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2009 DIGILAW 588 (PNJ)

Rajesh Chadha v. Satish Chaudhary

2009-03-25

L.N.MITTAL

body2009
JUDGMENT L.N. Mittal, J.:-Plaintiff Rajesh Chadha has filed this civil revision petition under Article 227 of the Constitution of India for setting aside the impugned order dated 30.10.2006, Annexure P-12 passed by learned Additional Civil Judge (Senior Division), Garhshanker, as affirmed in appeal by learned Additional District Judge, Hoshiarpur vide judgment dated 13.12.2006, Annexure P-13, whereby application moved by the plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (C.P.C) for temporary injunction stands dismissed. 2. Admitted case of the parties is that defendant No.1 Satish Chaudhary, who is also proprietor of defendant No.2 M/s Maa Bhagwati & Co., entered into agreement dated 9.02.2006 Annexure P-1 with the plaintiff for sale of the suit property known as M/s Kartar Glass Company, Garhshanker (in village Kullewal) comprised of 22 ½ acres of land along with scrap for Rs.5 crores and received Rs.1 crore as earnest money. Sale deed was stipulated to be got registered on 9.1.2007. 3. The plaintiff’s case is that the plaintiff has always been ready and willing to perform his part of the contract but the defendants started backing out of the same. Since date stipulated in the agreement for execution of sale deed had not expired, the plaintiff filed suit vide plaint dated 29.09.2006, Annexure P-7, for permanent injunction restraining the defendants from alienating any part of the suit property and from removing any iron, machinery, scrap, trees etc. therefrom. Temporary injunction to the same effect till final disposal of the suit was claimed by the plaintiff by moving application under Order 39 Rules 1 and 2 read with Section 151 CPC. 4. The defendants in the reply to the application admitted the execution of agreement, Annexure P-1, and receipt of Rs.1 crore as earnest money. The defendants, however, pleaded that the said agreement was cancelled and earnest money in full was refunded to the plaintiff. A sum of Rs.74 lacs was allegedly received by the plaintiff vide undated receipt Annexure P-10 and another sum of Rs.36 lacs was received by him shortly thereafter vide receipt dated 7.07.2006, Annexure P-11 and thus the agreement stood cancelled. 5. Both the Courts below did not accept the plaintiff’s version. Feeling aggrieved, the plaintiff has filed the instant revision petition. 6. I have heard learned counsel for the parties and perused the case file. 7. 5. Both the Courts below did not accept the plaintiff’s version. Feeling aggrieved, the plaintiff has filed the instant revision petition. 6. I have heard learned counsel for the parties and perused the case file. 7. Before proceeding further, it has to be noticed that during pendency of the suit, the plaint has been amended and the plaintiff has also claimed relief of specific performance of the agreement Annexure P-1. It is also to be noticed that documents Annexure P-10 and Annexure P-11 relied on by the defendants refer to two agreements i.e agreement Annexure P- 1 for sale M/s Kartar Glass Company and also another agreement between the parties for sale of assets of M/s Mangla Cotex Ltd. situated about 20 Kms from Ludhiana on Chandigarh- Ludhiana road. Vide said other agreement dated 1.05.2006, the plaintiff paid Rs.60 lacs as earnest money to the defendants for purchasing the assets of M/s Mangla Cotex Ltd. for Rs.8 crores. Vide documents Annexure P10 and Annexure P-11, both the agreements are said to have been cancelled. 8. Learned counsel for the petitioner at the outset, relying on judgment of Hon’ble Apex Court in the case of Surya Dev Rai versus Ram Chander Rai and others AIR 2003 Supreme Court 3044, contended that power of superintendence of this Court under Article 227 of the Constitution of India is much wider than the revisional power of this Court under Section 115 CPC. There is no quarrel with this proposition. 9. Learned counsel for the petitioner vehemently contended that agreement between the parties stands admitted, but the alleged cancellation thereof, vide documents Annexure P10 and Annexure P-11, cannot be accepted. There is considerable force in the contention. Document Annexure P-10 purports to be receipt which is undated, but scribed on stamp papers worth Rs.50/- plus Rs.50/- purchased on 27.03.2006. 10. Learned counsel for the respondents contended that this receipt was executed shortly before receipt dated 7.07.2006 Annexure P-11 as pleaded in the reply to application for temporary injunction. There is considerable force in the contention. Document Annexure P-10 purports to be receipt which is undated, but scribed on stamp papers worth Rs.50/- plus Rs.50/- purchased on 27.03.2006. 10. Learned counsel for the respondents contended that this receipt was executed shortly before receipt dated 7.07.2006 Annexure P-11 as pleaded in the reply to application for temporary injunction. It was also pointed out by learned counsel for respondents that six bank drafts dated 1.05.2006 for total amount of Rs.50 lacs were paid by the respondents to the plaintiff but the said drafts were got prepared in favour of one Madan Bassi (for Rs.25 lacs) and in favour of Harminder Pal (for Rs.25 lacs) on the instructions of the plaintiff and the same stand encashed at Ludhiana on 3.05.2006. Vide receipt Annexure P-10, a sum of Rs.74 lakhs was recited to have been received by the plaintiff and vide receipt Annexure P-11, a sum of Rs.36 lakhs was recited to have been received by the plaintiff. In addition to bank drafts of Rs.50 lacs, the plaintiff has admitted to have received bank drafts of Rs.24 lakhs (three drafts of Rs.8 lacs each), but allegedly relating to cancellation of the agreement of M/s Mangla Cotex Ltd. and not for cancellation of agreement Annexure P-1 of Kartar Glass Company. 11. As noticed above, receipt Annexure P-10 is undated but scribed on stamp papers purchased on 27.03.2006. The defendants have refrained from specifying even approximate date of the said receipt. Even learned counsel for the respondents on pointed inquiry is unable to state the approximate date of the said receipt. However, bank drafts for Rs.50 lacs were allegedly got prepared by the defendants on 1.05.2006. Consequently, alleged cancellation of the agreement Annexure P-1 must have been agreed upon on or before 1.05.2006. As per documents Annexure P-10 and Annexure P- 11, both the agreements were cancelled. However, the second agreement was dated 1.05.2006. It is prima facie highly improbable that the parties entered into the second agreement on 1.05.2006 and the plaintiff paid Rs.60 lacs to the defendants as earnest money on that date, and on the same day, the parties agreed to cancel both the agreements. Learned counsel for the respondents contended that only one agreement i.e Annexure P-1 was cancelled on that date. However, documents Annexure P-10 and Annexure P-11 refer to cancellation of both the agreements. Learned counsel for the respondents contended that only one agreement i.e Annexure P-1 was cancelled on that date. However, documents Annexure P-10 and Annexure P-11 refer to cancellation of both the agreements. Even if for the sake of argument alone, it is assumed that only one agreement i.e annexure P-1 was agreed to be cancelled on 1.5.2006, the same also appears to be improbable because on the same day, the plaintiff had paid Rs.60 lacs as earnest money to the defendants under the second agreement. Moveover, the defendants would not have paid the bank drafts dated 1.05.2006 for Rs.50 lacs to the plaintiff on 1.05.2006 without any receipt, particularly because the said bank drafts were not even in favour of plaintiff but were in favour of some two other persons. 12. There is another significant aspect of the matter. Agreement Annexure P1 stands admitted by both the parties. Vide this agreement, earnest money of Rs.1 crore was paid in cash. However, receipt Annexure P-11 refers to the earnest money of Rs.1 crore paid by way of two bank drafts of Rs.50 lacs each to the Official Liquidator and not to the defendants directly. Learned counsel for the respondents has not been able to explain this significant contradiction. 13. Learned counsel for the petitioner also pointed out that the petitioner had paid Rs.1 crore vide agreement Annexure P-1 and Rs.60 lacs vide second agreement dated 1.05.2006, but according to documents Annexure P-10 and Annexure P-11, a sum of Rs.1.10 crore only was refunded to the petitioner and there is no recital in these documents nor any pleading by the defendants that the petitioner had foregone the remaining amount of Rs.50 lacs. There is considerable force in the contention. The aforesaid contention of the learned counsel for the petitioner has not been rebutted in any manner. On the contrary, perusal of documents Annexures P-10 and P-11 reveals that the petitioner had been paid Rs.1.10 crore as against the earnest money of Rs.1 crore. These documents do not at all refer to the earnest money of Rs.60 lacs paid under the second agreement dated 1.05.2006. 14. Learned counsel for the respondents emphasised that document Annexure P-10 is in the own handwriting of the petitioner and document Annexure P-11 has been signed by the petitioner. However, this fact can be ascertained only after the parties lead evidence in the Trial Court. 14. Learned counsel for the respondents emphasised that document Annexure P-10 is in the own handwriting of the petitioner and document Annexure P-11 has been signed by the petitioner. However, this fact can be ascertained only after the parties lead evidence in the Trial Court. At this stage, the petitioner has not admitted these documents. 15. Learned counsel for the respondents emphasised that concurrent finding of facts by both the Courts below even if erroneous should not be interfered with in exercise of jurisdiction under Article 227 of the Constitution of India. The contention cannot be accepted as there is no concurrent finding of fact by both the Courts below. On the other hand, final finding of fact has to be arrived at after recording evidence in the suit. At this stage, prima facie case has to be looked into on the basis of the material of the record. The Courts below have failed to appreciate documents Annexures P-10 and P-11 in proper perspective. Moreover, when the petitioner has filed suit for specific performance, it would be desirable to preserve the suit property because otherwise the petitioner would suffer irreparable loss and injury. 16. Learned counsel for the respondents also contended that plea of forgery of documents Annexures P-10 and P-11 has been raised for the first time in the revision petition. This contention also cannot be accepted because it was also so taken up in the appeal and also in the replication. 17. For the foregoing reasons, I find that the petitioner has made out a strong prima facie case. Balance of convenience is also in favour of the petitioner because he has paid huge amount of Rs.1 crore which stands admitted by the defendants. The petitioner would obviously suffer irreparable loss and injury, if the defendants are allowed to remove the iron, machinery and trees from the suit property or to alienate the same. The impugned orders of both the Courts below are not sustainable at all. In view of the aforesaid, the instant revision petition is allowed and impugned orders of both the Courts below are set aside and application filed by the petitioner for temporary injunction is allowed and defendants are ‘restrained’ from removing iron, machinery/scrap and trees from the suit property till final decision of the suit. In view of the aforesaid, the instant revision petition is allowed and impugned orders of both the Courts below are set aside and application filed by the petitioner for temporary injunction is allowed and defendants are ‘restrained’ from removing iron, machinery/scrap and trees from the suit property till final decision of the suit. However, nothing observed herein above shall influence the Trial Court at the time of final decision of the suit. The trial Court shall make endeavor to decide the suit expeditiously and preferably within one year from the date of receipt of a copy of this order. Both the parties shall be given only two effective opportunities each for leading their evidence. ------------------