[Cites 7, Cited by 0]
Madhya Pradesh High Court
Amirulla vs Shekhar on 3 December, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:35425
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI
ON THE 3 rd OF DECEMBER, 2025
MISC. APPEAL No. 9055 of 2025
AMIRULLA AND OTHERS
Versus
SHEKHAR
Appearance:
Shri Ajay Kumar Kanthed - Advocate for the appellants.
Shri V.K.Jain, learned Senior Advocate with Shri Rishi Agrawal -
Advocate for the respondent.
ORDER
The present appeal has been filed under Order 43 Rule 1(r) of the
Code of Civil Procedure being aggrieved by the order dated 16.10.2025
passed by the First District Judge, Ratlam in Civil Suit No. 246-A/2024
whereby the application filed by the respondent/plaintiff under Order 39
Rule 1 and 2 was allowed and the appellants/defendants were restrained from
alienating the 25000 sq.ft. of land out of the total 2.700 hectare of Survey
No. 46/1/1/2 and 46/1/2/3 situated at Tehsil and District Ratlam.
2. The facts relevant for the case, as per the plaint averment, are that
the appellant/defendant No.1 is the owner and title holder of the land situated
at Survey No. 46/1/1/2 admeasuring 2.295 hec. and Survey No.46/1/2/3
admeasuring 0.405 hec. total 2.700 hec. He posed before the plaintiff that the
defendant No.1 has executed an agreement for development of a colony
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named Gold Spring Colony under a joint venture out of which developed
plots to the extent of 74% are of the share of defendant No.1. It was also
informed to the respondent/plaintiff that as they are in need of money related
to the project, they agreed to execute an agreement to sell 25000 sq.ft.of
developed land out of the 74% share of defendant No.1 at the rate of Rs.
4,252/- per sq. ft. as such constituting a total sale consideration of Rs
10,63,00,000/- The respondent/plaintiff and appellants/defendants No. 1 & 2
accordingly executed an agreement on 06.10.2022. This was an agreement
to sell the aforesaid 25000 sq.ft.of land. It was also averred in the plaint that
in furtherance of the aforesaid agreement, a total amount of Rs. 1 Crore was
paid by the respondent/plaintiff to the appellants/defendants as detailed in
para 3 of the plaint.
3. It was further stated in the plaint that initially the
appellants/defendants No. 1 and 2 assured the respondent/plaintiff that the
development work of the colony is being done with promptitude and
necessary permissions are being sought from the concerned department. It
was also assured that by January 2023 all permissions shall be obtained after
which the respondent/plaintiff will be required to pay rest of the sale
consideration. The respondent/plaintiff then averred in para 7 of the plaint
that subsequent to this agreement there was improvement in the vicinity
where the suit land was situated as there was a medical college which started
functioning and the residential areas increased because of inhabitants coming
there which prompted the appellants/defendants to turn away from
agreement as the price of the land had increased.
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4. It was also averred in the plaint that when the efforts to resolve the
dispute by agreement failed, notice through counsel was served upon the
appellants/defendants on 26.06.2024 but it yield no results and when the
respondent/plaintiff came to know that the appellants/defendants are trying
to alienate the suit property in plots to different persons, the instant civil suit
came to be filed. Along with the plaint, an application under Order 39 Rule
1 and 2 was also filed.
5. The appellants/defendants filed their reply to the application under
Order 39 Rule 1 and 2 thereby denying the averments of not only the
application but also of the plaint. The fact that there was an agreement to
sale was denied by stating that infact, an amount of Rs. 1 Crore was taken on
loan for the works related to development of Gold Spring Colony and there
was no such agreement for selling 25000 sq.ft. of developed land to the
respondent/plaintiff. It was also stated that out of the paid amount of Rs. 1
Crore, an amount of Rs. 59 lakhs have already been returned and the
appellants/defendants are willing to refund the remaining amount of Rs. 41
lakhs. The appellants/defendants also stated in their reply that in fact at the
time of advancing the loan of Rs. 1 Crore, the respondent/plaintiff had taken
signature on blank stamp paper and blank paper which were misused by him
for preparing the agreement to sale. It is also stated in the reply that in fact
the agreement to sale has no clear description of the land. As such, it is a
vague agreement and in view of the provisions of Section 29 of the Indian
Contract Act, the same is not enforceable. Therefore, the application
deserves to be dismissed.
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6. The learned trial Court after considering rival submissions,
recorded its findings from para 11 to 19 and consequently granted temporary
injunction in as much the appellants/defendants were restrained from
alienating the 25000 sq.ft. of developed land out of the land of
appellant/defendant No. 1 situated in Survey No. 46/1/1/2 and 46/1/2/3. The
appellants/defendants being aggrieved by this order of the trial Court has
filed the present appeal.
7. Learned counsel for the appellants has laid great emphasis on the
fact that the agreement provides that it is being executed between appellant
No.1/Amirullah and respondent/Shekhar in which Gold Spring was shown to
be a developer. He thus submits that essentially the agreement was between
two persons and not with the Gold Spring/appellant No.2. He further
submits that in the agreement, it has vaguely been mentioned that 25000
sq.ft. developed plots are being agreed to be sold to the respondent/plaintiff
at the rate of Rs. 4252/- per sq.ft. He submits that a bare perusal of the
agreement would show that there are no boundary description of the land.
He thus submits that it is a completely vague agreement and thus, impossible
to be enforced and consequently Section 29 of the Indian Contract Act comes
into play. As such there is no case at all let alone prima facie, but this aspect
has completely been ignored by the learned trial Court while passing the
impugned order. He further submits that the trial Court in the impugned
order has referred to some settlement, but no such settlement is on record and
there is no agreement on record between defendants No. 1 and 2 for bringing
land of defendant No.1 within the purview of agreement which was
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executed between the plaintiff and defendant No.2. Thus, there is no privity
of contract between plaintiff and defendant No.1/Amirullah. He thus
submits that the appellant/defendant No.1 could not have been involved in
the dispute as he is not party to the agreement. He also submits that infact
there is no irreparable loss to the respondent/plaintiff in view of the fact that
out of the total amount of Rs. 1 Crore which was paid by the
respondent/plaintiff, an amount of Rs. 59 lakhs have already been returned
and the remaining amount of Rs. 41 lakhs, the appellants/defendants are
willing to return. As such, no case of irreparable loss and balance of
convenience is made out. On the contrary, if the sale of plots is restrained,
then the appellants/defendants shall suffer irreparable loss. He thus prays for
setting aside the impugned order.
8 . Per contra, learned Senior Counsel appearing for the
respondent/plaintiff submits that the submissions of learned counsel for the
appellants/defendants suffers from a wrong assumption that
appellant/defendant No.1 is not party to the agreement which would be
negated by a perusal of the agreement itself in which appellant
No.1/Amirullah has been shown as one of the party. He further points out
that the provisions of Section 29 of the Contract Act are not attracted in the
present case for the simple reason that in fact the agreement has been
executed between the parties at the stage of initiation of development of the
colony. As such, after plotting of the land in terms of sanctioned map by the
concerned authority, the developed plots will be handed over to
respondent/plaintiff in accordance with the agreement which stage has not
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come yet. He also submits that the appellants have concealed the fact that
there is a registered development agreement which they have not deliberately
brought on record. He alleges that the appellants have not filed the complete
documents before this Court. He also points out that a huge amount of Rs. 1
Crore is alleged to be given on loan, however, appellants have not been able
to show any document which would demonstrate that this was a loan
transaction and not sale consideration for purchase of developed plots. He
thus supports the impugned order and prays for dismissal of the appeal.
9. Learned counsel for the appellant, replying to the contentions of
the learned Senior Counsel for the respondent, reiterates his submissions and
places reliance on the judgment of the Hon'ble Apex Court in the case
ofAmbalal Sarabhai Enterprises Ltd. vs K.S. Infraspace LLP (2020) 5 SCC
410; Surendra Singh Bhatia & Ors. vs. Saligram & Ors., (2025) 1 ILR (MP)
603 (High Court of MP); Ram Lal vs. Om Prakash & Anr., (2021) 2 HimLR
943 (High Court of Himachal Pradesh) and; M/s Nina Garments (Pvt.) Ltd.
vs. M/s Unitech Ltd., (2013) 4 AD(Delhi) 772 (Delhi High Court).
10. Learned Senior Counsel for the respondent, on the other hand
referred to an interim order passed by this Court on 24.11.2025 in M.A.No.
9339/2025 and submits that in fact, the same person has a dispute with the
developer Gold Spring Developers also for which a civil suit is pending.
Heard learned counsel for the parties. Perused the record.
11. The main thrust of argument of the counsel for the appellant is
that (i) there is no privity of contract between the land owner/defendant No.1
and plaintiff, (ii) there is no ascertainment of land for which agreement to
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sale was executed, thus the agreement is not enforceable.
12. A perusal of the agreement dated 06.10.2022 would show that
the appellant/defendant No.1 is very much present in the same as Part I, Gold
Spring through its Director is mentioned as developer and
respondent/plaintiff is mentioned as Part II. In the first recital of the
agreement, description of the land of ownership of defendant No.1 is given
and it is also specified that after development of the land, 74% of the same
would come in the share of defendant No.1. The agreement went on to settle
the terms of the sale i.e. rate, stages of payment, etc. It is not the case of the
appellants that their signatures are forged on the agreement however, they
impliedly admit the same by stating that the signatures were obtained on
blank paper and blank stamp paper by the respondent/plaintiff on which the
agreement has been written. As such the signatures on the agreement are
admitted. Now there remains the issue that whether this agreement was
executed for advancing loan or for purchase of 25000 sq.ft. of developed
plots. In the considered view of this Court, this difficult question of fact
cannot be decided at the stage of deciding application under Order 39 Rule 1
& 2.
13. This Court, in the the case of Shankarlal Rathore vs. State of
M.P., 1978 JLJ 51 has held that at the stage of deciding an application under
Order 39 Rule 1 & 2, difficult question of facts or law are not required to be
decided which will be decided after recording evidence at the time of final
hearing of the matter. The Court for considering whether there exists
a prima facie case has emphasized on exploring whether there is an existence
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of a triable issue or not? If there is a triable issue which requires
investigation and decision after recording evidence bona fide , then there
exists prima facie case.
14. The Hon'ble Apex Court recently in the case of Ramakant
Ambalal Choksi vs. Harish Ambalal Choksi, (2024) 11 SCC 351 has held
that a prima facie case is not to be confused with prima facie title which has
to be established at the time of trial but it is a substantial question raised bona
fide which needs investigation and a decision on merit. In the present case,
even the story of the appellants/defendants would show that they admit that
the respondent/plaintiff got signatures on a blank document thus, signatures
are admitted. Now the issue whether those were obtained on a blank
document or a properly written agreement is to be decided after recording of
evidence. As such, in the considered opinion of this Court, there exists
prima facie case. As regards balance of convenience, in the same case the
Hon'ble Apex Court also considered that in a case like suit for specific
performance of agreement to sale, creation of third party rights may defeat
the equitable relief which the plaintiff is requesting for. As such, creation of
third party right may prejudice the case of the plaintiff. Hence, the existence
of irreparable loss and balance of convenience is also existing in favour of
respondent/plaintiff.
15. As regards the question of enforceability of agreement, the
reliance as placed by the learned counsel for the appellants on the judgment
of this Court in case of Surendra Singh Bhatia (supra) , it has to be kept in
mind that it was a decision rendered in an appeal filed under Section 96 of
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the Code of Civil Procedure. As such, in that case the findings regarding
enforceability of agreement were recorded after the evidence was led by the
contesting party and not at the stage of application under Order 39 Rule 1
and 2. Similarly, in the case of Ram Lal (supra) , the Court found that the
recital in the agreement was that there is a kutcha house in an area of around
5 biswa at Kangar, Tehsil Haroli, District Una without any description of the
property like revenue papers, khasra number, etc. However, in the present
case, specific description of the property is provided along with khasra
number, exact area and the town in which the land is situated. As such, both
of the above cases are distinguishable from the facts of the present case.
16. As regards the case of M/s Nina Garments (supra) , in the said
case also the issue was that whether there was a valid or concluded contract
or not. In the present case, the signatures have already been admitted.
However, it has been stated that they were put on a blank document which is
a question that has to be decided after recording of evidence. Thus, that case
is also distinguishable on facts.
17. As regards the judgment of the Hon'ble Apex Court in the case
of K.S. Infraspace (supra) , in the said case also the Court was considering the
fact that there was no evidence that the acceptance was communicated to the
defendant No.1 therein before the latter entered into an agreement for sale
with defendant No.2 therein. As such the conclusion of a valid contract was
itself in doubts. The Apex Court in para 21 stated that it is doubtful whether
there existed a concluded contract or not. As such, the facts of that case are
distinguishable from the present case. Also keeping in mind that the
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appellants/defendants are facing litigation of similar nature in M.A.No. 9339
of 2025, this Court is not inclined to entertain this appeal.
18. In view of the above analysis, this Court does not find any
infirmity in the conclusions drawn by the trial Court that there is a prima
facie case. Consequently, the admission is declined. Appeal fails and is
hereby dismissed.
19. The findings as recorded by this Court in this order are only for
the purpose of deciding the present controversy which are prima facie in
nature and it shall have no impact on the merits of the case.
(PAVAN KUMAR DWIVEDI)
JUDGE
vidya
