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Gujarat High Court · body

2019 DIGILAW 106 (GUJ)

Ibrahim Ahmedvali v. Asif Rafikbhai Patel

2019-02-07

G.R.UDHWANI

body2019
ORDER : 1. The order dated 21.07.2018 rendered by the learned 2nd Additional Senior Civil Judge, Bharuch, below application Exh.5 in Special Civil Suit No. 2 of 2018 issuing an injunction against the petitioner from dealing with the suit property in respect of which specific performance is sought by the original plaintiff – respondent herein; is sought to be assailed in this appeal from order. 2. The rival contentions give rise to the question as to whether there existed a prima facie case; where did the balance of convenience lay and whether the compensation in terms of money would be adequate relief for the plaintiff who sought the aforementioned injunction. 3. So far as prima facie case is concerned, it is settled law that for appreciating the prima facie case the court would not enter into adjudicatory process. It would only consider whether the party urging for interim order is able to raise a triable issues. If the answer is in the affirmative, prima facie case will be presumed in favour of such party; otherwise not. 4. Testing it on the touchstone of the above settled principle of law, it is seen that the agreement to sell dated 28.03.2016 in respect of the suit property was constituted material on the record of the case. The agreement to sell recited a total payment of Rs.20.00 lakhs towards full and final sale consideration by different cheques to the petitioner. The defendant – petitioner herein disputed the veracity of the document for lack of his signature on first two pages amongst three pages of agreement to sell. He also disputed the receipt of the consideration of the property in question. He sought to justify the said dispute on the ground that the amount referred to in the agreement to sell was not towards the sale consideration but towards the loan advanced by the respondent to the petitioner which amount, according to him, was repaid by him. To buttress the said contention, certain papers which, according to the plaintiff, were the extracts of books of account were placed reliance upon. The respondent – plaintiff also placed reliance upon similar extracts to buttress the argument that the sale consideration indicated in the agreement to sell was in fact disclosed as such to the income tax authorities. To buttress the said contention, certain papers which, according to the plaintiff, were the extracts of books of account were placed reliance upon. The respondent – plaintiff also placed reliance upon similar extracts to buttress the argument that the sale consideration indicated in the agreement to sell was in fact disclosed as such to the income tax authorities. The above said rival contentions do raise a triable issue with regard to the veracity of the agreement to sell; the consideration and the question whether the amount under different cheques as indicated in the agreement to sell constituted sale consideration or loan. In the opinion of this court, all the above-referred contentions did raise triable issue and therefore there existed a prima facie case. 5. So far as balance of convenience is concerned, the agreement to sell is required to be perused as it is, and if it is done, it prima facie reveals the passing of sale consideration to the defendant in respect of the land in question. Pertinently, the receipt of amount of Rs.20.00 lakhs is not disputed by the petitioner-defendant, and thus, the said amount is pocketed by the defendant. The document prima facie shows that Rs.20.00 lakhs was the agreed consideration, and thus, when the sale consideration appears to have been paid by the plaintiff for acquiring the title of the land in question, allowing the defendant to deal with the property in question prejudicing the plaintiff’s rights as also creating the equities during the pendency of the suit would cause great deal of inconvenience and hardship to the plaintiff. 6. So far as the question as to whether the compensation in terms of money would be an appropriate relief for the plaintiff is concerned; true it is that in the alternative prayer, he has asked for the damages of Rs.20.00 lakhs. Alternative prayer; not being the principal prayer, cannot be treated as an admission by the plaintiff that the compensation in terms of money is the adequate relief for him. That apart, the explanation (i) to Section 10 of the Specific Relief Act raises a presumption that the breach of contract to transfer immovable property cannot be adequately compensated in terms of money, unless and until contrary proof is tendered. The presumption is mandatory in nature and therefore the party contending contrary to the presumption must prove it. That apart, the explanation (i) to Section 10 of the Specific Relief Act raises a presumption that the breach of contract to transfer immovable property cannot be adequately compensated in terms of money, unless and until contrary proof is tendered. The presumption is mandatory in nature and therefore the party contending contrary to the presumption must prove it. In a given case no such circumstances are pleaded and proved by the defendant appellant. Reliance upon Section 14(1)(a) of the Specific Relief Act by the learned counsel for the appellant is misconceived. Section 14 encompasses the contract in which the specific performance would not be enforced. Clause (a) of sub-sec.(1) of Section 14 only points out that the contract for nonperformance of which compensation in money is the adequate relief, would not be specifically enforced. The breach of contract to transfer immovable property is not a contract falling foul to Section 14(1)(a) since it is saved by explanation to Section 10 of Specific Relief Act, above-referred. 7. Reliance placed by the learned counsel for the petitioner on Section 41(h) is also misconceived for the same reason as indicated in the above-referred paragraph. Furthermore, for the same reason the 'lis pendent doctrine’ would not be an appropriate answer against the grant or refusal of injunction. 8. The learned counsel for the respondent has pointed out that at the time of execution of agreement to sell the land in question was new tenure land, and after it was converted into nonagricultural land, the specific performance was sought; preceded by notice to the plaintiff wherein a recital of his having received the cheques worth Rs.20.00 lakhs towards the sale consideration of the disputed property as specified in the agreement to sell remained unreplied by the defendant. Thus the aforesaid fact i.e. conversion of land into nonagricultural land and the above conduct of the defendant tendered a case to the plaintiff to file a suit for specific performance of the contract. Pertinently the contention of the plaintiff that the sale consideration as indicated in the agreement to sell was paid to the defendant by different cheques was reiterated by the defendant by his specific passive approach to the notice pre-suit; the contents of the notice were thus not disputed which justified a prima facie inference that the sale consideration as indicated in the agreement to sell was received by defendant. 9. 9. In above view of the matter, no substance is found in this appeal from order. The Appeal From Order fails and is dismissed. The civil application stands also disposed of.