Kerala High Court
Jacob Abraham Thomas @ Idasseril ... vs Chappan Aboobacker Sidhique on 12 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
FAO NO. 38 OF 2024
AGAINST THE ORDER DATED 16.12.2023 IN OS NO.93 OF 2023 OF
ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL COURT, PAYYANNUR
APPELLANTS/RESPONDENTS IN I.A.NO.2 OF 2023/DEFENDANTS IN
O.S.NO.93 OF 2023:
1 JACOB ABRAHAM THOMAS @ IDASSERIL VEETTIL TONY
AGED 75 YEARS
S/O ABRAHAM IDASSERIL THOMAS @ A.I.THOMAS,
IDASSERIL HOUSE, OLAYAMBADI, KUTTOOR AMSOM DESOM,
PAYYANNUR TALUK, KANNUR DISTRICT, (P.O) OLAYAMBADI,
(VIA) M.M.BAZAR., PIN - 670306
2 JUNE SUSAN ABRAHAM
AGED 40 YEARS
D/O JACOB ABRAHAM THOMAS, FLAT NO. 303C, S.M.R.
VINAY CRESCENT, OPPOSITE VINAYAKA TEMPLE, HENNOOR
CROSS, (P.O.) KALYAN NAGAR, BANGALORE - 560043
BY ADVS.
PAUL ABRAHAM VAKKANAL
ABRAHAM VAKKANAL (SR.)
VINEETHA SUSAN THOMAS
ANIRUDH INDUKALADHARAN
RESPONDENT/PETITIONER IN I.A.NO.2 OF 2023/PLAINTIFF IN
O.S.NO.93 OF 2023:
CHAPPAN ABOOBACKER SIDHIQUE
AGED 49 YEARS
S/O UMMER HAJI, 'BAITH AL FATHAH', KOLACHERY AMSOM,
PATTYAM DESOM, (P.O) KOLACHERY, TALIPARAMBA TALUK.
BY ADV R SURENDRAN
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION
ON 12.04.2024, THE COURT ON 12.04.2024 DELIVERED THE FOLLOWING:
2
F.A.O.No.38 of 2024
G.GIRISH, J.
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F.A.O.No.38 of 2024
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Dated this the 12th day of April, 2024
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JUDGMENT
The appellants are the defendants in O.S No.93 of 2023 of Sub
Court, Payyannur, a suit for specific performance of agreement for
sale.
2. In an application filed as I.A.No.2 of 2023 by the
respondent herein, who is the plaintiff in the aforesaid suit, the
learned Sub Judge passed an order on 16.12.2023 restraining the
appellants herein from transferring the suit property to any other
person till the disposal of the said suit. It is the above order which
is under challenge in this appeal.
3. The appellants would contend that, right from the very
beginning, the respondent/plaintiff was having lackadaisical attitude
towards fulfilling the obligation cast on him as per the terms of
agreement in respect of the sale of the suit property. It is alleged
that even the cheque issued by the respondent/plaintiff in respect of
the advance amount of Rs.50 lakhs, was dishonoured, and that the
above amount was later on paid by the respondent by way of four
instalments. It is further stated that the respondent/plaintiff
defaulted payment of the balance sale consideration of
Rs.4,18,05,500/-, and hence he is disentitled and disqualified to
seek enforcement of the agreement for sale executed in between
him and the appellants for the sale of the suit property. Thus, the
appellants claim to have rescinded the agreement with effect from
31.10.2022. After the elapse of about one year, the respondent/
plaintiff is said to have instituted the suit by stating false claims.
4. The respondent, on the other hand, would contend that
the non-payment of the balance sale consideration was not due to
any fault on his part, and that the appellants did not even apply for
obtaining the basic documents such as legal heir-ship certificate,
thandaper certificate, building ownership certificate, transfer of
registry from previous owners, land ceiling exemption order and
such other documents required for the execution and registration of
the sale deed. It was also alleged that the appellants were not even
prepared to share the originals of the title documents to ensure that
the property was not under any mortgage.
5. Before the trial court, though the appellants filed written
statement, the respondent/plaintiff insisted for hearing and early
disposal of I.A.No.2 of 2023 for the reason that the appellants herein
are making all preparations for the sale of the suit property to others
in order to defeat the right of the respondent. While the matter was
being considered by learned Sub Judge on 28.11.2023, the learned
counsel for the plaintiff submitted that he shall deposit the balance
sale consideration within three days if the defendants are ready to
execute the sale deed. In answer to the above submission the
learned counsel for the defendants is said to have made the
submission that the defendants are ready to execute the sale deed
if the plaintiff deposits the balance sale consideration. Accordingly,
the case was posted to 01.12.2023 for the deposit of balance sale
consideration. Thereafter the case was taken up by the learned Sub
Judge only on 04.12.2023 due to official exigencies. In the
meanwhile, the respondent/plaintiff filed I.A.No.4 of 2024 on
02.12.2023 seeking extension of time for the deposit of balance sale
consideration till the appellants/defendants filed an undertaking
expressing their willingness to execute the sale deed, or for
decreeing the suit for specific performance. The reason stated was
that the appellants/defendants have stoutly denied the entitlement
of the respondent/plaintiff to have specific performance of the
agreement, and that nowhere in the written statement had the
appellants/defendants expressed their willingness to execute the
sale deed. The appellants/defendants filed counter to the above
interlocutory application contending that the respondent plaintiff has
no legal right to require the appellants to express their willingness
to execute the sale deed or for decreeing the suit for specific
performance, and that the only intention of the plaintiff was to delay
the consideration of I.A.No.2 of 2023 for temporary injunction,
wherein the plaintiff had obtained an ad-hoc interim injunction
against the alienation of the property. It is thereafter that the
learned Sub Judge heard I.A.No.2 of 2023 and passed the impugned
order on 16.12.2023.
6. The point to be decided in this appeal is whether the order
passed by the learned Sub Judge on 16.12.2023 in I.A.No.2 of 2023
is liable to be interfered with.
7. Much has been argued by the learned counsel for the
appellants about the lackadaisical attitude and laxity on the part of
the respondent/plaintiff in honouring the terms of the agreement for
sale executed by him in favour of the appellants. It is pointed out by
the learned Senior Counsel that the respondent/plaintiff is making
all efforts to try whether the matter could be procrastinated so that
the appellants may not be able to dispose of their property to
potential buyers who are ready with funds to purchase the suit
property. According to the learned Senior Counsel, the impugned
order of the trial court has curtailed the valid right to property of the
appellants against whom the respondent had instituted the suit with
malicious objectives. The learned counsel for the respondent, on the
other hand, would contend that the inability of the appellants to
procure the relevant legal documents for the conveyance of absolute
title in favour of the respondent, was the real reason why the
proposed sale transaction could not be fulfilled. It is further pointed
out by the learned counsel for the respondent that the appellants
are eager to dispose of the property to strangers with the oblique
motive to have unjust enrichment out of the advance amount of
Rs.50 lakhs received from the respondent.
8. The merits of the rival contentions raised by the
appellants and the respondent in the above regard, are matters to
be adjudicated by the Trial Court in the pending suit. It is not
possible for this Court to adjudicate, at this stage, the question as
to whose fault has resulted in the road block towards the fulfilment
of the agreement between the appellants and the respondent. The
scope of interference in this appeal has to be confined to the legality
and correctness of the impugned order of the Trial Court.
9. A reading of the order under challenge would reveal that
the learned Sub Judge has correctly evaluated the three essential
elements of prima facie case, balance of convenience and irreparable
injury, on the basis of which interim injunction contemplated under
Order XXXIX Rule 1 of the Code of Civil Procedure has to be passed.
It has been observed by the Trial Court that the balance of
convenience is in favour of the respondent since he would be put to
irreparable injury and prejudice, if the appellants succeed in
alienating the suit property.
10. The learned counsel for the appellants would contend that
there is absolutely no justification for the above observation in the
impugned order since the Trial Court has not taken into account the
contumacious conduct of the respondent in not depositing the
balance sale consideration as assured before the Court, when the
case was taken up for consideration on 28.11.2023. According to
the learned counsel for the appellants, the Trial Court ought to have
taken serious note of the failure of the respondent to abide by the
submission made in the above regard in connection with the deposit
of balance sale consideration, and dismissed I.A.No.2 of 2023 as one
filed without any bona fides.
11. As already stated above, the reason for the non-deposit
of the balance sale consideration as undertaken by the respondent
before the Trial Court on 28.11.2023, is stated in I.A.No.4 of 2023
filed by him before the said court. The contention in the above
interlocutory application that the defendants (appellants) have
stoutly denied the entitlement of the plaintiff (respondent) to have
specific performance of contract, and that the defendants have not
expressed anywhere in the written statement about their willingness
to execute the sale deed, cannot be brushed aside as a mere lame
excuse to avoid payment of balance sale consideration. The fact that
the appellants are holding the advance sale consideration of Rs.50
lakhs paid by the respondent, and that they have not stated anything
about the repayment of the said amount while sticking on to their
right to have the suit property sold to strangers, would lend support
to the apprehension of the respondent about the transfer of the said
property to his detriment.
12. While concluding the arguments, the learned counsel for
the respondent submitted that if the appellants succeed in
transferring the suit property to strangers, the respondent would be
deprived of his right to proceed against the purchasers, who could
show that they were transferees for value, who paid the money in
good faith, without notice of the original contract between the
appellants and the respondent. It is further pointed out by the
learned counsel for the respondent that this Court could consider the
option of modifying the temporary injunction upon such terms,
making it clear that the restraint thereunder is limited to alienation
of the suit property without disclosing the pendency of this suit, and
the agreement between the appellants and the respondent, which is
the subject matter of the suit.
13. The suggestion made in the above regard by the learned
counsel for the respondent, appeals to reasoning and fairness. The
appellants, if they are very particular to alienate the suit property
pending the disposal of the suit, are having the responsibility to
disclose to the potential buyers about the pendency of the suit before
the Trial Court for the specific performance of the agreement for sale
in respect of the said property, in between the appellants and the
respondent. Such a revelation is required for the sake of fairness in
the sale transaction. Having regard to the submission of the learned
counsel for the respondent in the above regard, as well as the need
to ensure fairness in the transactions, during the pendency of a suit
for the enforcement of the contractual obligations of an agreement
for sale of the property, I am of the view that the temporary
injunction granted by the Trial Court is liable to be modified in such
a manner that there would be no prohibition for the transfer of the
suit property if there is disclosure of the pendency of the suit to the
potential buyers.
In the result, the order dated 16.12.2023 of the Sub Court,
Payyannur in I.A.No.2 of 2023 in O.S.No.93 of 2023, stands modified
as follows :
(i) The defendants (appellants herein) are
restrained by a temporary injunction till the
disposal of O.S.No.93 of 2023 from transferring
or encumbering the suit property without
disclosing to the potential buyers or creditors
about the pendency of the said suit.
(ii) It is made clear that any such alienation made by
the appellants would be subject to the outcome
of O.S.No.93 of 2023 of the Sub Court,
Payyannur.
Appeal disposed of as above.
Sd/-
G.GIRISH, JUDGE
ded/vgd
