JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. R. Rabha, learned counsel for the appellant. Also heard Mr. D.A. Kaiyum, learned counsel for the respondents.

2. The present appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure is filed against the order dated 27.04.2021 passed in Misc. (J) Case No. 111/2020 arising out of T.S. No. 103/2020.

3. The appellant as plaintiff instituted a suit being T.S. No. 103/2020 against the respondents as defendants for specific performance of contract and for injunction. Along with the said suit, the appellant preferred an application under Order 39 Rule 1 and 2 read with Section 151 of the CPC to restrain the respondents/defendants from transferring/ alienating as well as changing the nature and character of the schedule B suit land, which was the subject matter of the contract of which the plaintiff/appellant seeks specific performance. The said case was registered as Misc. (J) Case No. 111/2021.

4. The plaintiff/appellant pleaded that initially the plaintiff entered into an oral agreement on 04.08.2020 for purchase of a plot of land measuring 11 Bighas 1 Katha 8.66 Lechas out of a plot of land measuring 16 Bighas 3 Kathas 12 Lechas consisting of different dags and patta numbers, which is described as schedule B to the plaint.

5. It is also contended by the plaintiff that the total consideration amount was fixed at Rs. 62 Lakhs per bigha and the appellant paid an amount of Rs. 10 Lakhs to the defendants/ respondents as an advance and it is also pleaded that it was a decision between the parties that the term and condition as stated at paragraph 4 of the plaint should be converted into a written agreement and will be signed by both the parties.

6. The plaintiff also pleaded that, for purpose of execution of the sale, an application before the competent authority for due permission shall be made by the parties and full and final payment shall be made during the time of execution of the sale deed. The plaintiff further pleaded that the plaintiff has always been ready and willing to perform his part however, the defendants had denied to execute such sale deed.

7. The defendants appeared in the suit and contested by filing written statement as well as filed objection in the Misc. case.

8. In the written statement, the defendants had admitted the statement made in paragraph 1, 2 and 3 of the plaint, which contents the statement regarding verbal agreement, reduction of the verbal agreement into a written agreement and payment of advance Rs. 10 Lakhs. However, defendants had made a specific statement that as the plaintiff never came forward to submit relevant documents necessary for obtaining sale permission and did not pay the defendants, the 50% of the cost for obtaining sale permission the defendants could not executed the sale deed. It is also contended that the plaintiff did not approach the defendants to make the written agreement of the sale.

9. The learned court below while considering the injunction application though came to a conclusion that the plaintiff had been able to make out a prima-facie case and balance of convenience is also in favour of the plaintiff, however, learned Trial Court rejected the prayer of the injunction on the ground that the token money of Rs. 10 Lakhs which was paid as advance can be returned and therefore there will be no irreparable loss and injury.

10. The learned counsel for the appellant Mr. Rabha submits that return of compensation money cannot be treated as a compensation inasmuch as there will be irreparable loss and injury in view of the fact that the plaintiff has paid the money and he had a plane for the said land and he is still ready and willing to pay the balance amount and get the sale deed executed and therefore only on this ground the learned court below would not have rejected the prayer of injunction. The learned counsel contends that it is the bounden duty for a court to protect the property in dispute, more so in the given fact and circumstance