Gujarat High Court
Kaushikkumar Keshavlal Oza vs Lilaba Naransinh Bihola & on 28 June, 2013
Author: S.H.Vora
Bench: S.H.Vora
KAUSHIKKUMAR KESHAVLAL OZA....Appellant(s)V/SLILABA NARANSINH BIHOLA C/AO/250/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER NO.
250 of 2013 With CIVIL APPLICATION NO.
6001 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.H.VORA =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ KAUSHIKKUMAR KESHAVLAL OZA....Appellant(s) Versus LILABA NARANSINH BIHOLA &
4....Respondent(s) ================================================================ Appearance:
MR JA ADESHRA, ADVOCATE for the Appellant(s) No. 1 MR VIMAL A PUROHIT, ADVOCATE for the Respondent(s) No. 1 - 5 ================================================================ CORAM:
HONOURABLE MR.JUSTICE S.H.VORA Date : 28/06/2013 CAV JUDGEMNT
1. Challenge in this Appeal from Order preferred under Order 43, Rule 1 read with Section 104 of the Code of Civil Procedure is the order dated 30.03.2013 whereby, the learned 3rd Additional Senior Civil Judge, Gandhinagar dismissed injunction application Exh.5 moved in Regular Civil Suit No.32 of 2012 instituted by the appellant (original plaintiff) inter alia praying for specific performance of Registered Agreement to Sell dated 31.03.2011.
2. Briefly stated, the case of the appellant is such that the respondents (original defendants) agreed to sale the suit land for a total price of Rs.14,38,680/-. At the time of execution of Registered Banakhat i.e. Agreement to Sell dated 31.03.2011 which was registered before the Sub-Registrar, Gandhinagar on 01.04.2011, the appellant paid consideration of Rs.8 lacs. It is the case of the appellant that the respondents (original defendants) have not challenged the execution of Registered Agreement to Sell dated 31.03.2011. As per condition Nos.1 and 2 of the said agreement, the respondents (original defendants) were to obtain Title Clearance Certificate at their expense and on the basis of such Title Clearance Certificate, sale deed was to be executed in favour of the appellant within 8 months from the date of receipt of said Title Clearance Certificate. In response to the summons/notice, the respondents (original defendants) filed written statement/reply at Exh.15 before the trial Court inter alia denying the execution of sale agreement in question and they further denied maintainability of the suit on various grounds, more particularly, under the provisions of Specific Relief Act, Code of Civil Procedure and Land Revenue Code. It is the specific case of the respondents (original defendants) that as such, the suit land was agreed to be sold for consideration of Rs.1.25 to 1.30 Crores. It was agreed that the Title Clearance Certificate was to be obtained by the appellant (original plaintiff) and it was further agreed that on execution of such Agreement to Sell, 30% of consideration of sale was to be paid within one month and balance consideration was to be paid within six months thereafter. The respondents (original defendants) were called at Gandhinagar with photographs for execution of sale agreement and accordingly, they have appeared before the Sub-Registrar on 01.04.2011. As the office of the Sub-Registrar flooded with the documents for registration on account of rising Jantri and the appellant and his associates without giving opportunity to the respondents to read the agreement and while signing, the respondents (original defendants) found that sale price is shown less than what is agreed and when the respondents (original defendants) took objection, it was made understood to them that this is to save the stamp duty and to save raid from the Income Tax Department and thus, the respondents (original defendants) were taken into confidence and after giving cheque of Rs.4 lacs, signatures were obtained on the said Registered Sale Deed.
In nutshell, the respondents (original defendants) contended that the appellant has cheated and committed fraud upon them. It is the case of the respondents (original defendants) that the parties to the suit have agreed to pay Rs.1.15 crores per Vigha (2378 sq.mtrs.).
Accordingly, the true value of the suit land is Rs.11.60 crores approximately. Based on such averments and contentions raised before the trial Court, the respondents (original defendants) urged to dismiss the injunction application taken out by the appellant (original plaintiff).
3. I have heard the submissions of learned advocate Mr.J.A. Adesara for the appellant and learned advocate Mr.P.P. Majmudar appearing for learned advocate Mr.V.A. Purohit for the respondents.
4. The case of the respondents (original defendants) is such that they were cheated and fraud has been played upon them by the appellant. Though it is the specific case of the respondents (original defendants), they did not take any action against the appellant though it was within the knowledge of the respondents (original defendants) since April, 2011 i.e. on the date of execution and registration of sale deed i.e. 01.04.2011. So, meaning thereby, as on said date, the respondents (original defendants) have not moved either civil or criminal Court with regard to the alleged fraud and cheating committed by the appellant (original plaintiff) upon them in respect of the suit land.
5. Now, coming to the various contentions raised by learned advocate Mr.Majmudar appearing for Mr.V.A. Purohit for the respondents (original defendants) with regard to maintainability of suit, it is urged that the appellant has not claimed recovery of possession and, therefore, the suit is not maintainable. In this connection, learned advocate Mr.Majmudar has placed reliance on the decision rendered in case of Sri Thimmaiah V/s. Shabira and Ors. reported in 2008 (1) G.L.H. 541. In the said case, the suit for permanent injunction under Section 38 of Specific Relief Act was filed and to get decree for permanent injunction, the plaintiff therein was required to establish that he is in possession. So, the proposition of law which was laid-down in the said case was such that if the plaintiff is not in possession, is not entitled to the relief without claiming recovery of possession. The present case is not for permanent injunction but it is filed for specific performance of sale agreement dated 01.04.2011. So, the said decision is not helpful to the learned advocate for the respondents (original defendants) so as to uphold the impugned order. It is true that the appellant has not prayed for possession of the suit property but he has definitely prayed for decree for specific performance of contract for sale agreement dated 01.04.2011. In such suit, as and when decree is passed by the learned trial Court and in order to satisfy such decree against the contracting party completely, the contracting party is bound not only to execute sale deed but also to put the property in possession of the decree holder. This is in consonance with the provisions of Section 55(1)(f) of the Transfer of Property Act which provides that the seller is bound to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits. Even otherwise, Section 22 of the Specific Relief Act provides to claim a decree for possession in such proceedings in order to avoid multiplicity of proceedings. In case of sale of property, after payment of consideration and upon due execution of the deed of sale presupposes and requires the vendor to put the purchaser in possession of the property. So, the contention of learned advocate Mr.P.P. Majmudar that for want of relief of possession claimed in the plaint, the appellant (original plaintiff) is not entitled to restrain the original defendants from transferring the suit land, is devoid of merits both on law and facts. When a party comes to the Court for specific performance of contract, he is not to be satisfied with the execution of document on payment of consideration of money, but the vendee shall be put it to possession of the property so, Section 22 of the Specific Relief Act makes it abundantly clear that when the Court allows the prayer for specific performance, it vests the executing Court with all the powers which are required to give full effect to the decree for specific performance.
Needless to mention here that a decree in a suit for specific performance has been considered to be somewhat in the nature of preliminary decree, which cannot set out in the fullest detail all the different steps which are required to be taken to implement the main portion of the order directing specific performance of contract. The executing Court is in such a case vested with the authority to issue necessary directions. In light of this, the appellant cannot be non-suited at threshold for want of relief of recovery of the possession. The decree for specific performance of a contract includes everything incidental to be done by one party or another to complete the sale transaction, the rights and obligations of the parties in such a matter being governed by Section 55 of the Transfer of Property Act.
6. The second contention raised by learned advocate Mr.Majmudar for the respondents (original defendants) is such that the present suit is hit by Section 34 of the Specific Relief Act as the appellant though able to seek a further relief to possession, he omitted to do so. In support of such submission, learned advocate Mr.Majmudar pressed into service a decision rendered in case of Navalram Laxmidas Devmurari V/s. Vijayaben Jayvantbhai Chavda reported in 1997(1) GLH 841. As such, this case is not helpful to the respondents (original defendants) for the simple reason that the plaintiff has not filed a suit for declaration either in respect of any legal character or to any right as to any property but the appellant (original plaintiff) has filed a suit for specific performance based on Registered Sale Agreement dated 01.04.2011. So, the proposition of law laid-down in the said case is not applicable to the facts of the present case.
7. It was further contended that though the suit for specific performance of Agreement to Sell of above property is within limitation, the appellant (original plaintiff) is not entitled to equitable relief on account of delay and laches. In support of such proposition, learned advocate Mr.Majmudar placed reliance on the decision rendered in case of Veetrag Holdings Pvt. Ltd. V/s. Gujarat State Textile Corporation Ltd. reported in 1996(1) GLH 179. Admittedly, the sale agreement has been registered on 01.04.2011 and the suit has been filed in the month of April 2012. In fact, it is not the case of the respondents (original defendants) that they have terminated or cancelled the sale agreement but contested the suit for the reasons/grounds recorded hereinabove. At no point of time, the respondents (original defendants) took any action either on account of alleged fraud or cheating or terminated the sale agreement for such reasons. As per the terms of sale agreement, the appellant is required to obtain Title Clearance Certificate and on obtaining such Title Clearance Certificate, eight months time was provided to the appellant to pay balance consideration. Meaning thereby, the appellant was required to pay balance consideration in the month of January, 2012. It is specifically asserted that after publication of notice in the newspaper on 13.04.2011, the appellant offered balance consideration but the respondents (original defendants) informed that they would like to obtain Title Clearance Certificate from their advocate. Thereafter, the appellant informed that he is ready to execute the sale deed without Title Clearance Certificate. But still however, the respondents (original defendants) were not ready to execute the sale deed and, therefore, the present suit came to be filed in the month of February, 2012. I fail to understand as to how delay in these facts and circumstances can be considered so as to dis-entitle the appellant for equitable relief.
8. Lastly, learned advocate Mr.Majmudar for the respondents (original defendants) submitted that the Appellate Court cannot reassess the material and to reach a conclusion different than the one reached by the Court below as the scope of Order 43, Rule 1 of the Code of Civil Procedure is limited. It is true that unless it is shown that power has been exercised arbitrary, capriciously or in perversity and against the settled principles of law, the Appellate Court cannot interfere in discretionary order. There cannot be disagreement on this proposition of law. It is well settled that in issuing temporary injunction, the Court is required to see whether the plaintiff has prima facie case, whether balance of convenience is in favour of plaintiff and thirdly, whether the plaintiff would suffer any irreparable loss or injury, if prayer for temporary injunction is disallowed.
9. On perusal of the impugned order, it appears that the learned trial Judge refused the injunction as no notice was issued to the respondents (original defendants) before filing the suit nor any notice was issued to the respondents (original defendants) before public notice was published in the newspaper on 13.04.2011. While refusing injunction, the learned trial Judge has relied upon certain agreements placed on record with regard to the other properties wherein, consideration of the land was more than Rs.1 crore or above. I fail to understand as to how sale consideration agreed in respect of other property is relevant to decide the present injunction application. The learned trial Judge has proceeded on assumption that the sale agreement has been terminated on 13.04.2011 itself and therefore, the appellant was required to file the suit at that time. Such findings, if tested on pleadings and evidence placed on record before the trial Court, such reason reached by the trial Court is perverse and the trial Court failed to exercise discretionary power vested in it in accordance with the settled principles of law and, therefore, the impugned order requires to be quashed and set aside and is hereby quashed and set aside.
10. Accordingly, the present Appeal from Order is accepted and allowed and pending final hearing and disposal of the suit, relief in terms of paragraph No.10(A) of application Exh.5 is hereby granted. In the facts and circumstances of the case, parties to bear their respective costs. It is clarified that the learned trial Judge shall not be influenced by the observations recorded hereinabove while hearing the suit finally, but the suit shall be decided in accordance with the evidence and on merits of the case.
Order in Civil Application In view of the order passed in Appeal from Order, this application stands disposed of.
(S.H.VORA, J.) Hitesh Page 9 of 9