JUDGMENT Per M. JAICHANDREN, J. The Civil Miscellaneous Appeal in C.M.A. No. 1633 of 2008, has been preferred by the appellant against the fair and decreetal order, dated 15.10.2008, made in I.A. No. 312 of 2008, in O.S. No. 130 of 2008, on the file of the First Additional District Judge, Madurai. 2. The Civil Miscellaneous Appeal in C.M.A. No. 1634 of 2008, has been preferred by the appellant against the fair and decreetal order, dated 15.10.2008, made in I.A. No. 313 of 2008, in O.S. No. 130 of 2008, on the file of the First Additional District Judge, Madurai. 3. Since the issues involved in the above Civil Miscellaneous Appeals have arisen out of the same facts and circumstances, a common order is passed. 4. The appeals have been filed on the various grounds stated in the memorandam of grounds of appeals stating that the fair and decreetal orders of the Court below are vitiated by material irregularies and that they are perverse and unsustainable in the eye of law. The Court below ought to have seen that the respondents are not the bona fide purchasers of the land, for value. It ought to have seen that the respondents had purchased the property knowing that the owners had executed a registered sale agreement in favour of the appellant. Exhibit R-4 is only a receipt for the `certificate of posting' and it has no evidentiary value. The Court below ought to have seen that the alleged cancellation of the power of attorney had not been intimated to the power agent. The petitioner had entered into the sale agreement for purchasing the property for a sum of Rs. 17,60,000/-. However, the respondents herein had purchased the property for a sum of Rs. 8,16,000/-. Thus, it is clear that the sale is only a sham and nominal sale. The Court below ought to have allowed the application filed by the appellant, to re-open the applications, to mark the certified copy of the power deed. The Court below had erred in holding that the appellant had not made any averment regarding the construction being put up by the respondents and with regard to their attempts to alienate their property. The Court below ought to have seen that the respondents had failed to prove that the alleged cancellation of the power of attorney was communicated to the power agent. 5. The Court below ought to have seen that the respondents had failed to prove that the alleged cancellation of the power of attorney was communicated to the power agent. 5. The learned counsel for the appellant had stated that the petitioner is the plaintiff in O.S. No. 130 of 2008, on the file of the First Additional District Judge, Madurai. The petitioner had filed the suit for the relief of specific performance of contract for sale, dated 8.10.2007, entered into by the petitioner, with the first defendant. The defendants 2, 5 and 6 are the sons of the fourth defendant. The 7th defendant is the wife of Venkatesan @ Venkatachalapathi, the son of the 4th defendant. Defendants 8 and 9 are the minor sons of the 7th defendant and the 3rd defendant is the wife of the second defendant. Item No.1 of the petition schedule properties belonged to the second defendant. The second defendant had bequeathed the property to the third defendant, by way of a registered settlement deed, dated 13.1.2003. The third defendant had executed a power of attorney deed in favour of the first defendant (in respect of the first item of the schedule properties, on 5.1.2007, and it was registered in the office of the Joint Sub Registrar No.4, Madurai. Item No.2 of the schedule properties belonged to the defendants 4, 5 and 6 and they had executed a deed of power of attorney in favour of the first defendant, which had been registered, on 8.1.2007. The first defendant, as the power of attorney of the defendants 3 to 6 had entered into a sale agreement, in respect of the first and second items, of the schedule properties with the petitioner/plaintiff. The sale consideration was fixed as Rs. 17,60,000/- and the agreement was to be executed, within a period of one year, from 8.10.2007. A sum of Rs. 1,00,000/- was paid as advance and the sale agreement was registered in the office of the Sub Registrar, Arasaradi, Madurai. The petitioner/plaintiff had always been ready and willing to perform his contract, from 8.10.2007. On 20.8.2008, when the petitioner had visited the schedule properties, he was astonished to see the second respondent/11th defendant and his men, measuring a larger extent of land, within which the second defendant's property was also situated. The petitioner/plaintiff had always been ready and willing to perform his contract, from 8.10.2007. On 20.8.2008, when the petitioner had visited the schedule properties, he was astonished to see the second respondent/11th defendant and his men, measuring a larger extent of land, within which the second defendant's property was also situated. When the petitioner/plaintiff had enquired the second respondent, the second respondent had stated that he was the Managing Director of the first respondent firm and that he had purchased one acre and 36 cents of land, on behalf of the first respondent, by way of two separate sale deeds, executed by the sixth defendant, for a sale consideration of Rs. 4,08,000/-, for each of the documents, dated 18.1.2008. The petitioner is willing to perform his part of the contract. The defendants 2 to 7 have colluded with one another and alienated the suit properties to the first respondent, with an intention of defrauding the petitioner. The defendants 2 to 7 have alienated the suit schedule properties, with the larger extent of land, in favour of the first respondent for a lesser consideration of Rs. 8,16,000/-. Whereas the sale consideration, as per the sale agreement is Rs. 17,60,000/- for an extent of 88 cents. The documents executed by the sixth defendant in favour of the first respondent, in respect of the schedule properties, are invalid in the eye of law, since the deeds of power of attorney were in existence. The petitioner is ready to deposit the balance sale consideration into the Court, as and when an order is passed asking him to do so. 6. In the counter filed by the respondents, it has been stated that the petitioner is not entitled for the reliefs, as prayed for. The suit itself is a vexatious one and therefore, it is not maintainable, both in law and on facts. The petitioner has traced the title of the third defendant to a gift settlement deed, dated 13.1.2003, executed by her husband Saravanan, who is the second defendant. The said deed, dated 13.1.2003, has been cancelled by the second defendant through a registered document, on 24.8.2007. The power deed, dated 5.1.2007, alleged to have been executed by Sasirekha, the third defendant in the suit, had been cancelled by her, through a registered cancellation deed, dated 14.8.2007. The said deed, dated 13.1.2003, has been cancelled by the second defendant through a registered document, on 24.8.2007. The power deed, dated 5.1.2007, alleged to have been executed by Sasirekha, the third defendant in the suit, had been cancelled by her, through a registered cancellation deed, dated 14.8.2007. With regard to the second item of the suit property, it has been claimed in the plaint that the first defendant is authorised through a power of attorney deed, dated 8.1.2007, executed by defendants 4, 5 and The copy of the alleged power deed, dated 8.1.2007, does not contain the signature of the parties. Further, the defendants 4, 5 and 6 have cancelled the alleged power through a registered document, dated 14.8.2007. The cancellation of the power deeds were duly communicated to the defendants and the general public through a publication. Therefore, the agreement of sale entered into by the first defendant, under the alleged power of attorney deeds, are not binding on the third defendant. Further, Nataraja Thevar, Saravanan, Balasubramanian and Raja, had executed a release deed in favour of the sixth defendant, on 31.8.2007. The release deed and the deeds for the cancellation of the settlement and the power of attorney were registered documents. They would be reflected in the encumbrance certificate. Therefore, the petitioner is not a bona fide purchaser. The petitioner had filed the case by colluding with the first defendant. The petitioner and the first defendant were fully aware of the cancellation of the power deed, even prior to the creation of the alleged sale agreement. The first respondent is a bona fide purchaser for value from the title holders, through registered documents. The respondents 1 and 2 are developers of properties and they have invested huge sums of money and the development work is in progress. By obtaining an order of injunction, the petitioner is trying to extract money from the respondents herein. The balance of convenience is only on the side of the respondents. In such circumstances, the petitioner is not entitled to any interim relief. 7. Based on the averments made by the petitioner, as well as the respondents, the trial Court had formulated the following point for consideration; "Whether the interim injunction, as prayed for by the petitioner, can be granted?" 8. Six documents had been marked on behalf of the petitioner, as Exhibit P-1 to P-6. 7. Based on the averments made by the petitioner, as well as the respondents, the trial Court had formulated the following point for consideration; "Whether the interim injunction, as prayed for by the petitioner, can be granted?" 8. Six documents had been marked on behalf of the petitioner, as Exhibit P-1 to P-6. Similarly, six documents had been marked on behalf of the respondents as R-1 to R-6. The trial Court had found that the defendants 1 to 9 in the suit were not parties to the interlocutory applications. The plaintiff, who had filed the suit against 11 defendants had chosen to file the interim applications only against the defendants 10 and 11, though he had claimed his right to the property from defendants 1 to 9. The first defendant had no right or title over the suit property. The plaintiff had claimed that the first defendant is the power agent of defendants 3 to 6 and that the first defendant had executed a sale agreement on behalf of defendants 3 to 7, on the basis of the power deeds executed by them. The power deeds relied on by the petitioner are, dated 5.1.2007 and 8.1.2007. Exhibit P-3, which is the copy of the power deed, said to have been executed by the defendants 4, 5 and 6, does not contain the signatures of any of the parties to the documents, as pointed out by the learned counsel for the respondents. The petitioner had not replied to the said contention raised on behalf of the respondents. Further, it has been claimed that the third defendant, who is the wife of the second defendant, derived title over the first item of the schedule properties through a settlement deed executed by the second defendant, on 13.1.2003. However, it was seen from Exhibit R-5 that the settlement deed, Exhibit P-1, had been cancelled by the second defendant by a registered document, on 24.8.2007. The power deeds said to have been executed by the defendants 3 to 6 had also been cancelled by registered cancellation deeds, on 14.8.2007, as found from Exhibits R-1 and R-2. However, it was seen from Exhibit R-5 that the settlement deed, Exhibit P-1, had been cancelled by the second defendant by a registered document, on 24.8.2007. The power deeds said to have been executed by the defendants 3 to 6 had also been cancelled by registered cancellation deeds, on 14.8.2007, as found from Exhibits R-1 and R-2. Thus, it would be clearly seen that on the date of the alleged sale agreement, Exhibit P-4, dated 8.10.2007, the first defendant did not have the power to execute a sale agreement in respect of the suit properties, as the power deeds executed by the defendants 3 to 6 had already been cancelled by them. Even the settlement deed executed by the second defendant had been cancelled well before Exhibit P-4 was brought into existence. Further, defendants 3 to 6 had informed the first defendant about the cancellation of the power deeds by way of Exhibit R-3 notices and that they had also given public notice through publication in a newspaper, marked as Exhibit R-6. Since the cancellation deeds were registered documents they would be reflected in the encumbrance certificate obtained by a bona fide purchaser. The petitioner had claimed that he had entered into a sale agreement with the first defendant only, on 8.10.2007. If he had obtained an encumbrance certificate in respect of the suit properties, before entering into the agreement for sale, he would have been aware of the cancellation of the power deeds. The defendants 3 to 6 had taken all necessary steps to inform the first defendant of the cancellation of the power deeds before selling the properties to the first defendant and therefore, the claim of the first respondent that he is a bona fide purchaser, for value, is sustainable. The mere fact that Exhibit P-4 sale agreement, contains a higher sale consideration for a lesser area than the sale deeds executed in favour of the first respondent, will not make the sale agreement more valid than the sale deeds. If the property had been purchased for a lesser value than its real worth, the Sub Registrar, Arasaradi, would have objected to the registration of the sale for a lesser value than the guide line value. The fact that the sale deeds in favour of the first respondent were registered without any objection, it would show that the properties had been valued, correctly. The fact that the sale deeds in favour of the first respondent were registered without any objection, it would show that the properties had been valued, correctly. The trial Court had also found that the petitioner had not claimed that the respondents were trying to construct buildings on the schedule properties and that they were trying to alienate the properties to the third parties. In view of the above findings, the trial Court had dismissed their interlocutory applications. 9. The learned counsel appearing on behalf of the petitioner had submitted that the learned first Additional District Judge had erred in dismissing the interlocutory applications in spite of the fact that the first defendant, the power of the attorney of the defendants 3 to 6, had entered into a sale agreement, in respect of the first and second items of the schedule mentioned properties, with the plaintiff, in O.S. No. 130 of 2008, who is the applicant in I.A. Nos. 312 and 313 of 2008. The sale consideration had been fixed at Rs. 17,60,000/- and the agreement was to be executed within a period of one year, from 8.10.2007 and a sum of Rs. 1,00,000/- had been paid as advance for the sale agreement, which had been registered in the Office of the Sub-Registrar, Arasaradi, Madurai. The applicant in I.A. Nos. 312 and 313 of 2008, who is the appellant in the present Civil Miscellaneous Appeals, has always been ready and willing to perform his part of the contract, from 8.10.2007. While so, the defendants 2 to 7 had colluded to alienate the suit properties to the first respondent with the wrongful intention of defrauding the applicant. The defendants 2 to 7 had alienated the suit schedule properties, with the larger extent, in favour of the first respondent for a lesser consideration of Rs. 8,16,000/-, as compared to the sale consideration of Rs. 17,60,000/- for 88 cents, as per the sale agreement, dated 8.10.2007. 10. It has been further stated that the respondents in the present appeals are attempting to put up constructions in the suit schedule properties and that they are attempting to alienate the properties to third parties. 8,16,000/-, as compared to the sale consideration of Rs. 17,60,000/- for 88 cents, as per the sale agreement, dated 8.10.2007. 10. It has been further stated that the respondents in the present appeals are attempting to put up constructions in the suit schedule properties and that they are attempting to alienate the properties to third parties. If the respondents are permitted to put up constructions and to alienate the properties in question it would defeat the main purpose for which the appellant had filed the suit, in O.S. No. 130 of 2008, on the file of the First Additional District Judge, Madurai, for the relief of specific performance of the contract of sale, dated 8.10.2007, entered into between the appellant herein and the first defendant in the suit. Permanent and irreparable damage would be caused to the appellant, if the prayer for an order of injunction is not granted, as prayed for by the appellant. Further, third party rights would accrue, if the respondents are allowed to alienate the properties in question to third parties. It would lead to multiplicity of proceedings and it would complicate matters further. 11. The learned counsel for the appellant had also submitted that the appreciation of the evidence on record by the trial Court is perverse, erroneous and unsustainable in the eye of law. The trial Court had come to the wrong conclusions in dismissing the interlocutory applications filed by the appellant in I.A.Nos.312 and 313 of 2008. Once it is admitted by the respondents that they are putting up constructions in the property in question and when there is a serious possibility of the properties in question being alienated to third parties, the interlocutory applications filed by the appellant before the trial Court ought to have been allowed, based on the principles of balance of convenience and the irreparable injury that would be caused to the applicants. 12. The learned counsel appearing for the appellant had relied on the following decisions in support of her contentions: 12. 12.1 In AIR 1999 SC 3105 : (1999) 7 SCC 1 : (1999) Supp MLJ 8 : JT (1999) 6 SC 89, the Supreme Court had held as follows at p. 10 of MLJ: "8. 12. The learned counsel appearing for the appellant had relied on the following decisions in support of her contentions: 12. 12.1 In AIR 1999 SC 3105 : (1999) 7 SCC 1 : (1999) Supp MLJ 8 : JT (1999) 6 SC 89, the Supreme Court had held as follows at p. 10 of MLJ: "8. Generally the interlocutory remedy by way of a grant of an order of injunction is intended to preserve and maintain in status quo the rights of the parties and to protect the plaintiff, being the initiator, of the action against incursion of his rights and for which there is no appropriate compensation being quantified in terms of damages. The basic principle of the grant of an order of injunction is to assess the right and need of the plaintiff as against that of the defendant and it is a duty incumbent on to the law Courts to determine as to where the balance lies. 19. .... Considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below: (i) Extent of damages being an adequate remedy; (ii) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor; (iii) The Court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others; (iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case - the relief being kept flexible; (v) The issues is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties case; (vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant; (vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise." It had also enumerated the considerations which ought to weigh with the Court. 12. 12. 12.2 In 2008 (4) CTC 126, a Division Bench of this Court had held as follows: "Though ordinarily, any attempted dealing with the property forming the subject matter of the suit pending disposal of the Suit, would be subject to the final result of the Suit and in that sense, it may not be necessary to grant an injunction, it is seen in this case that the appellant has no intention of retaining the property with her, but has clearly manifested an intention to develop the property and selling it to third parties by entering into an agreement with another party in December, 1987. We have therefore to take into consideration the rights of the several innocent third parties also, who are likely to invest their hard earned money in the purchase of either houses or flats which may be promoted by the appellant. Interests of justice certainly require that the third parties should be prevented from entering into the vicissitudes of this litigation, who would be losers, if the appellant is allowed to implement her intention in the matter of the development of the property and selling it to third parties either as houses or even as flats and the Suit is eventually decreed. We agree with the learned Judge that on the facts and in the circumstances of the case, the appellant should not be permitted to do so and she was rightly injuncted from alienating or otherwise disposing of the property or even altering the physical features of the property pendente lite......." 13. Per contra, the learned counsel appearing on behalf of the respondents had submitted that the trial Court had rightly dismissed the interlocutory applications filed by the appellant in the Court of the learned First Additional District Judge, Madurai. Since the appellant had no right or title in the schedule mentioned properties the first defendant had no right to enter into the alleged agreement for sale, dated 8.10.2007, being fully aware of the cancellation of the power of attorney, prior to the said agreement. The appellant in the present civil miscellaneous appeals, in C.M.A. Nos. Since the appellant had no right or title in the schedule mentioned properties the first defendant had no right to enter into the alleged agreement for sale, dated 8.10.2007, being fully aware of the cancellation of the power of attorney, prior to the said agreement. The appellant in the present civil miscellaneous appeals, in C.M.A. Nos. 1633 and 1634 of 2008, before this Court and the plaintiff in the suit in O.S. No. 130 of 2008, on the file of the First Additional District Judge, Madurai, ought to have verified whether the power of attorney deeds, dated 5.1.2007 and 8.1.2007, were valid and effective, on the date of the alleged agreement for sale. The first respondent, who is the 10th defendant in the suit, is a bona fide purchaser for value, from the real title holders of the property, through Document Nos.127 and 128 of 2008, dated 18.1.2008, registered at the Sub Registrar's office, Arasaradi. The respondents are developers of the properties and they have invested huge amounts of money in developing the properties. If an order of injunction is granted, as prayed for by the appellant/petitioner, it would cause grave hardship and irreparable loss to the respondents. Therefore, the balance of convenience is in favour of the respondents in the present appeals. Further, the trial Court had come to the right conclusions based on the documentary evidence which was available before it and it has been clearly found that the applicant in the interlocutory applications had not substantiated his claims, by adducing evidence to prove the alleged agreement of sale, dated 8.10.2007. Once the power deeds, dated 5.1.2007 and 8.1.2007, said to have been executed by the defendants 3 to 6, had been cancelled by a registered cancellation deed, dated 14.8.2007, as evidenced by Exhibits R-1 and R-2, it cannot be said that the applicant derives title to the properties in question. Further, the claim that the third defendant, who is the wife of the second defendant had derived title over the first item of the schedule mentioned properties through a settlement deed executed by the second defendant, on 13.1.2003, cannot be sustained in view of Exhibit R-5, which shows that the settlement deed, marked as Exhibit P-1, had been cancelled by the second defendant, by a registered document, on 24.8.2007. Therefore, the claim of the applicant that the agreement for sale, dated 8.10.2007, is valid and enforceable in law cannot be countenanced. 14. The learned counsel appearing for the respondents had relied on the decision, 1953 STPL (LE) 342 SC, wherein the Supreme Court had held as follows: "41. " We are not enamoured of the next alternative either, namely, conveyance by the subsequent purchaser alone to the plaintiff. It is true that would have the effect of the vesting the title to the property in the plaintiff but it might be inquitable to compel the subsequent transferee to enter into terms and convenants in the vendor's agreement with the plaintiff to which he would never have agreed had he been a free agent; and if the original contract is varied by altering or omitting such terms the Court will be remaking the contract, a thing it has no power to do; and in any case it will no longer be specifically enforcing the original contract but another and different one." 15. In view of the averments made on behalf of the appellant as well as the respondents and on considering the submissions of the learned counsels appearing on their behalf and on a perusal of the documents available, this Court is of the considered view that the appellant in the present appeals have not shown sufficient cause or reason for this Court to grant the reliefs, as prayed for by the appellant. The trial Court had rightly come to the conclusion that the applicant in the interlocutory applications, in I.A. Nos. 312 and 313 of 2008, who is the appellant in the appeals, in C.M.A. Nos. 1633 and 1634 of 2008, before this Court, had not shown that irreparable loss would be caused to him and that the balance of convenience was in his favour. It is well settled that any transaction by the respondents, with regard to the properties in question, would be subject to the principle of lis pendens, as explained in the various decisions of the Supreme Court, including the recent decisions in (2007) 7 SCC 144 : (2008) 5 MLJ 957 and in (2008) 5 SCC 796 : (2009) 2 MLJ 949. 16. In such circumstances, the appeals are liable to be dismissed. Hence, they are dismissed. Consequently, the Miscellaneous petitions 1 and 1 of 2008 are closed. No costs. Appeals dismissed.

R. Radhakrishnan v. Saswath Construction (Pvt. ) Ltd. , Madurai