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2023 DIGILAW 1406 (RAJ)

Beena Swalka v. Devendra Kumar Mehta

2023-07-19

NARENDRA SINGH DHADDHA

body2023
JUDGMENT : Narendra Singh Dhaddha, J. 1. The instant appeal has been filed by the applicants-appellants (for short 'the applicants') against the order dated 21.10.2022 passed by the District Judge, Kota (for short 'the trial court') in Civil Miscellaneous Case No. 97/2022, whereby the trial court rejected the temporary injunction application filed by the applicants under Order 39, Rule 1 and 2 CPC. 2. Learned counsel for the applicants submits that the trial court had wrongly decided the prima facie case, balance of convenience and irreparable loss in favour of non applicants-respondents (for short 'the non applicants'). Learned counsel for the applicants further submits that the applicant No. 2 wanted to purchase the disputed property in the name of his daughter (applicant No. 1) from non-applicant No. 1, for which a tehrir was written by non-applicant No. 1, according to which the property in question was agreed to be sold in a sum of Rs.1,40,00,000/-. Against the aforesaid sale consideration, the non-applicant No. 1 had received Rs.2,00,000/- in cash and Rs.3,00,000/- by way of cheque and rest amount of sale consideration was to be paid within two months therefrom. After some time, non-applicant No. 1 informed that Rs.1,40,00,000/- could not be shown in his bank account. He also informed that since the applicant No. 1 also had to take loan from the bank, so, in the agreement to sell which was to be executed, amount of Rs.1,15,00,000/- be mentioned and rest amount of Rs. 25,00,000/- be paid in cash by applicants to non-applicant No. 1. Non-applicant No. 1 executed an agreement to sell on 04.03.2020 and he was given Rs.23,00,000/- in cash. Balance amount of sale consideration was to be paid upto 25.03.2020 by the applicants to non-applicant No. 1 and in lieu thereof, the non-applicant No. 1 was to execute and register the sale deed but due to corona pandemic, non-applicant No. 1, who was residing at Jodhpur showed his inability to come to Kota and informed that at the end of corona pandemic, he would come to Kota and receive the balance amount of sale consideration and would also execute and register the sale deed in favour of the applicant No. 1. When the non-applicant No. 1 did not come from Jodhpur to Kota for execution and registration of the sale deed, on 03.02.2021 the non-applicant No. 1 sent a legal notice to applicant No. 1. When the non-applicant No. 1 did not come from Jodhpur to Kota for execution and registration of the sale deed, on 03.02.2021 the non-applicant No. 1 sent a legal notice to applicant No. 1. Subsequently the non-applicant No. 1 stated the applicants to meet agent Basant Kumar. Later on, it came to the notice of the applicants that on 09.12.2021, the non-applicant No. 1 had sold the disputed property to non-applicant No. 2 by way of agreement to sell which was registered on 22.12.2021. On that basis on 05.02.2022 the applicants sent a notice to non-applicants which was replied by them. 3. Learned counsel for the applicants further submits that the applicants were ready and willing to pay the balance amount of sale consideration and they wanted to fulfil the conditions of the agreement to sell but non-applicant No. 1 without cancelling the agreement to sell, sold the disputed property to non-applicant No. 2. Learned counsel for the applicants also submits that the bank was ready to give loan to the applicant No. 1 and they had filed a bank confirmation letter. So, order dated 21.10.2022 passed by the trial court may be set-aside and order of status-quo may be passed in favour of the applicants. 4. Learned counsel for the applicants has placed reliance upon the following judgments:- (1) Rudresh Jhunjhunwala & Ors. v. Satish Kumar & Ors. reported in 2022 (1) RTR 545; (2) Jai Singh v. Kuldeep Sharma & Anr. reported in 2013 (4) DNJ (Raj.) 1501; (3) Ram Kishore Kumawat v. Madan Lal Kumawat & Ors. reported in 2013 (1) DNJ (Raj.) 170. 5. Learned counsel for the non-applicants have opposed the arguments advanced by learned counsel for the applicants and submitted that the applicants had paid only Rs.2,00,000/- in cash. They had not paid Rs.23,00,000/- in cash and they were not ready to fulfil the conditions of the agreement to sell. So, non applicant No. 1 sent a notice to the applicant No. 1 on 03.02.2021 but she did not give reply to the said notice. After that on 26.10.2021, non-applicant No. 1 sent a notice for cancellation of the agreement to sell to applicant No. 1. After that, the non-applicant No. 1 sold the disputed property to non-applicant No. 2 on 09.12.2021. So, no prima facie case, balance of convenience and irreparable loss is made out in favour of the applicants. After that on 26.10.2021, non-applicant No. 1 sent a notice for cancellation of the agreement to sell to applicant No. 1. After that, the non-applicant No. 1 sold the disputed property to non-applicant No. 2 on 09.12.2021. So, no prima facie case, balance of convenience and irreparable loss is made out in favour of the applicants. So, the trial court rightly dismissed the temporary injunction application filed by the applicants. Learned counsel for the non-applicant No. 1 submitted that the non-applicant No. 2 is a bona-fide purchaser. He did not know the previous agreement to sell. So, appeal filed by the applicants may be dismissed. 6. Learned counsel for the non-applicants has placed reliance upon the following judgments:-(1) Narendra Kante v. Anuradha Kante & Ors. reported in (2010) 2 SCC 77 ; (2) Durgh Singh v. Mahesh Singh & Others in F.A. No. 239/1993 decided on 14.01.2004; (3) Ram Prakash v. Baddal Husain in S. A. No. 1379/1977 decided on 04.05.2007; (4) Union Of India & Ors. v. Vasavi Cooperative Housing Society Limited & Ors. reported in (2014) 2 SCC 269 ; (5) Abdullakoya Haji & Ors. v. Rubis Tharayil & Anr. reported in 2019 DNJ (SC) 1021. 7. I have considered the arguments advanced by learned counsel for the applicants as well as learned counsel for the non-applicants. 8. It is an admitted position that an agreement to sell was executed between non applicant No. 1 and applicant No. 1 with regard to the disputed property for a sale consideration of Rs.1,40,00,000/-, out of which Rs.2,00,000/- were paid in cash to the non-applicant No. 1. There is no evidence that applicant No. 1 ever paid Rs.23,00,000/- to non-applicant No. 1. As per agreement said to be executed on 04.03.2020, the applicants had to pay the balance amount of sale consideration till 25.03.2020 but applicant No. 1 had not fulfilled the conditions as per the agreement to sell. She had not paid the balance amount of the sale consideration to non-applicant No. 1 for executing and registering the agreement to sell. The non-applicant No. 1 had given a notice to the applicant No. 1 on 03.02.2021 for execution and registration of the agreement to sell but applicant No. 1 had not taken any step to fulfil the conditions of the agreement to sell. The non-applicant No. 1 had given a notice to the applicant No. 1 on 03.02.2021 for execution and registration of the agreement to sell but applicant No. 1 had not taken any step to fulfil the conditions of the agreement to sell. After that, non-applicant No. 1 had given one more notice on 26.10.2021 for cancellation of the agreement to sell. So, the trial court rightly came to the conclusion that applicant No. 1 was not ready and willing to fulfil the conditions of the agreement. Non-applicant No. 1 had sold the disputed property by way of registered sale deed to the non-applicant No. 2, who is going to construct the house on it. So, in my considered opinion, the trial court had not committed any error in dismissing the temporary injunction application filed by the applicants. So, appeal being devoid of merit, is liable to be dismissed, which stands dismissed accordingly. 9. Pending application(s), if any, stand(s), disposed of.