Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 1247 (PNJ)

Sugreeva Builders and Dev. v. Pulse Estate

2012-09-19

M.Jeyapaul

body2012
JUDGMENT Mr. M. Jeyapaul, J:- Third and fourth defendants have preferred the present revision, aggrieved by the grant of interim injunction restraining them as well as defendants 1 and 2, who were not served with notice in those applications, from creating any encumbrance over the suit land, changing its nature and character and raising any construction thereon. They have been restrained from creating third party rights and also from dispossessing the plaintiff from the suit land. They have further been restrained from violating the terms and conditions of the collaboration agreement dated 2.4.2009 and agreement of sale dated 11.5.2010 till the disposal of the suit. 2. Plaintiff is a private limited company. Defendants No. 5 to 8 are subsidiary companies of M/s Emmar MGF Land Limited and associate companies of the plaintiff. Defendants No. 5 to 8 along with the plaintiff conceptualized a Group Housing Project in Sector 63, Tehsil and District Gurgaon. In order to implement the Group Housing Project, defendants No. 5 to 8 purchased huge chunks of land in and around the revenue estates of village Ullahwas and Maidawas. Plaintiff and its associates were granted licence for their land. 1st defendant claiming to be owner of the suit land, proposed to sell the land to the plaintiff. A collaboration agreement dated 2.4.2009 was duly executed between the plaintiff and the 1st defendant. 1st defendant placed the suit land at the complete disposal of the plaintiff. 1st defendant also executed a general power of attorney in favour of the nominees of the plaintiff in terms of the said collaboration agreement confirming the interest of the plaintiff in the suit land for consideration. The actual physical possession of the suit land was delivered by the 1st defendant to the plaintiff at the time when collaboration agreement dated 2.4.2009 was executed. As per the collaboration agreement, 1st defendant would be entitled to allocation of the plots having area of 1100 sq. yards against each acre of land contributed by the 1st defendant. 1st defendant was in dire need of money and desirous of giving up his right to secure allotment in the developed land as per collaboration agreement. Plaintiff agreed to purchase the share to be allocated to the 1st defendant in terms of the collaboration agreement. yards against each acre of land contributed by the 1st defendant. 1st defendant was in dire need of money and desirous of giving up his right to secure allotment in the developed land as per collaboration agreement. Plaintiff agreed to purchase the share to be allocated to the 1st defendant in terms of the collaboration agreement. The agreement of sale was executed by the 1st defendant in favour of the plaintiff whereby 1st defendant would cease to have any right in the developed area for a consideration. As per the agreement, the plaintiff paid to the 1st defendant a total sale consideration of Rs.6,38,000/-. Plaintiff and the 1st defendant then applied to the Director, Town and Country Planning, Haryana, for grant of licence for the suit land. But the 1st defendant executed an alleged sale-deed dated 17.5.2010 in favour of 2nd defendant who in turn sold the said property to the 3rd defendant under sale-deed dated 16.11.2010 and the 3rd defendant in turn sold the property to the 4th defendant under the sale-deed dated 14.3.2011. 3. Third and fourth defendants were served with notice. They contested the applications filed by the plaintiff. They have contended that they purchased the suit land for a valuable consideration after verifying the fact that there was no encumbrance or charge over the suit land. They have also contended that the collaboration agreement and the agreement for sale dated 11.5.2010 are bogus and fabricated. They also denied that the physical possession of the suit land was delivered by the 1st defendant to the plaintiff. 4. Trial Court as well as the first appellate Court having referred to the collaboration agreement and the agreement for sale executed by the 1st defendant in favour of the plaintiff and various sale transactions that took place between the 1st defendant to 2nd defendant, 2nd defendant to 3rd defendant and 3rd defendant to 4th defendant, passed an order of injunction as stated supra. 5. Learned counsel appearing for the appellants would submit that the 1st and the 2nd defendants were not served with notice in the applications filed by the plaintiff for interim injunction. Even without serving notice on them, a blanket order of injunction has been granted as against 1st and 2nd defendants also. 5. Learned counsel appearing for the appellants would submit that the 1st and the 2nd defendants were not served with notice in the applications filed by the plaintiff for interim injunction. Even without serving notice on them, a blanket order of injunction has been granted as against 1st and 2nd defendants also. He would further contend that the order of injunction restraining the 3rd and 4th defendants who were not parties to the collaboration agreement and the agreement for sale allegedly entered into by the 1st defendant with the plaintiff, from violating the terms and conditions thereof does not stand for legal scrutiny. Even otherwise, the 3rd and 4th defendants are bona-fide purchasers for valuable consideration on verification of the fact that there was no encumbrance or charge over the property. 6. First defendant remained ex-parte before this Court. Second defendant would contend that the order of injunction passed as against him without serving notice upon him is liable to be set aside. At any rate, 2nd defendant is also a bona-fide purchaser for value, without any notice of any encumbrance or charge over the property, it is further contended. 7. Learned counsel appearing for the plaintiff would vehemently contend that the 3rd and 4th defendants who are the revision petitioners before this Court, cannot escape from the order of injunction passed as against them inasmuch as they did not appear before the trial Court and chose to contest the injunction applications filed by the plaintiff. They have simply entered into fraudulent transactions in order to knock away the rights of the plaintiff under the collaboration agreement and the agreement for sale entered into by the plaintiff with the 1st defendant. 1st and 2nd defendants cannot have a say as they have already relinquished their right in the property. As no relief was prayed for as against 1st and 2nd defendants, even in the Civil Miscellaneous Appeal, they had not been summoned by the first appellate Court. Therefore, he would submit that the order of injunction passed by the trial Court is sustainable. 8. The minutes of the proceedings of the trial Court would unambiguously establish that the 1st and 2nd defendants were not served with notice in the applications seeking interim injunction by the plaintiff. Therefore, he would submit that the order of injunction passed by the trial Court is sustainable. 8. The minutes of the proceedings of the trial Court would unambiguously establish that the 1st and 2nd defendants were not served with notice in the applications seeking interim injunction by the plaintiff. It was only the 3rd and 4th defendants who were served with notice in those applications and they also contested the same by filing their objections. 9. The trial Court in paragraph 3 of its impugned order has observed “notice of the suit as well as injunction application was given to the respondents-defendants. Respondents-defendants No. 3 and 4 appeared and contested the suit of the applicant-plaintiff and filed their written statement and replied to both stay applications by taking preliminary objections ... ...”. In paragraph 15 of the said order passed by the trial Court, it has also been observed that the 1st defendant preferred to be proceeded against ex-parte. 10. The first appellate Court made an observation “since no relief is prayed against rest of the respondents, therefore, summoning of respondents is dispensed for time being. It is not out of place to mention here that remaining respondents have not appeared before learned trial Court also and therefore, summoning is awaited”. 11. But on a careful perusal of the minutes of the proceedings, it is found that though notices were issued to all the defendants, only 3rd and 4th defendants who are the revision petitioners before this Court, were served with notice and they chose to contest the injunction applications. In fact, the trial Court time and again had ordered issuance of notice to the remaining defendants, namely, the 1st and 2nd defendants, both in the suit as well as in the applications for injunction. The service of notice to 1st and 2nd defendants in the applications for injunction was never recorded by the trial Court in its minutes of proceedings. Even in the impugned order passed by the trial Court, it has been recorded that Shri Manu Jain, Advocate, entered appearance only for respondents-defendants No.3 and 4. The fate of service of notice to the respondents-defendants 1 and 2 was not at all referred to by the trial Court, while noting the presence of the parties just below the cause title in the impugned order. 12. The fate of service of notice to the respondents-defendants 1 and 2 was not at all referred to by the trial Court, while noting the presence of the parties just below the cause title in the impugned order. 12. The trial Court should have waited for the service of notice to the 1st and 2nd defendants on the injunction applications. The injunction applications should not have been finally decided by the trial Court before service of notice to the contesting defendants. The first appellate Court also while deciding the civil miscellaneous appeal failed to take note of the fact that the trial Court passed the impugned order of injunction even before due notice was served on the 1st and 2nd defendants in the applications for injunction. The trial Court as well as the first appellate Court have committed a patent error in passing the impugned orders as against 1st and 2nd defendants who were not served with notice in the applications for injunction. Therefore, I have no hestitation to set aside the order of injunction passed by the trial Court and confirmed by the first appellate court qua 1st and 2nd defendants. 13. The plaintiff has established prima-facie by producing collaboration agreement as well as the agreement for sale that the 1st defendant in fact entered into collaboration agreement and thereafter, gave up his right to have 1100 sq. yards against each acre of land contributed by him under the agreement for sale entered into by him with the plaintiff. It has also been prima-facie shown before the Court that 1st defendant having entered into such agreement with the plaintiff, sold away the property to the 2nd defendant who in turn sold the property to the 3rd defendant who in turn sold the property to the 4th defendant. If further transaction is not stayed, the plaintiff would face much hardship. The balance of convenience is also found in favour of the plaintiff. Therefore, the trial Court as well as the first appellate Court have rightly passed an order of injunction as against 3rd and 4th defendants restraining them from creating any encumbrance over the suit land, changing its nature and character and raising any construction thereon. They have also been directed not to create any third party rights and they have also been restrained from dispossessing the plaintiff from the suit land. They have also been directed not to create any third party rights and they have also been restrained from dispossessing the plaintiff from the suit land. But the unworkable order of injunction granted by the trial Court and confirmed by the first appellate Court to the effect that the 3rd and 4th defendants are restrained from violating the terms and conditions of the collaboration agreement dated 2.4.2009 and the agreement for sale dated 11.5.2010 is modified to the effect that the 3rd and 4th defendants shall not act against the spirit of the collaboration agreement dated 2.4.2009 and the agreement for sale dated 11.5.2010 executed by the 1st defendant in favour of the plaintiff inasmuch as those agreements would govern the assignees also. A liberty is given to the plaintiff to file a fresh application under Order 39 rules 1 and 2 of the Code of Civil Procedure as against 1st and 2nd defendants before the trial Court and the trial Court shall dispose of such an application, filed by the plaintiff, in accordance with law. 14. With the above direction/modification, the present revision petition stands disposed of. --------0.B.S.0------------