Gujarat High Court
Gajanan Infra Ventures Through ... vs Bhavesh D Rusavat Patel on 3 August, 2022
C/AO/131/2022 ORDER DATED: 03/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 131 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/APPEAL FROM ORDER NO. 131 of 2022
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GAJANAN INFRA VENTURES THROUGH PARTNERS
Versus
BHAVESH D RUSAVAT PATEL
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Appearance:
MR HRIDAY BUCH FOR MR PINANK J RAIYANI(10166) for the Appellant(s)
No. 1,2,3,4,5,6,7,8
for the Respondent(s) No. 6,7
DHRUVIK K PATEL(7769) for the Respondent(s) No. 1
MR MEET D PANSURIA(10170) for the Respondent(s) No. 2,3,4,5
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 03/08/2022
ORAL ORDER
1. This is an Appeal filed under Order 43, Rule 1 read with Section 104 of the Code of Civil Procedure, by the original defendant Nos.6 to 9 and 11 to 14 (appellants herein) thereby challenging the legality, validity and propriety of the order dated 18.12.2021 passed by the learned 4 th Additional Senior Civil Judge, Gandhinagar, below Exhibit 5 in Special Civil Suit No.36 of 2009 (in short "the impugned order"). By this impugned order, learned trial Judge was pleased to allow the application for temporary injunction filed by the respondent No.1 herein - original plaintiff thereby directing the appellants herein to not to alienate the suit properties which include the residential flats Nos. G/101, 102, 103 and 104. Learned trial Judge has further directed the appellants to not to alienate any property situated in Block G and not to make Page 1 of 14 Downloaded on : Sat Dec 24 22:40:45 IST 2022 C/AO/131/2022 ORDER DATED: 03/08/2022 any structural changes in the suit properties till the final disposal of the Suit.
2. The facts as emerges from the record of the present Appeal from Order, are summarized as under:
2.1 The controversy pertains to Scheme consisting of residential flats and commercial shops in the name of "Home Town - 4"
situated at final plot No.80, ad measuring 13233 Sq. Mtrs. in Town Planning Scheme No.69 (Chandkheda - Tragad - Jhundal) in Gandhinagar District. The respondent No.2 is a registered Company in which the respondent Nos.3 to 6 are the Directors, who are joined as original defendant Nos.1 to 5 in the Suit proceedings. The above mentioned plot was of exclusive ownership of respondent No.2. The aforesaid scheme was launched by the respondent No.2 through its Director. The scheme consisted of total 19 towers, which were spread and identified as Block Nos. A to S. After obtaining necessary permissions as required under the laws, the respondent No.2 Company started with the construction of the residential plots and commercial shops.
2.2 It is case of the original plaintiff - respondent No.1 herein that he had booked four residential flats in Block G i.e. flat Nos.101, 102, 103 and 104 in the first floor. Against such booking, original plaintiff - respondent No.1 herein claimed to have paid an amount of Rs.92 Lakhs towards sale consideration of the aforesaid four flats i.e. Rs.23 Lakhs against each flat between the period of January, 2016 to 31.03.2016. It is the case of the plaintiff that such amount was credited in the bank account of the respondent No.2 Company with the Corporation Bank and such amount was paid to Page 2 of 14 Downloaded on : Sat Dec 24 22:40:45 IST 2022 C/AO/131/2022 ORDER DATED: 03/08/2022 the respondent No.2 Company by way of cheques. The statement of bank account confirmed the realization of the aforesaid amount by the respondent No.2 Company. Subsequently, in the year 2018, the respondent No.2 Company applied for change in sanction lay-out plan and revised lay-out plan, which came to be sanctioned by the Ahmedabad Municipal Corporation on 15.11.2018. As per the revised plan, the properties of the commercial shops were increased in Block G, whereby 50% area of first floor of Block G was utilized for commercial shops, resulting into reduced properties of residential flats in first floor i.e. from 4 flats to 2 flats (flat Nos.101 and 102).
2.3 Thereafter, by registered sale deed dated 04.01.2019, the appellants purchased the open remaining land of final plot No.80 admeasuring 4694 Sq. Mtrs. out of 13233 Sq. Mtrs. which was the area of plot in which Block G to M were to be constructed. It is the case of the appellants that a Resolution was passed by the respondent No.2 Company on 01.03.2018, whereby the respondent No.2 and its Directors have agreed to sell above described properties to the present appellants. It is the case of the appellants that booking of 4 flats by the original plaintiff, in the first floor of Block G was not disclosed to the appellants. The fact of the amount of consideration against such booking being realized by the respondent No.2, was also not disclosed to the appellants. Thus, the appellants claim to have bonafidely entered into sale transaction of the open plot of final plot No.80 by the registered sale deed dated 04.01.2019.
2.4 Having purchased the aforesaid plot, the appellants started with construction of Block G to M in terms of revised lay-out plan Page 3 of 14 Downloaded on : Sat Dec 24 22:40:45 IST 2022 C/AO/131/2022 ORDER DATED: 03/08/2022 as sanctioned by the Corporation on 15.11.2018.
2.5 The original plaintiff, who is son of the Director of respondent No.2 Company i.e. original defendant No.2 instituted the civil suit being Special Civil Suit No.36 of 2019 before the learned Additional Senior Civil Judge, Gandhinagar, challenging the aforesaid sale deed dated 04.01.2019 executed in favour of the appellants, who have been joined as original defendant Nos.6 to 9 and 11 to 14. The original plaintiffs have also prayed for alternative relief seeking specific performance of the alleged agreement to sale with regard to flat Nos.101 to 104 of Block G entered upon with respondent No.2. Interestingly in plaint, the plaintiff has described the suit property as flat Nos.101, 102, 103 and 104 of Block G, whereas the relief is sought for seeking cancellation of sale deed dated 04.01.2019 in respect of the final flat No.80 i.e. an area of admeasuring 4694 Sq. Mtr. out of 13233 Sq. Mtr. Along with the Suit, the original plaintiff had filed Exhibit 5 application and had thereby prayed for interim injunction against the defendant Nos.6 and 7 to not to transfer or alienate the open land admeasuirng 4694 Sq. Mtr. The further prayer was sought to restrain the defendants from transferring the properties situated in Block G by executing the sale deed or by passing the Resolution and had also prayed for injunction to restrain the defendants from the proceeding with the construction on the said open land as well as to restrain the defendants from creating any charge, lien pending the suit proceedings. The plaintiff had also prayed for direction to restrain the defendants from getting the revised plan sanction and to restrain the defendant Nos.6 and 7 in particular from applying for new lay-out plan in respect of flats nos. Block G- 101 to 104.
3. The Learned 4th Additional Senior Civil Judge, Gandhinagar, Page 4 of 14 Downloaded on : Sat Dec 24 22:40:45 IST 2022 C/AO/131/2022 ORDER DATED: 03/08/2022 upon hearing the learned counsel for the plaintiff as well as on perusal of the plaint and exhibit- 5 application, was pleased to issue urgent show cause notice upon the defendants vide order dated 28.02.2019 and had initially refused to grant for any ex- parte order below Exhibit 5.
4. The written statement came to be filed by the respondent Nos.2 to 6, who had accepted to receive the booking amount to the tune of Rs.40 Lakhs against each flat total amounting to Rs.1,60,00,000/-. The appellants herein have filed separate written statement and have specifically raised defense to be bonafide purchasers. It was submitted that respondent No.2 while entering into the sale transaction with the appellants had not disclosed about the alleged oral agreement between the original plaintiff and the defendant No.1. The appellants further urged the learned trial Court that being put in the possession of the suit property, they have proceeded with the construction on the open land as per the revised lay out plan sanctioned by the Corporation and in such circumstances, the defendants may not be saddled with the liability so raised by the respondent No.2 Company. The appellants therefore, objected to grant of any interim injunction pending the Suit as no prima facie case was made out by the original plaintiff. Considering the nature of issue involved, it was submitted that the balance of convenience is in favour of the appellant and since the plaintiff can be compensated in terms of money in case, if he succeeds in the Suit, no irreparable loss was likely to be caused to the plaintiff. Thus, the appellants have prayed to not to grant any relief as prayed for below interim injunction.
5. Inspite of the aforesaid specific defense being raised by the Page 5 of 14 Downloaded on : Sat Dec 24 22:40:45 IST 2022 C/AO/131/2022 ORDER DATED: 03/08/2022 appellants, the learned 4th Senior Civil Judge, without appreciating the basic criteria of grant of interim injunction, proceeded to allow the application Exhibit 5 and thereby granted interim injunction with respect to transfer of entire Block G by restraining the appellants from selling of the flats situated in Block G. In such circumstances, the appellants are before this Court challenging the impugned order as being illegal and invalid.
6. Heard Mr. Hriday Buch, learned counsel appearing with Mr. Pinank Raiyani, learned counsel on record for the appellants has invited attention of this Court to the impugned order. He submitted that the impugned order is ex facie illegal and invalid inasmuch as none of the ingredients of interim injunction are fulfilled, which entitled the original plaintiff to grant of relief as prayed for. He further submitted that as against the challenge of registered sale deed dated 04.01.2019, the schedule property described therein consist of remaining 4694 sq.mrts. open plot of Final plot no. 80, the suit properties admittedly consists of the flats Nos.101 to 104 of the Block G. Even assuming without admitting the alleged oral agreement to sell as claimed by the plaintiffs, no material has come on record to suggest any existence of the privity of contract between the plaintiff and the erstwhile respondent No2. Company in respect of the open land of final plot No.80. He further submitted that the claim made by the plaintiff in respect of the alleged agreement to sell for suit properties i.e. flats Nos.101 to 104 of Block G are concerned except for the statement of bank account, no document has come on record to suggest the sale agreement which relates to the suit properties. He further submitted that the original plaintiff is son of one of the Directors of the respondent No.2 Company and therefore, it cannot be believed that the plaintiff is Page 6 of 14 Downloaded on : Sat Dec 24 22:40:45 IST 2022 C/AO/131/2022 ORDER DATED: 03/08/2022 not aware about the Resolution dated 01.03.2018, whereby the Director of respondent No.2 Company have decided to sell remaining area of final plot No.80 to the present appellants. He further submitted that the respondent No.2 Company had not disclosed the material facts about the alleged agreement to sell in favour of the plaintiff nor it disclosed about the receipt of the consideration amount. He therefore, submitted that the appellants being bonafide purchasers cannot be saddled with the liability created by the erstwhile respondent No.2 Company. Even otherwise, the appellants herein have purchased the remaining part of the open land by registered sale deed dated 04.01.2019, and have proceeded with construction as per existing revised layout plan as sanctioned by the Corporation on 15.11.2018, whereby the flats at the first floor in Block G came to be reduced from 4 flats i.e. Nos.101 to 104 to 2 flats i.e. Nos.101 and 102. He further submitted that the very fact of revised layout plan indicates that the erstwhile organizer of the Scheme in which the father of the original plaintiff is a Director had indirectly forfeit the booking of remaining two flats i.e. flat Nos.103 and 104. He therefore, submitted that the suit is instituted with malicious intention with a view to pressurise the appellants to sell the flats at throwaway price, under the garb of oral agreement in respect of 4 flats. He therefore, submitted that no prima facie case exits in favour of the plaintiff.
7. Mr. Buch, learned counsel further invited attention of this Court to the written statement filed by the respondent No.2 before the learned trial Court, wherein the consideration price of flats alleged to have been booked by the plaintiff is referred as Rs.40 Lakhs for each flat i.e. total amounting to Rs.1,60,00,000/-. He Page 7 of 14 Downloaded on : Sat Dec 24 22:40:45 IST 2022 C/AO/131/2022 ORDER DATED: 03/08/2022 submitted that the statement of account of bank acknowledges the amount credited into the account with the respondent No.2 Company. However, same cannot in any manner relates to the payment of such amount against booking of the flat as contended by the plaintiff. He further submitted that the aforesaid aspect being not disclosed by the respondent No.2 and the transaction being prior in point to the execution of the sale deed in favour of the appellants, the appellants being bonafide purchasers cannot be held liable for the so called oral agreement entered into between the respondent Nos.1 and 2. He, therefore, submitted that the balance of convenience is in favour of the appellants as at the most the plaintiff can be compensated in terms of money in the case, he establishes his case before the learned trial Court.
8. Mr. Buch, learned counsel further invited attention of this court to the prayer sought for in the plaint as against alleged booking of 4 flats in Block G, the plaintiff has prayed for cancellation of sale deed dated 04.01.2019 executed in favour of the appellants in respect of the whole open area admeasuring 4694 Sq. Mtr. of final plot No.80 wherein apart from Block G remaining Blocks M to N are required to be constructed. He, therefore, submitted that even if interim injunction is refused, no irreparable loss is likely to be caused to the original plaintiff. As against, by impugned order, the learned trial Court has not only restrained the appellants from selling of the flats situated in Block G, but has restrained the appellants from not to get sanction new plan in respect of Block G flat Nos.101 to 104. He therefore, urged to quash and set aside the impugned order passed by the leaned 4 th Additional Senior Civil Judge, below Exhibit 5.Page 8 of 14 Downloaded on : Sat Dec 24 22:40:45 IST 2022
C/AO/131/2022 ORDER DATED: 03/08/2022
9. On the other hand, Mr. Dhruvik Patel, learned counsel appearing with Mr. Meet Pansuriya, learned counsel for the respondent Nos.1 to 5 has vehemently objected to grant of any relief in favour of the appellants. At the outset, Mr. Patel invited attention of this Court to the statement of account of the Corporation Bank starting from 01.01.2016 to 31.03.2016. He referred to and relied upon various entries and submitted that it totals to the tune of Rs.1,60,00,000/- which has been received and acknowledged in the bank account of the respondent No.2 Company. He referred to and relied upon the written statement of the respondent Nos.2 to 4 who have accepted the fact of booking of 4 flats i.e. G - 101 to 104 in Block G of "Home Town- 4" Scheme. He further referred to and relied upon commencement letter dated 04.06.2015 issued by the Ahmedabad Municipal Corporation and submitted that total 7 floors were sanctioned in original layout plan submitted by the respondent No.2 Company wherein on first floor, the usage specified in G block was for residential purpose wherein total residential units sanctioned were 12. He further submitted that only ground floor was permitted for commercial usage. He, therefore, submitted that at the relevant point of time, there were four flats in existence on the first floor, which was specified for residential usage purpose. He further invited attention of this Court to commencement letter dated 15.11.2018 issued by Ahmedabad Municipal Corporation, wherein the first floor was change from exclusive residential usgae to residential - commercial usage. The residential units were reduced on the first floor resulting into two flats being left out as first floor. He further referred to and relied upon auditor report of respondent No.2 Company for a period from 08.11.2016 to 30.12.2016, wherein Annexure 1 relates to trade payable, wherein in column No.1, particulars of booking as against Page 9 of 14 Downloaded on : Sat Dec 24 22:40:45 IST 2022 C/AO/131/2022 ORDER DATED: 03/08/2022 column No.2 amount of booking being received is reflected. He invited attention of this Court to few entries reflected in the name of original plaintiff. He, therefore, submitted that sufficient material has come on record to show that total consideration of Rs.1,60,00,000/- was realized by the respondent No.2 Company. He, therefore, submitted that the appellants having entered into the shoes of the original organizer are under legal obligation to abide by the liability of the respondent No.2. He further submitted that upon appreciation of the aforesaid documents, the learned trial Court has rightly found prima facie case in favour of the plaintiff and in order to protect the interest of the plaintiff pending the suit, has rightly directed the appellants to not to transfer the flats in Block G including the flats booked by the original plaintiff and has also further directed to not to get sanction the new plan in respect of Block G 101 to 104. He, therefore, urged to not to entertain the present Appeal From Order.
10. On earlier date of hearing when the matter was substantially heard by this Court, Mr. Buch, learned counsel appearing with Mr. Raiyani, learned counsel for appellants, under the instructions from the appellants had offered proposal to secure the interest of the plaintiff by blocking 4 flats in Block G and to modify the impugned order passed by the learned trial Court to that extent. Mr. Patel on the other hand, was requested to take instructions, however, on the next date of hearing, Mr. Patel had submitted before this Court that respondent No.1 is not agreeable to such proposal and has therefore, invited order from this Court.
11. Heard Mr. Hriday Buch, learned counsel for the appellants and Mr. Dhruvik Patel, learned counsel for the respondents.Page 10 of 14 Downloaded on : Sat Dec 24 22:40:45 IST 2022
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12. This Court has carefully gone through the averments made in the plaint as well as prayers sought for by the plaintiff in Exhibit 5 application as well as written statement filed by the respective defendants. This Court has also carefully examined the material in nature of documents including the statement of account, auditor report, registered sale deed dated 04.01.2019, Resolution dated 18.01.2018 and the commencement letters as well as layout plan sanctioned by the competent authority. Upon examination of the aforesaid documents, this Court notices that even accepting the case of the plaintiff of oral agreement to sell and the amount of consideration of Rs.1,60,00,000/- being paid against suit properties , the interest of the plaintiff does not traverse beyond the aforesaid 4 flats i.e. flat Nos.101 to 104 of Block G. There is nothing on record to suggest that any privity of contract exists between the plaintiff and erstwhile respondent No.2 Company or between the plaintiff and the appellants herein in respect of rest of the properties i.e. remaining flats in Block G or upon land excluding Block G. It is settled legal position of law if the oral agreement is proved, specific performance of such agreement cannot be denied.
13. The Supreme Court in the case of Alka Bose Vs. Parmatma Devi and other ( Civil Appeal No. 6197 of 2000] has succinctly explained how the oral agreements are valid. The Supreme Court in no uncertain terms has observed that a sale agreement can be oral also and valid. It is not necessary that the agreement should be written. What is more important is that it should be within the ambit section 10 of the Indian Contract Act. All oral and written agreements will be valid if they fulfill the conditions specified in section 10.Page 11 of 14 Downloaded on : Sat Dec 24 22:40:45 IST 2022
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14. However, in the facts of the case on hand, except for the statement of bank account and the entry appended to the Auditor report, nothing is there on record to suggest that the payment of such amount was towards sale consideration of booking of the flat bearing G 101 to 104. Noticeably in the revised sanctioned layout plan dated 15.11.2018, 50% area of first floor of Block G has been utilized for commercial shops and the properties of residential flats on the first floor has been reduced to two flats i.e. flat No.G 101 to
102. The appellants herein seems to have purchased the remaining open land i.e. admeasuring 4694 Sq. Mtr. on which Block G to M are constructed. The sale deed is dated 04.01.2019 which is executed after revised layout plan reducing the residential flat in the first floor from 4 to 2 flats. The appellants having entered into the Suit of erstwhile respondent No.2 Company are bound to proceed with the construction as per the revised layout plan.
15. In such circumstances in absence of any privity of contract between the appellants and the plaintiff, the appellants cannot be saddled with any liability for the act of the erstwhile respondent No.2 Company. In the opinion of this Court, the learned trial Court committed gross error in recording prima facie case in favour of the plaintiff merely on appreciating the acknowledgment of the amount of Rs.92 Lakhs as against booking of flat No.101 to 104 of Block G, more particularly, when the erstwhile respondent no.2 Company disputed in its written statement about actual value of flats being Rs.40 Lakhs per flat. By impugned order, the learned trial Court while recording the factors of balance of convenience and irreparable loss, has not assigned any reason except for the fact that it may result into multiplicity of proceedings. On the contrary, this Page 12 of 14 Downloaded on : Sat Dec 24 22:40:45 IST 2022 C/AO/131/2022 ORDER DATED: 03/08/2022 Court is of the view that by grant of such interim injunction restraining the appellants from not alienating or transferring of the flats in Block G, the learned trial Court has jeopardized the interest of other flat owner who might have entered into the transaction by booking remaining flats other than flat Nos.101 to 104 of Block G. The learned trial Court has not applied its mind and totally ignored the revised layout plan sanctioned by the Corporation which otherwise specifically permitted the construction of commercial cum residential usage in first floor whereby number of flats have been reduced to flat G 101 to 102. The learned trial court by impugned order has directed not to get sanction revised plan in respect of the flat G 101 to 104, however, the fact remains that on the date of filing of the suit, the revised layout plan dated 18.11.2018 had already come into existence which has not been challenged by the plaintiff in the present Suit or before any other competent Court or Forum.
16. In the result, present Appeal From Order is allowed. The impugned order dated 18.12.2021 passed by the learned 4 th Senior Civil Judge, Gandhinagar, is quashed and set aside. In order to secure the interest of the plaintiff, present appellants are directed to deposit the amount of Rs.1,60,00,000/- before the learned trial court. Such amount so deposited shall be subject to the outcome of the Suit. The Nazir of the trial Court shall deposit the said amount in the Fixed Deposit Receipt in any Nationalized Bank initially for a period of 3 years and shall be renewed from time to time till final disposal of the Suit. The interest which may accrue upon the said Fixed Deposit shall be continued in the account of Fixed Deposit.Page 13 of 14 Downloaded on : Sat Dec 24 22:40:45 IST 2022
C/AO/131/2022 ORDER DATED: 03/08/2022 In view of the disposal of the main Appeal, Civil Application stands disposed of.
(NISHA M. THAKORE,J) Y.N. VYAS Page 14 of 14 Downloaded on : Sat Dec 24 22:40:45 IST 2022