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2022 DIGILAW 781 (GAU)

Krishna Kanta Rajkumar v. Chinmin Foods

2022-07-21

DEVASHIS BARUAH

body2022
JUDGMENT : DEVASHIS BARUAH, J. Heard Mr. A Das, learned counsel for the appellant and Mr. G.N. Sahewalla, learned senior counsel assisted by Ms. S Todi learned counsel for the respondents. 2. This is an appeal under Order 43 Rule 1 (r) of the CPC directed against the order dtd. 26/2/2020 passed in Misc (J) Case No.32/2019 by the Court of the learned Civil Judge Jorhat, whereby the said Court restrained the appellant herein from entering to the suit land or from disposing of the suit land to any other person except the petitioner until the disposal of the suit. 3. At the outset, the learned counsel for the appellant submits that the appellant is not aggrieved by the portion of the order to that effect by which there was an injunction restraining the appellant from disposing of the suit land till the disposal of the suit. The appellant submits that the appellant being in possession of the suit land, the injunction order directing the appellant not to enter into the suit land has seriously affected the appellant and it is for that reason the instant appeal has been preferred. 4. In the backdrop of the above submissions, let this Court take into consideration the facts of the instant case. For the sake of convenience, the parties herein are referred to in the same status as they stood before the trial Court. 5. Admittedly an agreement for sale was entered into on 21/12/2010 between the plaintiffs and the defendant for sale of a plot of land measuring 76 katha 4 lessas covered by Dag No.51 (Old)/485 (new) of PP No.1 of Gormur Mouza in Chinamora Gaon under Jorhat East Circle in the district of Jorhat, Assam. The total consideration for the said sale was Rs.74, 67, 600.00. It was agreed to that out of the said amount, an amount of Rs.25, 00, 000.00 would be paid at the time of signing of the said agreement and the balance amount of Rs.49, 67, 600.00 would be paid at the time of execution of the final sale deed. Accordingly, the said amount of Rs.25, 00, 000.00 was duly paid to the defendant which is duly admitted. Subsequent thereto, another agreement for sale was entered into which is registered whereby the total consideration for the said suit land was reduced from Rs.74, 67, 600.00 to Rs.36, 48, 000.00. Accordingly, the said amount of Rs.25, 00, 000.00 was duly paid to the defendant which is duly admitted. Subsequent thereto, another agreement for sale was entered into which is registered whereby the total consideration for the said suit land was reduced from Rs.74, 67, 600.00 to Rs.36, 48, 000.00. It was further mentioned that another amount of Rs.12, 00, 000.00 was duly paid on the date of the said agreement and the remaining amount of Rs.4, 48, 000.00 would be paid within 6 (six) months next or at the time of final execution of the sale deed whichever is earlier. Further to that the defendant had duly admitted the receipt of Rs.32, 00, 000.00. The plaintiff had further averred that the plaintiff was ready to pay the balance amount of Rs.4, 48, 000.00 and they had offered it to the defendants but the defendant refused to accept the balance amount then and expressed his willingness to accept the same at the time of registration of the sale deed. It further appears from a perusal of the plaint that it was the duty of the defendant to take all necessary steps for obtaining the necessary sale permission from the competent authority in respect to the suit land in favour of the plaintiffs but the defendant failed to obtain the sale permission in spite of readiness of the plaintiffs. The plaintiff had requested several times to register the sale deed in their favour but all in vain. Relevant to mention herein that there has been no specific details or particulars mentioned as and when the plaintiffs had approached the defendant or requested the defendant to register the sale deed in their favour. 6. Subsequent thereto, on 9/7/2018 a legal notice was issued by the plaintiffs to the defendant demanding inter alia to come forward for registration of the sale deed and to obtain the NOC from the competent authority after receiving the balance consideration amount and intimate the plaintiffs the date on which the deed of sale would be registered within one month from the date of receipt of the notice, failing which legal remedies would be initiated. Subsequent thereto, on 23/4/2019 the suit was filed seeking specific performance of the agreement dtd. 1/3/2011 along with other consequential reliefs. The said suit was registered and numbered as Title Suit No.34/2019. Subsequent thereto, on 23/4/2019 the suit was filed seeking specific performance of the agreement dtd. 1/3/2011 along with other consequential reliefs. The said suit was registered and numbered as Title Suit No.34/2019. Alongwith the said suit an injunction application was also filed which was registered and numbered as Misc (J) Case No.32/2019. By way of the said injunction application, the plaintiff sought for an ad interim temporary injunction to restrain the defendant/opposite party to enter into the suit land and not to disturb the peaceful possession of the plaintiffs/petitioners and further that the defendant/opposite party shall not dispose of the suit land to any persons except the plaintiff. 7. The record further shows that the defendant had filed his written statement as well as his written objection. In the written statement specific plea was taken that the suit was barred by limitation. It was further stated that no possession was handed over to the plaintiff on the ground that the plaintiff failed to pay 95% of the total consideration amount as fixed in the agreement dtd. 21/12/2010 at the time when the question of delivery of the suit land arose. It was further submitted that the Power of Attorney taken by one of the partners of the plaintiffs in terms with the agreement dtd. 21/12/2010 had become infructuous due to breach of the terms of the agreement dtd. 21/12/2010 by the plaintiffs. 8. In the written objection filed to the injunction application various preliminary objections were taken as regards the maintainability of the suit for which the plaintiffs were not entitled to injunction. It was also alleged that the plaintiffs suppressed material facts. It was the specifically mentioned in the said written objection that the defendant on the date of execution of the written agreement for sale dtd. 21/12/2010 had applied for necessary permission for sale of the suit land but due to some irregularities and formal defects, the permission was not granted by the District Revenue Authority. It was further mentioned that the fact of not granting of the permission of the sale was known to the plaintiffs since one Mr. Amit Sahewalla, Advocate Jorhat was engaged to apply the permission of sale and to do all other ancillary acts regarding registration of the sale deed and the said lawyer was introduced to the defendant by the representatives of the plaintiffs. Amit Sahewalla, Advocate Jorhat was engaged to apply the permission of sale and to do all other ancillary acts regarding registration of the sale deed and the said lawyer was introduced to the defendant by the representatives of the plaintiffs. It was further mentioned that the defendant was in lawful possession of the suit property and the enjoyment and possession of the defendant cannot be challenged. 9. The trial Court after hearing the parties vide an order dtd. 26/2/2020 allowed the said injunction application filed by the plaintiff thereby granting injunction as already stated herein above. 10. Being aggrieved and dissatisfied, the defendant as appellant has approached this Court by way of filing the instant appeal. 11. Mr. A Das, the learned counsel appearing on behalf of the appellant with all fairness submits that the appellant is not going to transfer the suit land during the pendency of the instant proceedings. However, he submits that the court below completely erred in law in granting the injunction by not looking into the question of maintainability of the suit which is a vital aspect of the matter while finding out as to whether there is a prima facie case. He submits that although the appellant does not admit to the contents of the agreement dtd. 1/3/2011 for the reason that Clause No.9 and 10 was inserted by playing fraud with the defendant but a perusal of Clause No.2 of the said agreement would clearly go to show that a period was fixed for the purpose of transferring the suit land which was 6 (six) months from the date of agreement. It was further mentioned in Clause No.2 that the parties can extend by mutual consent the said agreement which admittedly did not happen. Referring to Article 54 to the Schedule of Limitation Act, 1963 the learned counsel for the appellant submits that the period of limitation for a suit for specific performance is 3 (three) years from the date fixed for performance and if no date is fixed when the plaintiff had notice that the performance is refused. 12. The learned counsel for the appellant submits that the perusal of Clause 2 of the Agreement dtd. 1/3/2011 would clearly show that the date has been fixed as within 6 months from the date of the agreement, meaning thereby that the said transfer deed had to be executed on or before 30/9/2011. 12. The learned counsel for the appellant submits that the perusal of Clause 2 of the Agreement dtd. 1/3/2011 would clearly show that the date has been fixed as within 6 months from the date of the agreement, meaning thereby that the said transfer deed had to be executed on or before 30/9/2011. As there was no extension to the said agreement, the learned Court below ought not to have granted the injunction taking into account that the suit on the face of it was barred by limitation. He further submits drawing the attention of this Court to the various pleadings made in the written statement as well as written objection to the effect that the defendants were in possession of the suit land and this aspect of the matter was also not taken into consideration by the trial Court while passing the injunction. 13. On the other hand, Mr. G.N Sahewalla, the learned senior counsel submits that a perusal of Clause 9 and 10 of the agreement dtd. 1/3/2011 would clearly go to show that the possession of the land was handed over to the plaintiffs on or before the execution of the agreement dtd. 1/3/2011 as the wordings in Clause No.9 would clearly go to show that the suit land has already been handed over to the plaintiffs. He submits that the question as regards the suit being barred by limitation can only be decided by the trial Court upon evidence, more so, when there are specific statements being made in the plaint that the plaintiff had all along being requesting the defendant to execute the deed of sale and it was only after the issuance of legal notice and the period of one month being given which the defendant failed to comply, the plaintiff had notice that the defendant have refused the performance of the agreement dtd. 1/3/2011. Further to that it has also been mentioned that the defendant had admitted the receipt of Rs.32, 00, 000.00 which is clear from clause 3 of the agreement dtd. 1/3/2011 and the plaintiffs have all along been ready and willing to pay the remaining amount of Rs.4, 48, 000.00. The learned senior counsel therefore submits that the Court below was justified in passing the injunction order in the facts of the case. Further referring to the judgment of the Supreme Court in the case of Wander Ltd and Anr. 1/3/2011 and the plaintiffs have all along been ready and willing to pay the remaining amount of Rs.4, 48, 000.00. The learned senior counsel therefore submits that the Court below was justified in passing the injunction order in the facts of the case. Further referring to the judgment of the Supreme Court in the case of Wander Ltd and Anr. Vs. Antox India P. Ltd reported in 1990 Supp SCC 727 and more particularly in paragraph No.11 of the said judgment, the learned senior counsel submits that this is an appeal in principle against the exercise of equitable and discretionary jurisdiction by the trial Court and unless and until the order passed by the trial Court is arbitrary, irrational, illegal and violates the well settled principles of law as regards grant of injunction, the appellate Court ought not to interfere with the exercise of discretion by the Court below. The learned senior counsel appearing on behalf of the plaintiffs/respondents submits that in spite of an ad interim ex-parte order of injunction being passed, the defendant had illegally trespassed into the suit land and are presently in possession. 14. From the facts above narrated, it would be clear that there was an agreement for sale dtd. 21/12/2010 between the plaintiff and the defendant. In Clause 5 of the said agreement for sale dtd. 21/12/2010, it has been specifically mentioned that both the vendor and the purchaser shall be duty bound to each other for singing any documents if required for registration of the sale deed and the vendor had already submitted application for procuring the sale permission from the Deputy Commissioner's Office, Jorhat and the due process is going on for sale. It further appears from the agreement to sale dtd. 1/3/2011 that there is no mention whatsoever about the earlier agreement. It further transpires that the sale consideration was also reduced from Rs.74, 67, 600.00 to Rs.36, 48, 000.00. 15. In Clause 5 of the said agreement dtd. 1/3/2011 it has been categorically mentioned that both the vendor and the purchaser shall be duty bound to each other for signing any document before getting the final sale deed executed, if required. Clause 9 and 10 of the agreement dtd. 15. In Clause 5 of the said agreement dtd. 1/3/2011 it has been categorically mentioned that both the vendor and the purchaser shall be duty bound to each other for signing any document before getting the final sale deed executed, if required. Clause 9 and 10 of the agreement dtd. 1/3/2011 has been disputed by the defendant on the ground that these Clause were inserted in the said agreement without the knowledge of the defendant and the defendant had bonafidely signed trusting the plaintiff. Clause 2 of the said agreement dtd. 1/3/2011 is relevant for the purpose of the instant proceedings which for the sake of convenience is quoted herein below: "2. That the vendor is the absolute owner by way of purchase from 1) Sri Kamelswar Baruah constituted attorney of 2) Shri Anjan Barua 3) Shri Chandan Barua 4) Shri Ron Kumar Barua by way of registered sale deed dtd. 7/8/2004 vide deed No.1449 at the office of the Sr. Sub Registrar, Jorhat Assam and since then the vendor is in peaceful possession of the Said property, which is free from all sorts of encumbrances i.e, charge, interest, mortgage, liens, gifts, will and demands, whatsoever, and the vendor shall transfer the said property to the purchaser free from all encumbrances within 6 (six) months from the date of disagreement but the said agreement can be extended by the mutual consent of both the parties." 16. It would transpire from the above quoted clause that the vendor i.e, the defendant shall transfer the said property to the purchaser free from all encumbrances within 6 (six) months from the date of the agreement but the said agreement can be extended by mutual consent of both the parties. From the wordings used in clause No.2, it would clearly show that the time was not the essence of the contract but for the purpose of the Article 54 of the Limitation Act, the said time mentioned would be relevant inasmuch as, as per the Clause 2 the said sale deed was to be executed on or before 30/9/2011. 17. It further would transpire from a perusal of the plaint as well as in the injunction application that the plaintiffs had only mentioned that pursuant to the said agreement dtd. 17. It further would transpire from a perusal of the plaint as well as in the injunction application that the plaintiffs had only mentioned that pursuant to the said agreement dtd. 1/3/2011 the plaintiff have offered to pay the remaining amount of Rs.4, 48, 000.00 which the defendant refused and asked the plaintiffs to pay at the time of final execution of the sale. It further appears that there is no particulars mentioned in the plaint as regards when the plaintiffs approached the defendant with the said amount of Rs.4, 48, 000.00 and when the defendant refused to take the said amount. There is also no mention of any particulars as to when the plaintiffs had asked the defendant for obtaining the NOC as well as for registering the deed of sale. It only appears that on 9/7/2018 after 8 (eight) years of the agreement for sale the legal notice was issued asking to obtain the necessary permission and register the deed of sale within 1 (one) month and thereafter in the month of April 2019, the suit was filed. 18. Now coming to the judgment of the learned trial Court, it transpires that the Court below did not address the issue of maintainability of the suit which was duly raised in the written objection filed by the defendant on the ground that the suit was barred by limitation. This Court at this stage would like to refer to the judgment of the Supreme Court rendered in the case of Shiv Kumar Chadha Vs. Municipal Corpn. of Delhi reported in (1993) 3 SCC 161 and more particularly paragraph No.30.The said judgment is quoted herein below: "30.Temporary Injunction: It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the court. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles - ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him." 19. From a perusal of the above quoted paragraph of the said judgment, it would be clear that the maintainability of the suit has to be taken into consideration at the time of ascertaining as to whether there is a prima facie case for going for trial. The judgment passed by the trial Court clearly does not take into account the said aspect of the matter. Now coming to the question as regards who is in possession. It appears from a perusal of the impugned judgment and more particularly, in the penultimate page of the said judgment that the Trial Court records that there is a dispute as to who is in possession of the suit land. However, without ascertaining as to who is in possession of the suit land, the trial Court had restrained the defendant to enter upon the suit land which in the opinion of this Court violates the well settled principles for grant of injunction inasmuch as, the principle of balance of convenience and irreparable injury cannot be said to have been considered in the proper prospective. More so, if the defendant is in possession of the suit land and the defendant is not permitted to enter the suit land during the pendency of the suit and at a later stage the suit fail, the defendant cannot be compensated by any decree of the Court as a result of the cause. Further to that directing the Defendant not to enter upon the suit land by way of an injunction that too when there is a dispute as regards possession, the same amount to pre trial decree which is not permitted as per law. 20. As the two vital principles are missing for grant of an injunction, this Court is of the opinion that the order dtd. 26/2/2020 passed in Misc (J) Case No.32/2019 arising out of Title Suit No.34/2019 needs to be interfered with and accordingly, interferes with the said impugned order in so far as restraining the defendant from entering into the suit land. Taking into consideration that the learned counsel for the defendant had categorically mentioned that during the pendency of the suit the defendants are not going to transfer the suit land, this Court does not interfere with the said impugned order in so far as the injunction granted not to dispose of the suit land to any other person except the plaintiffs till the disposal of the suit. 21. It is made clear that the observations made herein above are strictly on the question of entitlement of injunction and the observations made herein above shall not prejudice any of the parties during the trial of the suit. 22. With the above, the instant appeal stands allowed.