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2015 DIGILAW 145 (CAL)

Rajjak Ali Mondal v. Nurislam Mondal

2015-02-20

JYOTIRMAY BHATTACHARYA, TAPASH MOOKHERJEE

body2015
Judgment Jyotirmay Bhattacharya, J. This First Miscellaneous Appeal is directed against an order rejecting the plaintiff’s application for temporary injunction passed by the learned Trial Judge on 8th March, 2014 in Title Suit No.228 of 2010 at the instance of the plaintiff/appellant. Let us test the legality of the said impugned order in the facts of the instant case which are briefly stated herein below. The plaintiff filed a suit for specific performance of contract and permanent injunction. He claimed that he entered into an agreement for sale with the defendant/respondent Nos. 1 to 9 for purchasing Sali land measuring about 28 Decimals in R.S Dag No. 262 and Sali land measuring about 28 Decimals of land in R.S Dag No.843 & 844 lying at Mouza Atghara, J.L. No. 10, Khatian No.688, P.S Rajarhat now Baguihati, District South 24-Parganas. It was further claimed that the said defendant/Respondent Nos. 1 to 9 also agreed to transfer and/or sale more or less 10 Satak of Sali land lying at Mouja Gopalpur under Dag No.3343 to the plaintiff. As per the said agreement the defendant/respondent Nos. 1 to 9 agreed to sale the said three plots of land at Atghara at a consideration of 23,00,000.00 (Rupees twenty three lakhs) only per Cottah and at a consideration of Rs.2,00,000.00 (Rupees two lakh) only per Cottach for the land at Gopalpur. A sum of Rs.1,50,000.00 (Rupees one lakh fifty thousand) only was alleged to have been paid by the plaintiff to the defendant/respondent Nos.1 to 9 by way of earnest money. The plaintiff further claimed that subsequent to the execution of the said agreement, the plaintiff made further payment in two installments towards the part payment of the consideration money. The plaintiff claimed that altogether the plaintiff paid a sum of Rs.13,30,000.00 (Rupees thirteen lakhs thirty thousand) only to the defendant/respondent Nos. 1 to 9 towards part payment of the consideration money for the said transaction. The said transaction was agreed to be completed within 24 months from the date of execution of the said agreement. It is alleged by the plaintiff that despite repeated requests were made to the defendant/respondent Nos. 1 to 9 for completing the said transaction on acceptance of the balance consideration money, those defendants/respondents failed to complete the said transaction. Subsequently, it was found that the defendant Nos. It is alleged by the plaintiff that despite repeated requests were made to the defendant/respondent Nos. 1 to 9 for completing the said transaction on acceptance of the balance consideration money, those defendants/respondents failed to complete the said transaction. Subsequently, it was found that the defendant Nos. 10 & 11 were trying to develop the plot No.262 at Mouza Atghara by changing the nature and character thereof. It is only thereafter the plaintiff caused searches in the Registration Office and found that the defendant/respondent Nos. 1 to 9 transferred the land lying at R.S Dag No.262, Mouza Atghara to the defendant/respondent Nos. 10 & 11. Immediately, thereafter, the instant suit was filed seeking a decree for specific performance of contract and also for restraining the defendants/respondents from changing the nature and character and also selling, transferring and/or alienating and/or parting with possession of the suit property in favour of any third party to the suit. Immediately after filing the suit, the plaintiff filed an application for temporary injunction seeking identical relief by way of injunction during the pendency of the suit. Though initially an ad interim order of injunction by way of status quo was passed by the learned Trial Judge on the plaintiff’s said application for temporary injunction but after a contested hearing, the plaintiff’s application for temporary injunction was rejected by the learned Trial Judge. Three sets of written objections were filed by the defendants/respondents in the said injunction proceeding before the learned Trial Judge. One set of objection was filed by the defendant/respondent Nos.1 to 9. Another set of objection was filed by the defendant/respondent nos. 10 and other set of objection was filed by the defendant No.11. In their objection the defendant Nos. 1-9 categorically denied the execution of any agreement for sale for transferring any of the said four plots of land as mentioned in the schedule of the plaint in favour of the plaintiff. They however, admitted in their objection that they entered into an agreement for sale on 19th December, 2009 for transferring Danga land measuring about more of less 6 Decimals lying and situated at Mouza Atghara, comprising in R.S Dag No.845 at or for consideration of Rs.23,00,000.00 (twenty three lakhs) only per Cottach. They however, admitted in their objection that they entered into an agreement for sale on 19th December, 2009 for transferring Danga land measuring about more of less 6 Decimals lying and situated at Mouza Atghara, comprising in R.S Dag No.845 at or for consideration of Rs.23,00,000.00 (twenty three lakhs) only per Cottach. It is also admitted by them that they received a sum of Rs.1,50,000.00 (Rupees one lakh fifty thousand) only from the plaintiff by way of earnest money at the time of entering into the said agreement. They also admittedly received a further sum of Rs.50,000.00 (Rupees fifty thousand) subsequently from the plaintiff out of the total consideration money. Those defendants categorically stated in their objections that they are ready to execute a sale deed in respect of R.S Dag No.845 at Mouza Atghara in favour of the plaintiff if the balance consideration money is paid to them as per the said agreement. Thus, in essence they disputed the execution of the agreement which was sought to be enforced by the plaintiff by way of specific performance of contract in the said suit. They thus, prayed for dismissal of the plaintiff’s application for injunction. The defendant No.10 claimed in his objection that he along with the defendant No.11 purchased one of the suit plots, i.e., the land lying at R.S Dag No.262 at Mouza Atghara from the defendant/respondent Nos.1, 3, 4, 5, 6 & 8 at or for consideration of Rs.2,62,00,000.00 (Rupees two crores sixty two lakhs) only. He claimed that they are bona fide purchasers for value without notice of the alleged agreement for sale of the plaintiff, prior to their purchase of the suit property. He further claimed that he along with the defendant No.11 have already constructed a boundary wall by investing huge amount of money. He categorically stated in the said objection that execution of any earlier agreement in respect of the suit property was not disclosed to them by their vendors at any point of time prior to transfer of the said plot of land to the defendant Nos.10 & 11. Thus, he prayed for dismissal of the plaintiff’s application for temporary injunction by claiming the protection under Section 19(b) of the Specific Relief Act. Thus, he prayed for dismissal of the plaintiff’s application for temporary injunction by claiming the protection under Section 19(b) of the Specific Relief Act. The defendant No.11 in his objection also prayed for dismissal of the plaintiff’s application for temporary injunction by making out an identical claim as that of his co-purchaser, namely, the defendant No.10. In these set of facts we will have to consider the legality of the impugned order whereby the learned Trial Judge dismissed the plaintiff’s application for temporary injunction by holding, inter alia, that though prima facie case is in favour of the plaintiff but the balance of convenience and inconvenience is not in his favour. The learned Trial Judge further held that the plaintiff will not suffer any irreparable loss and injury in case relief by way of temporary injunction is not granted in his favour as transfer of the suit property will be subject to lis pendens as per Section 52 of the Transfer of Property Act. The learned Trial Judge also held that the plaintiff will not suffer irreparable loss even if construction takes place in the property or even property is developed inasmuch as if the plaintiff is successful in the suit, the defendants can always be directed to restore the property to its earlier condition by an order of mandatory injunction. Let us now consider the merit of this appeal. On consideration of the pleadings of the parties as a whole, we find that two agreements are forthcoming before us. Both were alleged to have been executed by and between the plaintiff and the defendant Nos.1 to 9 on the same date i.e., on 19th December 2009. The plaintiff claims that the agreement which is sought to be enforced by the plaintiff against the defendant Nos.1 to 9 by specific performance of contract in this suit is the only agreement which he entered into with the defendant Nos. 1 to 9. On the contrary, the defendant Nos. 1 to 9 are claiming that they never entered into the said agreement with the plaintiff for transferring the suit property to him. They specifically asserted that they entered into an agreement for sale with the plaintiff for transferring 6 Decimals of land in R.S Dag No.845 at Mouza Atghara for the consideration as mentioned in the said agreement. 1 to 9 are claiming that they never entered into the said agreement with the plaintiff for transferring the suit property to him. They specifically asserted that they entered into an agreement for sale with the plaintiff for transferring 6 Decimals of land in R.S Dag No.845 at Mouza Atghara for the consideration as mentioned in the said agreement. They claimed that it is the only agreement which they entered into with the plaintiff for transferring the said 6 Decimals of land in R.S Dag No.845 at Mouza Atghara. The copies of the agreements which were produced by the respective parties along with their affidavits show that one particular stamp paper was used for those two agreements. In fact, the first two pages of the said agreement and the last page of the said agreement are tallying with each other. Three pages in between differ from each other. In the context of the respective pleadings of the parties, we have no hesitation to hold that any one of such agreements was forged and/or manufactured by any of the parties. However, this cannot be ascertained with a definite conclusion at this stage without trial on evidence. But payment of such a meager amount of earnest money for completion of the transaction of such a valuable property which according to the plaintiff is worth about Rs.8,00,00,000.00 (Rupees eight crores), creates some confusion and suspicion in the minds of the Court about the genuineness of the said transaction. That apart, on perusal of the plaint as well as the injunction application, we find that the plaintiffs have not challenged the legality of the transaction made between the defendant/respondent Nos. 1 to 9 and the defendant/respondent No. 10 and 11 in respect of one of the suit plots being plot No.262 at Mouza Atghara, on the ground that the defendant Nos. 10 & 11 are not bona fide purchasers for value without notice of their earlier contract. The plaintiff has also not claimed in the plaint that the defendant Nos. 10 & 11 purchased one of such suit plots from the defendant Nos. 1 to 9 with knowledge of the prior agreement for sale between the defendant Nos. 1 to 9 and the plaintiff in respect of the said plot of land. He never claimed that the defendant Nos. 10 & 11 purchased one of such suit plots from the defendant Nos. 1 to 9 with knowledge of the prior agreement for sale between the defendant Nos. 1 to 9 and the plaintiff in respect of the said plot of land. He never claimed that the defendant Nos. 10 and 11 are not entitled to get the protection under Section 19(b) of the Specific Relief Act. In absence of such pleadings in the plaint it is also very difficult for this court to hold that the plaintiff has succeeded in making out a strong prima facie case in support of his prayer for temporary injunction. Prima facie case has not been defined in any Act and/or statute. It is settled by several judicial pronouncements that prima facie case means a triable issue. If a triable issue is found to have been raised, then the court can hold that the party seeking such temporary injunction has succeeded in making out a prima facie case. Here is the case where we find after examining the pleadings of the parties that no triable issue has been raised by the plaintiff concerning the legality of the sale of one of the suit plots being plot No. 262 at Mouza Atghara which the defendant Nos. 10 & 11 purchased from the other defendants before the institution of the suit. In this regard, we may rely upon a decision of this Hon’ble Court cited by Mr. Mitra In the case of Midnight Merchants Pvt. Ltd. & Ors. Vs. Julien Educational Trust & Ors. reported in 2009 (3) CAL LT 456 (HC), wherein it was held that in the absence of any pleading in the plaint and in the injunction petition that the purchasers are not bona fide purchasers for value without notice or that they purchased the suit property with notice of prior agreement for sale between the plaintiff and/or owners of the suit property, the court cannot allow the petition for temporary injunction restraining the purchasers from selling, encumbering, alienating or changing the nature and character of the suit property in any manner whatsoever till the disposal of the suit. We thus, hold that the plaintiff has miserably failed to make out a prima facie case to go for trial so far as one of the suit plots is concerned i.e., plot No.262 at Mouza Atghara. We thus, hold that the plaintiff has miserably failed to make out a prima facie case to go for trial so far as one of the suit plots is concerned i.e., plot No.262 at Mouza Atghara. With regard to the other three plots mentioned in the schedule of the plaint, we also express our doubt about the existence of any strong prima facie case as no man of ordinary prudence can believe that a property which is admittedly worth about Rs.8,00,00,000.00 (Rupees eight crores) only can be agreed to be sold by the owners thereof to a stranger purchaser by accepting an earnest money of Rs.1,50,000.00 (Rupees one lakh fifty thousand) only at the time of execution of the agreement. It may also be mentioned herein that even the payment of Rs.13,30,000.00 (Rupees thirteen lakhs thirty thousand) in instalments by way of earnest money by the plaintiff to the defendant Nos.1 to 9 is also denied by those defendants. The acknowledgement which was allegedly made by some of those defendants on the back of the stamp paper of the said agreement also appears to us as highly suspicious as the manner in which it was so acknowledged is not ordinarily done in case of such high value transaction. We also cannot lose sight of the other suspicious circumstances concerning the alleged agreement for sale. Though the plaintiff claims that there was long negotiation between the parties before entering into the said transaction and ultimately after finalization of the terms and conditions, they paid a sum of Rs.1,30,000.00 (Rupees one lakh thirty thousand) only by way of cheque before entering into the formal agreement for sale, but we find no reflection of such payment of Rs.1,30,000.00 (Rupees one lakh thirty thousand)only being earnest money and/or part payment of the consideration money in the agreement for sale alleged to have been executed between the parties. Again though the plaintiff claims that a draft sale deed was prepared and the same was sent to the defendant Nos. 1 to 9 for their confirmation but no copy of such draft deed has been produced by the plaintiff at any stage of this proceeding. Mr. Again though the plaintiff claims that a draft sale deed was prepared and the same was sent to the defendant Nos. 1 to 9 for their confirmation but no copy of such draft deed has been produced by the plaintiff at any stage of this proceeding. Mr. Chatterjee learned Senior Counsel has drawn our attention to the relevant Record of Rights to show that Plot No.845 was recorded as burial ground for the use of the General Public and contended that no man of ordinary prudence will enter into any agreement for purchasing Burial Ground. Such contention of Mr. Chatterjee is not devoid of any substance. If it is ultimately found that such an agreement has been entered into between the parties, the affected party may take steps to avoid the said contract, but that cannot be a ground for holding that prima facie case exists in the present case. Under these circumstances, we are unable to hold that the plaintiff succeeded in making out a strong prima facie case in support of his prayer for temporary injunction, and he will suffer irreparable loss and injury, in case his prayer for temporary injunction is disallowed. We also cannot hold that in case of refusal to grant temporary injunction, the plaintiff’s sufferance will be much more than loss which is likely to be suffered by the defendant Nos. 10 & 11 inasmuch as the plaintiff has invested only Rs.13,30,000.00 (Rupees thirteen lakhs thirty thousand) only for the alleged transaction, whereas the defendant Nos. 10 & 11 have purchased one of the suit plots by investing Rs.2,60,00,000.00 (Rupees two crore sixty lakh) only. Thus, we hold that this is not a fit case where an order of temporary injunction should be passed. The following decisions which were cited by Mr. Chatterjee - 1. In the case of Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors. reported in AIR 1993 SC 276 . 2. In the case of Munna and Ayyia Vs. State of U.P reported in AIR 1993 SC 278 . 3. In the case of Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass reported in (2004) 8 SC 488. 4. In the case of Pratap Tanwani & Anr. Vs. Uttam Chand & Anr. reported in (2004) 8 SC 490. 5. In the case of Sk. Raibulalam Vs. Dinesh Kumar Goyal reported in 2015 (1) CHN (CAL) 1. 6. 3. In the case of Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass reported in (2004) 8 SC 488. 4. In the case of Pratap Tanwani & Anr. Vs. Uttam Chand & Anr. reported in (2004) 8 SC 490. 5. In the case of Sk. Raibulalam Vs. Dinesh Kumar Goyal reported in 2015 (1) CHN (CAL) 1. 6. In the case of Samir Kumar Sarkar Vs. State of West Bengal reported in 2015 (1) CHN (CAL) 6. 7. In the case of Mandali Ranganna & Ors. Vs. T. Ramchandra & Ors. reported in (2008) 11 SCC. 8. In the case of Union Public Service Commission Vs. Dr. Jamuna Kurup & Ors. reported in (2008) 11 SCC 10 ; in our view has no application in the facts of the instant case for the reason as stated above . Before parting with we like to mention here that if any transaction is made in respect of suit property during the pendency of the suit, such transaction will be hit by the principle of lis pendens as enunciated under the provision of Section 52 of the Transfer of property Act. As such, the plaintiff is also protected under Section 52 of the said Act even if injunction which is sought for, is not granted. In the facts of the present case we do not find any reason to interfere with the impugned order. This appeal is thus dismissed. The order of the learned Trial Judge is affirmed with the following observations. It is made clear that the defendant Nos. 10 & 11 will not be permitted to claim any special equity for their purchase of the said land and/or for the development that may be made by them and/or sale thereof to their intending purchasers during the pendency of the suit, in case they fail to establish in the suit that they are bona fide purchasers for value without prior notice of the earlier agreement for sale between the plaintiff and the defendant Nos. 1-9. It is further made clear that all transactions which may be made by the defendant Nos. 1-9 in respect of the remaining three plots of land during the pendency of this suit will be hit by the principle of lis pendens. 1-9. It is further made clear that all transactions which may be made by the defendant Nos. 1-9 in respect of the remaining three plots of land during the pendency of this suit will be hit by the principle of lis pendens. The learned Trial Judge is requested to dispose of the suit as expeditiously as possible preferably within four months from the date of communication of this order. He is authorized not to grant any unnecessary adjournment to either of the parties while trying the suit. On the prayer of the learned advocates appearing for the parties, we make it clear that we have not gone into the merits of the claim and counter-claim of the parties involved in the suit and all issues are left open. The learned Trial Judge is requested to dispose of the suit in accordance with law uninfluenced by any of observations either made by him in the order impugned or by us when dismissing this appeal by this order. We make no order as to costs. The appeal is thus disposed of. In view of the disposal of the appeals, all interlocutory applications become infructuous, and those are disposed of. Let the original agreement for sale dated 19th December, 2009, which was filed by Mr. Chatterjee, learned Senior Counsel in Court on 16th February, 2015, be sent down to the learned Trial Court in a sealed cover under the supervision of the learned Registrar General of this Court immediately. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. Tapash Mookherjee, J. : I agree.