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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Nisha M. Thakore, J.
Mehul Shantilal Patel – Appellant
Versus
Samatbhai Nanubhai Varu – Respondent
Appeal From Order No. 26 of 2022
Decided On : 25-07-2022
Limitation Act, 1963 – Article 54 – Registration Act, Section 17 (1) (b), 49 – Specific Relief Act, 1963 – Section 20(2) – Absence of repayment – Cause of action – Appeal from Order is directed against order Additional Chief Judicial Magistrate, First Class, on an interim injunction application (Exh.5) along with interim applications seeking similar relief being filed by original-plaintiff vide n Special Civil Suit, whereby learned Trial Court has been pleased to direct original defendant-appellant herein, an order of status quo to be maintained in respect of suit lands – Held, Ultimately, if plaintiffs are able to establish payment of handed over to defendant then same can be compensated by passing a decree of payment for such amount – Thus, in absence of any interim injunction, the Court finds that no such irreparable loss, which cannot be computed in terms of money, is likely to be caused in case of plaintiffs – Court also cannot unnoticed transactions with 3rd parties entered upon by defendant No. 1 resultantly, to adjust equity between parties and considering principle of lis pendens, transaction entered upon with 3rd party pending suit as well as any further transaction related to suit property is to be treated as subject to outcome of main suit, and would bind the parties and further looking to this peculiar circumstance, liberty is kept open requesting learned Trial Judge to expeditiously deal with and dispose of suit on merits independently – Order is allowed.
JUDGMENT :
Nisha M. Thakore, J.
1. This Appeal from Order is directed against the order dated 6th January, 2022 passed by the 11th Additional Chief Judicial Magistrate, First Class, Vadodara on an interim injunction application (Exh.5) along with interim applications seeking similar relief being filed by the original-plaintiff vide Exh.10, 28 and 37 in Special Civil Suit No. 8 of 2021, whereby the learned Trial Court has been pleased to direct the original defendant-appellant herein, an order of status quo to be maintained in respect of the suit lands.
2. The brief facts as emerges from the record are reproduced as under:
2.2 02.011.2018: The Respondents-Plaintiffs asserted their right in the suit lands, on the basis of an unregistered “Agreement to Sell without possession.” It is contended by the Respondents-Plaintiffs to have agreed to purchase the land in question for a total consideration of Rs. 10.21 Crores, out of which Rs. 5 Cr is alleged to have been paid in cash.
The alleged agreement to sell stipulates conditions, wherein as per condition no. 2, if the Appellant-Defendant did not return the said amount of Rs. 5 cr. within 90 days (i.e. on or before 02.02.2019), then in that case, the remainder amount of consideration of Rs. 5.21 Cr. will be paid by Respondents-Plaintiffs to the Appellant-Defendant, within 30 days therefrom (i.e. by 02.03.2019) and the plaintiffs were entitled to get executed registered sale deed.
As per condition no. 3, if the Appellant-original defendant repay the amount of Rs. 5.0 crores within a period of 90 days, the agreement was to be treated cancelled.
As per Condition no. 4, if the Appellant-original defendant fails to repay such amount within 90 days, then after payment of remaining sale consideration of 5.21 crores, were entitled to get executed registered sale deed. It was also agreed that in case of any eventuality, the parties mutually in writing can extend the time period. As per condition no. 5, if the agreement to the holder fails to get the registered sale deed executed then the agreement to sell was to be treated cancelled.
2.3. 22.08.2020: A demand notice came to be issued by the Respondents-Plaintiffs, through their advocate, inter-alia, calling upon the Appellant-Defendant to execute sale deed.
2.4. 05.09.2020: In response to the above, the Appellant-Defendant gave its interim reply, requesting to provide a notarised copy of the above Agreement to sell dated 2.11.2018, so as to enable them to provide appropriate reply.
2.5. 10.09.2020: Thereafter, additional notice came to be issued by the Respondents-Plaintiffs, through their advocate, inter-alia, providing a copy of the said Agreement dated 2.11.2018.
2.6. 03.10.2020: Upon receiving the copy of the said Agreement to sell dated 02.11.2018, the Appellant-Defendant replied to the aforesaid notices and in para 11 thereof, specifically denied the receipt of any cash amount from the Respondents-Plaintiffs.
2.7. 08.01.2021: After a period of more than one year, the Respondents-Plaintiffs filed a Special Civil Suit No. 8 of 2021, seeking specific performance of the aforesaid Agreement to Sell dated 02.11.2018, along with interim injunction application (Exh.5).
2.8. 15.02.2021: The Respondents-Plaintiffs filed an application at Exh.10 seeking order of status quo against the Appellant-Defendant.
2.9. 15.02.2021: The Respondents-Plaintiffs filed an application under Section 52(2) of Transfer of Property Act, 1882 for registering lis pendens.
2.10. 15.02.2021: Lis pendes was registered with Sub-registrar, Vadodara.
2.11. 15.02.2021: The Appellant-Defendant sold a portion of land admeasuring around 1100 sq. mtrs. out of the land in question, in favour of one Shri Dhrumil Mehta, under a registered sale deed.
2.12. 17.02.2021: Th
(1) Registration of document is not sine qua non for receiving the same as evidence of a contract in a suit for specific performance.(2) Plaintiff can very well make alternative prayer in a suit for ....
An unregistered agreement to sell cannot serve as a basis for injunctive relief against a true owner of property, reflecting the necessity of registration under relevant laws.
An oral agreement for the sale of immovable property is unenforceable without a written and registered agreement under the Registration Act and Specific Relief Act.
(1) Merely because property is sold on lesser consideration then previous one, it does not ipso-facto make subsequent transaction illegal or malafide – Unregistered agreement to sell can be considere....
The delay in taking action after objections were raised, and the sale transaction to the new purchasers, did not warrant the grant of interim injunction.
It is well settled principle of law that in an appeal against the exercise of 'discretion' by Court of first instance, power of Appellate Court to interfere with exercise of discretion is restrictive....
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