JUDGMENT :

Subrata Talukdar, J.

1. The appellants, represented by Mr. Sakti Nath Mukherjee, Learned Senior Counsel, appearing with Mr. Ratnanko Banerji, Learned Counsel, have preferred this appeal challenging the Order dated 20th of August 2022 granting an ad interim injunction in favour of the respondent/ the plaintiff. The appellants, being the defendants in the suit filed by the plaintiff for declaration, cancellation of deed, permanent injunction and other consequential reliefs, stands injuncted by the Learned Trial Court from creating any third party interest in respect of the suit property as existing on the date of the Order, i.e. 20th of August 2022 and, such ad interim injunction was directed to continue till 20th September 2022.

2. The respondent/ the plaintiff is represented by Mr. Anindya Mitra, Learned Senior Counsel, appearing with Mr. Arindam Banerjee, Learned Counsel. The names of the other Learned instructing advocates and assisting Learned Counsel are printed in the order of their appearance in the cause title above.

3. Mr. Mukherjee submits that the Learned Trial court failed to take notice of the law settled in (2020) 7 SCC 366, In Re: Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead. Mr. Mukherjee lays particular reference to Paragraphs 29.8 and 29.9 of the aforestated judgement which reads as follows :

“29.8. In Vidyadhar v. Manikrao & Anr., this Court held that the words “price paid or promised or part paid and part promised” indicates that actual payment of the whole of the price at the time of the execution of the Sale Deed is not a sine qua non for completion of the sale. Even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale would be complete, and the title would pass on to the transferee under the transaction. The non-payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a “sale”, the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in praesenti, or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record.

29.9. In view of the law laid down by this Court, even if the averments of the Plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the Sale Deed. The Plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered Sale Deed. We find that the suit filed by the Plaintiffs is vexatious, meritless, and does not disclose a right to sue. The plaint is liable to be rejected under Order VII Rule 11 (a)”

4. Mr. Mukherjee submits that the law has been declared by the Hon’ble Apex Court that even if the averment of the plaintiff is taken to be correct that the entire sale consideration had not been paid, such averment cannot be a ground for cancellation of the sale deed. The law further lays down that the remedy of the plaintiff lies in an action for recovery of the balance consideration.

5. Apropos such submission, Mr. Mukherjee points out that the Learned Trial Court failed to appreciate the legal provision as enunciated in In Re: Dahiben (supra) and even assuming that the case of the respondent / the plaintiff is true that the balance consideration amount has not been paid by the defendants to the plaintiff, such could not be a ground for injuncting the defendants from enjoying their right, title and interest over the suit property.

6. Mr. Mukherjee next argues that the Proviso to Order 39 Rule 3 of the Code of Civil Procedure (CPC) enjoins the Learned Trial Court to record reasons for passing an ex parte ad interim injunction. It is the case of the a