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2014 DIGILAW 859 (ORI)

Rageshree Mohanty v. Subhrakanta Das Mohapatra

2014-12-10

RAGHUBIR DASH

body2014
JUDGMENT : Raghubir Dash, J. 1. This appeal is against the Order Dated 29.10.2014 passed by the Learned Civil Judge (Senior Division), Bhubaneswar in I.A. No. 817 of 2013 arising out of C.S. No. 1688 of 2013 dismissing the I.A. & refusing to grant injunction restraining the Opp. Party-Respondent from creating any third party interest in respect of the suit land till disposal of the suit. The Appellant filed the C.S. claiming that the Respondent entered into an agreement with the former agreeing to sell the suit land to the latter for a consideration of Rs. 23,00,000 vide agreement dated 17.3.2013. Out of the agreed consideration amount a sum of Rs. 14,00,000 was paid at the time of signing of the agreement & the balance amount was agreed to be paid, at the time of registration of sale deed which was, as stipulated in the agreement, to be executed within five months from the date of the agreement. The Appellant made several requests to the Respondent to execute the sale deed upon receiving the balance amount but the latter did not listen. Therefore, the Appellant sent lawyer's notice on 7.10.2013. When the Appellant got reliable information that the Respondent was intending to sell the suit land to a third party he, filed the suit for specific performance of the contract with prayer for permanent injunction preventing the Respondent from executing any deed of conveyance in respect of the suit land to any outsider. The I.A. for interim injunction was filed along with the plaint. 2. The Respondent-Opp. Party filed objection to the I.A. denying that he had executed any agreement on 17.3.2013 to sell the suit land to the Appellant & that he received any amount towards part payment of the consideration. The specific stand taken by the Respondent is that Appellant's husband & the Respondent are partners of a registered partnership Firm in the name of M/s. Meenakshi Construction & Consultancy. As the Opp. Party was to stay away from the country from 8.8.2013 to 12.11.2013 he had in good faith handed over some sheets of blank letter head of the partnership firm signed by him & three sheets of signed blank white paper to the Appellant's husband to be handed over to the Chartered Accountant. As the Opp. Party was to stay away from the country from 8.8.2013 to 12.11.2013 he had in good faith handed over some sheets of blank letter head of the partnership firm signed by him & three sheets of signed blank white paper to the Appellant's husband to be handed over to the Chartered Accountant. Therefore, the Respondent apprehends that the alleged agreement dated 17.3.2013 has been manufactured using the said signed blank papers to grab the suit land. 3. Learned Court below dismissed the I.A. observing that an agreement to sell immovable property does not create any title or interest in the property & possession of the suit property having not been delivered to the Appellant-Petitioner in pursuance of the suit agreement, prayer for interim injunction is without any merit. The Learned Trial Court has observed that the Appellant could make out a prima facie case but neither the balance of convenience does lean in his favour nor refusal of interim injunction would cause irreparable loss to her. 4. On behalf of the Appellant it is argued that since the agreement is in respect of a piece of immovable property the Learned Court below has wrongly made a bare statement that denial of interim injunction would not cause irreparable loss to the Appellant. It is further argued that balance of convenience is in favour of the Appellant inasmuch as any alienation of the suit land to a third party would lead to multiple litigations. Learned Counsel for the Respondent, on the other hand, submits that besides the absence of the ingredients of balance of convenience & irreparable injury, the very conduct of the Appellant in creating an artificial cause of action renders her disentitled to get the equitable relief of interim injunction. 5. Whether the Respondent has executed the agreement & received a part of the consideration amount or whether the suit agreement is a manufactured & manipulated one is to be decided during the trial of the suit. Unless & until it is decided that the agreement is genuine or not the Plaintiff-Appellant cannot be said to have got no prima facie case. Learned Trial Court has rightly observed that the plaint makes out a prima facie case. 6. Unless & until it is decided that the agreement is genuine or not the Plaintiff-Appellant cannot be said to have got no prima facie case. Learned Trial Court has rightly observed that the plaint makes out a prima facie case. 6. On the ingredient of irreparable injury, Learned Counsel for the Respondent, inviting attention to the alternative relief sought for by the Appellant in the prayer portion of the plaint that in the event of Plaintiffs failing to obtain a decree for specific performance of contract a decree may be passed against the Respondent to refund Rs. 14,00,000 with interest, submitted that even on the Appellant's own saying he can be compensated in terms of money. Section 10 of the Specific Relief Act, 1963 lays down, inter alia, that unless & until the contrary is proved the Court shall presume that breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. A party entering into a contract for sale of immovable property should not be allowed to avoid its performance by offering to pay damages or taking the stand that the ether party to the contract can be compensated by way of damages. The Plaintiff in a suit for specific performance of contract in respect of immovable property can, as an abundant caution, seek for alternative relief of refund of the amount already paid under the contract with interest. Until it is proved that breach of the contract in question can be adequately mitigated by compensation in money, it has to be presumed that the Appellant would suffer irreparable injury on the denial of specific performance of contract. According to the Learned lower Court ingredient of irreparable injury is absent in the case on hand because in Upendranath Singh V. Smruti Ranjan Mohanty & Ors. : 95 (2003) CLT 652 & M/s. East End Infotech Pvt. Ltd. V. M/s. Esskay Machinery Pvt. Ltd.: 2007 (I) CLR 10, it has been observed that any alienation made during pendency of a suit being hit by the doctrine of lis pendens, no irreparable injury will be caused if no interim injunction is granted against such alienation. In both the reported cases the suits were not for specific performance of contract in respect of immovable property. Learned Counsel for the Respondent has cited another Judgment of this Court in Smt. Laxmi Dei & Anr. In both the reported cases the suits were not for specific performance of contract in respect of immovable property. Learned Counsel for the Respondent has cited another Judgment of this Court in Smt. Laxmi Dei & Anr. V. Shyam Sundar Hans : AIR 2005 ORISSA 78. In this reported case the suit was for specific performance of agreement to sell immoveable property & application for temporary injunction restraining construction on a disputed land during pendency of the suit was refused on the ground that an agreement to sell by itself does not confer any right over the disputed property. But in that case the disputed property was already sold to third person who was in possession of the said property. Therefore, his Lordship observed that balance of convenience in that case was not in favour of the Plaintiff. Relying on the case of Jiwan Dass Rawal V. Narain Dass, reported in AIR 1981 DELHI 291, Learned Counsel for the Respondent argues that till a decree for specific performance is obtained, the vendor or a purchaser from the vendor is entitled to full enjoyment of the property & that a contract for sale does not, of itself, create any interest in or charge on such property. It merely creates a right in personam & not in estate, it is observed. There is no quarrel over the afore stated principles dealt with in the reported case. Another reported case of this Court in Sujan Charan Lenka V. Smt. Pramila Murari Mohanty : AIR 1986 ORISSA 74 has been cited by the Learned Counsel for the Respondent to support his contention that in a suit for specific performance of contract the vendor is entitled to full enjoyment of the property till a decree for such performance is obtained & no interim injunction can be passed against the vendor restraining him from alienating the property during pendency if the suit inasmuch as the decree obtained in the suit would be binding on any subsequent transferee who obtains transfer of the property with notice of the agreement of sale. This is a Judgment on a Civil Revision. The Revision Petitioners challenged an order whereby they were restrained from entering upon the suit land. The Plaintiff in the suit had sought for specific performance of contract in respect of the suit land. This is a Judgment on a Civil Revision. The Revision Petitioners challenged an order whereby they were restrained from entering upon the suit land. The Plaintiff in the suit had sought for specific performance of contract in respect of the suit land. Subsequent to the agreement for sell the owner of the suit land alienated the property to the revision-Petitioners under a registered sale deed. The order of injunction against the revision-Petitioners was set aside by this Court observing that a deed of contract for sale does not confer title & therefore, the Plaintiff therein had prima facie acquired no title in respect of the suit land whereas the revision Petitioners on the-basis of the sale deeds had prima facie acquired title therein & possession would ordinarily be presumed to be with those having prima facie title. Thus, on the basis of presumption that the revision Petitioners were in possession of the suit land, the order of temporary injunction was vacated. 7. Learned Counsel for the Appellant, on the other hand, has cited the Judgment in M/s. Julien Educational Trust V. Sourendra Kumar Roy & others, reported in 2010 (I) CLR (SC) 173. In this case the Appellant Trust filed a suit for specific performance of contract & also made an application under Order 39 Rules1 & 2 read with Section 151 of the Code of Civil Procedure for an order of injunction to restrain the original Defendants from alienating the suit land during the pendency of the suit. An ad interim order on the said terms was prayed for but, it was refused by the Trial Court. On appeal against such order of refusal the High Court passed an ad interim order of injunction against the Defendants but subsequently on being, intimated that the suit properties had already been transferred to third parties by registered deeds of conveyance the High Court vacated the ad interim order of injunction observing that after alienation of the suit properties the order of injunction had become infructuous. During pendency of the suit for specific performance of contract filed by the Trust the suit properties were alienated to third parties. On the prayer of the Plaintiff the third party purchasers were added as Defendants & the Plaintiff's application for temporary injunction against the newly added Defendants was allowed by the Learned Trial Court. During pendency of the suit for specific performance of contract filed by the Trust the suit properties were alienated to third parties. On the prayer of the Plaintiff the third party purchasers were added as Defendants & the Plaintiff's application for temporary injunction against the newly added Defendants was allowed by the Learned Trial Court. Against that order appeal was preferred to the High Court where the order of injunction was set aside. Against that order the Trust moved the Apex Court. Before the Apex Court it was argued, inter alia, that balance of convenience & inconvenience lay in favour of the newly added Defendants who had already purchased the suit properties inasmuch as they would not be able to utilize the land till the disposal of the suit. It was also argued that there would be no irreparable injury, inasmuch as, the Appellant Trust, if ultimately would succeed, could always be compensated in terms of money. The Hon'ble Apex Court after being satisfied that a prima facie case had been made out by the Appellant Trust as to the agreement for sale did not accept the afore stated submissions & expressed the view that, that was a case where an interim order was required to be passed to maintain the status quo of the suit property during pendency of the suit for specific performance filed by the Appellant Trust. Therefore, it cannot always be said that in a suit for specific performance of contract based on a mere agreement for sale no order of restraint can be passed against the owner of the land for the reason that the contract or agreement does not create any interest in the immovable property or that any alienation made during pendency of a suit being hit by the doctrine of lis pendens, no irreparable injury will be caused if temporary injunction is refused. 8. Learned Counsel for the Respondent relying on Mohd. Mehtab Khan V. Khushunma Ibrahim, reported in AIR 2013 SUPREME COURT 1099 & Skyline Education Institute (Put.) Ltd. v. S.L. Vaswani & another, reported in A.I.R. 2010 Supreme Court 3221 (1) argues that the Learned Trial Court having exercised its discretion not to grant relief of temporary injunction, the Appellate Court would be loath to interfere with the impugned order. Mehtab Khan V. Khushunma Ibrahim, reported in AIR 2013 SUPREME COURT 1099 & Skyline Education Institute (Put.) Ltd. v. S.L. Vaswani & another, reported in A.I.R. 2010 Supreme Court 3221 (1) argues that the Learned Trial Court having exercised its discretion not to grant relief of temporary injunction, the Appellate Court would be loath to interfere with the impugned order. It is well settled that once the Court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction & the said exercise of discretion is based upon objective consideration of the material placed before the Court & supported by cogent reasons, the Appellate Court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the Appellate Court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury & equity (Para 16 of Skyline Education Institute Pvt. Ltd.). But a perusal of the impugned order does not reveal that while dealing with the ingredients of balance of convenience & irreparable injury Learned Trial Court had made any objective consideration of the material placed before it & assigned any reason, much less cogent reason. 9. Learned Counsel for the Respondent further argues that since the deed of agreement for sale relied on by the Plaintiff-Appellant is not duly stamped the same cannot be admitted in evidence for any purpose & that document cannot be the basis for a prima facie satisfaction that there exists an agreement for sale entered into between the parties. Learned Counsel for the Appellant submits that the Appellant has made an application before the Learned Court below to impound the deed of agreement & direct the Appellant-Plaintiff to pay the stamp duty & penalty. This Court is not in a position to know as to whether such an application has already been disposed of by the Learned Trial Court. But, irrespective of any such application, it is the Learned Trial Court to take appropriate steps under Sections 35, 38 & 42 of the Indian Stamp Act, 1899 as & when the situation demands for dealing with insufficiently stamped instruments tendered for being admitted in evidence. But, irrespective of any such application, it is the Learned Trial Court to take appropriate steps under Sections 35, 38 & 42 of the Indian Stamp Act, 1899 as & when the situation demands for dealing with insufficiently stamped instruments tendered for being admitted in evidence. The Learned lower Court ought to have taken steps under Section 35 of the Act the moment the agreement for sale was placed before it for taking into consideration & the petition filed by the Appellant-Plaintiff to impound the document ought to have been disposed of before entering into hearing on the interim application for temporary injunction. For the fault of the Court a party should not be allowed to suffer & therefore, at this stage the Appellant's prayer for interim injunction cannot be kept out of consideration merely on the afore stated ground. 10. In his preliminary counter-affidavit filed by the Respondent it is elaborated as to how during the absence of the Respondent from India, which fact was known to the Appellant & her husband, the notice dated 7.10.2013 is said to have been sent to the Respondent calling upon him to execute a registered sale deed within three days from the date of receipt of the notice & how without awaiting for service of the notice on the Respondent the Appellant has filed the suit on 9.10.2013, just one day after issuance of the notice. It is submitted that such conduct on the part of the Appellant ought to be taken note of while making consideration as to whether the relief of interim injunction should be granted or not. The plea of non-service of any such notice before institution of the suit may be taken up in the suit as & when required, but not while dealing with the LA. Since all the three ingredients for the grant of interim injunction are satisfied & since there is apprehension that the Respondent may dispose of the suit land during pendency of the suit the Appellant is entitled to an order of temporary injunction. In the result, the appeal is allowed & the impugned order is set aside. The Respondent is restrained from creating any third party interest over the suit land till final adjudication of the suit.