Karnataka High Court
Shri. Madan Mohan Premaratan Mohta vs Shri.Mohan Venkatrao Datar on 11 July, 2013
Bench: N.Kumar, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 11TH DAY OF JULY 2013
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
M.F.A. No.21317/2012 (CPC)
Between:
Shri Madan Mohan Premaratan
Mohta, age: 71 years, Occ.: business,
R/o Plot No. 191, Cross No. 2,
Bhagya Nagar, Angol, Belgaum.
- Appellant
(By Sri. A.G. Mulawadmath, Advocate)
And:
1. Shri Mohan Venkatrao Datar,
Age: Major, Occu: Business,
R/o Maruti Galli, Belgaum.
2. Shri Shamrao Venkatrao Datar,
Age: Major, Occu: Business,
R/o Maruti Galli, Belgaum.
3. Shri Suresh Venkatrao Datar,
Age: Major, Occu: Business,
R/o Maruti Galli, Belgaum.
4. Shri Balasaheb Venkatrao Datar,
Age: Major, Occu: Business,
R/o Maruti Galli, Belgaum.
5. Shri Anand Srinivas Datar,
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Age: Major, Occu: Business,
R/o CCB No. 17, Ganesh Marg,
Hindwadi, Belgaum.
6. Smita Srinivas Datar,
Age: Major, Occu: Household,
R/o Pune, Maharastra.
7. M/s Balaji Developers, Belgaum,
A partnership firm by its partners
Defendant no.7A, 8, 9 and 10.
7A. Veenith s/o Vasantrao Joshi,
Age: 54 years, Occ.: business,
R/o Anigol Road,
Near Hari Mandir, Belgaum.
8. Smt. Varsha w/o Veenith Joshi,
Age: 48 years, Occu.: Household,
R/o Anigol Road,
Near Hari Mandir, Belgaum.
9. Smt. Anita w/o Kiran Kulkarni,
Age: Major, Occu: Business,
R/o Anigol, Belgaum.
10. Smt. Geeta w/o Appasaheb Kalage,
Age: Major, Occu: Business,
R/o Swami Vivekanand Road,
R/o Anigol, Belgaum.
11. Kiran Tammaji Kulkarni,
Age: Major, Occu: Business,
R/o Anigol, Belgaum.
12. Appasaheb Ganapati Kalage,
Age: Major, Occu: Business,
R/o Swami Vivekanand Road,
R/o Anigol, Belgaum.
- Respondents
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(By Smt. Hemalekha, Advocate
for C/R7A and R8)
This appeal is filed under Section 43 Rule 3(1) of
CPC against the judgment and award dated 09.12.2011
passed in O.S. No.134/2004 on the file of the Prl. Senior
Civil Judge, Belgaum, rejecting the I.A. No. II filed under
Order 39 Rule 1 and 2 of CPC.
This appeal coming on for orders regarding non-
compliance of office objections this day, N.Kumar, J,
delivered the following:
JUDGMENT
1. This appeal is preferred by the plaintiff challenging the order passed by the trial Court dismissing his application under Order 39 Rule 1 and 2 of CPC restraining the defendants from alienating the property pending disposal of the suit on merits.
2. The plaintiff is a businessman. He has entered into an agreement with defendant nos.1 to 6 to develop the property bearing CTS No.1558/A and 1558/B/1B, who, in turn approached defendant nos.11 and 12, the estate brokers and also developers of the properties. :4:
3. A tripartite agreement came to be executed among these people on 25.11.1999. There is a clause in the agreement, which reads thus:
"This agreement being the security for the amount availed, party No. III has agreed to hand over the possession of the entire ground floor after receipt of the amount due to them with interest to party No. III and subsequently this tripartite agreement stands cancelled:"
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4. The plaintiffs contend they have already parted with Rs.31 lakhs. Now the defendants are not willing to perform their part of the contract. Therefore, they were constrained to file the suit for recovery of the said amount. In the said suit, an application under Order 39 Rule 1 and 2 of CPC is filed restraining the defendants from alienating the property which is the subject matter of the agreement. The said application was opposed.
5. The learned trial Judge on consideration of the rival contentions was of the view the said tripartite :5: agreement is inadmissible in evidence, because neither it is stamped nor registered. Further, it also held, as the payment of Rs.29,50,000/- is disputed by the defendants, the same is yet to be proved by the plaintiff in a full fledged trial. The tripartite agreement shows that defendant nos.7, 7A and 8 are in physical possession and enjoyment of the suit property. Further, it held the tripartite agreement is dated 25.11.2009, another agreement which came to be executed on 04.04.2010 was not registered though it was compulsorily registerable. The suit having been filed in the year 2004 is barred by the Law of Limitation. Therefore, prima facie the plaintiff has not made out a case for grant of injunction. Accordingly, it dismissed the application.
6. Aggrieved by the said order the plaintiffs have preferred this appeal.
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7. The learned counsel appearing for the appellant assailing the impugned order contended, in terms of the aforesaid clause in the agreement, the property was offered as a security for the amount paid under the agreement. Without paying the money to the plaintiff, the defendants are trying to alienate the property. If they are permitted to do so, then it would seriously affect the rights of the plaintiff and also leads to multiplicity of proceedings. He further submitted, the finding recorded by the trial Court that it is insufficiently stamped and it requires to be registered is incorrect as the said document falls within the definition of composition deed and stamp duty payable is only Rs.100/-. Therefore, he submits, a case for interference is made out.
8. Per contra, learned counsel for the respondents supported the impugned order.
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9. In the light of the aforesaid facts, it is the specific case of the plaintiff that now the tripartite agreement for the money paid under the agreement, the defendants have offered the property as security. If the property is offered as a security as contended by the plaintiff, any person who purchases the property would purchase the property subject to such security in which event the plaintiff's interest is no way affected. In a suit for recovery of money, the plaintiff who has no right in the property which is the subject matter of the agreement, cannot prevent a rightful owner from alienating the property. If really he wanted to secure the money due to him in a decree to be passed tomorrow, the proper course for him is to seek attachment of the property which he has not done. Therefore, an injunction cannot be given at the instance of a person who has no right in the property against a person who is the owner of the property.
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In that view of the matter, the order passed by the trial Court cannot be found fault with. Accordingly, the appeal is dismissed.
SD/-
JUDGE SD/-
JUDGE bvv