Nitin Lalchandani vs Harimohan Gupta
2023 Latest Caselaw 9978 MP

                                                              1
                          IN      THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                     BEFORE
                                    HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
                                                  ON THE 3 rd OF JULY, 2023
                                               MISC. APPEAL No. 1438 of 2014

                         BETWEEN:-
                         1.     NITIN LALCHANDANI S/O SHRI CHANDAR
                                LALCHANDANI, AGED ABOUT 30 YEARS, 25/2,
                                HAPPY TOWER, IDAGAH HILLS, BHOPAL
                                (MADHYA PRADESH)

                         2.     SMT MAYA LALCHANDANI W/O SHRI CHANDER
                                LALCHANDANI, AGED ABOUT 55 YEARS, 25/2
                                HAPPY TOWER IDGAH HILLS BHOPAL (MADHYA
                                PRADESH)

                                                                                           .....APPELLANTS
                         (BY SHRI ASHOK LALWANI - ADVOCATE )

                         AND
                         1.     HARIMOHAN GUPTA S/O LATE SHRI GURUDEV
                                GUPTA, AGED ABOUT 57 YEARS, B-22, 74
                                BUNGALOW, NISHATPURA, BHOPAL (MADHYA
                                PRADESH)

                         2.     STATE OF MADHYA PRADESH     THROUGH
                                DISTRICT COLLECTOR, OLD SECRETARIATE,
                                BHOPAL (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                         (SHRI PUSHPENDRA YADAV - ADVOCATE FOR RESPONDENT NO.1 AND
                         SHRI ADITYA CHOUBEY - GOVERNMENT ADVOCATE FOR RESPONDENT
                         NO.2 / STATE )

                                This appeal coming on for admission this day, th e court passed the
                         following:
                                                               ORDER

With the consent of both the parties, the matter is heard finally. IA No.4042/2023 filed by the appellants for taking the documents on Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/5/2023 2:39:14 PM

record is allowed and the documents are taken on record.

2. The present miscellaneous appeal has been filed by the appellants / defendants no. 1 and 2 against the order dated 16.05.2014 passed in RCS No.1066-A/2012 by learned Sixth Additional District Judge, Bhopal. By the said order, an application under Order 39 Rule 1 and 2 of Civil Procedure Code filed by the respondent no.1 / plaintiff has been allowed.

3. The brief facts leading to the present appeal are that the respondent no.1 / plaintiff filed a suit for specific performance of an unregistered agreement dated 7.1.2008 and for permanent injunction in the year 2012 in respect of land situated in khasra no.78/1 ad-measuring 25 acres unmarked land out of 36 acres

in village Chandanpura, PH No.40, Tahsil Huzur, District Bhopal which was jointly owned and possessed by the appellants. At the time of agreement, the suit land was under litigation wherein a civil dispute in respect of the suit land was filed by a society viz, M/s. Betwa Grih Nirman Sahakari Samiti on the basis of an alleged photocopy sale agreement dated 16.08.1988 and civil proceedings were filed in different courts by the concerned society. At the time of execution of the agreement dated 7.1.2008 the litigation was pending before the Hon'ble High Court, Jabalpur. In para 3 of the aforesaid agreement it was specifically recorded and mentioned that despite pendency of litigation the plaintiff / respondent no.1 is ready and willing to purchase the 25 acres unmarked of land out of 36 acres of land and accordingly, in the agreement the terms and conditions were settled and mentioned in detail.

4. As per the agreement, the sale deed was required to be executed within a fixed period of two months from the date of judgment by the Hon'ble Apex court upon paying the sale price of the land at the cost of respondent no.1 and the concerned conditions also prescribed that in case the sale deed is not Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/5/2023 2:39:14 PM

executed within a period of two months, the contract will stand cancelled and in view of the fact that the Hon'ble Supreme Court passed order on 9.2.2009 the respondent was bound to get the sale deed executed on or before 9.4.2009 which apparently respondent no.1 failed and as a result, the agreement stood expired lapsed after 9.4.2009 and therefore, in the absence of enforceable contract the suit is not maintainable. It has been also averred that the appellants though were not under an obligation to return the sale advance but even then acting bona-fidely the appellants returned the advance amount to the respondents via Cheque of City Bank, Bhopal through registered post. The respondent no. 1 despite receipt whereof has not presented the cheque for encashment with oblique and ulterior motive.

5. During the pendency of the suit afterthought an application under Order 39 Rule 1 and 2 C.P.C. was filed alleging and contending therein that appellants have requested one of the property brokers to arrange for sale of the suit land. By way of this application, temporary injunction was sought to restrain the appellants from selling the suit property during the pendency of the suit. It is submitted that this application is not supported by an affidavit of respondent no. 1 but an affidavit of one Sanjeev Saxena was filed who claimed himself to be Project Director of Jagran Welfare Society of which respondent no. 1 is the chairman. And from a perusal of the application filed for temporary injunction it

is clear and apparent that afterthought a false excuse was designed to claim interim injunction. The application was replied categorically denying the averments made and it was specifically denied that the appellants had any meeting or talk with any Harish Patel who is claimed to be the property dealer. The status of Shri Harish Patel was also disputed and challenged the reply was

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supported by an affidavit.

6. Learned counsel for the appellants contended that the impugned order under appeal is contrary to law and facts on record and therefore, the learned court below has committed error in passing the impugned order. Before this Court the argument of learned counsel for the appellants is that since the agreement in issue contains arbitration clause the suit itself is not maintainable. Vide Indian Stamps (Madhya Pradesh Amendment) Act, 2002, Clause 5 (e) has been incorporated in the Schedule 1A of the Stamp Act, which reads as under :-

(e) If relating to sale of immovable property :-

(i) When possession of the property is delivered or is agreed to be delivered without executing the conveyance.

The same duty as a conveyance (no.20) on the market value of the property.

(ii) When possession of the property is not given. One percent of the total consideration of the property set forth in the agreement or memorandum of agreement.

The said amendment has come into force with effect from 12.08.2002.

It is pointed out that if by the agreement to purchase possession is delivered the stamp duty is required to be paid as payable as a conveyance and if the possession is not delivered then only one percent (1%) of the consideration property is required to be paid. It has been stated that the agreement-in-issue was impounded and the Collector of Stamps has noted on the said agreement that since no possession was delivered the stamps duty at the rate of one percent of the consideration was order to be paid and the plaintiff has paid the said one percent (1%) stamp duty. It is also argued that Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/5/2023 2:39:14 PM

since this order of the Collector of Stamps establishes that the possession of the land in issue was not delivered, the pleadings of paragraphs 2 of the plaint made on affidavit are false and the plaintiff is liable to be prosecuted for making false averments in the plaint. It is also argued that the map on which the plaint is relied upon to show that the agreed land of 25 acres was specified in the said map. The appellant has argued that since the agreement neither refers to the boundaries of the 25 acres of land sold nor it mentions map as its annexure nor the said map bears the signature of the appellant, it cannot be treated as a part of the agreement and the 25 acres of land cannot be treated to be specified and demarcated. The appellant on the basis of the above argument submits that since the land has not been specified the plaintiff ought to have claimed possession as a consequential relief. The plaintiff not having claimed possession the suit is liable to be dismissed in view of the proviso to Section 34 of the Specific Relief Act. Further, the suit is barred by limitation on the basis of pleadings made by the respondent no.1 itself. To buttress his contentions, learned counsel has relied upon Vindhya Telelinks Ltd v. State Bank of India, Rewa and others, reported in 1995 MPLJ 575. Hence, prayer is made to allow the appeal and set-aside the impugned order.

7. Learned counsel for the respondent no.1 has argued in support of the impugned order and contended that since the application of the appellant under order 7 Rule 11 CPC has been dismissed, the appellant cannot re-agitate the issue of maintainability of the suit to be considered as a prima facie case for grant of temporary injunction on the principle of res judicata. In support of his contentions, relying upon the case of Ashok Kumar Srivastav v. National Insurance Co. Ltd., AIR 1998 SC 2046 (para 14) has prayed that there is

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no substance and merit in this miscellaneous appeal. Hence, the same be dismissed.

8. I have learned counsel for both the rival parties at great length and perused the material available on record particularly the agreement-in-issue. On perusal of the agreement it is crystal clear that the agreement does not specify that any specific portion of land of Khasra no.78/1 had been agreed to be sold. Further, the said agreement does not specify that any map is annexed to the agreement. Moreover, though the agreement bears signatures of both the parties but the said map does not bear signature of the plaintiff. Therefore, it is clear that no specified portion of the land bearing Khasra no.78/1 had been agreed to be sold. Since no specific portion of the land had been agreed to be sold, even if the plaintiff succeeds in the suit, the defendants can only be ordered to execute sale deed of undivided 25 acres of land out of 36 acres of land of their ownership. The said decree if passed without only enable the plaintiff to prefer a suit for partition of the properties. The plaintiff vide paragraph no.2 of the

plaint has pleaded that he was put in possession of the 8 acres of land whose dimensions have also been mentioned. But neither from the agreement nor from the plaint pleadings it is evident that how and when the plaintiff was put in possession of the said 8 acres of land. Moreover, the order of the Collector of Stamps on the last page of the agreement specifies that agreement was executed without possession. Therefore, this court holds that by the agreement-in-issue the possession of no portion of 25 acres of land was delivered to the respondent no.1. Since no specific portion of the land was agreed to be sold and the plaintiff having not claimed the relief of partition in the present suit, the suit would be barred by Order 2 Rule 2 of the CPC and in the light of the judgment of State Bank of India (supra), the plaintiff would have no prima Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/5/2023 2:39:14 PM

facie case to seek relief of temporary injunction.

9. Considering and by conjoint reading of para 8 and 9 of the plaint and para 3 (a) of the agreement-in-issue, it is clearly evident that there existed an arbitration agreement between the parties and on account of their being arbitration clause the present suit was otherwise not tenable. Further, Respondent no.1 has been unable to aver or even claim as to what steps he had taken for the arrangement of payment of remaining balance stamp duty etc. for facilitating the execution of sale deed in his favour. The plaint is completely silent about it and therefore, it is apparent that the respondent no.1 has failed to even plead properly and as per law that he was ready and willing with sufficient funds in his personal bank accounts and provision for the execution of sale deed. In the absence of these vital averments and facts, the learned court below has committed manifest error of law in inferring prima facie case in favour of respondent no.1. The learned court below has failed to see and appreciate that respondent no.1 has utterly failed to prove balance of convenience in his favour.

10. Learned Court below has failed to appreciate that the grant of temporary injunction in a suit filed after extra-ordinary delay on the basis of agreement is totally illegal uncalled for and amounts to abuse of process of law. At this juncture, it is crucial to point out that respondent no.1 even after lapse of more than 11 years in court below has not completed his trial / evidence which was instructed to be completed within 90 days as per the impugned order dated 16.05.2014 passed by learned Court below. On the contrary, respondent no.1 at a highly belated stage has once again filed an application for amendment in suit which points towards the conduct of the respondent no.1 in vexatiously

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dragging the litigation and injunction granted in favour of the respondent no.1.

11. The contention of the counsel for the respondent No.1 that the principle of res judicata would apply as the application under order 7 rule 11 CPC has been dismissed and the order passed on that became final because it was unchallenged. While going through the record the contention of the counsel is based on fallacious premise, the application under Order 7 rule 11 CPC was filed pleading therein that the adequate court fee has not been paid and there is delay in filing the suit. The court below has answered these two grounds raised. It is settled law that any suit is barred by limitation or not is not a pure question of law it is a mixed question of law and facts which has to be decided after parties lead their evidence. The principle of res judicata do not attract in the facts of the present case as the order passed by the court below is on different context whereas the present appeal is against the order of grant of injunction. The judgment cited by learned counsel for the respondent no.1 does not help him in the peculiar facts and circumstances of the present case.

12. It is settled principle of law that fraud vitiates everything. From the plaint pleadings and the agreement it is crystal clear that the plaintiff was never put in possession and he has made false pleadings which has persuaded the trial Court to pass impugned order in favour of the plaintiff. As per para 52 (f) of the judgment reported as Ramrameshwari Devi v. Nirmala Devi & Ors. (2011) 8 SCC 249 the plaintiff is liable to be suitably prosecuted.

13. Apart from above, since the civil suit has been pending more than 11 years and despite the express direction in the impugned order the respondent no. 1 has avoided taking the stand to lead and complete evidence within specific time and appears to be dragging the civil suit endlessly by filing application for amendment at highly belated stages, such conduct speaks volumes the conduct Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/5/2023 2:39:14 PM

of respondent no.1. Therefore, respondent no.1 has no prima facie case, and thus, the balance of convenience would also not lie in his favour.

14. In view of foregoing facts and circumstances of the case, the present appeal is allowed and the impugned order dated 16.05.2014 passed by learned court below is set-aside. Accordingly, IA No.8752/2014 & IA No.9370/2023 stands disposed off.

15. A copy of this order be sent to the trial court for information and its compliance.

(ARUN KUMAR SHARMA) JUDGE JP

Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/5/2023 2:39:14 PM