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Gujarat High Court
Judgename :P.B.Majmudar
KHIMJIBHAI HARJIVANBHAI PATADIA - Appellant
Versus
PATEL GOVINDBHAI BHAGVANBHAI - Respondent
Appeal From Order 42 Of 2006
Decided On : 12/01/2006
Whether when a plaintiff has not shown willingness or readiness to perform his part of contract can he maintain suit for specific performance on basis of said contract?
Head Note :
Civil Procedure Code, 1908 (Central Act 5 of 1908) - Order 39 and Order 43 - Injunction - Restraining transfer and alienation of suit property - Rejection for want of prima facie case - Finding as to - Sustainability - Admittedly as per agreement to sell property the plaintiff did not pay consideration to defendant - He was required to pay the said amount immediately on the termination of ULC proceedings - Therefore, when plaintiff has not shown his willingness or readiness to perform his part of contract and when he has signed another agreement sell subsequently by Defendant No. 1 in favour of Defendant No. 22 prima facie it indicates that the plaintiff has given up his right in the suit property - He cannot as such claim specific performance by filing a suit and injunction to restrain transfer and alienation of such property in favour of Defendant No. 22 - In that view of the matter the trial Court was perfectly justified in refusing to grant discretionary order of injunction.
Held :
In the instant case, as per the agreement dated 23.02.1992, admittedly, the plaintiff has not paid the consideration as provided in the said agreement as it was required to be paid within four months from the date the land being released from ULC. Mr. Kavina, however, submitted that since litigation was pending, his client was not obliged to make the payment. However, reading the document in question, it is clear that the suit amount was to be paid immediately on the termination of ULC proceedings, which is admittedly not done, therefore, when the plaintiff has not shown his readiness or willingness to perform his part of contract, and when he signed another agreement in August 1992, it prima facie indicates that the plaintiff has given up his right in the suit property. The plaintiff has never tried to follow up the aforesaid agreement and, ultimately, when some public notice is issued by Defendant No. 24, with some oblique motive the plaintiff has instituted the suit in question. [Para 14]
Considering the aspect of the matter, in Courts view, the trial Court was perfectly justified in refusing to grant discretionary order of injunction under Order 39 of CPC. [Para 15]
Case Law Analysis :
Mardia Chemicals Limited vs. Gujarat Electricity Board & Anr., 2002 (2) GLR 1480. [Para 16]-Relied on.
Law Laid Down :
Discretion exercised by the trial Court in the matter of interim injunction is not required to be interfered with by the Appellate Court unless the order is perverse or is passed against settled principles of law.
Conclusion :
The plaintiff has not paid the consideration as provided in the said agreement and has shown no interest to perform his part of contract, therefore, he is not entitled to maintain suit for specific performance and claim injunction to restrain defendant to transfer or alienate the suit property.
Cases Referred :
City Bank vs. Standard Chartered Bank, 2003 SC 4630.
Decided in Favour of :
Respondent
Appeal Dismissed
( 1 ) THE ingenuity of the appellant in pursuing the frivolous litigation is remarkable. After entering into so-called agreement as back as in February 1992, the plaintiff had guts to approach the Court after more than 13 years by taking out frivolous arid unsustainable proceedings by filing a suit for specific performance. The facts of the case will reveal as to how the plaintiff has tried to take advantage of the situation in order to take away the property of one of the defendants, namely, Govindbhai bhagvanbhai Patel and how the plaintiff has made a feeble attempt to get the said property by filing a suit for specific performance of the agreement.
( 2 ) THE appellant is the original plaintiff of Special Civil Suit No. 53/2005. The said suit is filed for getting decree for specific performance on the basis of an agreement to sale dated 23-2-1992, which according to the plaintiff is executed by the original owner of the land, namely, Patel Govindbhai bhagvanbhai, who is defendant No. 1 in the said suit. The case of the plaintiff is that on the basis of the said agreement, he has paid part consideration to defendant No. l. As the averment made in paragraph 1 of the plaint, the plaintiff is staying at Mumbai and doing the business of developers in the name of sweet Home Developers and is involved in the business of purchasing and selling the land. It is the case of the plaintiff that the property as mentioned in paragraph 2 of the plaint is an agricultural land and defendant no. l, Govindbhai Bhagvanbhai Sakhia had agreed to sell the aforesaid land to him for which an agreement was executed by said govindbhai in his favour on 23rd February, 1992. The sale consideration was fixed at rs. 51 Lacs and since the land was subjected to Urban Land Ceiling Act, the sale deed was to be executed after the land was released from ULC Act. Some litigations in connection with the suit land were also pending and as per the agreement defendant no. 1 - original owner was required to take proceedings to see that the land is cleared from the litigations and after getting the marketable title, the sale deed is to be executed in favour of the plaintiff. According to the plaintiff, the land was thereafter released from ULC and the litigations in connection with the land were also over. However, thereafter, the plaintiff came to know from a public noticed published in daily newspaper "akila" dated 05. 03. 2005, that one rajeshkumar Jayantilal Faldu - respondent no. 24 herein wanted to purchase the said land from one Prafulbhai Govindbhai raninga. At that time, the plaintiff realized that there is an agreement to sell in his favour and that is why he gave reply to the public notice and, ultimately, approached the court by filing suit for specific performance in connection with his agreement dated 23-2-1992. The said suit is filed on 13-6-2005 for specific performance of the said agreement of 1991. The plaintiff has joined other defendants also, who have purchased part of the disputed land and it is prayed that decree for specific performance may be granted in connection with agreement as the plaintiff is ready and willing to perform his part of the contract in connection with the agreement dated 23-2-1992. It is also prayed that it may be held that said agreement to sell is already in existence. It is prayed that whatever sell transactions have taken place subsequently by way of sale deed may be held to be illegal. In interim injunction application, it is prayed that defendants may be restrained from transferring, alienating the suit property during the pendency of the suit.
( 3 ) THE aforesaid suit is resisted by defendants on various grounds. It is the say of the defendants that the suit is frivolous and not maintainable. So far as original defendant No. 1-Govindbhai as well as defendant No. 22 are concerned, in their written statement they have pointed out that after the aforesaid agreement dated 23-2-1992, another agreement was
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