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2014 DIGILAW 1042 (RAJ)

Tara Joshi v. Vijay Raj

2014-04-29

ARUN BHANSALI

body2014
JUDGMENT 1. - This appeal under Order 43, Rule 1 (r) CPC is directed against the order dated 20.11.2013 passed by the Additional District Judge No.3, Jodhpur Metropolitan, whereby the application filed by the appellants under Order 39, Rule 1 & 2 CPC has been rejected. 2. The facts in brief may be noticed thus : the appellants, wife & son of Late Shri Mahesh Chandra Joshi ('M.C. Joshi') filed a suit for cancellation / declaration as voidable the sale deed dated 19.10.2006 with the averments that a plot of land ad measuring 55' x 80' situated at 'C' Sector, Shastri Nagar, Jodhpur was allotted by the Urban Improvement Trust, Jodhpur ('UIT') on 10.8.1967 to M.C. Joshi; permission to raise construction was granted on 12.2.1968; whereafter construction was raised and lease deed was issued for residential purpose in M.C. Joshi's favour on 22.1.1992, which was registered on 31.3.1992; after death of M.C. Joshi, the plaintiffs are residing in the said property and are in possession as owners; said M.C. Joshi obtained a Lease Exemption Certificate dated 3.9.2004 from the UIT. It was then claimed that the defendants expressed the desire to purchase the suit property and therefore, an agreement to sale dated 25.8.2006 was executed between M.C. Joshi and the defendants for a consideration of Rs. 1.15 Crore and at the time of execution of the agreement Rs. 11 Lakh by way of three cheques dated 25.8.2006 and 28.8.2006 were delivered and the rest of the consideration of Rs. 1.04 Crore was to be paid on M.C. Joshi purchasing some property; it was agreed that the physical, actual and legal possession will be handed-over on execution of the registered sale deed and on payment of the entire consideration, it was claimed in the plaint that as per the agreement possession of a hall ad measuring 30' x 30' was delivered to the defendants and they were required to pay rent @ Rs. 25,000/- per month to M.C. Joshi, which was being paid during his life time and after his death, the defendants continued to pay the same which was last paid on 1.5.2012, which is clear from the copy of the statement of account of plaintiff No.1; a sale deed dated 19.10.2006 was executed by M.C. Joshi, which was registered with Sub-Registrar (I), Jodhpur. The payment was made to M.C. Joshi by cheques and a reference was made to three cheques which were handed-over at the time of agreement to sale as well; it was alleged that the defendants for the purpose of saving income-tax and stamp duty indicated the consideration in the sale deed at Rs. 65,25,000/- when in fact, the property was to be sold for entire consideration of Rs. 1.15 Crore and the sale deed was executed in terms of the agreement only; the relations between M.C. Joshi and defendants were quite close and therefore, the sale deed was executed and the balance consideration was paid by 16 post-dated cheques and from the said cheques also, the payment of all the cheques was not received; it was claimed that on account of the close relationship, the sale deed was executed and M.C. Joshi was having faith that the entire consideration would be paid and that assurance was given by the defendants that possession would only be obtained after payment of entire consideration; the said M.C. Joshi died on 30.8.2008 and till his death he was residing in the suit premises and the defendants are also residing there. During the life time of M.C. Joshi, he requested for payment of balance consideration, however, he was told that as the possession with him, as and when the defendants would require possession, they would make payment of the balance consideration. When M.C. Joshi was critically ill, he directed the defendants for payment of balance consideration to the plaintiffs, which was agreed to by them; after death of M.C. Joshi, when balance consideration was asked for, based on the close relationship, it was assured whenever possession would be sought, payment would be made; it was claimed that the plaintiffs are with the possession of the suit property and a part of the suit property has been let-out. It was alleged that out of the cheques which were handed-over at the time of execution of the sale deed only payment of cheques amounting to Rs. 54 Lakh was received and therefore, a sum of Rs. .76 Lakh (the basis for claim of Rs. It was alleged that out of the cheques which were handed-over at the time of execution of the sale deed only payment of cheques amounting to Rs. 54 Lakh was received and therefore, a sum of Rs. .76 Lakh (the basis for claim of Rs. 76 Lakh is not clear) was still outstanding; the rent which was being paid by the defendants has also been stopped after last payment on 10.5.2012; it was stated that despite repeated request, the amount of balance consideration was not being paid and therefore, a notice dated 12.9.2013 by the counsel was issued, which was returned back undelivered. It was claimed in the plaint that as the defendants have failed to make payment of balance consideration of Rs. .76 Lakh, the sale deed dated 19.10.2006 needs to be cancelled. Ultimately, it was prayed that the sale deed be cancelled be declared voidable and in the alternative, the defendants be directed to make payment of balance consideration of Rs. 76 Lakh alongwith interest @ 18% p.a. 3. Alongwith the suit, an application seeking temporary injunction was filed by the appellants reiterating the averments made in the plaint and praying that during the pendency of the suit, the defendants be restrained by way of temporary injunction from dispossessing the plaintiffs from the suit property and they may further be restrained from transferring or dealing with the suit property. 4. A written statement was filed by the defendants, inter-alia, denying that the plaintiffs were in possession of the suit property as owners; the execution of agreement to sale was denied; it was claimed that the sale deed was executed on 19.10.2006 and was registered with the Sub-Registrar (I), Jodhpur and as M.C. Joshi died in the year 2008 and if the entire consideration was not paid, then why no action was taken by M.C. Joshi; it was claimed that the story of agreement to sale was baseless and is a part of well thought of conspiracy to harass the defendants. The payment of so-called rent @ Rs. 20,000/- / 25,000/- for the part of the suit property, which was claimed by the plaintiffs to be in possession of the defendants was also denied; it was claimed that the consideration was decided at Rs. 65,25,000/- and the same was paid at the relevant time. The payment of so-called rent @ Rs. 20,000/- / 25,000/- for the part of the suit property, which was claimed by the plaintiffs to be in possession of the defendants was also denied; it was claimed that the consideration was decided at Rs. 65,25,000/- and the same was paid at the relevant time. The allegations about non-payment of any part of the consideration were denied; it was claimed that the possession of the entire suit property was handed-over to the defendants at the time of execution of the sale deed and a part thereof was let-out by the defendants to Attractive Exim Private Limited through its Manager, Mahaveer Jain on 21.10.2006, who has sub-let a part thereof to the plaintiffs for which the defendants are free to take action according to law. The receipt of notice was denied. Ultimately, it was prayed that the suit filed by the plaintiffs be dismissed. 5. A reply to the T.I. Application was also filed reiterating the averments made in the written statement and therein also it was prayed that the application seeking temporary injunction be dismissed. 6. After hearing the arguments, the learned trial court by the impugned order dated 20.11.2013, came to the conclusion that the possession of the suit property has been indicated to have been delivered in the sale deed and it is also indicated that no amount of consideration was due; the document was a registered document regarding which there is no basis to disbelieve and on the basis of registered sale deed, the defendants are owners of the suit property and on that basis did not find any prima facie case in favour of the appellants and issues relating to the balance of convenience and irreparable injury were resultantly decided against the plaintiffs-applicants and consequently, dismissed the application under Order 39, Rule 1 & 2 CPC. 7. It was submitted by learned counsel for the appellants that the trial court clearly fell in error in coming to the conclusion that the appellants had no prima facie case. It was submitted that the contents of the sale deed are not gospel truth and from the material available on record it is prima facie apparent that an agreement to sale of the suit property at Rs. 1.15 Crore, was entered into between the parties and the sale deed has been executed for a sum of Rs. It was submitted that the contents of the sale deed are not gospel truth and from the material available on record it is prima facie apparent that an agreement to sale of the suit property at Rs. 1.15 Crore, was entered into between the parties and the sale deed has been executed for a sum of Rs. 65,25,000/- and it is not even the case of the defendants that any consideration beyond Rs. .65,25,000/- was paid by them and therefore, clearly a huge consideration remains outstanding; that the appellants are in possession of the suit property which clearly goes to show that the consideration has not been paid as in case the consideration was paid, the defendants would have insisted for the possession of the suit property; the appellants are entitled to get the sale deed cancelled / declared voidable for non-payment of consideration by the respondents; the defendants have made payment of the rent for the premises till 10.5.2012, which conclusively goes to show that despite execution of the sale deed in the year 2006, the appellants continued to be the owners of the suit property and therefore, it was not justified for the trial court to come to the conclusion that the appellants have no prima facie case; it was submitted that if the defendants are not restrained from transferring/dealing with the suit property, the same would result into further complications. It was prayed that the appeal be allowed and the relief as prayed for in the application seeking temporary injunction be granted. 8. It was prayed that the appeal be allowed and the relief as prayed for in the application seeking temporary injunction be granted. 8. Per contra, learned counsel for the respondents submitted that the entire story sought to be made up by the appellants plaintiffs is highly improbable; the existence of agreement to sale itself is questionable as neither the original whereof has been produced nor its whereabouts have been indicated in the plaint; the sale deed was executed in the year 2006, the executant M.C. Joshi was alive till 2008 and if any consideration remained outstanding, there was no cause for him not to ask for the same; even after death of M.C. Joshi in the year 2008, the present proceedings have been initiated in the year 2013 i.e. after five years from the death of M.C. Joshi, for which there is absolutely no explanation; the suit seeking cancellation of the sale deed for alleged non-payment is not maintainable in view of the provisions of Section 55(4)(b) of the Transfer of Property Act, 1882 ('the Act'); the relief as prayed in the plaint is contrary to the provisions of Section 31 of the Special Relief Act, 1963 ('S.R. Act') as the plaintiffs have not offered to return back the consideration received; suit is ex-facie barred by limitation under Articles 53 & 59 of the Limitation Act, 1963; the plaintiffs have alternative remedy under the provisions of Section 55(3), 55(4) and 55(5) of the Act and therefore, under Section 41(h) of the S.R. Act, the injunction cannot be granted. It was further submitted that the jurisdiction of this Court under Order 43(1)(r) is well defined by the judgment of the Hon'ble Supreme Court in the case of Skyline Education Institute (Pvt.) Ltd. v. S.L. Vaswani & Anr., AIR 2010 SC 3221 and therefore, the discretion exercised by the trial court does not call for any interference. 9. Reliance was also placed on Manju Bhati v. Balkishan Gupta & Ors. : S.B. Civil Misc. Appeal No.3561/2013 decided on 19.11.2013 at Jaipur Bench of this Court to contend that in similar circumstances this Court has upheld refusal of injunction. 10. I have considered the rival submissions made by learned counsel at the parties. 11. 9. Reliance was also placed on Manju Bhati v. Balkishan Gupta & Ors. : S.B. Civil Misc. Appeal No.3561/2013 decided on 19.11.2013 at Jaipur Bench of this Court to contend that in similar circumstances this Court has upheld refusal of injunction. 10. I have considered the rival submissions made by learned counsel at the parties. 11. It is not in dispute that a sale deed dated 19.10.2006 was executed by M.C. Joshi in favour of the defendants; the sale deed, inter-alia, indicated transfer of the suit property for a consideration of Rs. 65,25,000/- and the consideration is said to have been received by 16 cheques of various dates most of which were of the date subsequent to the sale deed, last of such date being 25.11.2006. The deed also indicated that no sum was outstanding, the transferee was in possession of the suit property for last 3-4 years as tenant and therefore, the actual vacant possession as owner has been delivered. The original allotment letter, licence, construction permission and lease deed were also handed-over to the transferee. The same was registered by the Sub-Registrar on 19.10.2006 and a certificate under Section 54 of the Stamp Act taking the valuation of the sale deed at Rs. 67,12,900/- was endorsed and recovery of deficient stamp duty was also made. 12. In the plaint and the T.I. Application, the cause sought to be made out by the appellants-plaintiffs is on the basis of an agreement to sale which does not bear any date, however, is claimed to be dated 25.8.2006, which is said to have been executed by M.C. Joshi in favour of the defendants wherein a consideration of Rs. 1.15 Crore has been indicated; and with the allegation that even 16 cheques which have been indicated in the sale deed, payment of some of those cheques also was not made and the consideration received is only Rs. 54 Lakh against the agreed consideration of Rs. 1.15 Crore. The existence of agreement to sale is sought to be reinforced by the fact that three cheques indicated in the agreement to sale also find mention in the sale deed and that in pursuance to the agreement to sale the defendants continued to make payment of rent @ Rs. 25,000/- per month earlier to M.C. Joshi and thereafter to the plaintiffs. 25,000/- per month earlier to M.C. Joshi and thereafter to the plaintiffs. In support whereof copies of statement of account from the plaintiffs' bank has been filed. Besides the above, the appellant claim to be in possession of the suit property as well. 13. On the other hand, the defendants have vehemently contested all the contentions of the appellants whereby the existence of agreement to sale, nature of possession of the plaintiffs, payment of the rent has been disputed. 14. From the overall consideration of the averments, allegations, contentions and submissions made on behalf of the appellants and respondents, the validity of the sale deed dated 19.10.2006 at the prima facie stage of the litigation cannot be said to be suspicious and/or without consideration and/or with deficient consideration. The claim of existence of an agreement to sale, the consideration agreed therein and the terms of the said agreement having survived the execution of the sale deed dated 19.10.2006 shall have to be established by the appellants in the trial so as to negate the effect of the registered sale deed dated 19.10.2006. Further the claim regarding non-payment of consideration indicated in the sale deed also appears to be a difficult preposition at the prima facie stage as the payments were made by the post-dated cheques, M.C. Joshi survived for about two years from the date the sale deed was executed and the post-dated cheques must have been deposited by him on due dates and if the same were dishonoured/not paid for any reason, he would have taken action during his life time. The omnibus plea raised by the appellants regarding close relationship with the defendants for the alleged inaction of M.C. Joshi and the plaintiffs for over a period of seven years does not inspire confidence at the prima facie stage. So far as allegation regarding payment of rent till 10.5.2012 by the respondents is concerned, besides the fact that the agreement envisage payment of Rs. 25,000/- per month and the so-called entries in the statement of account of appellant No.1 indicates Rs. 20,000/- per month only, the said entries also would have to be established by the appellant as payments from respondents during the trial of the suit, as the entries by themselves do not prove anything, inasmuch as, the entries contain cheque numbers and other banking abbreviations only. 20,000/- per month only, the said entries also would have to be established by the appellant as payments from respondents during the trial of the suit, as the entries by themselves do not prove anything, inasmuch as, the entries contain cheque numbers and other banking abbreviations only. As such the entries by themselves also are not of much consequence. 15. The other pleas raised by the defendants regarding limitation etc. though substantial does not call for any observation at this stage. 16. The execution of sale deed even after part payment and based on future consideration is envisaged by the Act and in case of its non-payment, the situation is taken care of by provisions of Section 55(4)(b) of the Act. The Hon'ble Supreme Court in Kaliaperumal v. Rajagopal and Another, (2009) 4 SCC 193 observed and held as under:- "17. It is now well settled that payment of entire price is not a condition precedent for completion of the sale by passing of title, as Section 54 of the Transfer of Property Act, 1882 ("the Act", for short) defines "sale" as "a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised". If the intention of parties was that title should pass on execution and registration, title would pass to the purchaser even if the sale price or part thereof is not paid. In the event of non-payment of price (or balance price as the case may be) thereafter, the remedy of the vendor is only to sue for the balance price. He cannot avoid the sale. He is, however, entitled to a charge upon the property for the unpaid part of the sale price where the ownership of the property has passed to the buyer before payment of the entire price, under Section 55(4)(b) of the Act. 18. Normally, ownership and title to the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. But this is not an invariable rule, as the true test of passing of property is the intention of parties. Though registration is prima facie proof of an intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property. 19. But this is not an invariable rule, as the true test of passing of property is the intention of parties. Though registration is prima facie proof of an intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property. 19. The answer to the question whether the parties intended that transfer of the ownership should be merely by execution and registration of the deed or whether they intended the transfer of the property to take place, only after receipt of the entire consideration, would depend on the intention of the parties. Such intention is primarily to be gathered and determined from the recitals of the sale deed. When the recitals are insufficient or ambiguous the surrounding circumstances and conduct of parties can be looked into for ascertaining the intention, subject to the limitations placed by Section 92 of the Evidence Act." 17. Further in Manju Bhati (supra), this Court while considering a case whereby allegations were made that the defendants committed cheating by not making payment towards sale consideration inspite of the sale deed and not adjusted the amount of sale consideration towards the outstanding amount of loan of appellants' brother, came to the conclusion that whether any cheating was committed or not and whether the sale deed in question was not executed by committing cheating or not would be a matter of evidence, which could be decided only after completion of trial and upheld the order passed by the trial court refusing grant of injunction. 18. In view of the above, in face of the registered sale deed, the recitals regarding payment of consideration and possession therein and the subsequent conduct of M.C. Joshi and the plaintiffs, there does not appear to be a prima facie case in favour of the appellants. 19. The Hon'ble Supreme Court in the case of Skyline Education Institute (Pvt.) Ltd. (supra) reiterated the following principles laid down by it in Wander Ltd. v. Antox India (P) Ltd., 1990 (Supp.) SCC 727 :- "... 19. The Hon'ble Supreme Court in the case of Skyline Education Institute (Pvt.) Ltd. (supra) reiterated the following principles laid down by it in Wander Ltd. v. Antox India (P) Ltd., 1990 (Supp.) SCC 727 :- "... In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion." 20. So far as the fact that the appellants are in possession of the suit property and are apprehending dispossession during the pendency of the suit, even as per the case of the defendants, the appellants are sub-letee from Attractive Exim Private Limited and had sought to reserve their right to take action under the law. Further the transfer, if any, during the pendency of the suit by the defendants also is taken care of by provisions of Section 52 of the Act and as such, besides lack of prima facie case, it cannot be said that the appellants will suffer irreparable injury, if the injunction as prayed for is not granted. 21. In view of the above discussion, the order passed by the trial court does not call for any interference.Any observations made by the trial court and this Court, here-in-before are prima facie only and the same shall not effect the final out-come of the suit and/or any other proceedings.Accordingly, the appeal filed by the appellants is dismissed.Appeal dismissed. *******