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IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Bansal, J.
Vandana Verma - Appellant
Versus
Roop Singh & Ors. - Respondents
CS(OS) 437/2021
Decided On : 24-03-2022
Injunction - Property Dispute - Order 39 Rule 1(c) of CPC, Order XXXVIII Rule 5 of CPC - The court dismissed the application for temporary injunction restraining the defendants from carrying out construction work and from selling the property. The court also dismissed the application for attachment of the property under Order XXXVIII Rule 5 of CPC. The court emphasized the need for a prima facie case, balance of convenience, and irreparable injury for granting injunction. The court cited the judgments in Dalpat Kumar and Anr. Vs. Prahlad Singh and Ors., (1992) 1 SCC 719 and Mandali Ranganna & Ors. Vs. T. Ramachandra & Ors., (2008) 11 SCC 1 to support its decision. The court also referred to Raman Tech. & Process Engg. Co. & Anr. Vs. Solanki Traders, (2008) 2 SCC 302 and M/s. K. C. V. Airways Ltd. & Anr. Vs. Wg. Cor. R. K. Blaggana, AIR 1998 Delhi 70 to establish the principles for granting attachment before judgment.
Fact of the Case:
The plaintiff sought injunction to restrain the defendants from construction work and selling the property, and attachment of the property under Order XXXVIII Rule 5 of CPC. The plaintiff alleged fraud and collusion by the defendants resulting in a reduced sale consideration. The defendants denied the allegations.
Finding of the Court:
The court found that the plaintiff failed to establish a prima facie case for granting injunction or attachment of the property. The court emphasized the need for a prima facie case, balance of convenience, and irreparable injury for granting injunction. The court also noted that the plaintiff's claim was primarily a monetary one, and the delay in filing the suit weakened the case for injunction.
Issues: The issues revolved around the alleged fraud and collusion by the defendants, the validity of the sale consideration, and the grounds for granting injunction and attachment of the property.
Ratio Decidendi: The court emphasized the need for a prima facie case, balance of convenience, and irreparable injury for granting injunction. The court cited relevant legal provisions and judgments to support its decision.
Final Decision: The court dismissed the application for temporary injunction and attachment of the property.
Key Points: - The court reiterates the three prerequisites for grant of temporary injunction under Order 39 Rule 1(c): prima facie case, balance of convenience, and irreparable injury. (!) (!) - The court held that the plaintiff failed to establish a prima facie case for injunction and for attachment under Order XXXVIII Rule 5; the claim is primarily monetary and delay weakened the case. (!) (!) (!) (!) (!) - The court emphasized that attachment before judgment is a drastic, extraordinary remedy to be used sparingly and only with clear demonstration that the defendant intends to dispose of or remove property to obstruct/delay execution. (!) (!) (!) (!) (!) - The court concluded that granting interim relief would cause greater potential harm to the defendants than withholding it, balancing convenience in favor of the defendants. (!) (!) - The specific orders: LA. No. 11830/2021 and LA. No. 11829/2021 were dismissed; no attachment or injunction granted; pleadings completed; issues to be framed on 4th May 2022. (!) (!) (!) - The judgment references governing authorities on injunctive relief and attachment, including Dalpat Kumar, Mandali Ranganna, Raman Tech. & Process Engg. Co., and K. C. V. Airways Ltd. Blaggana. (!) (!) (!) (!) (!) - The sale transactions and mutual agreements, including the 2019 Mutual Agreement and 2020 Sale Deed, were acknowledged as admitted in various respects, with the court noting the plaintiff’s silence and the monetary nature of the dispute. (!) (!) (!) (!) (!) (!) (!) (!) - The court’s final disposition: no interim relief, no attachment; litigation to proceed on merits. (!) (!)
JUDGMENT
Amit Bansal, J. (Oral). - LA. No. 14107/2021 (for urgent hearing of LA. No. 11830/2021)
1. For the reasons stated in the application, the same is allowed.
LA. No.11830/2021 (u/O-XXXIX R-l & 2 of CPC) & LA. No.11829/2021 (u/O-XXXVIH R-5 of CPC)
2. LA. No.1 1830/2021 has been filed on behalf of the applicant/plaintiff, seeking a direction that the defendants be restrained from carrying out construction work in the suit property and be restrained from selling, disposing or creating any third party interest in the suit property.
3. LA. No. 11829/2021 has been filed on behalf of the applicant/plaintiff under Order XXXVIII Rule 5 of the CPC for the defendants to be asked to show why the suit property should not be attached, unless the defendants deposit the claimed amount together with costs of the suit or furnish security for the same.
4. Notice was issued in both the applications on 14th September, 2021.
5. The non-applicants/defendants no.l to 4 have filed replies opposing both applications.
6. Vide order dated 24th January, 2022, the defendant no.5 was proceeded exparte.
7. Facts relevant for deciding the present applications are set out below:-
i. The plaintiff was the owner of the suit property bearing no. S-523, measuring area 200 sq. yard, (i.e. land plinth area 167.22 sq. mtrs. & constructed plinth area 334.44 sq. mtrs.), consisting of double storey built up, with the rights of upper storey construction upto the last storey, fitted with electricity and water tap connections with their meters, out of Khasra No. 262, situated at abadi of School Block, Park-1, Near Jain Mandir, Shakarpur Khas, Illaqa Shahdara, Delhi -110092 (hereinafter referred to as the 'suit property').
ii. A shop, which forms part of the suit property admeasuring approx. 30 sq. yards on the ground floor of the suit property, was sold by the plaintiff to the defendant no.5 on 13th July, 2017 and the possession of the same was also handed over to the defendant no.5.
iii. Vide an Agreement dated 16th January, 2018, the defendant no.5 undertook that he would completely co-operate with the plaintiff if any proposal for reconstruction and re-development of the suit property was initiated with any other party, including his own shop and for which purpose, the defendant no. 5 shall hand over vacant peaceful possession of his shop by 10th to 15th of March, 2018. Further, it was agreed that after reconstruction of the said entire suit property, the defendant no. 5 would be handed back his shop.
iv. On 24th January, 2018, the plaintiff entered into an Agreement to Sell and Purchase with the defendants no.l and 2 for a sum of Rs.4,25,00,000/-.
v. Upon the defendants no.l and 2 failing to pay the amounts agreed to be paid to the plaintiff, a legal notice was sent on behalf of the plaintiff to the defendants no.l and 2 on 29th May, 2019 for rescinding the Agreement to Sell and Purchase dated 24th January, 2018.
vi. A Mutual Agreement dated 8th June, 2019 was entered into between the plaintiff and defendants no.l and 2, wherein it was specifically noted that in view of the failure of the plaintiff to get the defendant no.5 to vacate the portion sold to him and other reasons, the sale consideration was reduced from Rs.4,25,00,000/- to Rs.3,30,00,000/-.
vii. On the same date, an affidavit was also executed on behalf of the plaintiff, wherein it had specifically been affirmed by the plaintiff that due to some misunderstanding between the parties, the legal notice dated 29th May, 2019 was served by the plaintiff to the defendant no.2 and subsequently, the matter has been settled between the parties. It may be pertinent to note herein that the signed copy of this affidavit was not filed by the plaintiff along with the documents in the suit and has been filed by the defendants.
viii. Subsequently, a Sale Deed dated 9th March, 2020 was executed by the plaintiff in favour of the defendants no.l to 4 in respect of the suit property, and the entire sale consideration of Rs.3,30,00,000/- h
AI
The main legal point established in the judgment is the requirement for a prima facie case, balance of convenience, and irreparable injury for granting injunction and attachment of property under Ord....
The power to attach property under Order XXXVIII Rule 5 CPC should not convert unsecured debts into secured ones and must be exercised judiciously to prevent abuse.
Defendants, who file a counter claim against the plaintiff, can maintain an application for temporary injunction against the plaintiff. Additionally, the court may injunct the plaintiff to maintain s....
The court emphasized that attachment before judgment requires credible evidence of intent to obstruct execution, and failure to consider relevant documents constitutes a jurisdictional error.
A plaintiff alleging fraud must establish a prima facie case, balance of convenience, and potential irreparable harm to obtain an ad-interim injunction under the Code of Civil Procedure.
The court's decision was based on the fulfillment of the agreement to sell, possession of the property, and the principles governing the grant of injunction.
The court's decision was influenced by the plaintiffs' lack of willingness to purchase the property, leading to the vacation of the stay order.
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