Back
2024 Supreme(Online)(KAR) 23695
HIGH COURT OF KARNATAKA
MR JUSTICE R. NATARAJ, J
SRI.M. SURESH – Appellant
Versus
SRI. NAGARAJ HEGDE – Respondent
MFA 5081/2023
SRI. BHASKAR BABU H.J., SRI. MURTHY K.
An injunction under Order XXXIX cannot be granted if the properties are not the subject matter of the suit; proper recourse should be taken under Order XXXVIII for securing claims.
Headnote:(A) Code of Civil Procedure, 1908 - Order XXXIX Rule 1 and 2 - Appeal against interim injunction - The defendants challenged an order restraining them from selling properties related to an agreement of sale - The plaintiff claimed unpaid amounts and interest on a sum of Rs.18,50,000/- - The Trial Court granted an interim injunction based on the plaintiff's claims of potential loss if properties were alienated. (Paras 1-4)
(B) Legal principles - The court emphasized that an injunction cannot be granted if the properties are not the subject matter of the suit, and that the plaintiff should have sought remedies under Order XXXVIII Rule 5 for security. (Paras 9)
(C) Findings of Court - The Trial Court's order was deemed perverse as it did not consider fundamental facts regarding the liability and interest claims of the defendants. (Paras 10)
(D) Issues - Whether the Trial Court erred in granting an injunction without the properties being the subject matter of the suit and the proper legal basis for the plaintiff's claims. (Paras 9) (E) Ratio Decidendi - The court held that the plaintiff's application was improperly filed under Order XXXIX instead of Order XXXVIII, and the injunction was not justified given the circumstances. (Paras 10) (F) Result - Appeal allowed; the Trial Court's order set aside, and the application for injunction dismissed.
DT.10.07.2020 PASSED IN Digitally signed by BS RAVIKUMAR Location:
- HIGH COURT OF KARNATAKA OS.NO.451/2017 ON THE FILE OF THE LXI ADDITIONAL CITY CIVIL, SESSIONS JUDGE, BENGALURU CITY, (CCH-62), REJECTING IA NO.X FILED U/O.39 RULE 4 R/W SEC.151 OF CPC.
- THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
- JUDGMENT The defendants in O.S.No.451/2017 on the file of LXI Additional City Civil and Sessions Judge, Bengaluru City have filed this appeal, challenging the correctness of an order dated 10.07.2020, by which, they were restrained from selling the properties mentioned in the schedule to the agreement.
2. The suit in O.S.No.451/2017 was filed for recovery of a sum of Rs.45,01,785/-. The plaintiff claimed that the defendants had executed an agreement of sale to sell two units in an apartment in terms of an agreement of sale dated 11.06.2015 for a total sale consideration of Rs.1,08,50,000/-. Since the terms mentioned in agreements were not acceptable to the plaintiff, the defendants agreed to furnish a modified draft. The plaintiff alleged that, later the defendants were postponing the conclusion of the transaction on one or the other ground.
The defendants then offered to pay back the consideration amount and accordingly a sum of Rs.90,00,000/- was repaid. The plaintiff claimed that the defendants did not pay a sum of Rs.18,50,000/- and they were therefore liable to pay interest at the rate of 14.5% per annum and consequently claimed that the defendants were liable to pay a sum of Rs.45,01,785/- which included the interest on a sum of Rs.18,50,000/-. Along with plaint, an application under Order XXXIX Rule 1 and 2 of CPC, was pled for an order of interim injunction to restrain the defendants from encumbering or transferring the properties mentioned in the schedule to the application.
3. The defendants contested the suit and claimed that they had repaid a sum of Rs.90,00,000/- to the plaintiff and therefore the defendants were not liable to pay any money to the plaintiff. The application filed for injunction was also contested by the defendants.
4. The Trial Court after considering the contentions urged in support of the application for injunction, allowed the application in terms of impugned order on the ground that, the plaintiff pleaded that except the properties mentioned in the plaint, there were no other properties available with the defendants and if those properties are alienated, the plaintiff would not be in a position to release the amount. It further held that, since the defendants admitted the execution of the agreement of sale and the fact that they were liable to pay a sum of Rs.18,50,000/- and in view of the statement of the plaintiff that the defendants had orally agreed to pay interest at a rate of 1.5% per month, the defendants cannot be permitted to alienate the properties mentioned in the schedule to the application and consequently confirmed the ex parte order of interim injunction granted restraining the defendants from encumbering or alienating the suit schedule properties. Being aggrieved by the said order the defendants filed this appeal.
5. The learned counsel for the defendants contended that the suit was for recovery of a sum of Rs.18,50,000/- along with interest and the properties mentioned in the schedule to the application were not the subject matter of the suit. He contends that, the plaintiff was not interested in the properties mentioned in the suit and hence no injunction could be granted restraining the defendants from alienating or encumbering the properties mentioned in the schedule.
6. He further contends that the plaintiff claimed interest at 1.5% per month, which was not agreed and therefore, the assumption of the Trial Court that the plaintiff was liable to pay interest at a rate of 1.5% per annum is incorrect. He further contends that the plaintiff instead of taking recourse to Order XXXVIII Rule 5 of CPC has filed the instant application for an order of injun
