Madhya Pradesh High Court
Milind Wadge vs Ali Asgar Khamoshi on 7 August, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 7th OF AUGUST, 2024
MISC. APPEAL No. 4143 of 2024
(MILIND WADGE S/O SHRI SURESH
Vs
ALI ASGAR KHAMOSHI S/O JUBEER BHAI KHAMOSHI)
Appearance:
(SHRI ROHIT MANGAL - ADVOCATE FOR THE APPELLANT)
(SHRI Z.A. BAKHATGARHWALA - ADVOCATE FOR THE RESPONDENT)
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ORDER
With the consent of both the parties, matter is heard finally.
1. Appellant/defendant has preferred this miscellaneous appeal
under order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (in short
"CPC") being aggrieved by the impugned order dated 29.4.2024 passed
by the 3rd District Judge, Indore in Civil Suit No.323-A/2024, whereby
the application preferred under Order 39 Rule 1 & 2 of CPC has been
allowed and the appellant/defendant is restrained from alienating the
suit property during the pendency of the civil suit.
2. Brief facts of the case are that the appellant is the owner of the
suit property situated at plot No.5, area 1879 sq.ft. Shivsagar, village
Hukumkhedi, District Indore. On 12.12.2023 an agreement to sale with
regard to the suit property was executed in favour of the respondent and
sale consideration was fixed to a sum of Rs.2,39,00,000/- and Rs.5
Lakh has been paid as an advance. Within a period of one month
remaining amount was not paid and the respondent sent proforma of
sale deed. Appellant sent a Whatsapp message and terminated the
contract. On 2.2.2024 respondent has issued a legal notice to the
appellant. Appellant has submitted its reply. Thereafter the respondent
filed civil suit for specific performance of the contract and alternatively
seeking relief for recovery of double amount of advance money along
with interest. Along with the plaint, respondent also filed an application
under Order 39 Rule 1 & 2 of CPC and after hearing both the parties,
trial Court vide order dated 29.4.2024 allowed the application for
temporary injunction. Being aggrieved by the same, appellant has
preferred this miscellaneous appeal.
3. Learned counsel for the appellant contended that the impugned
order passed by the trial court is against the law and facts. There was no
prima facie case, balance of convenience and irreparable loss in favour
of the respondent. As per Clause 6 of the contract, the contract is
determinable in nature, therefore, a decree for specific performance
cannot be granted. Hence, as per the provisions of Section 14(1)(d) of
Specific Relief Act, decree of specific performance cannot be granted
of a contract, which is determinable in nature and as per Section 41(e)
of the Specific Relief Act, no such temporary injunction can be granted,
but the trial court has ignored all these mandatory provisions and issued
temporary injunction in favour of the respondent. The document-
agreement to sale is an unregistered and unstamped document. Hence,
the trial court cannot act upon such agreement. As per the provisions of
Section 17(1)(f) of the Indian Registration Act, 1908 no temporary
injunction can be granted. Trial court has committed serious error of
law. Respondent/plaintiff has failed to prove that there was availability
of fund and respondent was ready and willing to perform his part of the
contract. Hence, the impugned order is bad in law and deserves to be set
aside.
4. Per contra, learned counsel for the respondent opposes the prayer
and prays for its rejection by supporting the impugned order passed by
the trial Court.
5. Counsel for both the parties heard at length and perused the
record.
6. From perusal of the plaint and all other documents filed by the
parties, it appears that undoubtedly the appellant/defendant Milind
Wadge is the owner of the suit property bearing Plot No.5, area 1879
sq.ft. Shivsagar, village Hukumkhedi and the appellant is still in
possession of the suit property.
7. Counsel for appellants contended that the document, agreement to
sale, is an unregistered and un-stamped document and respondents are
trying to establish their right on the basis of agreement dated
12.12.2023. Thus it is required to be seen whether on the basis of said
agreement, the prayer for issuing injunction can be considered or not?
putting it to be differently whether the appellant can rely on an
unstamped and not properly stamped document, even for the purpose of
seeking injunction.
8. In case of Devi Prasad S/o Harishchand Vs. Babulal Vs.
Bhikaram Shivhare reported in 1991 MPLJ 480 this court has held as
under:-
"5. It is true that the Civil Court does have power to issue a
temporary injunction restraining an attempted alienation of
the suit property by either party. Merely because Section 52
of the Transfer of Property Act protects the interest of the
complaining party by providing that an alienation lis
pendens shall be subject to the result of the suit, but, that
does not mean that the Civil Court does not have power to
issue an injunction. A contention to the contrary, if
accepted, would have the effect of rendering part of the
provisions contained in Clause (a) of Rule 1 of Order 39,
Civil Procedure Code otiose. The power is there but,
needless to say, that it is not to be exercised necessarily
merely because it has been asked to be exercised."
9. Counsel for respondent has placed reliance upon judgment of the
Hon'ble Apex court dated 12.4.2010 in case of S. Kaladevi Vs. VR
Somasundaram in civil appeal No. 3192/2010 wherein it has been
held that "provision of Section 49 of Registration Act is an exception to
General Rule and it permits that if unregistered document can be looked
into evidence in a suit for specific performance of contract".
10. In case of K. B. Jayaram & Another Vs. Navineethamma &
Ors. Reported in AIR 2003 Karnataka 241, it has been held that "no
instrument chargeable with duty shall be admitted in evidence "for any
purpose" by any person or even by consent of parties. In the aforesaid
judgment it is also held that Court below should first insist upon
payment of stamp duty on the agreement to sale before it. Thereafter,
only prayer for injunction could have been considered."
11. In the case of Narbada Prasad Agrawal Vs. Tarun Bhawasar
reported in 2009 (1) MPLJ 176 the co-ordinate Bench of this Court
opined that unless a duty is paid on an agreement it shall not be admitted
in evidence for any purpose including collateral purpose.
12. Hon'ble the apex Court in the case of Avinash Kumar Chauhan
Vs. Vijay Krishna Mishra reported in (2009) 2 SCC 532 has opined as
under:-
"25. Section 35 of the Act, however, rules out applicability
of such provision as it is categorically provided therein that
a document of this nature shall not be admitted for any
purpose whatsoever. If all purposes for which the document
is sought to be brought in evidence are excluded, we fail to
see any reason as to how the document would be admissible
for collateral purposes."
13. In the light of the law laid down by the Hon'ble Apex court and
High courts, it is clear that very basis for establishing the right for
example agreement to sale cannot be considered unless it is duly
stamped. It is also noteworthy that agreement to sale between both the
parties for the suit property which is cost of huge amount of
Rs.2,39,00,000/-, the respondent/plaintiff had allegedly paid only Rs.
5,00,000/. Admittedly the possession of suit property was never
delivered to respondent and in the entire agreement, there is no recital
regarding delivery of possession.
14. From perusal of the aforesaid agreement to sale, it appears that it
has been agreed between both the parties that rest of the amount
Rs.2,34,00,000/- shall be paid within one month from 12.12.2023 and
till 12.1.2024 after payment of the complete consideration amount seller
shall execute registered sale deed in favour of the purchaser, but after
payment of Rs.5 Lakhs as an advance respondent did not pay rest of the
amount till 12.1.2024. Respondent did not send any notice to the
appellant for his readiness and willingness to perform his part of the
contract by paying rest of the amount. It is noteworthy that the
agreement to sale between both the parties for the sale of suit property
which is cost of huge amount of Rs.2,39,00,000/-, the respondent has
paid only Rs.5 Lakhs to the owner of the property which is less than 2%
cost of the suit property. These facts are sufficient too show that
respondent is not ready to perform his act in the contract and created
complexity in the matter.
15. It is noteworthy that in the aforesaid agreement to sale in Para-6
there is a specific clause that if the purchaser fails to pay the remaining
amount in due time, then seller have right to cancel the agreement
between them and if the seller denied to accept the consideration
amount, then the purchaser shall have right to file a civil suit for
specific performance of the contract before the competent court and
also entitled to get compensation of double amount of the advance
money from the purchaser. Therefore, there is a specific recital in the
agreement regarding the payment of compensation in case of failure of
the contract of any of the party and there is a specific remedy for
compensation in lieu of failure.
16. Bombay High court in case of Kheoni Ventures Pvt Ltd. Vs.
Rozeus Airport Retail Ltd 2024 SCC Online Bom 773 in para 33 it
has been held that:-
33. In order to infer whether a contract is
determinable or otherwise, it is to be ascertained
whether the parties have a right to terminate it on their
own, without stipulation of any contingency and
without assigning any reason. An inherently
determinable contract would permit either party to
terminate it without assigning any reason and merely
by indicating that the contract shall come to an end,
either by giving a notice for specified period, if
stipulated or even without such a notice."
17. High court of Delhi in case of Ghh Bumi Mining Services Pvt
Ltd. Vs. Hindustan Zinc Ltd reported in 2023 SCC Online Del 3753
has held as under:-
"24. The contract, manifestly, seems determinable in
nature and once three breach notices were sent pointing out
the deficiencies and lapses and if the service provider took
those in a nonchalant manner and does not bother to rectify
the issues pointed out despite opportunity, there was no
choice left but to terminate the contract. These were not
casual communications albeit it is different story that these
were taken casually by the petitioner."
18. In the present case as per the terms and conditions of the
agreement to sale, remedy for compensation amount is available to both
the parties and it is also agreed that in case of failure of the payment of
the remaining amount in due time, the agreement should be cancelled.
Therefore, If the contract can be determined then in view of section 14,
the contract cannot be specifically enforced and if the contract cannot
be specifically enforced then under Section 41 an injunction cannot be
granted. It is also noteworthy that State Amendment made by State of
Madhya Pradesh in the Order 39 Rule 2 of CPC specifically provides
that no such injunction shall be granted, whether no perpetual
injunction could be granted in view of the provisions of Section 38 and
Section 41 of Specific Relief Act.
19. The Hon'ble Apex court in case of Ambalal Sarabhai
Enterprises Ltd Vs. K.S. Infraspace LLP Ltd (2020) 5 SCC 410 has
held that grant of relief in a suit for specific performance itself is a
discretionary remedy and a plaintiff seeking temporary injunction will
therefore, have to establish a strong prima facie case on the basis of
undisputed facts. Therefore, on the sole ground of protection of Section
52 of Transfer of Property Act, the respondents/plaintiffs are not
entitled for temporary injunction without establishing their prima facie
case.
20. The court while granting or refusing injunction, should exercise
sound jurisdictional discretion. The court should consider that if
injunction is refused and compare it that it will likely to cost to the other
side if the injunction is granted. Therefore, in the light of the aforesaid
discussion, this Court is of the considered opinion that the trial Court
has committed patent illegality while allowing the injunction
application filed by the respondent because the agreement to sale is not
duly stamped and trial court has ignored the pleadings of the parties,
terms and conditions of the agreement and without appreciating the
provisions controlling grant or refusal of the injunction, the trial court
has erred in granting temporary injunction in favour of the respondent.
21. Accordingly this Misc. Appeal is allowed and the impugned order
dated 29.4.2024 passed by the trial court is hereby set aside. It is made
clear that the observations made by this court in this order are only for
disposal of this appeal and the trial court shall be obliged to decide the
suit in accordance with law on the basis of evidence and legal position.
There shall be no order as to costs.
(ANIL VERMA)
JUDGE
Trilok/-
TRILOK SINGH SAVNER
2024.08.09 11:09:17 +05'30'
