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2008 DIGILAW 1525 (BOM)

PIERRE ANTONIO LOBO v. VIMAL SHANKAR SALGAONKAR

2008-10-18

A.P.LAVANDE

body2008
ORDER :- This appeal is directed against the order dated 24-7-2008 passed by the Civil Judge, Senior Division, C-Court, Mapusa in Special Civil Suit No. 111/2007/C by which the application for temporary injunction filed by the appellant has been dismissed. 2. The appellant filed the abovereferred suit against the respondents/ defendants seeking specific performance, permanent injunction and other consequential reliefs. It is the case of the plaintiff that in March, 2007, the defendant No.2 agreed to sell the suit property to the plaintiff. According to the plaintiff, he was given a copy of the Memorandum of Understanding entered into between him and the defendant No. 1 who was the owner of the suit property. According to the plaintiff the defendant No.2 represented to him that besides the Memorandum of Understanding, the defendant No.1 had empowered him to deal with the suit property as her constituted attorney with all powers including the power to sell. The plaintiff further claims that on 22-3-2007, he handed over to the defendant No.2 a token amount of Rs. 10,000/-, after the defendant No.2 agreed to sell his rights in the suit property and assured that the suit property could be conveyed in favour of the plaintiff or his friends for an agreed consideration of Rs. 8400/- per sq.mtr. The amount was handed over in the presence of Sadashiv Shravankar and Baptist Fernandes. Thereafter, there was correspondence between the plaintiff and the defendant No.2. On 28-5-2007 the defendant No.1 executed a sale deed for Rs. 43 lakhs in favour of the defendant No.3 in which the defendant No.2 was shown as the confirming party. Since the defendant No.2 did not transfer the property in favour of the plaintiff, initially the plaintiff filed a suit for specific performance against the defendants No.1 and 2. After filing of the written statement, the plaintiff came to know about the execution of the sale deed in favour of the defendant No. 3 whereupon, the plaintiff joined the defendant No.3 and sought consequential reliefs by seeking amendment of the plaint, which was allowed. The plaintiff also filed an application for temporary injunction restraining the defendants from creating third party rights and from changing the nature of the suit property. The application was contested by the defendants. The defendant No.2 denied having entered into an agreement of sale. The plaintiff also filed an application for temporary injunction restraining the defendants from creating third party rights and from changing the nature of the suit property. The application was contested by the defendants. The defendant No.2 denied having entered into an agreement of sale. The trial Court upon appreciation of the material on record produced by the parties, dismissed the application for interim relief and vacated the status quo order which was granted by the Court. Aggrieved, the plaintiff has filed the present appeal. 3. Mr. Sonak, the learned counsel appearing for the appellant submitted that the trial Court has not exercised jurisdiction by following the well settled principles governing the grant or refusal of injunction and therefore, the impugned order is liable to be set aside. According to Mr. Sonak, since a triable issue is made out in the suit on the basis of the pleadings of the parties, it is just and proper that pending disposal of the suit, the defendants are restrained from creating third party rights or from changing the nature of the suit property. According to Mr. Sonak the defendants have not made out a case of irreparable loss and therefore, it would be just and proper to maintain status quo pending disposal of the suit. He further submitted that the defendant No. 3 who has purchased the suit property is ordinarily residing at Miramar and the house in the suit property is his 'Second Home' as contended by him. Therefore, he submitted that the trial Court ought to have granted the injunction restraining the defendants more particularly the defendant No. 3 from changing the nature of the suit property and from creating third party rights in respect of the suit property. Mr. Sonak placed reliance upon the judgment of the Apex Court in Maharwal Khewaji Trust (regd.) Faridkot vs. Baldev Dass reported in 2005(1) Mh.L.J. (SC) 1043 = (2004) 8 SCC 488 and submitted that in the said judgment, the Apex Court has held that when an application for injunction restraining the defendants from alienating the suit property and putting up any construction therein is filed by the plaintiff, the same has to be granted unless the defendant is able to establish a case of irreparable loss of damage, the Court should not permit the nature of the property to change, which also includes alienation or transfer of the suit property. Mr. Mr. Sonak further submitted that the plaintiff agreed to purchase the suit property for Rs. 90 lakhs which has been purchased by the defendant No. 2 for Rs. 43 lakhs and this is also a relevant consideration for considerating of the application for interim relief. 4. Per contra, Mr. Kamat appearing on behalf of the respondents No. 1 and 3 submitted that the trial Court is absolutely justified in holding that there is no concluded contract between the plaintiff and the defendant No.2 and therefore, prima facie, no case is made out for grant of injunction as sought for. According to the learned counsel, the finding of the trial Court that the plaintiff has not made out prima facie case nor balance of convenience is in his favour but on the contrary, irreparable injury and loss would be caused to the defendant No.3 if he is not allowed to enjoy his own property which is purchased after paying Rs. 43 lakhs, cannot be faulted. Mr. Kamat took me to the pleadings and the documents relied upon by the parties and submitted that the plaintiff has not been able to establish a concluded contract between the plaintiff and the defendant No.2. He therefore, submitted that no interference is called for in the appeal. 5. Mr. Coelho Pereira, learned Senior counsel appearing on behalf of the respondent No. 2 submitted that the reasons given by the trial Court for dismissing the application cannot be faulted. The plaintiff has not established that there was a concluded contract for sale of the property to the plaintiff and having regard to the fact that the plaintiff appears to be a dealer in the property, no interference is called for in the impugned order having regard to the settled principles governing grant or refusal of inj unction. 6. I have considered the submissions made by the learned counsel for the parties and perused the record. 7. There is no dispute that the defendant No. 3 has purchased the suit property by registered sale deed by paying a consideration of Rs. 43 lakhs. The plaintiff claims that he has paid token amount of Rs. 10,000/- to the defendant No. 2 who agreed to transfer the suit property to the plaintiff at the rate of Rs. 8400/- per sq.mtrs. 43 lakhs. The plaintiff claims that he has paid token amount of Rs. 10,000/- to the defendant No. 2 who agreed to transfer the suit property to the plaintiff at the rate of Rs. 8400/- per sq.mtrs. The trial Court found that the version of the plaintiff that there was an oral agreement between the plaintiff and the defendant No.2 could not be believed. This finding in my opinion, cannot be said to be perverse having regard to the materials placed on record. It is pertinent to note that although the plaintiff claims that the defendant No.2 represented to him that he had power to sell the suit property, no document authorising the defendant No.2 has been placed on record. The plaintiff has relied upon a copy of the Memorandum of Understanding dated 7-11-2006 entered into the defendants No. 1 and 2 by which, the defendant No. 1 agreed to sell the suit property to the defendant No.2 or his nominee, for Rs. 52 lakhs. 8. Therefore, it is evident that there was no agreement of sale executed between the plaintiff and the original owner of the suit property i.e. the defendant No.1. As stated above, no document authorising the defendant No.2 to sell the suit property pursuant to the said Memorandum of Understanding has been placed on record. Although the trial Court has not considered this aspect in my considered opinion, these facts also go against the plaintiff. No doubt the claim made by the defendant No.2 that he did not even know the plaintiff, may not be fully correct. But this fact by itself does not entitle the plaintiff to the relief of . injunction against the defendant No.3 who has purchased the property by paying a consideration of Rs. 43 lakhs. Merely because the plaintiff claims to have entered into an agreement with the defendant No.2 to purchase the property for Rs. 90 lakhs, by itself does not entitled him for injunction against the plaintiff who has purchased the suit property by registered sale deed. 9. Insofar as the judgment of the Apex Court in (2004) 8 see 488 (Supra) relied upon by Mr. 90 lakhs, by itself does not entitled him for injunction against the plaintiff who has purchased the suit property by registered sale deed. 9. Insofar as the judgment of the Apex Court in (2004) 8 see 488 (Supra) relied upon by Mr. Sonak in support of his contention that unless the party is able to make out a case of irreparable loss or damage, the party should not be permitted to change the nature of the property including alienation or transfer of the property is concerned. I find myself unable to place reliance on the said judgment in support of the plaintiffs case. No doubt, the Apex Court has held that unless a case of irreparable loss is made out by the party, the Court should not permit the nature of the property to be changed which includes alienation or transfer of the property. From the perusal of the judgment, the:: facts which prompted the Apex Court to give the said finding are not clear and therefore, I am unable to place reliance upon the said judgment in the present case. It is well settled that in order to succeed in an application for interim relief filed under Order 39, Rules land 2 of the Civil Procedure Code, the plaintiff has to satisfy the three ingredients namely; (i) prima facie case, (ii) balance of convenience and (iii) irreparable loss and injury. In the present case, as stated above, the Trial Court has held that the plaintiff has not been able to establish concluded contract between the plaintiff and the defendant No.2 to sell the suit property. Therefore, the plaintiff has not been able to make out prima facie case in his favour. Obviously, the balance of convenience is in favour of the defendant No.3 and irreparable loss and injury would be caused to the defendant No. 3 if he is injuncted from dealing with the property which he has purchased by paying a consideration of Rs. 43 lakhs. 10. In my opinion, having regard to the settled principles governing interference by the Appellate Court• with the order passed by the trial Court granting or refusing injunction, no interference is called for in the present matter. For the reasons aforesaid, I find no merit in the present appeal and therefore, the appeal is rejected. Appeal dismissed.