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Petitioner v/s Respondent

    C.M.A. No. 120 of 2022

    Decided On, 13 September 2022

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MRS. JUSTICE KONGARA VIJAYA LAKSHMI & THE HONOURABLE MR. JUSTICE DUPPALA VENKATA RAMANA

    For the Petitioner: ------- For the Respondent: -------



Judgment Text

Kongara Vijaya Lakshmi, J.

This CMA is filed, under Order XLIII Rule 1 of CPC, challenging the order and decree dated 18.02.2022 passed in IA No.517 of 2020 in OS No.119 of 2020 on the file of I Additional District Judge, Guntur, wherein temporary injunction was granted restraining the appellant herein from alienating the petition schedule properties till the disposal of the suit.

The appellant herein is the respondent in IA No.517 of 2020 and defendant in OS No.119 of 2020. The respondent herein is the petitioner in the said IA and plaintiff in the said suit.

The parties are hereinafter referred to as they were arrayed in the suit for the sake of convenience.

The plaintiff filed the above suit ‘for specific performance of contract of sale’ dated 08.12.2018 and to direct the defendant to execute a registered sale deed in respect of the plaint schedule property or in the alternative to refund Rs.91,00,000/- with interest at 24% p.a., from the date of suit till the date of realization.

The case of the plaintiff as seen from the plaint is that the defendant sold the plaint schedule property under a contract of sale dated 08.12.2018 for a consideration of Rs.1.00 Crore and the plaintiff paid an amount of Rs.67,00,000/- to the defendant towards promissory notes debts due to the plaintiff by the defendant and the promissory notes were cancelled. The plaintiff also paid an amount of Rs.15,00,000/- towards the said sale. It was further averred that the plaintiff has to pay the balance amount of Rs.18,00,000/- within 11 months and it is also stated that he paid further amounts on subsequent dates and in all he paid an amount of Rs.91,00,000/- to the defendant towards sale consideration and that he is always ready and willing to perform his part of contract, but the defendant is not ready and willing to perform his part of contract. A registered legal notice was issued on 17.11.2020 and rejoinder on 03.12.2020 with regard to typographical error. Hence, he prayed for specific performance of contract of sale.

Written statement was filed by the defendant stating, inter alia, that the signatures of the defendant are forged, there is no consideration for the said agreement of sale, the defendant did not execute any promissory note in favour of the plaintiff or any third party and that the suit is bad for non-joinder of proper and necessary parties.

In the said suit, plaintiff filed IA No.517 of 2020, under Order XXXIX Rules 1 and 2 of CPC, seeking to grant ex parte ad-interim injunction restraining the defendant and her men from alienating the petition schedule property to third parties.

Counter affidavit is filed to the said IA by the defendant denying the allegations made therein and reiterating the contents of the written statement. It is stated in the counter affidavit that the plaintiff failed to implead the person who is holding the registered development agreement-cum-GPA and that the suit is liable to be dismissed on the said ground. The agreement of sale is not sufficiently stamped and not registered under the Indian Stamp Act and the Registration Act, hence the same is not admissible in evidence. There is no proof with regard to actual payment of the alleged amount and any payment of more than Rs.2,00,000/- has to be made either through cheque or demand draft or through RTGS or through Bank or electronic transfer only, but there is no proof of such payment and prayed to dismiss the IA.

The trial Court, after discussing the principles for grant of temporary injunction, allowed the said IA granting temporary injunction in favour of the plaintiff. At para 12 of the order, the trial Court observed as follows.

“The petitioner from the recitals in Ex.P1, averments in the plaint and legal notice has made out a prima facie case in his favour. The respondent is contending that there is no prima facie case in favour of the petitioner. Simply saying that there is no prima facie case is not sufficient but the respondent has to explain as to why there is no prima facie case in favour of the petitioner which the respondent has not done in this case. The petitioner is claiming that he has paid huge amount of Rs.91,00,000/- under Ex.P1. Therefore, there is balance of convenience in favour of the petitioner, as much inconvenience would be caused to the petitioner if the injunction is not granted compared to the inconvenience caused to the respondent in case of grant of injunction. There is also irreparable injury that is going to be caused to the petitioner if the injunction is not granted for the reason that the respondent has made her intention very clear in the counter affidavit that she was intending to sell the petition schedule property. As such, the petitioner is entitled to grant of temporary injunction till the disposal of the suit. This point is answered in favour of the petitioner.”

The above paragraph shows that the temporary injunction order was passed basing on the assertion of the plaintiff that he has paid an amount of Rs.91,00,000/- coupled with the fact that in the counter affidavit which was filed to the said IA the defendant has stated that she is intending to sell the petition schedule property. The said observation is based on para 8 of the counter to the said IA, which reads as follows.

“I submit that mere filing of the suit for specific performance based on a forged document namely the agreement of sale dated 08.12.2018 even if alienated during the pendency of the suit it will not cause loss to the petitioner/plaintiff in as much as under the principles of doctrine of lispendency, those sales would not be binding on the petitioner/plaintiff and he can have the fruits of the decree if really the petitioner/plaintiff succeeds in the suit. Therefore, there is no necessity for a specific order to be passed by this Hon’ble Court restraining me from alienating the suit schedule property. Therefore, the balance of convenience is not in favour of the petitioner/plaintiff. There is no prima facie case in favour of the petitioner/plaintiff. The comparative hardship that may be faced by the petitioner/plaintiff is nil as against the hardship that may be faced by me in alienating one of the suit schedule property to meet my livelihood in as much as my husband had deserted me and I have to look after the welfare of my old age mother and the mentally ill-health son. Therefore, the present petition sponsored by my husband as well as the developer through the petitioner/plaintiff is a bigger conspiracy against me to push me to the wall, so as to pressurize me to come to terms. Therefore, the present petition which is purely a speculative is liable to be dismissed.”

The contention of the learned counsel for the defendant before the trial Court is that there is no proof of payment of the said amount of Rs.91,00,000/-, but the trial Court observed that “whether the agreement of sale is true, valid and binding contract or not and whether the endorsements made in the said agreement are true and valid can be decided only after a full-fledged trial”. As seen from the said observation, it appears that the endorsements made on the said agreement with regard to payment was also taken into consideration by the trial Court.

Learned counsel for the appellant/defendant Sri N. Aswani Kumar vehemently contended and elaborately argued by taking this Court to various averments made in the written statement and counter to the IA and submitted that the IA ought to have been dismissed. He submitted that there is absolutely no proof with regard to the said payment of Rs.91,00,000/- and that the signatures of the defendant were forged and that no prejudice would be caused to the plaintiff in view of doctrine of lis pendens.

Sri N. Sai Phanindra Kumar, learned counsel appearing for the respondent/plaintiff submits that all those issues would be gone into by the trial Court after adducing evidence.

Learned counsel for the appellant/defendant has placed reliance on the judgment of the Division Bench of this Court reported in Bhimavarapu Nageswaramma v. Bommu Sivareddy (2022(2) ALD 1), and submits that while granting temporary injunction it is the duty of the Court to take into consideration the affidavit and relevant documents before it records any finding. In the said judgment it was held that non-consideration of the material documents on record on the point in issue, vitiates the finding recorded by the Court below and remanded the matter for fresh consideration by setting aside the impugned order therein.

Learned counsel for the respondent/plaintiff filed a memo by enclosing the copies of judgments relied upon by him. The first judgment relied upon by him is in Yakkali Srinivasulu v. Shaik Khasim (2022) 1 ALT 595). The appellant in the said case contended that the agreement of sale therein was cancelled and the advance amount was forfeited and that the endorsement for extension of time is forged and fabricated one and that he cannot be curtailed from alienating the petition schedule property and he would suffer irreparable loss if he is restrained from selling the property and that no prejudice would be caused to the respondents therein in view of Section 52 of the Transfer of Property Act and that the suit is barred by limitation. The Division Bench of this Court held that the seeker of the relief of temporary injunction should establish prima facie case, balance of convenience and irreparable loss in the event of non-granting of such relief and observed that “we find some force in the arguments of the learned counsel for the respondents herein to keep the property intact pending the suit. In so far as the arguments of the learned Senior Counsel and the defence taken by the appellant herein are concerned they are matters of evidence which can be gone into during the course of trial in the main suit”.

Learned counsel for the respondent/plaintiff also relied upon the decision of the Division Bench of this Court reported in K. Ravi Prasad Reddy v. G. Giridhar (AIR 2022 AP 59: 2022 SCC Online AP 135), wherein the contention was recorded as follows.

“The 1st defendant/appellant in CMA.No.45/2021 filed objection/counter, denying the averments of the petition and contending that the plaintiff is falsely pleading that the respondent is selling the property and that there is no necessity for restraining the alienation of the property as the plaint filed by the plaintiff is registered and notice has been on the said respondent. He further pleaded that in view of specific provision of Section 52 of Transfer of Property Act (for short "T.P.Act"), there is no necessity for expressive order as provided in the civil procedure code. Such a pre-emptive restraining order would affect the right to property conferred on the respondent, who will be well within his right to sell the property to the prospective buyers after informing and appraising about the pendency of the suit.”

And the observation of the Division Bench of this Court is as follows.

“29. Now coming to the second point, the impugned judgment shows that the learned IV Additional District Judge, Kurnool, on consideration of the pleadings of the parties and the material before it, viz., Ex.P1-agreement of sale and receipt of a sum of Rs.1,00,000/-, dated 11.03.2014 and subsequent receipts of Rs.2,00,000/- on 30.06.2014, Rs.5,00,000/- on 05.04.2016 and Rs.1,00,000/- on 07.04.2016, came to the conclusion that the plaintiff/1st respondent had established prima facie case in his favour. The balance of convenience was also found in favour of the plaintiff who obtained the agreement of sale by paying amounts mentioned above, in the years 2014 and 2016. Further, the learned court below considered that the 1st defendant admitted to have executed the sale deed in favour of defendants Nos.2 and 3 during the pendency of the suit and those defendants Nos.2 and 3 had also executed sale deed in favour of third persons with respect to part of the suit property, and came to the conclusion that if such act is repeated in future it would lead to multiplicity of proceedings and would also cause irreparable loss to the plaintiff, with respect to the decree of specific performance of contract.

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33. The Wander Ltd. v. Antox India P.Ltd. (1990 (Supp) SCC 727) fell for consideration in Gujarat Bottling Co.Ltd. v. Coca Cola Co. (1995) 5 SCC 545) wherein the Hon'ble Supreme Court observed that under Order 39 CPC the jurisdiction of the court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. It is relevant to reproduce paragraph No.47 as under:

"47. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings".

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35. We therefore hold on point No.1 in paragraph-14 that Section 52 of the Transfer of Property Act does not operate as a bar to the grant of temporary injunction under Order 39 Rules 1 & 2 CPC, in the discretion of the trial court, on fulfilment of pre-conditions for grant of temporary injunction, which are settled in law, restraining alienations as well. On point No.2, we hold that the order granting temporary injunction does not suffer from any error of law or jurisdiction and calls for no interference in the exercise of our appellate jurisdiction.”

He also relied upon the decision reported in Saketa Vaksana LLP v. Kaukutla Sarala (2020) 11 SCC 773), wherein the Hon’ble Supreme Court held as follows.

“22. We find that there are seriously disputed questions of fact involved in this matter. The first issue is whether possession of the suit property was at all handed over to the Appellant – Developer or not. On the one hand, the Appellant – developer relied on Clause 7 of the Agreement dated 17.10.2017 to show that possession of the suit property was handed over to them at the time of execution of the Agreement. On the other hand, the Respondents submitted that it was only symbolic possession which was given to the Appellant – Developer, while physical possession remained with the Respondent – Landowners. The Respondents averred that they are growing vegetables, and have a guest house, servant quarters and a shed on the suit property.

23. The second issue is whether part consideration for the suit property was paid by the Appellant – Developer to the Respondent – Landowners or not. The Appellant – Developer submitted that it had paid a total of Rs.17,25,00,000/ to the Respondents, and only Rs.3,72,03,750/ was the balance payable for the suit property. The Respondents however, submitted that the Appellant – Developer had paid only Rs.14,25,00,000/, and was still liable to pay Rs.10,73,95,000/ towards the balance sale consideration for the entire suit property, as well as some part of the land already transferred in favour of the Appellant – Developer.

………….

25. Since both the issues raised are seriously disputed which will be decided during the course of trial, we are of the view that the Orders dated 14.08.2019 passed by the division bench of the High Court do not warrant any interference. The High Court has already granted a Temporary Injunction restraining the Respondents from alienating or creating third party rights in the suit property till the disposal of the Suit. The interest of the Appellant – Developer has been sufficiently protected with respect to ownership of the suit property.”

In the light of the said judgments referred to above, the issues as to whether the plaintiff has in fact paid the said amount of Rs.91,00,000/- to the defendant or not, whether there is any proof of such payment or not, whether the signatures of the defendant on the said agreement are forged or not, whether the agreement is sufficiently stamped and registered or not and whether the same is admissible in evidence or not and whether proper and necessary parties are impleaded or not can be gone into at the time of trial. As seen from the counter affidavit filed in the said IA, it is categorically stated by the defendant that grant of injunction restraining alienation would create hardship to her as she has to take care of her mother and son. When such is the stand of the defendant, the balance of convenience and irreparable injury would warrant an order of temporary injunction. Apart from that, the plaintiff has also shown the prima facie case, balance of convenience and irreparable injury by filing agreement of sale dated 08.12.2018 and the copy of legal notice issued.

Rule 1 of Order XXXIX of the Code of Civ

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il Procedure, 1908, which deals with the cases in which temporary injunction may be granted, reads as follows. “Order-XXXIX, Rule-1. Cases in which temporary injunction may be granted.- Where in any Suit it is proved by affidavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by Order grant a temporary injunction to restrain such act, or make such other Order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit, until the disposal of the suit or until further orders.” As seen from the above, it is clear that if any property which is in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or if the defendant threatens or intends to dispose of the property the Court may grant temporary injunction. In view of the facts and circumstances of the case, we see no grounds to interfere with the impugned order dated 18.02.2022 passed by the learned I Additional District Judge, Guntur in IA No.517 of 2020 in OS No.119 of 2020. Accordingly, the CMA is dismissed. However, the trial Court is directed to dispose of the main suit itself in accordance with law within a period of six (6) months from the date of receipt of a copy of this order. There shall be no order as to costs. As a sequel thereto, the miscellaneous applications, if any, pending in this CMA shall stand closed.
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