Plaintiffs have a charge over the property for the advance payment made, justifying attachment before judgment.

A.K. Rajan, J.

1. The suit has been filed by the plaintiffs for a decree for specific performance of the agreement dated 9.5.2001 by executing sale deed with respect to the suit property and for declaring that the plaintiffs have an equitable charge over the schedule mentioned property on the payment made by him and for a permanent injunction restraining the defendants or their men from alienating the property or demolishing the property or structures either by way of sale, mortgage, joint development, lease or otherwise.

2. In the plaint it is stated that a total sum of Rs. 70 lakhs was paid by four cheques on 9.5.2001; the first defendant gave the Xerox copies of the documents stating that the originals were with the Egmore Benefit Society, the mortgage. Since the defendants did not pay any amount to the Egmore Benefit Society towards the mortgage, they wanted to enter into a written agreement for the joint development agreement and it was agreed between the parties for the payment to be made periodically from 10th August 2001 to 30th December, 2001. The first defendant informed the plaintiffs that he would get the documents from the Egmore Benefit Society. Since the first defendant did not take any steps to discharge the mortgage and get the documents, the plaintiffs wanted to recall the money. The first defendant promised that he would refund the money with interest and other damages. But in the meanwhile, he entered into another agreement with the 7th defendant. Therefore, this suit has been filed.

3. In the above suit, O.A.No. 640 of 2002 was filed for an order of interim injunction restraining the defendants-1 to 7 or their men “from alienating or encumbering or dealing with the suit property”. O.A.No. 641 of 2002 was filed for an order of interim injunction restraining the defendants-1 to 7 or their men “from demolishing the existing building or putting up any new construction over the suit mentioned property”.

4. A learned Single Judge of this Court heard these two applications but dismissed both the applications holding,

“No doubt, the plaintiffs have parted with the sum of Rs. 70 lakhs on 9.5.2001. They have failed to discharge the mortgage of Rs. 50 lakhs with Egmore Benefit Society Limited. Having waited for nearly one year and after due communication on 11.12.2001 and after receiving the letter dated 12.4.2002 from the plaintiffs, defendants 1 to 6 had entered into an agreement with the 7th defendant to sell the property. The aforesaid facts cumulative put together would lead to the irresistible conclusion that the contract was not a concluded one between the parties and the plaintiffs have failed to perform their part of the contract at the earliest point of time and defendants-1 to 6 cannot wait indefinitely and they cannot be at the mercy of the plaintiffs. When the properties were already mortgaged with Egmore Benefit Society Limited with an extent of Rs.50 lakhs, which prompted defendants-1 to 6 to sell away the property and the plaintiffs having failed to clear the mortgage at the earliest point of time, naturally the interest will accrue and ultimately the property itself will be in danger. After coming to know about the sale in favour of the 7th defendant and taking possession of the property and after demolition of the building only, the plaintiffs have come to this Court. Hence, I am of the view that the plaintiffs have no prima facie case and the balance of convenience is not in their favour and the points are answered accordingly. For the reasons stated above, both the applications fail and accordingly dismissed”.

5. Aggrieved by this order, the plaintiffs filed O.S.A.Nos. 422 and 423 of 2002. A Division Bench of this Court set aside the order of the learned Single Judge; the Division Bench found that admittedly the respondents-1 to 6 received a sum of Rs.70 lakhs by way of advance from the plaintiffs and also Rs.1.5 crores by way of sale consideration from the 7th defendant and direct