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2025 DIGILAW 207 (HP)

Sarla Devi v. Vandana Verma

2025-02-24

G.S. SANDHAWALILA, RANJAN SHARMA

body2025
JUDGMENT : G.S. Sandhawalia, CJ. CMP (M) Nos. 72 & 1506 of 2025 1. Keeping in view the averments made in the applications duly supported by the affidavit of applicant/appellant, we are of the opinion that sufficient cause has been made out to condone the delays. Therefore, the delay of 196 days in filing the appeal and the delay of 66 days in re-filing the appeal is condoned. The applications stand disposed of. FAO (OS) No. 3 of 2025 2. The present appeal arises out of the order dated 14.06.2024, passed by the learned Single Judge in OMP No. 52 of 2021 in Civil Suit No. 15 of 2021, wherein the application for ad-interim injunction restraining the non-applicants/defendants from transferring and alienating the land in question was dismissed by applying the principle of lis-pendens and it was ordered that in the case of transfer of the property in question, the rights of the plaintiff would not be affected. 3. Counsel for the appellant/plaintiff vehemently submitted that the plaintiff has paid a sum of Rs. 40,00,000/- in pursuance to the Agreement to Sell dated 20.11.2019 (Annexure A-2), whereby the 3 rd floor of the building in question alongwith the roof rights were agreed to be sold to the plaintiff by defendants No. 1 & 2. It is thus submitted that the alienation of the property in question as such by defendants No. 3 & 4, who purchased the property in question vide Sale Deed dated 19.03.2020 during the pendency of the proceedings, would put the present appellant/plaintiff in great difficulty and the plaintiff had a right as such to seek the injunction and balance of convenience as such was also in her favour and thus, she had prayed for ad-interim injunction before the learned Single Judge. 4. The learned Single Judge in the impugned order had noted that no reply was filed on behalf of the vendor/defendants No. 1 & 2, apparently on account of the fact that the Sale Deed had already been executed in favour of defendants No. 3 & 4 on 19.03.2020 before the institution of the suit on 16.02.2021. It was noticed that out of the total sale consideration of Rs. 1,13,81,000/-, an amount of Rs. 10,00,000/- was paid to defendants No. 1 & 2 vide Cheque dated 12.10.2018 and Rs. It was noticed that out of the total sale consideration of Rs. 1,13,81,000/-, an amount of Rs. 10,00,000/- was paid to defendants No. 1 & 2 vide Cheque dated 12.10.2018 and Rs. 1,12,67,190/- was transferred in the name of the aforesaid defendants through RTGS in pursuance to Agreement dated 12.10.2018, which was executed much before the execution of Agreement to Sell in favour of the plaintiff. 5. The learned Single Judge thus observed that the specific performance of the contract could be enforced against the parties, or against any other person claiming title that has arisen after the title of the plaintiff. He further observed that in the present case, even though the sale deed was registered subsequently to the agreement in favour of the plaintiff, however, the agreement in favour of defendants No. 3 & 4 was executed much before the agreement in favour of the plaintiff. He further held that the plaintiff would not suffer any irreparable loss and injury which cannot be compensated in terms of money as her rights would be fully protected by the doctrine of lis pendens while the defendants No. 3 & 4 would suffer as they would be deprived of the use of the land and the building to which they were entitled being the owners. 6. We are in agreement with the findings given by the learned Single Judge. It is not disputed that by virtue of the Sale Deed dated 19.03.2020, the whole building has been transferred in favour of defendants No. 3 & 4, which is subject matter of challenge in the Civil Suit, also. Thus, a huge amount of consideration has been paid by defendants No. 3 & 4 and it cannot be said that balance of convenience lies in favour of the plaintiff and otherwise also, irreparable loss and injury would be caused to defendants No. 3 & 4, as they have paid the said amount of consideration. The payment of Rs. 40,00,000/- paid by the plaintiff has been appropriated not by defendants No. 3 & 4, but by defendants No. 1 & 2, who have not chosen even to contest the application, as they have already alienated the property prior to the institution of the suit. 7. In such circumstances, if the plaintiff was wronged, it has been more on account of the act and conduct of defendants No. 1 & 2. 7. In such circumstances, if the plaintiff was wronged, it has been more on account of the act and conduct of defendants No. 1 & 2. The allegations of collusion and knowledge against defendants No. 3 & 4 would a matter of evidence, which is yet to come on record in the Civil Suit. By way of the subsequent agreement dated 14.05.2020, the plaintiff paid the 2 nd installment and last date for execution of the Sale Deed was extended from 19.05.2020 to 09.11.2020. The alienation as such took place prior to the last date fixed for execution but before the 2 nd installment was paid, by the plaintiff/appellant. 8. In such circumstances, it can be safely said that the learned Single Judge has rightly applied the principle of lis- pendens instead of grant of injunction and rightly ordered that by the transfer of the property, no prejudce would be caused to the plaintiff and her right would not be affected since defendants No. 3 & 4 have invested a huge amount. Thus, we dismiss the present appeal. 9. Needless to say, that these observations are only for the propose of dealing with this application and would not affect the merits of the main case, in any manner. 10. We however, request the learned Single Judge to consider the request of the learned Counsel for the appellant to expedite the hearing of the suit, as the plaintiff is a lady who has spent an amount of Rs. 40,00,000/- and has not been given possession of the property in question. 11. Accordingly, the appeal is dismissed alongwith pending application(s), if any.