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Rajasthan High Court · body

2022 DIGILAW 2921 (RAJ)

Sameer Kohli v. Sh. Pawan Kumar Aggarwal

2022-12-09

BIRENDRA KUMAR

body2022
ORDER 1. By the impugned order dated 16.11.2019 passed in civil suit No.412/2019, the learned court below has refused the prayer of the plaintiff-appellants to grant ad interim injunction under Order 39 Rule 1 and 2 read with Section 151 CPC. 2. A brief fact of the case is that the plaintiff/appellants entered into an agreement with the sole respondent to purchase property bearing No.G-1/362 (A) at RIICO Industrial Area, Khushkhera, in the District of Alwar. The total measurement of the land, which was subject matter of the deal was 1000 Sq. Mtrs. on total cost of Rs.73,00,000/-. At the time of agreement dated 26.12.2018 Rs.7,30,000/- was paid as advance consideration money and the remaining amount of Rs.65,70,000/- was to be paid till 02.04.2019 for getting the registered sale deed. The parties further agreed that the respondent shall procure no objection certificate from Rajasthan Financial Corporation, District Industrial Center, Pollution Board, Jaipur Electricity Distribution Corporation and other Government and non-Government Departments after clearing dues on the land before registration of the documents. Besides other conditions, the parties further agreed that if the seller goes back of the agreement, he will be required to make payment of double the paid consideration money and if the purchaser goes back, the deal would be deemed to be cancelled. 3. Since the respondent was to perform his obligation in the contract within time uncertain, therefore time was not the essence of the contract. 4. On 27.04.2019, the appellants wrote a letter to the respondent that they are ready with balanced consideration money and they want to pay and get the registered sale deed. 5. On 30.04.2019, the respondent replied that the money be paid by 01.05.2019. 6. According to the appellants, since reply was received in the second half of 01.05.2019, hence, the part money could not be paid. However, the appellants immediately sent whatsapp message to the respondent along with scanned copy of the bank draft and cheque and sought for intimation regarding time and place of the payment. The respondent has also annexed a copy of the whats-app message with the reply and alleges that the bank draft and cheque were ante dated just to defeat the time schedule mentioned for payment of money. The respondent declined to receive the remaining consideration money on the ground that payment was not made within time. Hence, the suit for specific performance of contract. 7. The respondent declined to receive the remaining consideration money on the ground that payment was not made within time. Hence, the suit for specific performance of contract. 7. The appellants stated that the appellants were ready with bank draft of Rs.45,25,000/- and a cheque of Rs.19,72,000/-. The appellants pleaded their ’readiness and willingness’ to perform their part of the contract in the plaint also. 8. The respondent is contesting the suit mainly on the ground that false and flimsy plea has been taken by the appellants regarding ’readiness and willingness’. In fact the appellants had no money to pay in full, the remaining consideration money. 9. The respondent in their written statement has quoted the assertion of the plaintiff-appellants in the notice dated 27.04.2019 as follows:- "I am ready to pay the balance amount of Rupees Sixty Five Lakhs Seventy Thousand only through the Demand Draft. I have already drafted a DD in favour of Pawan Kumar Aggarwal (respondent) and I am ready to give you the drafted DD’. 10. The respondent pleaded that the aforesaid statement was wrong one and the appellants did not perform their part of the agreement, therefore, the appellants have no prima facie case to get any relief in the suit. Consequently, the court below has rightly refused the prayer for ad interim injunction. 11. The provisions of Section 16 (i) (c) of the Specific Relief Act 1963 as amended with effect from 01.10.2018 reads as follows:- "16. Personal bars to relief.-Specific performance of a contract cannot be enforced in favour of a person- (c) [who fails to prove] that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant. Explanation.-For the purposes of clause (c),- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff 4 [must prove] performance of, or readiness and willingness to perform, the contract according to its true construction." 12. The law is well settled that readiness and willingness on the part of the plaintiff is a condition precedent for obtaining relief for grant of specific performance. The law is well settled that readiness and willingness on the part of the plaintiff is a condition precedent for obtaining relief for grant of specific performance. Clause (c) of Section 16 (i) above bars grant of relief on failure to prove readiness and willingness to perform the essential terms of the contract. Thus the pleading of the plaintiff-appellants regarding readiness and willingness is to be proved at the appropriate stage of the trial. 13. In J.P. Builders & Anr. Vs. A. Ramadas Rao & Anr. reported in (2011) 1 SCC 429 , the Hon’ble Supreme Court stated as follows:- "26. It has been rightly considered by this Court in R.C. Chandiok V. Chuni Lal Sabharwal that ’readiness and willingness’ cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. 27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. ’Readiness and willingness’ to perform the part of the contract has to be determined/ascertained from the conduct of the parties.’ In the case of Ambalal Sarabhai Enterprise Limited and Ors. Vs. KS Infraspace LLP Limited and Ors. decided on 06.01.2020, the Hon’ble Supreme Court quoted Dalpat Kumar Vs. Prahlad Singh, which reads as follows:- ’16. The cardinal principles for grant of temporary injunction were considered in Dalpat Kumar vs. Prahlad Singh, (1992) 1 SCC 719 , observing as follows : 5...Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in ’irreparable injury’ to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. The Court further has to satisfy that non-interference by the Court would result in ’irreparable injury’ to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that ’the balance of convenience’ must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit." 14. Learned counsel for the respondent has relied on the case of Rudresh Jhunjhunwala & Ors. Vs. Satish Kumar & Ors. decided on 03.02.2022 by a Single Judge of this Court, whereby the appeal against grant of injunction in a suit for specific performance of contract was dismissed. In para 13 of the judgment, the Court stated as follows:- "13. The Hon’ble Supreme Court, in the case of Maharwal Khewaji Trust (Regd.) Faridkot versus Baldev Dass reported in [ (2004) 8 SCC 488 ] has propounded a principle of law in relation to grant of temporary injunction under Order 39 Rules 1 & 2 CPC that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. The said principle has further been followed in the case of Dev Prakash & Anr. Versus Indra & Ors. reported in [ (2018) 14 SCC 292 ] wherein the Hon’ble Supreme Court observed that it is the very essence of the concept of temporary injunction and receivership during the pendency of a civil litigation involving any property is to prevent its threatened wastage, damage and alienation by any party thereto, to the immeasurable prejudice to the other side or to render the situation irreversible not only to impact upon the ultimate decision but also to render the relief granted, illusory. The Hon’ble Supreme Court observed that the judicial discretion has to be disciplined by jurisprudential ethics and can by no means conduct itself as an unruly horse." 15. Thus the facts of this case makes it evidently clear that the plaintiff-appellants were always ready and willing to perform their part of the contract and the pleading is to be proved at the appropriate stage of the trial. Therefore, for the purpose of ad interim relief and to protect the suit from being defeated by the act of the respondent or the litigation being complicated, it would be necessary to restrain the respondent from transferring the suit property to any other person. 16. Under explanation (i) above it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court. There is no such direction of the court. The fact that plaintiff-appellants were/are ready and willing to perform their part is disputed by the respondent and the dispute is to be decided in the pending civil suit. Therefore, the interest of the plaintiff-appellants in the pending suit is required to be protected by restraining the respondent from transferring the property which is subject matter of the agreement, to any one else in any mode. 17. In the event of restrain, the respondent would not be a loser, as the value of the property would increase and the property would be with the respondent subject to judgment in the civil suit. 18. The learned court below has erred in holding that the plaintiff-appellants failed to prima facie plead readiness and willingness to perform their part of the contract. Therefore, the said finding is contrary to the material on record. 18. The learned court below has erred in holding that the plaintiff-appellants failed to prima facie plead readiness and willingness to perform their part of the contract. Therefore, the said finding is contrary to the material on record. The balance of convenience is in favour of the plaintiff-appellants in as much as if the respondent would not be restrained from transferring the suit property to some other person, the plaintiff would be put in an irreparable loss as money cannot compassionate for immovable property of choice. Consequently, the impugned order is, hereby, set aside and this appeal stands allowed. 19. The respondents are, hereby, restrained from transferring the suit property during pendency of the suit. 20. However, it is worth to note that in such a situation, when a party is restrained from dealing with the suit property, the opposite party would adopt delaying tactics in the suit. Therefore, the trial court is directed to expedite the disposal of the suit and if any of the party would not be fully co-operating in early disposal of the suit, the court would be at liberty to pass appropriate order according to law.