The need for an ascertained and accrued debt to establish a prima facie case for injunction in property disputes.

JUDGMENT

Shekhar B. Saraf, J. - This is an application wherein the petitioners are seeking the following reliefs:-

a) An order of injunction restraining the respondents from dealing with its bank accounts and particularly the one mentioned in paragraph 26 hereinabove and all other bank accounts of the respondents corresponding to Permanent Account Nos.(PAN) ALQPS 3878 R and AUMPS 3474 J without keeping apart a sum of Rs.29,56,904/-.

b) An order restraining the respondents from selling, transferring or alienating or creating any third party interest of any part or portion of the said property in any manner whatsoever;

c) Ad-interim orders in terms of the prayers above;

d) Pass any such further and/or other order or orders, direction or directions as Your Lordships may deem fit and proper.

2. Mr. Chayan Gupta, Counsel appearing on behalf of the plaintiff petitioners submits that an agreement had been reached between the parties wherein the petitioner was to purchase a property from the defendants at a cost of Rs.1,26,40,000/-. He further submits that a sum of Rs.25 lakhs was paid by way of earnest money to the defendants. He submits that in spite of several requests, the respondents did not make over the papers relating to the regularization of the said property to one commercial unit as had been agreed between the parties. He further submits that the respondents failed to execute a deed of conveyance in their favour.

3. It is to be noted that a legal notice had been issued by the plaintiff petitioners on February 8, 2021 and the same was replied to by Advocates representing the defendants on February 15, 2021. It is also to be noted that a suit was filed by the plaintiff petitioners before the Ordinary Original Civil Jurisdiction in the month of April, 2021. Subsequently, the plaint was returned with liberty to the plaintiffs to file before the Commercial Division. CS/263/2021 is the new suit filed by the plaintiff petitioners wherein this interlocutory application has been filed seeking the above reliefs.

4. To buttress his arguments, Mr. Chayan Gupta has relied on three judgments of the Calcutta High Court reported in AIR 2021 Cal 212 (Prabha Surana -v- Jaideep Halwasiya), 2019(4) CHN (CAL) 412 (Harleen Jairath -v- Prabha Surana and Ors.) and 2017(1) CHN (CAL) 189 (Santosh Promoters Pvt. Ltd and Ors. -v- Intrasoft Technologies Ltd.).

5. Mr. Rudraman Bhattacharyya, Counsel appearing on behalf of the defendants, submits that he disputes all the statements made by the petitioners except for the fact that Rs.25 lakh was given as earnest money to his client. He submits that there was never a written contract and the submissions in the petition are required to be proved by way of evidence. He further submits that earnest money is normally forfeited when the transaction does not go through. Mr. Bhattacharyya has taken me through the notices issued by both the parties and highlighted the fact that the petitioners are claiming in their notice that the stamp duty and registration fees for registration of the conveyance deed was required to be paid by the seller i.e. his client. He submits that the entire allegation is baseless and quite absurd as it is common knowledge that in case of purchase of property, the registration and stamp duty costs are paid by the buyer of the property.

6. I would first like to deal with the judgments cited by the petitioners. In the judgement passed in Prabha Surana -v- Jaideep Halwasiya, reported in AIR 2021 Cal 212, the plaintiff lent money to the defendant by way of cheques and fixed rate of interest was agreed on between the parties. Thereafter, default in repayment was committed by the defendant against which the plaintiff moved an injunction application before the learned single judge of this Hon'ble High Court. The court allowed the interim application on the ground that a prima facie case has been established by the plaintiff establishing the fact of money being lent and advanced to the respondent by acknowl