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2015 DIGILAW 457 (CAL)

D. P. T. Construction v. Prasenjit Chatterjee

2015-06-03

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

body2015
JUDGMENT Jyotirmay Bhattacharya, J. None appears on behalf of the defendants/respondent nos. 2 to 4 at the time when this appeal is taken up for hearing today. This first miscellaneous appeal arises out of an order rejecting the plaintiffs’ application for ad interim injunction by the learned Trial Court. The plaintiffs filed a suit for specific performance of contract against the defendant no. 1 by alleging that pursuant to an agreement made between the parties by exchange of letters, the plaintiffs paid a sum of rupees thirty one lakh and odd towards the earnest money and/or part payment of consideration money of rupees one crore only to the defendant no. 1 for purchasing the suit property from him. It is alleged by the plaintiffs that the defendant no. 1 refused to execute a deed of conveyance for transferring his right, title and interest in respect of the suit property in favour of the plaintiffs even after the balance consideration money was tendered to him within the contractual period. The plaintiffs claim that the plaintiffs were and are still ready and willing to perform their part of the contract and since the defendant no. 1 has refused to fulfil his part of contract by executing a deed of conveyance for transferring his right, title and interest in respect of the suit property in favour of the plaintiffs, the instant suit for specific performance was filed. In the said suit, the respondent nos. 2 to 4 were impleaded as defendant nos. 2 to 4. It is alleged that during the subsistence of the contract entered into between the plaintiffs and the defendant no. 1, the defendant no. 1 entered into an agreement for sale for transferring his interest in the suit property in favour of the defendant nos. 2 to 4. Hence, they were also added as defendants in the said suit. After filing the said suit, the plaintiffs filed an application for temporary injunction under Order 39 Rules 1 & 2 of the Code of Civil Procedure praying for temporary injunction for restraining the defendant no. 1 from selling and/or transferring and/or creating any third party interest in respect of the suit property till the disposal of the suit. An ad interim order of injunction on similar term is also prayed for by the plaintiffs in the said application. 1 from selling and/or transferring and/or creating any third party interest in respect of the suit property till the disposal of the suit. An ad interim order of injunction on similar term is also prayed for by the plaintiffs in the said application. The plaintiffs’ prayer for ad interim injunction having been refused by the learned Trial Judge, the instant appeal was filed by the plaintiffs. The Learned Trial Judge held that Section 52 of the Transfer of Property Act is the appropriate safeguard for the plaintiffs in the facts of the present case. The learned Trial Judge also held that since there was no formal agreement for sale entered into between the parties, the plaintiffs have failed to make out any arguable case in the said application for injunction. Such conclusion was drawn by the learned Trial Judge after taking note of the amendment introduced in the Registration Act whereby the agreement for sale has been made compulsorily registerable. Let us now test the legality of the impugned order in the facts of the instant case. Before we enter into the merit of this appeal, we like to mention here some other important facts relevant for our present consideration. The respondent nos. 2 to 4 have already entered appearance in the suit and have filed their written statement in the suit. In the said written statement, the respondent nos. 2 to 4 have stated that the dispute between the defendant no.1 and the defendant nos. 2 to 4 has been settled out of court amicably and the agreement for sale which was entered into between them on 18th June, 2013 for purchasing the suit property has been treated as cancelled. Those defendants have recorded in paragraph 8 of their written statement that they have no objection in case the defendant no.1 sells the suit property to the plaintiffs. The defendant no.1 has also filed a written statement in the said suit admitting the terms and conditions which the parties agreed upon for transferring the suit property by the defendant no.1 to the plaintiffs. He has admitted that he has received a sum of rupees thirty one lakh and odd being the earnest money and/or part payment of the consideration money out of the total sale price of rupees one crore. He also admitted that a sum of Rs.68,48,999/- still remains due and payable by the plaintiffs to him. He has admitted that he has received a sum of rupees thirty one lakh and odd being the earnest money and/or part payment of the consideration money out of the total sale price of rupees one crore. He also admitted that a sum of Rs.68,48,999/- still remains due and payable by the plaintiffs to him. The said defendant stated in paragraph 9 of the written statement that he is agreeable to transfer his interest in respect of the suit property by executing a proper deed of conveyance in favour of the plaintiffs provided the plaintiffs pay the balance consideration money amounting to Rs.68,48,999/- together with a further sum of rupees ten lakh along with interest at the bank rate as the plaintiffs are responsible for the delay in completing such transaction. Though we find from the written statement filed by the defendant no.1 that he agreed to transfer his interest in the suit property to the plaintiffs, but with modified terms. However, we find that the defendant no.1 subsequently filed an application under Order 12 Rule 6 of the Code of Civil Procedure before the learned Trial Judge praying for passing a decree for specific performance of contract on admission in favour of the plaintiffs in respect of the suit property on payment of the balance consideration of Rs.68,48,999/- within one month from the date of passing of the judgement. Thus, we find that the stand which was taken by the said defendant in his written statement for allowing the suit for specific performance of contract on modified terms was subsequently abandoned by the said defendant and he ultimately prays for passing a decree on admission subject to payment of a sum of Rs.68,48,999/- being the balance consideration money only. Thus, we find that the stand which was taken by the said defendant in his written statement for allowing the suit for specific performance of contract on modified terms was subsequently abandoned by the said defendant and he ultimately prays for passing a decree on admission subject to payment of a sum of Rs.68,48,999/- being the balance consideration money only. Having regard to the facts and circumstances as stated above, we feel that justice will be subserved if we pass interim injunction restraining the defendant no.1 from transferring and/or alienating and/or creating any third party interest in respect of the suit property for a period of six weeks from date and if in the meantime, the plaintiffs pay and/or deposit the balance consideration money amounting to Rs.68,48,999/- in favour of the defendant no.1, the defendant no.1 will execute a proper deed of conveyance in favour of the plaintiffs for transferring his right, title and interest in respect of the suit property within one month thereafter subject to compliance of the other formalities by the plaintiffs required for completion of such transaction and under such event, the learned Trial Judge will pass a decree for specific performance of contract in the light of the observation made hereinabove on the application submitted by the defendant no.1 for passing a decree on admission under Order 12 Rule 6 of the Code of Civil Procedure. Needless to mention here that in the event, the plaintiffs fail to pay the balance consideration money to the defendant no.1 and/or deposit the balance consideration money in court in favour of the defendant no.1 within the time as fixed above, the interim order of injunction which is passed against the defendant no.1 will stand automatically lifted and the said defendant will be free to transfer his right, title and interest in respect of the suit property in any manner whatsoever with this rider that such transfer will ultimately abide by the result of the suit. In view of the order passed hereinabove, the application for temporary injunction filed by the plaintiffs in the court below is deemed to be disposed of. The appeal is thus disposed of. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.