendant
No.1, though earlier claimed relief against defendant Nos.1 and
2 in respect of both 'A' and 'B' schedule properties. In view of
the memo, this Court has to consider the grounds urged in this
appeal only in respect of 'A' schedule property as against the
defendant No.1.
14. Learned counsel for the appellant/plaintiff would
vehemently contend that the plaintiff is the owner of land in
Sy.No.56/2 to the extent of 1 acre 23 guntas. The counsel also
contend that earlier there was an agreement with defendant
Nos.3 and 4 and suit was filed and the same was compromised.
In terms of the compromise, defendant No.1 came forward to
purchase the property and also not dispute the agreement dated
06.12.2023. It is also contended that defendant No.1. is not a
party to the earlier suit and also compromise. The counsel also
submits that the appellant did not dispute the earlier
compromise, but contend that fresh contract was entered into
between the defendant No.1 and the plaintiff and total sale
consideration was Rs.5,33,00,000/- and the defendant No.1 paid
only Rs.2,33,00,000/- and an amount of Rs.3,00,00,000/- was
not paid though cheques are issued. The agreement is very
clear that possession to be delivered only on the date of
registration of the sale deed. The counsel also would vehemently
contend that on the 87th day of period stipulated for execution of
sale deed, notice is given to clear the suit which is pending
before the Court. When the plaintiff comes to know that
defendants are making an effort to avoid the contract, filed the
suit for cancellation of the agreements. Learned counsel also
would contend that based on the General Power of Attorneys, he
had sold portion of the properties by executing two sale deeds
which have been placed before the Court and brought to notice
of this Court agreements dated 06.12.2023, wherein at Clause
No.7 it is mentioned that delivery of possession is only on the
payment of entire sale consideration. Learned counsel also would
vehemently contend that possession has not been delivered and
Trial Court committed an error in not granting the relief of
temporary injunction and also failed to take note of the fact that
based on the alleged agreements and General Power of
Attorneys, two sale deeds have been executed. Hence, the Trial
Court ought to have granted the relief of temporary injunction
restraining the defendants from creating any third party rights.
Learned counsel also contend that it is also not denied by the
defendants that though they have paid only an amount of
Rs.3,00,00,000/-, but executed two sale deeds on 27.05.2024
and 24.05.2024 and this fact has not been considered by the
Trial Court. These sale deeds are also executed before filing the
suit. Learned counsel would contend that at one breath, they
say that suit is pending and would clear the same and in another
breath, they themselves admit that based on the agreements
and General Power of Attorneys, they sold portion of the land
and they cannot blow hot and cold before the Court. Hence, it
requires interference of this Court.
15. Per contra, learned Senior counsel for the caveator-
respondent No.1 in his argument would vehemently contend that
already compromise decree has been drawn and there are two
agreements of sale and two General Power of Attorneys and the
very suit is not maintainable. Learned Senior counsel would
contend that already the defendant No.1 has paid
Rs.2,33,00,000/- and balance amount of Rs.3,00,00,000/- is
payable and defendant No.1 is ready to pay the balance amount
of Rs.3,00,00,000/- and the Trial Court also taken note of said
fact into consideration. The Senior counsel also contend that
defendant Nos.3 and 4 are parties to the said compromise and
they have also received the money and in view of acquisition,
extent of land has been reduced. He also would contend that
there are TDR agreements which are dated 06.12.2023 and two
General Power of Attorneys is also executed on the same day
and the same has not been questioned. The challenge is only as
regards General Power of Attorney of defendant No.2 and not
General Power of Attorney of defendant No.1 and the General
Power of Attorneys are coupled with interest. Learned counsel
also brought to notice of this Court Section 202 of Contract Act
and contend that appellant had not taken any steps and even
not made any demand for payment of money. Learned Senior
counsel would contend that layouts are formed by forming the
sites and some of the sites are also sold and inspite of being
aware of the said fact, the plaintiff filed the suit and the land was
also converted. It is contended that the plaintiff cannot
terminate the agreements in view of Section 202 of Contract Act
and also brought to notice of this Court Section 31 of Specific
Relief Act. Learned Senior counsel would vehemently contend
that the relief cannot be granted in favour of the plaintiff and if
the relief is granted, it amounts to setting aside the compromise
decree and the Trial Court has passed a well reasoned order and
it does not require any interference of this Court.
16. Learned Senior Counsel for the caveator-respondent
No.1, in support of his argument, relied upon the judgment in
SREE SURYA DEVELOPERS AND PROMOTERS VS.
N.SAILESH PRASAD AND OTHERS reported in (2022) 5 SCC
736.
17. He also relied upon the judgment in TRILOKI NATH
SINGH VS. ANIRUDH SINGH (DEAD) THROUGH LEGAL
REPRESENTATIVES AND OTHERS reported in (2020) 6 SCC
629 and also the order passed by this Court in KISHORE VS.
SRI BASAWARAJ AND OTHERS in W.P.NO.103856 OF 2024
dated 23.08.2024.
18. He also relied upon the judgment in PUSHPA DEVI
BHAGAT (DEAD) THROUGH L.R. SADHNA RAI (SMT) VS.
RAJINDER SINGH AND OTHERS reported in (2006) 5 SCC
566 and brought to notice of this Court paragraph No.17 that
consent decree operates as an estoppel and is valid and binding
unless it is set aside by the Court which passed the consent
decree.
19. He also relied upon the judgment rendered in SMT.
LAKSHMAMMA AND OTHERS VS. SRI T.H. RAMEGOWDA
AND OTHERS reported in ILR 2015 KAR 4024 and brought to
notice of this Court paragraph Nos.15 and 16, wherein discussion
was made with regard to Order 23 Rule 3 of CPC.
20. He also relied upon the judgment in BASAVARAJ
VS. INDIRA AND OTHERS reported in (2024) 3 SCC 705 and
brought to notice of this Court paragraph Nos.8 and 9, wherein
also discussion the judgment of PUSHPA DEVI BHAGAT's case.
21. Learned Senior counsel also relied upon the
judgment in R. JANAKIAMMAL VS. S.K. KUMARASAMY
(DECEASED) THROUGH LEGAL REPRESENTATIVES AND
OTHERS reported in (2021) 9 SCC 114 and brought to notice
of this Court paragraph Nos.44 and 53 to 58, wherein discussion
was made regarding consent is concerned and also discussed
with regard to bar of suit under Order 23 Rule 3-A. However, all
these judgments are with regard to compromise decree set aside
in an appropriate proceedings operates as an estoppel and
resjudicata. Hence, the suit dehors is not maintainable.
22. He also relied upon the Judgment in ASMA LATEEF
AND ANOTHER VS. SHABBIR AHMAD AND OTHERS reported
in (2024) 4 SCC 696 and brought to notice of this Court
paragraph Nos.31 to 50, wherein it is discussed that prayer for
injunction/interim orders ought not to be granted. Learned
Senior counsel referring these judgments referred (supra) would
contend that when compromise was already entered into
between the parties and suit is not maintainable, question of
granting an order of temporary injunction does not arise.
23. In reply to the argument of the learned Senior
counsel for the caveator-respondent No.1, learned counsel for
the appellant would contend that the respondents/defendants
not dispute the fact that entire sale consideration has not been
paid and withheld payment of amount of Rs.3,00,00,000/- by
causing notice to the plaintiff and even without making full
payment of sale consideration, ventured to sell the property to
the third parties and made an attempt to create third party
rights and the same has not been taken note by the Trial Court,
while rejecting the applications. Hence, it requires interference
of this Court.
24. Having heard learned counsel for the appellant,
learned Senior counsel for the caveator-respondent No.1,
learned counsel for the caveator-respondent No.2 and learned
counsel for the respondent Nos.3 and 4 and also the principles
laid down in the judgments referred (supra) by the learned
Senior counsel for the caveator-respondent No.1, the points that
would arise for consideration of this Court are:
(1) Whether the Trial Court committed an error in
rejecting the applications I.A.Nos.1/2024 and
2/2024 filed under Order 39 Rule 1 and 2 of
CPC and whether it requires interference of
this Court?
(2) What order?
Point No.(1)
25. Having perused the pleadings of the parties, the
relief sought in the suit and the plaintiff inter alia filed
I.A.Nos.1/2024 and 2/2024 seeking the relief of temporary
injunction, the Court has to take note of the material available
on record. The suit is filed for the relief of declaration to declare
that sale agreements which are registered dated 06.12.2023 as
null and void and unenforceable against the plaintiff and also
sought for the relief of declaration to declare that two General
Power of Attorneys registered on the very same day i.e.,
06.12.2023 are duly cancelled and unenforceable against the
plaintiff and further sought for other relief and so also an order
of temporary injunction restraining the defendants from
interfering with peaceful possession of the plaintiff and creating
any third party rights. It is not in dispute that the suit schedule
property belongs to the plaintiff. It is also not in dispute that
earlier, there was an agreement with defendant Nos.3 and 4 and
suit was also filed and the same has ended in compromise.
26. It is also important to note that, in the suit, the
plaintiff has not challenged the earlier compromise decree, but
the contention taken is that consequent upon the compromise,
fresh agreement is entered into between the parties i.e., plaintiff
and defendant Nos.1 and 2. It is not in dispute that, at the
instance of defendant Nos.3 and 4, defendant No.1 came
forward to have the sale agreements. It is also not in dispute
that fresh agreement came into existence between the plaintiff
and defendant Nos.1 and 2. It is also important to note that
though relief is sought against defendant Nos.1 and 2, in this
appeal, appellant/plaintiff restricted his prayer only in respect of
'A' schedule property against defendant No.1. There is no
dispute with regard to the agreements entered into between the
parties on 06.12.2023. It is also important to note that in terms
of the agreements produced before this Court, sale consideration
is fixed at Rs.5,33,00,000/- and in the sale agreements also,
details of payment is narrated and the plaintiff has also
acknowledged receipt of payment of amounts at Clause
Nos.2.1(a) and 2.1(b), wherein made payment of
Rs.25,00,000/- and Rs.1,03,67,000/- and also made payment of
amount as mentioned at Clause Nos.2.1(c), 2.1(d), 2.1(e),
2.1(f), 2.1(g), 2.1(h) and no dispute with regard to the said
payments are concerned. However, dispute is made with regard
to payment at Clause Nos.2.1(c) and 2.1(d) to an extent of
Rs.1,00,00,000/- as well as an amount of Rs.2,00,00,000/-
which are paid through cheques and it is contended that the said
amount has not been received by the plaintiff.
27. It is also important to note that in terms of the sale
agreements, time for completion of contract as per Clause
No.3.1 is that sale shall be completed within 90 days from the
date of obtaining New conversion/change of land use in respect
of schedule property. It is also important to note that, in terms
of Clause No.7, possession and delivery of original title
documents as per Clause No.7.1 is that the vendors shall deliver
vacant possession of the schedule property to the purchaser at
the time of registration of the Deed of Absolute Sale. It has to
be noted that, admittedly, there is no sale deed. However, the
defendants relied upon the irrevocable General Power of
Attorneys executed in favour of defendant No.1 dated
06.12.2023 that is on the same day of the agreements of sale.
On perusal of the document of General Power of Attorneys also,
the details of payment are mentioned. It is also important to
note that at Clause No.22 of the Irrevocable General Power of
Attorney, it is mentioned that in view of receipt of the entire sale
consideration received from the attorney herein under
agreement of sale dated 06.12.2023, this General Power of
Attorney is coupled with interest. However, in case it is desired
this General Power of Attorney has to be cancelled, both the
parties should come forward to cancel this General Power of
Attorney. Hence, on recital of this document, it is clear that
General Power of Attorney is executed having made the payment
of entire sale consideration of Rs.5,33,00,000/- and payment of
amount of Rs.3,00,00,000/- is not acknowledged by the plaintiff
and the defendants also not dispute the said fact and defendant
No.1 himself has issued legal notice vide Annexure-M dated
02.03.2024, wherein at paragraph No.3 it is stated as regards
the payment of Rs.3,00,00,000/- by way of two Cheques. It is
also made clear at paragraph No.7 that balance amount payable
to him in respect of which client, his client has already issued
cheque/s which can be encashed by you after clearing the
disputes from the vendors and the same was also replied.
Hence, it is clear that entire sale consideration has not been
paid. It is also important to note that based on the said General
Power of Attorneys, two sale deeds are executed by the
defendant No.1 on 27.05.2024 and 24.05.2024 which have been
placed before this Court. Hence, it is clear that even without
concluding the contract, the defendant No.1 ventured to sell two
properties in the month of May, 2024 itself, even though he
himself has caused notice in the month of March itself. Hence,
recital with regard to General Power of Attorneys is coupled with
interest does not arise and unless entire sale consideration is
paid, question of General Power of Attorneys is coupled with
interest does not arise.
28. It is also important to note that the Trial Court failed
to take note of Clause No.7 of the agreement, wherein specific
averment is made in the agreement with regard to delivery of
possession of original documents is only at the time of absolute
sale and admittedly, there is no absolute sale, except execution
of General Power of Attorneys. It is also important to note that
very General Power of Attorneys came into existence on the date
of agreement itself and at Clause No.7.1 of the agreement of
sale, it is made clear that vendors shall deliver vacant
possession of the schedule property to the purchaser at the time
of registration of the Deed of Absolute Sale and also at Clause
No.3.1, it is mentioned that sale shall be completed within 90
days from the date of obtaining New Conversion/change of land
use in respect of schedule property. The defendant No.1 also not
placed any records before the Court with regard to new
conversion or change of land, except stating that he had
improved the property and in order to substantiate that he had
invested huge money and improved the land by obtaining
approved layout plan and converted the land, nothing is placed
on record. But, the Trial Court committed an error in rejecting
the applications for grant of temporary injunction making an
observation that defendants had invested huge amount for the
development of the property and in the absence of any
document, the very observation of the Trial Court at paragraph
No.25 of the order is erroneous. It is also an observation that
already defendant No.1 had invested huge amount in the suit
schedule property and for Transferable Development Right and
without any document, the Trial Court made such an
observation. It is also observed that if the defendants are
restrained from creating any third party rights over the suit
schedule property, definitely the defendants will be put to great
hardship and irreparable loss. It is rightly pointed out by the
learned counsel for the appellant that the defendants cannot
blow hot and cold and at one breath, they are asking to clear the
dispute raised in the suit and thereafter, at the time of selling
the property, immediately caused reply notice in the month of
March, 2024 and sold two properties in the month of May, 2024
and those properties are also sold prior to filing of the suit and
the Trial Court ought to have taken note of said fact into
consideration while considering the prima facie case, balance of
convenience and irreparable loss to the plaintiff.
29. It is also important to note that suit is filed for
cancellation of agreements and General Power of Attorneys and
also to declare same as null and void. When such relief is
sought, the defendants have also not filed any suit for the relief
of specific performance based on the same. Admittedly, entire
sale consideration has not been paid and the very observation
made by the Trial Court that already huge money has been
invested by the defendant No.1 for development of the property
is erroneous and the fact of non-payment of balance amount of
Rs.3,00,00,000/- out of total sale consideration of
Rs.5,33,00,000/- has not been discussed anywhere by the Trial
Court in the order while considering prima facie case and the
Trial Court comes to the conclusion that possession has been
handed over to the defendant No.1 and failed to take note of
Clause No.7 and Clause No.3.1 of the agreement of sale that
possession and delivery of original title will be at the time of
Deed of Absolute Sale. Merely because there are General Power
of Attorneys, failed to take note of said fact into consideration
and also the time stipulated in the sale agreement. The
document of General Power of Attorneys came into existence on
the very same day and relief is sought to declare the
agreements as null and void. When such relief is sought, the
Trial Court failed to take note of the conduct of the defendants,
since two properties are sold in the month of May, 2024 itself
even without making payment of entire sale consideration and
the Trial Court ought to have considered balance of convenience
and prima facie case in favour of the plaintiff and instead comes
to an erroneous conclusion that hardship will be caused to
defendants, even though they have not paid entire sale
consideration and balance payable is Rs.3,00,00,000/- and in the
General Power of Attorneys also, it is specifically mentioned that
sale consideration is paid, but not paid the same. Hence, even
the Trial Court committed an error to take note of sale of two
properties based on the General Power of Attorneys without
complying the terms and conditions of the agreements and the
agreement only stipulates terms and conditions of contract and it
will not create any interest muchless any right in favour of the
defendants. The very contention that through General Power of
Attorney right is transferable and coupled with interest cannot be
accepted when entire sale consideration has not been paid and
the Trial Court committed an error not granting an order of
temporary injunction.
30. No doubt, learned Senior counsel for the caveator-
respondent No.1 relied upon several judgments with regard to
compromise decree is concerned, there is no dispute with regard
to settled principles. In the case on hand, no such relief
regarding compromise decree and both the parties agree that
there was a compromise decree and it is also agreed that
defendant No.1 came forward to purchase the property at the
instance of defendant Nos.3 and 4, who are the parties to the
compromise and when the compromise is not questioned and
plaintiff also accepted the earlier compromise and defendant
No.1 is not party to the compromise and when there is no
dispute with regard to the compromise also, the principles laid
down in the judgments referred (supra) by the learned Senior
counsel for the caveator-respondent No.1 will not come to the
aid of the defendants.
31. The other contention of the defendants is that suit is
not maintainable and the said contention cannot be accepted,
when there is no dispute with regard to the fact that property
belongs to plaintiff and entered into agreement and executed
General Power of Attorneys. The issue in the case on hand is
that at whose instance there is violation of the terms and
conditions of the contract and whether the plaintiff is entitled for
relief as sought cannot be decided at this stage and the Court
has to take note of the prima facie case and balance of
convenience and instead of considering the same in favour of the
appellant/plaintiff, the Trial Court rejected the applications under
the presumption and assumption that defendant No.1 has
invested huge amount and the defendant No.1 has paid huge
money to plaintiff. The payment made by the defendant No.1
i.e., Rs.2,33,00,000/- out of the total sale consideration of
Rs.5,33,00,000/- even does not constitute 50% of the contract
and the remaining amount payable is Rs.3,00,00,000/- and
details of payment made is also not discussed by the Trial Court
and the Trial Court failed to take note of the fact that the
defendants ventured to sell portion of the property by executing
two sale deeds. When such being the material available on
record, the Trial Court ought to have passed an order of
temporary injunction restraining the defendants from alienating
remaining portion of the property. The agreement and General
Power of Attorney is not a concluded document which empowers
the defendants to sell two properties even though entire sale
consideration has not been paid. Under the circumstances, the
Trial Court committed an error in rejecting the applications.
Hence, it requires interference of this Court. Accordingly, I
answer point No.(1) in 'affirmative'.
Point No.(2)
32. In view of the discussion made above, I pass the
following:
ORDER
(i) The miscellaneous first appeal is allowed in
part.
(ii) The impugned order passed by the Trial Court
is set aside partly. Consequently,
I.A.Nos.1/2024 and 2/2024 are allowed in
part, restraining the defendant No.1 from
interfering with peaceful possession of the
plaintiff and creating any third party rights in
respect of 'A' schedule property as sought for
by the learned counsel for the appellant by
filing a memo restricting the prayer only in
respect of 'A' schedule property as against
defendant No1.
Sd/-
(H.P. SANDESH)
JUDGE
ST
