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2005 DIGILAW 58 (UTT)

Mukesh Kumar Mittal v. U. P. Finance Corporation

2005-03-02

PRAFULLA C.PANT, V.S.SIRPURKAR

body2005
JUDGMENT Prafulla C. Pant, J. 1. This appeal, filed under Order XLIII, Rule 1 of the Code of Civil Procedure, 1908, is directed against the order dated 8.9.2003 passed by, the then learned Additional District Judge/IInd Fast Tract Court, Udham Singh Nagar, in Civil Suit No. 52 of 2003, whereby prayer for temporary injunction has been refused. 2. Brief facts of the case, giving rise to this appeal, are that the plaintiff agreed on 11.3.2001 to respondent No. 2 in response to his public notice to purchase the industrial unit namely, M/s. Agarwal Products for rupees 45 lakhs for which he made his offer with a draft of Rs. 1,10,000. On 5.7.2001, he paid further rupees 15 lakhs as an advance payment out of the total consideration in response to which, as per agreement, the possession of the industrial unit was handed over to the plaintiff (appellant). Again, on 25.2.2002 plaintiff further paid Rs. 5,96,586 to the respondent No. 2, as such, the total payment made is Rs. 20,96,586. But, he failed to make payment of rest of the amount on 24.4.2003. The respondent No. 2 fired the plaintiff with a notice dated 24.4.2003 to forfeit the amount paid and cancelling the agreement for breach of contract. The plaintiff's case is this that the respondent No. 2 had no right to do so. It is further pleaded in the plaint that no proceedings under Section 29 of State Financial Corporation Act, 1951 can be taken in respect of the property in suit. He further challenged that the agreement executed between the parties is violative of provisions of Transfer of Property Act, 1882, the Registration Act, 1908 and the Indian Stamp Act, 1899. It is further pleaded that the plaintiff invested a sum of Rs. 10,05,000 in repairs of machines of the industrial unit. As such, a suit for injunction was filed before the learned trial court for restraining the respondents from taking possession of the property in suit, and also declaration that the proceedings under Section 29 of the U. P. State Financial Corporation Act, 1951 cannot be done against the plaintiff. It appears that some close relatives of the plaintiff/appellant were the original debtors, and in default of repayment of said debt, the Corporation, proceeding under Section 29 of State Financial Corporation Act, 1951, took possession of the industrial unit, whereupon the plaintiff/appellant struck the deal as aforesaid. 3. It appears that some close relatives of the plaintiff/appellant were the original debtors, and in default of repayment of said debt, the Corporation, proceeding under Section 29 of State Financial Corporation Act, 1951, took possession of the industrial unit, whereupon the plaintiff/appellant struck the deal as aforesaid. 3. An application under Order XXXIX, Rule 1 of the Code of Civil Procedure, 1908 (for brevity hereinafter the Code) was moved for interim injunction restraining the respondents from taking possession of the industrial unit during the pendency of the suit. 4. The defendants/respondents contested the plaintiffs case before the trial court, alleging that the plaintiff/appellant failed to pay the instalments as agreed between them as consideration for sale of the unit and, as such, the plaintiff/appellant has no case for temporary injunction. It is further pleaded on behalf of the defendants/respondents that the Corporation has already taken back the possession of the industrial unit in default in payment of instalments relating to sale consideration, on the part of the plaintiff/appellant. 5. Learned trial court after hearing the parties and going through the record before it, rejected the application under Order XXXIX, Rule 1 of the Code on 8.9.2003, aggrieved by which the present appeal from order, has been filed. 6. We heard learned counsel for the parties and perused the record. 7. It is settled principle of law that a temporary injunction under Order XXXIX, Rule 1 of the Code can be granted only if the plaintiff succeeds in showing : (i) a prima facie case, (ii) balance of convenience in his favour, and (iii) irreparable loss. Apart from this a person seeking temporary injunction is required to come with clean hands before the Court. 8. The first submission of learned counsel for the appellant is that the plaintiff/appellant was in possession of the industrial unit as per the agreement between the parties and had prima facie case for temporary injunction. However, he conceded during the argument that possession has already been taken back by the defendants/respondents, i.e., the U. P. Finance Corporation. That being so, it cannot be said if the plaintiff/appellant has any prima facie case for temporary injunction and learned trial court has rightly refused to grant the temporary injunction. 9. However, he conceded during the argument that possession has already been taken back by the defendants/respondents, i.e., the U. P. Finance Corporation. That being so, it cannot be said if the plaintiff/appellant has any prima facie case for temporary injunction and learned trial court has rightly refused to grant the temporary injunction. 9. Shri Arvind Vashishth, learned counsel for plaintiff/appellant further argued before us that the agreement dated 12.9.2001 is an unregistered document, as such, in view of provision of Section 17 of Registration Act, 1908, it cannot be relied by the defendants/respondents for the payment of instalments agreed by the plaintiff/appellant. We fail to appreciate the contention of the learned counsel for the reason that it is the plaintiff/appellant who is relying on that document to show its prima facie possession over the industrial unit read with memo of possession filed by him. It is further argued before us that the possession of the plaintiff/appellant is protected under Section 53A of the Transfer of Property Act, 1882, as the possession has already been delivered in pursuance of the agreement dated 12.9.2001. The argument of the learned counsel for the plaintiff/ appellant appears to be misconceived as protection under Section 53A of the Transfer of Property Act, 1882, is available as a shield and not as a sword. In other words, had the suit been filed by the Corporation for possession of the unit, the present plaintiff/appellant would have been in a position to defend the possession, if any, on the aforesaid ground. But here, in the present case, plaintiff/ appellant is seeking temporary injunction claiming the possession on the basis of unregistered agreement and simultaneously wants to take benefit of Section 53A of the Transfer of Property Act, 1882, which the law does not permit. 10. Lastly, our attention was drawn to the principle of law laid down in Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Das, 2004 AIR SCW 6333. We have gone through the said referred case. In the said case, there was a prima facie case in favour of the plaintiff/appellant, and, in that circumstance the Apex Court held that the irreparable loss shall be presumed in favour of the plaintiff for the purposes of granting temporary injunction. In the present case, the plaintiff/appellant has failed to prove prima facie case in his favour. In the said case, there was a prima facie case in favour of the plaintiff/appellant, and, in that circumstance the Apex Court held that the irreparable loss shall be presumed in favour of the plaintiff for the purposes of granting temporary injunction. In the present case, the plaintiff/appellant has failed to prove prima facie case in his favour. Since, admittedly, plaintiff/appellant has not paid the instalments agreed by him to pay to the defendants/respondents, the learned trial court, in its exercise of discretionary jurisdiction to grant the temporary injunction, has refused to issue temporary injunction. A person, who is not coming with the clean hands, is not entitled to the discretionary relief, like that of the temporary injunction. 11. Since in the application for temporary injunction prayer is restricted regarding the possession not to be interfered with, we have confined ourselves to that extent only. We do not think it proper to express opinion as to the reliefs sought in the suit, as the same is still pending before the trial court. 12. For the reasons, as discussed above, we are of the view that there is no force in the appeal, which is liable to be dismissed. The appeal is accordingly dismissed. Interim stay order granted by this Court has already been vacated. The application for recall of order dated 16.2.2005, whereby the interim stay order was vacated, stands rejected. No order as to costs.