Karnataka High Court
Mrs K Sarojamma vs Mr Venkateshaiah on 18 March, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2025:KHC:11227
MFA No. 4075 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 4075 OF 2017 (CPC)
BETWEEN:
1. MRS. K. SAROJAMMA,
W/O N.T. SHIVANNA,
AGED ABOUT 48 YEARS,
2. S. ROOPA,
D/O N.T. SHIVANNA,
AGED ABOUT 31 YEARS,
3. S. RAMYA
D/O N.T. SHIVANNA,
AGED ABOUT 29 YEARS,
4. MR. N.S. RAVISHANKAR,
S/O N.T. SHIVANNA,
Digitally signed
by RAMYA D
AGED ABOUT 34 YEARS,
Location: HIGH
COURT OF ALL ARE R/AT NO.106,
KARNATAKA
ASSESSMENT NO. 27,
1ST CROSS, L. RAMAKRISHNA LAYOUT
B BLOCK, MALAGALU,
YESHAWANTPURA HOBLI,
BENGALURU - 560 091.
...APPELLANTS
(BY SRI. A.D. RAMANANDA, ADVOCATE)
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NC: 2025:KHC:11227
MFA No. 4075 of 2017
AND:
MR. VENKATESHAIAH,
S/O MARAGAL NARAYANAPPA,
AGED ABOUT 64 YEARS,
R/AT MAHAL CHODADENAHALLI,
SARJAPUR HOBLI, ANEKAL TALUK,
BENGALURU URBAN DISTRICT - 562 106.
...RESPONDENT
(BY SRI. ASHOK PATIL, ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 28.03.2017 PASSED ON I.A. NO.1
IN O.S.NO. 7674/2016 ON THE FILE OF THE VII ADDITIONAL
CITY CIVIL JUDGE(CCH.NO.19), BENGALURU, ALLOWING I.A.
NO.1 FILED UNDER ORDER 39 RULE 1 & 2 READ WITH
SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
Defendant Nos.1 to 4 have filed the appeal challenging
the order dated 28.03.2017 passed on I.A.No.1 filed under
Order XXXIX Rules 1 and 2 read with Section 151 of CPC in
O.S.No.7674/2016, by the Court of the VII Additional City Civil
Judge (CCH No.19), Bengaluru, thereby an order of temporary
injunction was granted restraining the defendants from
alienating or encumbering the suit schedule property in any
manner pending disposal of the suit.
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2. The respondent/plaintiff has filed the suit for
specific performance of contract. It is the case made out by the
respondent/plaintiff that the first defendant had borrowed a
loan from one V.Naveen and V. Praveen. In order to discharge
said loan, the defendant No.1 had borrowed a sum of
Rs.28,00,000/- from the plaintiff. The defendants on receiving
the said amount had then executed an agreement of sale dated
25.01.2014 agreeing to sell the suit schedule property for a
consideration amount of Rs.30,00,000/- in favour of the
plaintiff or his nominee if the said amount is not cleared by the
defendant on or before 28.02.2014. Therefore, it is the case of
the plaintiff that the defendants have not repaid the said
amount. Further, the plaintiff had paid a sum of Rs.1,50,000/-
to the defendants then remaining amount of Rs.50,000/- was
to be paid at the time of registration of sale deed. Therefore,
the plaintiff by contending that he was ready and willing to
perform his part of contract but the defendants have not come
forward for execution of registration of sale deed. Therefore,
the plaintiff has filed suit for specific performance of contract.
3. It is the case of the defendants that it was only the
loan transaction between the plaintiff and the defendants and
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the defendants have not executed any agreement of sale. The
plaintiff has field an application under Order XXXIX Rule 1 & 2
of CPC for praying an intermediate temporary injunction
restraining the defendants from alienating the suit property.
The Trial Court has allowed I.A.No.1 and granted an order of
temporary injunction. Now the said order is in challenge. The
trial Court while allowing the application for grant of an order of
temporary injunction has opined that the defendants have
executed an agreement of sale upon receiving loan amount.
Therefore, on this opinion only, if the defendants alienate the
suit property then the plaintiff would be put to irreparable loss
and injury and therefore, granted an order of temporary
injunction.
4. Admittedly, the plaintiff admitted that defendant
No.1 is the absolute owner of the suit property. Defendant
Nos.2 to 4 are the children of defendant No.1. Upon considering
the plaint averments produced along with the memorandum of
appeal, basically the transaction between the plaintiff and
defendant No.1 was loan transaction. Plaintiff himself stated
that defendant No.1 has raised loan from two persons namely
V. Naveen and V. Praveen and in order to discharge the debt
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owe to them, the defendants have asked the help of the
plaintiff and accordingly, the plaintiff had advanced a loan
amount of Rs.28,00,000/-. It is the case made out at this stage
that the defendants have executed an agreement of sale.
When the plaintiff himself stated in the plaint that there is a
loan transaction between the plaintiff and defendant No.1 then
the question comes further that whether the defendants have
intention to sell out the land for sale consideration of
Rs.30,00,000/- but it is borne out from the plaint averments
that the plaintiff has advanced loan amount of Rs.28,00,000/-
to defendant No.1. When this being the transaction between
the plaintiff and defendant No.1 then a question for triable
issue is whether the defendants were having intention to sell
out the land as it can be decided by the full fledged trial.
5. Therefore, considering the factors that defendant
No.1 is the absolute owner of the property as admitted by the
plaintiff and the plaintiff has also admitted in the plaint that he
has advanced a loan amount of Rs.28,00,000/- and after
having agreed to pay an amount of Rs.2,00,000/- then
executed an agreement of sale, it basically prima facie towards
securing the loan amount. Such an agreement might have been
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executed. While considering the order of injunction passed by
the trial Court upon the application, the trial Court is not
correct in restraining the defendants from using the property as
per their Will when the plaintiff is not the owner of the
property, but by obtaining an order of injunction restraining the
defendants from enjoying their property, therefore, the order
passed by the trial Court requires interference by this Court.
Hence, it is liable to be set-aside.
6. Hence, I proceed to pass the following:
ORDER
i) The Appeal is allowed. The order dated 28.03.2017
passed on I.A.No.1 filed under Order XXXIX Rules 1
and 2 read with Section 151 of CPC in
O.S.No.7674/2016, by the Court of the VII
Additional City Civil Judge (CCH No.19), Bengaluru,
is hereby set-aside.
ii) Both the plaintiff and the defendants shall be
present before the trial Court on 25.04.2025
without further notice from the Court and the
trial Court shall dispose of the suit within a period of
two years from 25.04.2025 as the suit is of the year
2016, for which the plaintiff and the defendants
shall co-operate to the Court for early disposal.
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iii) The observations made by this Court are only for
the purpose of considering the veracity of the order
passed by the trial Court and shall not be construed
as an expression on merits of this Court and the
trial Court shall decide the case independently,
uninfluenced by any of the observations made
above.
SD/-
(HANCHATE SANJEEVKUMAR)
JUDGE
KA
CT: BHK
