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.

JUDGMENT :

By virtue of the instant two appeals the appellate jurisdiction of this Court is being invoked by the appellant herein under Order 43 CPC.

MA No. 02/2005

1. The facts which has led to the filing of instant appeal would reveal that : -

- An agreement to sell came to be executed by the respondent herein with the appellant herein agreeing to sell 3 storied Tin Roof building namely “Bhagat Building”situated at Amira Kadal, Srinagar, (for short the Building) for an amount of Rs. 51 lacs and for the said purpose a general Power of Attorney was executed by the respondent herein in favour of the appellant herein on 30.07.2001. Prior to the execution of aforesaid agreement to sell, the appellant herein claimed to have paid an amount of Rs. 1 lac to the respondent herein on the date of execution of the agreement and thereafter an amount of Rs. 13 lacs as an earnest money. Whereas, the balance amount had to be paid within 90 days from the date of aforesaid agreement and thereafter possession of the building had to be delivered to the appellant herein completing the transaction of sale.

- The appellant herein claimed to have acted diligently in accordance with agreement to sell as also the general Power of Attorney besides having spent a huge of sum of money on the renovation and repair of the building to be sold by the respondent herein to the appellant herein pursuant to the aforesaid agreement. The respondent herein, however, refused to complete the sale of the building as also started interfering with the right of the appellant to entry and possession of the building resulted into filing of a suit on 28.04.2007 along with interim application, for specific performance of agreement to sell dated 07.08.2001 seeking therein a decree for permanent injunction as well for restraining the defendant respondent herein from interfering into the peaceful possession and right of entry and also from creating 3rd party interest. The suit came to be filed before the Court of 1st Additional District Judge, Srinagar, (for short the trial Court) which Court passed an order of status-quo on 28.04.2007 itself in the application for interim relief.

- Upon service of the summon in the said suit to the defendant respondent herein written statement to the suit along with a counter claimed came to be lodged by the defendant respondent herein seeking a decree of injunction against the plaintiff appellant herein. The defendant respondent herein in the written statement admitted the execution of agreement to sell, the Power of Attorney, as also receipt of earnest money to the extent of Rs. 7.05 lacs besides pleading that he had performed his part of the agreement and it has been the plaintiff appellant herein who did not fulfill his part thus, rendering the agreement void and compelling the defendant respondent herein to cancel and revoke the power of attorney in terms of revocation deed dated 10.05.2004.

- As per the defendant respondent herein the agreement to sell provided that if the plaintiff appellant herein failed to pay the balance sale consideration within 90 days of the execution of the agreement, the defendant respondent herein had a right to cancel agreement and forfeit the earnest money as damages and the plaintiff appellant had no claim as such, over the defendant respondent herein or the building and that the cheques issued by the plaintiff appellant herein in terms of the agreement got bounced and the said fact was brought into the notice of the plaintiff appellant herein in terms of notice dated 17.11.2001 by the defendant respondent herein besides informing him about the rendering of the agreement as void on account of his failure to pay the balance consideration amount.

- With respect to the plea of injunction, the defendant respondent herein pleaded that since the possession of building in question was never handed over to the plaintiff respondent herein, therefore, there was no question of interference by the defendant respondent h