Batchu Anjan Kumar vs Smt. Lingamolla Manjula And 2 ...
2022 Latest Caselaw 6285 Tel

Citation : 2022 Latest Caselaw 6285 Tel
Judgement Date : 1 December, 2022

Telangana High Court

Batchu Anjan Kumar vs Smt. Lingamolla Manjula And 2 ... on 1 December, 2022

Bench: Shameem Akther, Nagesh Bheemapaka

            THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
                                   AND
          THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

          Civil Miscellaneous Appeal Nos.444 & 451 of 2022

COMMON JUDGMENT: (Per Hon'ble Dr.Justice Shameem Akther)

      Since both these appeals arise out of a common order and

since parties to the litigation are one and the same, both these

appeals are taken up together and are being disposed of by way of

this common judgment.


2.    Both these appeals, under Order XLI Rule 1 of CPC, are filed

by the appellant/defendant No.3, challenging the common order,

dated 05.09.2022, passed in I.A.Nos.35 and 36 of 2022 in O.S.No.98

of 2022 by the II Additional District Judge, Sangareddy, whereby, the

subject    I.A.Nos.35   and   36   of 2022   filed   by    the   respondent

No.1/plaintiff under Order XXXIX Rule 1 and 2 of CPC for grant of

temporary injunction restraining the appellant/defendant No.3 from

alienating, mortgaging or creating any type of charge and raising

further constructions over the petition schedule property, pending

disposal of the suit, was allowed.

3. We have heard the submissions of Sri P.Achut Rama Shastry,

learned counsel for the appellant/defendant No.3, Sri P.Padma Rao,

learned counsel for the respondent No.1/plaintiff and perused the

record.

                                    2                  Dr.SA,J & NBK,J
                                                    CMA Nos.444 & 451/2022

4. For convenience of discussion, the parties are hereinafter

referred to, as per their array in the subject O.S.No.98 of 2022.

5. The plaintiff filed the subject suit for specific performance of

contract and cancellation of agreement of sale against the defendant

Nos.1 and 2 before the Court below contending that the defendant

Nos.1 and 2 are the absolute owners of the suit schedule property.

They entered into an agreement of sale with the plaintiff on

07.07.2021 for sale of suit schedule property and the plaintiff paid an

advance of Rs.10 lakhs. Subsequently, the plaintiff came to know

that the defendant Nos.1 and 2 mortgaged the suit schedule property

in favour of CAN FIN HOMES LIMITED, Sangareddy. Thus, though

there is a stipulation in the agreement of sale that the balance sale

consideration should be paid in 60 days, in view of mortgaging the

suit schedule property, defendant Nos.1 and 2 did not execute any

sale deed in favour of the plaintiff, though the plaintiff was ready and

willing to perform her part of contract. While so, the plaintiff came to

know that the defendant Nos.1 and 2 sold the property in favour of

the defendant No.3 vide document No.10419 of 2021, dated

22.12.2021, during the subsistence of the agreement of sale in

between the plaintiff and the defendant Nos.1 and 2. Hence the suit.

                                     3               Dr.SA,J & NBK,J
                                                  CMA Nos.444 & 451/2022

6. Learned counsel for the appellant/defendant No.3 would

contend that since the plaintiff failed to pay the balance sale

consideration within 60 days to defendant Nos.1 and 2, as stipulated

in the agreement of sale, dated 07.07.2021, the defendant Nos.1 and

2 executed sale deed, dated 22.12.2021 in favour of defendant No.3,

having received the entire sale consideration. Thus, by virtue of sale

deed, dated 22.12.2021, the defendant No.3 had become absolute

owner and possessor of the suit schedule property and the rights of

defendant Nos.1 and 2 over the suit schedule property have

extinguished. Without there being any prima facie case and balance

of convenience in favour of the plaintiff, the Court below granted

temporary injunction in her favour, which is illegal, and ultimately

prayed to set aside the common order under challenge and allow

both the appeals as prayed for.

7. On the other hand, learned counsel for the respondent

No.1/plaintiff contended that time was not the essence of the

contract. In spite of subsistence of agreement of sale dated

07.07.2021, defendant Nos.1 and 2 alienated the suit schedule

property in favour of defendant No.3 by way of a registered sale

deed, dated 22.12.2021, which is illegal. The sale deed, dated

22.12.2021, does not confer lawful title and possession of defendant

No.3 over the suit schedule property. The suit schedule property 4 Dr.SA,J & NBK,J CMA Nos.444 & 451/2022

needs to be protected till the disposal of the suit. Hence, the Court

below is justified in granting temporary injunction in favour of the

plaintiff. There is nothing to interfere with the impugned common

order and ultimately prayed to dismiss both the appeals.

8. In view of the above rival contentions, the point that arises for

determination in both these appeals is as follows:

"Whether the impugned common order, dated 05.09.2022, passed in I.A.Nos.35 and 36 of 2022 in O.S.No.98 of 2022 by the II Additional District Judge, Sangareddy, is liable to be set aside?"

POINT:-

9. Ex.P1 is the agreement of sale, dated 07.07.2021, in between

the plaintiff and defendant Nos.1 and 2. As per the said agreement

of sale, the time stipulated for payment of balance sale consideration

is 60 days. Certain questions are raised with regard to the

performance of contract by the vendors of Ex.P1 agreement of sale,

dated 07.07.2021, to get a regular sale deed executed in favour of

the plaintiff, pursuant to the agreement of sale. Whether time is the

essence of contract or not needs to be determined by the Court

below when the suit is determined after conclusion of trial. There is

no denial with regard to the title of defendant Nos.1 and 2 over the

suit schedule property. In view of subsistence of agreement of sale,