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GUJARAT HIGH COURT
Dr. A.P. Thaker, J.
Jigarbhai Pankajbhai Shah – Appellant
versus
Natwarsinh Ganpatsinh Parmar – Respondent
R/Appeal From Order No.175 of 2021 with
Civil Application (For Stay) No.1 of 2021
Decided on 9.6.2022
(A) Agreement to Sell – Suit for Specific Performance and Cancellation of Sale Deed – Respective defendants have clearly contended that suit land is an ancestral property and they have heirship right in property and since t transaction was entered into without their consent, no title clearance certificate be issued – 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 considered for a collateral purpose in a suit for specific performance of a contract – Keeping silence by plaintiff even after disinclination on part of original signatories to agreement to sell to execute sale deed way back in November, 2017, equitable relief of interim injunction need not be granted in favour of plaintiff. (Paras 9, 11 and 12)
(B) Civil Procedure Code, 1908 – Order 43 Rule 1 – Appeal – In an Appeal against exercise of discretion by Court of first instance, power of appellate Court to interfere with exercise of discretion is restrictive – Merely because, on facts, Appellate Court would have concluded differently from that of Court below, that would not by itself, provide justification for Appellate Court to interfere – To justify interference, Appellant would have to demonstrate that discretion has been shown to have been exercised arbitrarily or capriciously or perversely or whether Court had ignored the settled principle of law regulating grant or refusal of interlocutory injunction – An appeal against exercise of discretion is an appeal on principle. (Para 12)
Result: Appeal from Order dismissed.
ORDER (CAV)
Being aggrieved and dissatisfied with the impugned order dated 3.11.2021 passed below Exh-5 in Special Civil Suit No.262 of 2018 by learned 10th Additional Senior Civil Judge, Vadodara, whereby the application preferred by the original plaintiff for interim injunction was rejected, the plaintiff has preferred this Appeal from Order under Order 43 Rule 1 of CPC.
2. The appellant is the original plaintiff and respondents are the original defendants. For the brevity and convenience, the parties are referred to herein as per the status assigned to them before the trial Court.
3. The brief facts, which emerge from the record, are as under:
3.1 The plaintiff has filed the above stated Suit for specific performance and cancellation of sale deed dated 5.7.2018 entered into between defendant Nos. 1 to 18 and 19 & 20. It is the case of the Plaintiff that defendant Nos. 1 to 7 has agreed to sell the suit land to him vide agreement to sell dated 22.8.2017 and part consideration amount was paid by the plaintiff. It is further the case of the plaintiff that it was agreed that after the revenue entry regarding legal heirs of the deceased joint owner Dilipsinh Ganpatsinh is certified in the revenue record and after title clearance certificate is obtained, sale deed would be executed in favour of the plaintiff. It is averred by the plaintiff that as some of the co-owners expired, he impleaded the legal heirs of the deceased co-owners as party defendant Nos. 8 to 18 in the Suit.
3.2 It is further case of the plaintiff that he called upon the defendant Nos. 1 to 18 to execute the sale deed by notice dated 4.4.2018. However, behind the back of the plaintiff, they fraudulently executed registered sale deed dated 5.7.2018 in favour of defendant Nos. 19 and 20 without issuance of any title clearance notice. It is contended by the plaintiff that though he was ready and willing to pay the balance consideration and get the title cleared, instead of selling the suit land to him, defendant Nos. 1 to 18 fraudulently sold the suit land to defendant Nos. 19 and 20. Under this circumstance, the plaintiff was constrained to file Special Civil Suit No. 262 of 2018 in the Court of Civil Judge, Vadodara for specific performance of agreement to sell and to cancel the registered sale deed executed by defendant Nos. 1 to 18 in favour of defendant Nos. 19 and 20. Along with the suit, plaintiff had also moved an application for interim injunction vide Exh-5.
3.3 The application for interim injunction moved by the plaintiff came to be rejected by the trial Court on the ground that all the three ingredients for granting interim injunction namely prima-facie case, balance of convenience and irreparable loss are not in favour of the plaintiff and also on the ground that defendant Nos. 19 and 20 are bonafide purchaser without any notice of the agreement to sell between plaintiff and rest of the defendants as that agreement to sell was unregistered one. Being aggrieved by this Order of the trial Court rejecting the interim injunction application, the plaintiff has preferred this Appeal from Order challenging the findings of the facts by the Trial Court.
4. Heard Ms. Sangeeta Pahwa, learned advocate for the plaintiff-appellant, Mr. R.S. Sanjanwala, learned Senior Counsel for Mr. Dhruv Dave, learned advocate for defendant Nos. 19 and 20 as well as Mr. Dave, learned Senior Counsel for Mr. Prerak Oza, learned advocate for defendant Nos. 8 to 18. Perused the Written Submissions and the Citations cited by both the sides and the material placed on record.
5. Ms. Sangeeta Pahwa, learned advocate for the plaintiff, while referring to the pleadings of the parties and the documentary evidence produced with paper-book, has vehemently submitted that trial Court has failed to consider that all the three ingredients namely prima-facie case, balance of inconvenience and irreparable injury are in favour of the plaintiff. She has submitted that there was a previous agreement to se
SupremeToday
(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.
An unregistered agreement to sell is not admissible in evidence and cannot be the sole basis for a suit for specific performance.
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....
The Trial Court's discretionary power in granting or refusing temporary injunction is to be exercised in accordance with sound judicial principles, considering the prima facie case, balance of conven....
Doubt about the existence of a valid and binding agreement and the insignificance of the consideration paid by the plaintiffs disentitled them for grant of interim relief.
In contracts for the sale of immovable property, time is generally not of the essence unless explicitly stated, and parties must demonstrate readiness and willingness to perform their obligations.
Point of Law - Section 16 (c) of the Act of 1963 provides that specific performance of a contract cannot be enforced in favour of a person who fails to prove that he has performed or has always been ....
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