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2024 DIGILAW 233 (KAR)

R. Ganeshan v. Bharath Jaganathan

2024-03-20

R.NATARAJ

body2024
JUDGMENT 1. The defendant No.1 in O.S.No.837/2021 on the file of the Principal Senior Civil Judge and JMFC, Anekal (henceforth referred to as 'Trial Court') has filed this appeal challenging the correctness of the order dtd. 14/12/2022 by which, an application filed by the plaintiff under Order XXXIX Rules 1 and 2 read with Sec. 151 of CPC was allowed and the defendant No.1 was restrained from alienating, encumbering or transferring the suit schedule properties till the disposal of the suit. 2. The suit in O.S.No.837/2021 was filed for the following reliefs:- (a) declare that the alleged cancellation of the power of attorney by the Defendant dtd. 6/3/2020 cancelling the registered power of attorney executed in favour of the Plaintiff by the Defendant dtd. 18/12/2007 is null and void, non-est in the eye of law and not binding on the Plaintiff. (b) Directing the Defendant No.1 to come and execute the sale deeds in respect of the schedule properties in favour of the proposed purchasers through the Plaintiff as that of a Power of Attorney holder for whom the Defendant No.1 has received the consideration of Rs.68, 00, 000.00; In the alternative directing the Defendant No.1 to execute the sale deed in respect of the schedule property in favour of the Plaintiff in consonance with Defendant No.2 and 3. (c) Direct the Defendant No.1 and 2 to execute the registered sale deed in favour of the Plaintiff of the proposed allotment of ten sites (morefully described in the schedule hereunder and called as the schedule property) as 40% of the developed area in respect of the acquisition in respect of the Sy.No.25 part measuring 3 acres 3 guntas of Jigala village. 3. The suit was filed in respect of 8 sites bearing Nos.1805/B5/MIG, 39/B4/HIF-I, 342/B4/HIG-II, 343/B4/HIG- II, 65/B4/HIG-II, 1804/B5/MIG, 341/B4/HIG-II and 1681/B5/HIG-I situate at Suryanagara, 3rd Phase, Jigala village, Attibele Hobli, Anekal Taluk, Bengaluru District. The plaintiff claimed that the defendant No.1 was the owner of the suit schedule properties and several other properties and was a resident of Tamil Nadu. The plaintiff claimed that as the defendant No.1 could not manage his properties, he executed a power of attorney dtd. 2/3/1998 in favour of father of the plaintiff to manage and to deal with the properties in the manner he felt fit. The plaintiff claimed that as the defendant No.1 could not manage his properties, he executed a power of attorney dtd. 2/3/1998 in favour of father of the plaintiff to manage and to deal with the properties in the manner he felt fit. Consequent to the power of attorney, the father of the plaintiff was managing and looking after the properties and he converted several survey numbers for non- agricultural purposes. After the execution of the general power of attorney, the father of the plaintiff had converted the lands into residential sites and sold it to different persons based on the power of attorney. The plaintiff claimed that his father died on 12/8/2007. Then defendant No.1 executed a power of attorney dtd. 18/12/2007 in favour of plaintiff, which was duly registered in respect of the lands bearing Sy.Nos.24/3, 27, 25/P, in all measuring 7 acres 13 guntas at Jigala village and Sy.No.21/4, 191/6, 191/4, 191/3 and 184/3C, 184/3DP, 184/3D, 184/3D, 184/3D and 158, in all measuring 14 acres 13 guntas of Yadavanahalli village. He contended that the power of attorney dtd. 18/12/2007 was irrevocable as it was baked with consideration paid. The plaintiff claimed that the Karnataka Housing Board proposed to acquire the land in Sy.No.25 for the purposes of developing a township named, "Surya City". The plaintiff claimed that several correspondences ensued for the deletion of the properties from the acquisition and in view of the policy decision taken by the Board, the defendant No.1 was entitled to 40% of the developed land. The plaintiff claimed that the Karnataka Housing Board had proposed to allot 10 sites to the defendant No.1 and in respect of 10 sites, the plaintiff had entered into a Memorandum of Understanding with the defendant No.1 whereunder, he paid a sum of Rs.1, 50, 000.00. Subsequent thereto, plaintiffs entered into agreements of sale in favour of eight purchasers and paid a sum of Rs.66, 50, 000.00 to the defendant No.1. Thus, in all the plaintiff claimed that the defendant No.1 had received a sum of Rs.68, 00, 000.00. The plaintiff alleged that the defendant No.1 thereafter indirectly attempted to interfere with 10 sites and claimed that those 10 sites would be directly allotted to him. The plaintiff claimed that the defendant No.1 was trying to short circuit the agreement holders who purchased 8 sites from the plaintiff as the power of attorney of the defendant No.1. The plaintiff alleged that the defendant No.1 thereafter indirectly attempted to interfere with 10 sites and claimed that those 10 sites would be directly allotted to him. The plaintiff claimed that the defendant No.1 was trying to short circuit the agreement holders who purchased 8 sites from the plaintiff as the power of attorney of the defendant No.1. Therefore, the plaintiff was advised to file a suit in O.S.No.18/2021 for perpetual injunction. The plaintiff further contended that the defendant No.1 had cancelled the power of attorney dtd. 18/12/2007 by a document dtd. 6/3/2020, which was registered on 27/4/2020. The plaintiff therefore, filed the present suit for the aforesaid reliefs. 4. Along with the plaint, the plaintiff also filed an application under Order XXXIX Rules 1 and 2 read with Sec. 151 of CPC for interim injunction to restrain the defendant No.1 from encumbering the suit schedule properties. 5. The suit was contested by the defendant No.1, who denied the execution of the agreement of the sale and the receipt of sum of Rs.66, 50, 000.00 from the purchasers of the sites. He however, contended that since the plaintiff had obtained power of attorney dtd. 18/12/2007 with an intention to grab the valuable property of the defendant No.1, he was forced to cancel the power of attorney following which, the plaintiff filed a suit in O.S.No.18/2021, which was later withdrawn. The defendant No.1 claimed that the plaintiff had now set up agreement holders to ensure the properties are mired in litigation. He also contested the application filed by the plaintiff for perpetual injunction and also sought for vacating the ex-parte order of injunction. 6. The Trial Court after considering the material on record, allowed the application on the ground that there were triable issues and that the plaintiff had made out a prima facie case and that balance of convenience was in favour of the plaintiff. To arrive at such a conclusion, the Trial Court held that 10 sites were admittedly allotted by the Karnataka Housing Board and that the defendant No.1 had though disputed the execution of the Memorandum of Understanding and receipt of Rs.1, 50, 000.00 from the plaintiff and Rs.66, 50, 000.00 from the agreement holder, that in itself was triable issue, which required consideration and the defendant No.1 cannot be permitted to alienate the suit schedule properties. 7. 7. Being aggrieved by the said order, this appeal is filed by the defendant No.1. 8. The learned counsel for defendant No.1 raised a crucial contention that the suit was not filed for specific performance of any agreement of sale in favour of the plaintiff, but the plaintiff sought for a judgment and decree to compel the defendant No.1 to execute the sale deeds in favour of the purchasers, who had purchased the suit schedule properties. He submits that the plaintiff being a power of attorney, cannot compel the defendant No.1 to execute the sale deeds and therefore, frame of the suit itself was defective. He submits that when suit itself was defective and not maintainable, no interim relief could be granted and the one granted by the Trial Court was without any basis and the Trial Court had not applied its mind, whether the suit was maintainable or not. He next contended that the agreement holders are not before the Court and therefore, the Trial Court committed an error in granting an order of injunction. Further, he contended that since the power of attorney in favour of plaintiff was cancelled, he has no authority to represent the defendant No.1 in any manner whatsoever. 9. Per contra, the learned counsel for the plaintiff contended that there were several transactions between the father of the plaintiff and the defendant No.1, which was renewed and continued even after the death of the father of the plaintiff. He contends that the defendant No.1 did not dispute the fact that a power of attorney dtd. 18/12/2007 was executed by him in favour of the plaintiff not only in respect of the land bearing Sy.No.25 but in respect of the various other properties. He contends that father of the plaintiff himself had entered into an understanding in terms of which, the defendant No.1 had received substantial sums of money from the plaintiff's father and the same arrangement continued thereafter and therefore, the documents between the plaintiff and the defendant No.1 had all the trappings of an agreement of sale. He contends that the power of attorney was irrevocable, as there was an interest attached to the power of attorney and therefore, was not terminable. He contends that the power of attorney was irrevocable, as there was an interest attached to the power of attorney and therefore, was not terminable. He further contends that the defendant No.1 had accepted a sum of Rs.66, 50, 000.00 from various purchasers in whose favour the plaintiff had executed an agreement of sale and therefore, the defendant No.1 was bound to conclude the transaction and he could not proprietarily alienate the 10 sites that were allotted to him by the Karnataka Housing Board. He submits that if the defendant No.1 is not restrained from alienating the suit schedule properties, the purchasers in whose favour the sale agreements were executed would suffer loss and injury and that they would pursue the plaintiff. With these and other contentions, he contended that the plaintiff had made out a triable case and therefore, the Trial Court was justified in granting the order of injunction restraining the defendant No.1 from alienating, encumbering or transferring the suit schedule properties. 10. I have considered the submissions made by the learned counsel for the defendant No.1 as well as the learned counsel for the plaintiff. 11. A reading of the entire plaint and the documents produced therewith does not show any solemn agreement between the plaintiff and the defendant No.1, by which, the defendant No.1 had agreed to sell the land bearing Sy.No.25 in favour of the plaintiff. The basic requisites for agreement of sale namely, the sale consideration itself was not mentioned anywhere in the plaint. Be that as it may, since the plaintiff was claiming as a power of attorney of the defendant No.1, even if the plaintiff had exercised his power under the power of attorney and had entered into some sale agreements in favour of prospective purchasers and even if the defendant No.1 had received certain consideration from such prospective purchasers and a sum of Rs.1, 50, 000.00 from the plaintiff, that did not empower or arm the plaintiff with a cause of action or locus to compel the defendant No.1 to conclude the sale transaction in favour of prospective purchasers. Once the plaintiff had executed an agreement of sale in favour of the prospective purchasers, his responsibility came to an end and it was the defendant No.1 who had to face the consequences. Once the plaintiff had executed an agreement of sale in favour of the prospective purchasers, his responsibility came to an end and it was the defendant No.1 who had to face the consequences. The plaintiff therefore, could not seek the reliefs mentioned above and could not compel the defendant No.1 to execute and conclude the sale transaction made in favour of the prospective purchasers. The Trial Court did not envision the possible issue that may arise for consideration in the suit. The prospective purchasers were not arrayed as parties in the suit and the plaintiff was in no position to establish that the prospective purchasers were ready and willing to perform their part of the contract. In that situation, the suit filed by the plaintiff was wholly defective and per se was not maintainable. The Trial Court without considering the case from this stand point, was buoyed by the contention urged by the plaintiff that defendant No.1 had received a sum of Rs.66, 50, 000.00 from the prospective purchasers and granted an order of injunction. The Trial Court lost sight of the fact that an interim order is always granted as a step in aid to the final relief. If the suit itself was not maintainable, the Trial Court could not have granted an order of injunction restraining the defendant No.1 from alienating, encumbering or transferring the suit schedule properties. In that view of the matter, the impugned order granted by the Trial Court is bad and deserves to be interfered with. 12. Consequently, this appeal is allowed. The impugned order dtd. 14/12/2022 passed by the Principal Senior Civil Judge and JMFC, Anekal in O.S.No.837/2021 is set aside. The application (I.A.No.1) filed by the plaintiff under Order XXXIX Rules 1 and 2 read with Sec. 151 of CPC is rejected. 13. All pending I.As., if any, do not survive for consideration and the same stand disposed off.