Gujarat High Court
Krishna Hanumanram Mistry vs Pappushinh Lodshinh on 29 July, 2013
Author: S.H.Vora
Bench: S.H.Vora
KRISHNA HANUMANRAM MISTRY....Appellant(s)V/SPAPPUSHINH LODSHINH RAJPUROHIT C/AO/75/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER NO. 75 of 2013 With CIVIL APPLICATION NO. 2452 of 2013 In APPEAL FROM ORDER NO. 75 of 2013 ================================================================ KRISHNA HANUMANRAM MISTRY....Appellant(s) Versus PAPPUSHINH LODSHINH RAJPUROHIT & 1....Respondent(s) ================================================================ Appearance: MR SK PATEL, ADVOCATE for the Appellant(s) No. 1 MR MAKBUL I MANSURI, ADVOCATE for the Respondent(s) No. 1 - 2 MR R G DWIVEDI, ADVOCATE for the Respondent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.H.VORA Date : 29/07/2013 ORAL ORDER
With the consent of learned advocates appearing for the parties, present appeal from order is taken up for final hearing.
1. Challenge in this appeal preferred under Order 43 Rule 1(r) read with section 104 of the Code of Civil Procedure, 1908 (for short the Code ) is order dated 8.11.2012 passed by the learned 15th Additional Senior Civil Judge, Vadodara in Special Civil Suit No.466 of 2011 passed below Exh-5 injunction application preferred by the appellant original plaintiff inter alia seeking relief against the respondents defendants in terms of para 22 of the injunction application filed under Order 39 Rule 1 and 2 of the Code.
2. The learned trial Judge after considering the pleadings and documentary evidence placed on record dismissed the injunction application preferred by the appellant original plaintiff and hence, the present appeal from order.
3. I have heard submissions of both the sides at length and examined the impugned order and documentary evidence annexed with the memo of appeal and notices exchanged by the parties to the suit prior to filing of the suit.
4. The suit transaction relates to one property being Plot No.A/8 of Parmeshwar Park Society admeasuring 1437 sq feet situated at Dist:
Vadodara. It is an admitted fact that parties to the suit entered into sale agreement on 18.5.2010 and the total sale price between the parties was settled at Rs.15 lac. On the date of execution of sale agreement, the appellant plaintiff paid Rs.1 lac. As per the say of the appellant plaintiff, he has paid Rs.3,85,000/- in cash in piece meal before December, 2010 and balance amount of Rs.10,15,000/- was paid by two cheques bearing No.100207 dated 15.12.2010 for Rs.10 lac and Rs.15,000/- by way of Cheque No.100208 dated 15.12.2010 drawn on Bank of India, Nizampura branch. It is an admitted fact that cheque of Rs.15000/- was encashed on 21.12.2010. It also appears that receipt of cheque of Rs.10 lac is in dispute and as per the case of the defendants, the defendants have neither received cheque of Rs.10 lac nor Rs.3,85,000/- in cash or Rs.15,000/- by way of aforesaid cheque. In nutshell, it is the case of the defendants that the defendants have received only Rs.1 lac towards suit transaction and therefore, vide notice dated 30.4.2011, the defendants have cancelled the sale agreement. It is the further case of the defendants that as per condition No.5, the plaintiff was required to pay balance consideration of Rs.14 lacs within six months from the date of execution of the sale agreement. It also appears that from the balance consideration of Rs.14 lac, the loan obtained by the defendants was required to be repaid, so that original document can be received back from the State Bank of India. The sale agreement also stipulates two other conditions vide condition Nos.6 and 11 inter alia requiring the defendants to obtain permission from the Collector as suit property is situated in the disturbed area and further the plaintiff to get title clearance certificate. The condition Nos.6 and 11 indicate that in case of delay in obtaining permission from the Collector or obtaining title clearance certificate, the period to pay balance consideration shall be extended accordingly.
5. From the pleadings and documentary evidence, it appears that the plaintiff has issued two cheques of Rs.10 lac and Rs.15000/- to the defendants on 15.12.2010. Though the defendants deposited the cheque of Rs.15,000/- and received the amount, however, they are denying the receipt of said part payment. It is an admitted fact that the said part payment is disputed by the defendants after expiry of six months fixed in the agreement for performance of sale transaction. It appears that the defendants waited for six months thereafter and on 30.4.2011, the defendants cancelled the sale agreement on the ground that the appellant plaintiff has not paid balance consideration of Rs.14 lac. While issuing notice dated 30.4.2011, the defendants remained silent with regard to the receipt of cheque of Rs.15,000/-. It also appears that vide reply dated 4.5.2011, the appellant plaintiff in terms mentioned about two cheques as aforesaid amounting to Rs.10,15,000/-. After receipt of such reply by the respondents defendants, the defendants did not dispute the said fact and therefore, prima facie, it can be inferred that the respondents defendants have received cheque of Rs.10 lac, but for the reasons best known to the respondents - defendants, the defendants did not get it encashed or presented before the bank for its clearance. It is first time on 13.10.2012 in the written statement Exh-26, while dealing with averments made in para 8 of the injunction application with regard to payment of balance consideration, as aforesaid, the respondents defendants stated in para 9(H) of the written statement that the contents of para 8 is not worth truth, hence vehemently denied.
6. The present appeal is filed under the provisions of Order 43 Rule 1(r) of the Code and challenge in this appeal is the discretionary order passed by the trial Court under the provisions of Order 39 Rule 1 and 2 of the Code whereby, the learned trial Judge dismissed the Exh-5 injunction application for interim relief. If this Court elaborately deal with the matter on its own merits, it is likely that same would prejudice the case of either side. Therefore, it is also well settled law that the Court is not required to go into the merits of the entire matter at this stage and what is required to be seen is whether the appellant-original plaintiff has made out a prima facie case or not for grant of interim injunction. It is well settled law that the Appellate Court may not interfere with the exercise of discretion of the Court at first instance and substitute its own discretion except when the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or when the Court has ignored the settled principles of law regulating grant or refusal of inter locutory injunctions. So, the Appellate Court cannot reassess the material and reach a conclusion different from the one reached by the Court. Keeping in mind the limited scope of present appeal, this Court is required to see whether discretion exercised by the learned trial Judge is perverse, arbitrary, capricious or against any settled principles of law or not?
7. It is settled proposition of law that in the matter of specific performance of immovable property, time is not essence of contract. In case on hand, the conduct of the defendants indicates that they have accepted part payment of Rs.15000/- on 15.12.2010 i.e. after expiry of six months time to perform sale agreement and more particularly, to pay balance consideration of Rs.14 lac. The Court also finds that the defendants have conveniently avoided to deposit a cheque of Rs.10 lac and the same is eloquent from the fact that the defendants have not challenged the appellant s reply dated 4.5.2011, wherein the appellant plaintiff in terms stated that he has handed over two cheques to the defendants, as aforesaid. Further, condition Nos.6 and 11 stipulates that if the defendants fail to obtain prior permission from the Collector and the plaintiff fails to obtain title clearance certificate, then the time to pay balance consideration shall stand extended. Since, the plaintiff has prima facie proved his willingness and readiness to pay the balance consideration, the plaintiff has made out a case as required under the provisions of Order 39 Rule 1 and 2 of the Code. The findings recorded by the learned trial Judge is contrary to condition Nos.5,6 and 11 coupled with the fact that the learned trial Judge failed to consider the defendants conduct in not depositing the cheque of Rs. 10 lac though the defendants received it.
8. In support of his submission, the learned advocate appearing on behalf of the defendants placed reliance on the decision rendered in case of Ashabhai Dulabhai Patel Vs. Patel Shardaben Wd/o Chandulal Ishwarbhai reported in 2011(3) GCD 1893 (Guj.) so as to demonstrate that the plaintiff failed to prove that he was ready and willing to perform his part of the contract and therefore, while dismissing the second appeal, the High Court observed that the appellant there is not entitled to the relief for specific performance of agreement as provided under section 10 of the Specific Relief Act. In view of the fact of the present appeal, the principle settled there is not helpful to the defendants even remotely. In the case on hand, the plaintiff has successfully established his readiness and willingness to perform his part of the agreement and therefore, no fault can be found at this stage so as to non suit the plaintiff at the inter locutory stage and more so, the plaintiff has made out a prima facie case to be tried.
9. The second decision relied upon by the learned advocate for the defendants is in case of Khela Banerjee and another Vs. City Montessori School and others reported in (2012) 7 SCC 261 so as to submit that as the defendants failed to deposit balance consideration within the prescribed time limit of six months, the sale agreement would become void and voidable contract.
In fact, the facts of the case before the Hon ble Apex Court and the facts of the case on hand are non comparable and therefore, the principles settled in the said case is not required to be discussed anymore. Suffice it to say that the facts and law before the Hon ble Apex Court is quite different and distinct than the facts of the present case and therefore, the decision rendered in case of Khela Banerjee (supra) is not helpful to the defendants.
10. Face with this situation, the appeal preferred by the appellant is required to be accepted and accordingly, it is hereby allowed. The impugned order dated 8.11.2012 passed by the learned 15th Additional Senior Civil Judge, Vadodara in Special Civil Suit No.466 of 2011 passed below Exh-5 injunction application is hereby quashed and set aside and pending final hearing of the suit, relief in terms of para 22 of the injunction application is hereby granted and made absolute till final disposal of the suit on condition that the appellant deposits Rs.13,85,000/- with the trial Court within one month from today. It is clarified that the appellant will be at liberty to prove payment of Rs.3.85 lac paid in cash since there is no evidence on record to show that the plaintiff has made such payment to the defendants. The learned trial Judge is further directed to invest the said amount in the name of the plaintiff with any nationalized bank initially for a period of 3 years in cumulative FDR and the original FDR shall be kept in the custody of the Registrar of the Court. The learned trial Judge shall renew the FDR from time to time till suit is finally disposed of. The learned trial Judge shall decide the case on its merit and without being influenced by the observations recorded in the impugned order and also the observations recorded by this Court herein above. It is also clarified that if the appellant fails to deposit the amount of Rs.13.85 lac within one month from today, as aforesaid, then the relief granted by this Court in terms of para 22 of the injunction application shall stand vacated forthwith.
11. In view of disposal of appeal from order, civil application does not survive and the same stands disposed of accordingly.
(S.H.VORA, J.) shekhar Page 7 of 7