Karnataka High Court
M/S. Sanjeevini Developers vs Sri. Mohan Das. R on 23 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2024 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.4659/2022 (CPC)
BETWEEN:
1. M/S. SANJEEVINI DEVELOPERS
REGISTERED PARTNERSHIP FIRM,
CORPORATE OFFICE AT 'SANJEEVINI',
CANARA BANK ROAD,
KONANAKUNTE CROSS,
BENGALURU-560 062,
REPRESENTED BY ITS PARTNERS.
2. SRI. C. ANJANAPPA
SON OF LATE CHIKKA SANJIVAPPA,
AGED ABOUT 63 YEARS,
RESIDING AT 'SANJEEVINI',
CANARA BANK ROAD,
KONANAKUNTE CROSS,
BENGALURU-560 062.
3. SRI. B. LAKSHMAN
SON OF LATE BYATARALAPPA,
AGED ABOUT 57 YEARS,
RESIDING AT KONANAKUNTE VILLAGE,
NEAR GANESHA TEMPLE,
KANAKAPURA ROAD,
BENGALURU-560 062.
4. SRI. HANUMANTHRAJU. C
SON OF LATE CHIKKA SANJIVAPPA,
AGED ABOUT 64 YEARS,
RESIDING AT 'SANJEEVINI',
CANARA BANK ROAD,
2
KONANAKUNTE CROSS,
BENGALURU-560 062,
5. SRI. SURESH ANJANAPPA
SON OF SRI. ANJANAPPA,
AGED ABOUT 38 YEARS,
RESIDING AT 'SANJEEVINI',
CANARA BANK ROAD,
KONANAKUNTE CROSS,
BENGALURU-560 062.
... APPELLANTS
(BY SMT. S.SUSHEELA, SENIOR COUNSEL FOR
SRI RAGHAVA P., ADVOCATE)
AND:
SRI. MOHAN DAS R.,
SON OF LATE G.RAMA VARMA,
AGED ABOUT 75 YEARS,
RESIDING AT H.GOLLAHALLI VILLAGE,
KENGERI HOBLI,
BENGALURU SOUTH TALUK,
BENGALURU-560 060.
... RESPONDENT
(BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI PRASANNA B.K., ADVOCATE FOR C/R)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 01.06.2022 PASSED ON I.A. NO. 1
IN O.S.NO.1015/2020 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.11.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
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CAV JUDGMENT
This miscellaneous first appeal is filed against the order of rejection of I.A.No.1 filed under Order 39 Rules 1 and 2 of CPC vide dated 01.06.2022 in O.S.No.1015/2020 by the III Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru.
2. Heard the learned counsel appearing for the respective parties.
3. The factual matrix of the case of the plaintiff/appellant before the Trial Court that the plaintiff and defendant/respondent have entered into an agreement of sale in respect of the suit schedule property bearing Sy.No.6/1 situated at K Gollahalli village, Hemmigepura Dhakale, Kengeri hobli, Bengaluru South taluk to the extent of 5 acres which is morefully described in the schedule of the plaint as well as in IA. The total consideration amount was Rs.10,75,00,000/-. On the date of agreement, the plaintiff paid the advance amount of Rs.1,50,00,000/- and paid another Rs.1,00,00,000/- by way of cash under receipt dated 29.11.2012. It is also contended that also paid the additional amount on different dates i.e., on 4 26.12.2012, 03.01.2013, 06.01.2013, 12.02.2013 and 23.03.2013 and in all made the payment of Rs.3,35,00,114/- and also invested huge amount for the development of the property including leveling of land, formation of roads, drainage system, tanks and borewells, water lines, sewage pipes and other civic amenity installations by spending an amount of Rs.75,00,000/-. It is contended that there was a condition to get the plan approval by the defendant and though plan was sanctioned, later it was cancelled and the defendant has kept the plaintiff in dark about the cancellation of the same. When the plaintiff came to know the said fact, he had informed that the defendant had reapplied for sanction. As per the terms of the sale agreement, the plaintiff approached the defendant time and again to know the status of the layout approval and additional payment was also made, but the defendant not heeded to his request and chose to remain aloof without fulfilling his obligations of getting required approval.
4. It is also contended that the plaintiff is ready to pay the balance consideration of Rs.7,39,99,886/-. It is contended 5 that the defendant has issued a legal notice dated 11.11.2016 seeking from the plaintiff firm to pay the balance sale consideration and get the sale deed registered and reply was given on 06.12.2016 for which, the defendant issued a rejoinder on 04.01.2017. In reply, the plaintiff firm issued sur-rejoinder on 10.02.2017. When the defendant fails to perform his part of contract, notice was issued on 20.06.2020 and filed the suit for the relief of specific performance of contract and to declare that the sale agreement is valid and alternatively, direct the defendant to return the advance sale consideration of Rs.3,35,00,114/- and a sum of Rs.75,00,000/- which was invested by the plaintiff for the development of the layout in the schedule property with 18% interest per annum. The plaintiff also filed an application praying the Trial Court to restrain the defendant from alienating or creating encumbrance over the application schedule property and in support of the application, an affidavit is sworn to reiterating the grounds urged in the plaint and prayed the Court to grant the relief. 6
5. The defendant appeared and filed the written statement admitting the execution of the sale agreement and denied the averments made in the plaint. But admitted the ownership over the suit schedule property and also admitted the fact of entering into the sale agreement. It is contend that only he has received an amount of Rs.1,00,000/- under receipt dated 29.11.2012 apart from the advance received on the date of sale agreement. It is also contended that in terms of clause-2(a) to
(e) of agreement of sale, the plaintiff had agreed to pay the balance sale consideration on different dates and within 180 days from the date of approval of layout plan and to obtain registered sale deed at their cost. The time is essence of contract. It is contend that defendant by spending huge amount, obtained the approved plan on 29.09.2012 and subsequently, amount was not paid as agreed and the same was also brought to notice of the plaintiff. The endorsement dated 03.04.2009, 22.01.2013 and 04.02.2013 stated that the Karnataka Industrial Area Development Board has not issued any notification under Section 28(1) or 28(4) of K.I.A.D.B. Act in respect of the suit schedule property. Despite repeated request 7 and demand, the plaintiff failed to perform his part of contract and committed breach of terms of the agreement of sale. As per clause 13 of the agreement of sale, the defendant has to fence the schedule property at the cost of the plaintiff and hand over the possession to the plaintiff. Despite repeated request, the plaintiff failed to pay the cost and clause-5 of the agreement of sale is clear that transactions have to be completed within six months from the date of approval of the layout plan. When the plaintiff committed default in payment, there is a clear breach on the part of the plaintiff, hence, the question of granting the relief does not arise. It is also contend that the spending of Rs.75,00,000/- by the plaintiff is an imaginary one and same is baseless. The defendant himself issued a notice on 11.11.2016 cancelling the agreement. When the time is essence of contract, the question of granting any relief does not arise and also the notice itself sufficient to forfeit the advance amount. Hence, the plaintiff is not entitled for any relief. The defendant has filed separate statement of objections to the IA reiterating the averments of the written statement.
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6. The Trial Court having considered the grounds urged in the application as well as the objections, formulated the following points:
1. Whether the plaintiff has made out a prima facie case?
2. In whose favour, balance of inconvenience lies?
3. To whom irreparable loss will be caused?
4. What order?
7. The Trial Court having considering the pleadings of the parties and also on perusal of the material available on record, answered Point No.1 as negative and answered Point Nos.2 and 3 in favour of the defendant and rejected the I.A.No.1 filed by the plaintiff for temporary injunction. Being aggrieved by the said order, the present appeal is filed before this Court.
8. The learned counsel for the appellants would vehemently contend that the defendant not disputed the very execution of the sale agreement; payment of Rs.3,35,00,114/- by the plaintiff and invested of Rs.75,00,000/- for development of the suit schedule property for leveling the property. The counsel also submits that amounts are paid up to 23.03.2013 9 and last payment was Rs.5,00,000/-. The counsel also submits that though the time is essence of contract, same is six months from the date of approval from the authority, the fact that approval was given on 29.09.2012 and withdrawn on 01.01.2013 and the said fact also not in dispute. The counsel also submits that the Trial Court fails to consider the three cardinal principles while rejecting the relief of temporary injunction application. Admittedly, there is no approval and limitation is a mixed question of fact and law. The plaintiff also sought for alternative relief stating that the defendant had started selling the property. Hence, sought for an order of temporary injunction. The Trial Court fails to appreciate the said fact when there is an agreement which is not disputed and admittedly there is no approval and time is also essence of the contract, only after six months of the approval. The Trial Court failed to consider all these facts. The counsel also submits that alternative relief is also sought for refund the amount with interest stating that when the property is sold, it is very difficult to recover the same and the document also reveals said fact. 10 Hence, seeks interference of this Court with the order of the Trial Court.
9. In support of the arguments, the learned counsel for the appellants relied upon the judgment reported in MANU/SC/0715/1991 in the case of DALPAT KUMAR AND OTHERS vs PRAHLAD SINGH AND OTHERS and brought to notice of this Court paragraph 4 wherein it is held that Order 39 Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may be order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit until the disposal of the suit or until further orders.
10. The counsel also brought to notice of this Court paragraph 5 of the said judgment wherein also discussed with 11 regard to the prima facie case which needs adjudication at the trial, so also the irreparable injury and balance of convenience.
11. The counsel also relied upon the judgment reported in MANU/SC/0494/1999 in the case of COLGATE PALMOLIVE (INDIA) LIMITED vs HINDUSTAN LEVEL LIMITED and brought to notice of this Court paragraph 23 of the said judgment wherein discussion was made with regard to certain specific consideration in the matter of grant of interlocutory injunction. The basic being-non-expression of opinion as to the merits of the matter by the Court, since the issue of grant of injunction usually, is at the earliest possible stage so far as the time frame is concerned and ... extent of damages being an adequate remedy; protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefore and the Court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others; no fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and 12 circumstances of each case - the relief being kept flexible; the issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties case, whether the grant of refusal of injunction will adversely affect the interest of general public.
12. The counsel also relied upon the judgment reported in MANU/SC/0472/1995 in the case of GUJARAT BOTTLING CO. LTD. AND OTHERS vs COCA COLA COMPANY AND OTHERS and the counsel brought to notice of this Court paragraph 46 wherein discussion was made with regard to prima facie, balance of convenience and irreparable loss.
13. The counsel also relied upon the judgment reported in MANU/SC/0258/1963 in the case of FATEH CHAND vs BALKISHAN DAS and brought to notice of this Court paragraph 15 wherein discussion was made with regard to Section 74 of the Indian Contract Act where the contract names a sum to be paid in case of breach, where the contract contains any other stipulation by way of penalty and also not concerned to decide 13 whether a convenant of forfeiture of deposit for due performance of a contract falls within the first class. The measure of damages in the case of breach of a stipulation by way of penalty is by Section 34 reasonable compensation not exceeding the penalty stipulated for. And brought to notice of this Court paragraph 16 wherein also discussion was made regarding stipulation for forfeiture of amounts deposited or paid under the contract.
14. The counsel also relied upon the judgment of the High Court of Gujarat decided on 19.07.2021 in First Appeal No.1810/2021 between SARFARAZ ABDULSATTAR PATEL vs CHIMANBHAI PURSHOTTAMBHAI PATEL and brought to notice of this Court discussion made in paragraphs 52 and 53 and Article 54 and 62 and both Articles are distinct and operate in different fields.
15. The counsel also relied upon the judgment reported in MANU/RH/0004/1987 in the case of ANCHI AND OTHERS vs MAIRA RAM and brought to notice of this Court paragraph 9 wherein discussion was made with regard to Section 55 of the 14 Transfer of Property Act which deals with rights and liability of buyer and seller and sub-clause (b) of sub-Section 6 unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller's interest in the property, for the amount of any purchase - money properly paid by buyer in anticipation of the delivery.
16. The counsel also relied upon the judgment reported in MANU/WITNESS BOX/0061/1978 in the case of SAIDUN NESSA HOQUE AND OTHERS vs CALCUTTA VAPAR PRATISTHAN LTD. and brought to notice of this Court paragraph 44 wherein discussion was made with regard to Section 55 of the Transfer of Property Act under the moment earnest money is paid it forms a charge on the immovable property. The buyer will be entitled to the statutory charge in respect of the purchase money unless he has improperly declined to accept delivery of the property.
17. The counsel also relied upon the judgment reported in MANU/SC/1097/2003 in the case of VIDEOCON 15 PROPERTIES LTD., vs DR.BHALCHANDRA LABORATORIES wherein also discussion was made Section 55 of the Transfer of Property Act with regard to the buyer's charge engrafted in clause (b) of paragraph 6 of Section 55 of T.P. Act would extend and enure to the purchase-money or earnest money paid before the title passes and property has been delivered by the purchaser to the seller, on the seller's interest in the property unless the purchaser has improperly declined to accept delivery of property and brought to notice of this Court the details discussion made in paragraph 15 of the judgment.
18. Per contra, the learned counsel appearing for the respondent/defendant in his arguments would vehemently contend that an amount of Rs.2,50,00,000/- was received and disputed the receipt of total amount of Rs.3,35,00,114/- as contended by the appellants. The counsel would vehemently contend that the plan was approved on 29.09.2012 itself but, the appellant has not paid the amount in terms of the agreement and hence, forfeited the amount and terminated the agreement in the year 2016 itself by causing notice.
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19. The counsel would vehemently contend that the suit was filed in the year 2020 with an intention to lock the property and the Trial Court has taken note of the said fact into consideration and rightly comes to the conclusion that the plaintiff has not made out any prima facie case. The counsel also brought to notice of this Court clause-5 of the agreement which is very clear that six months from the date of approval of the layout plan from the concerned authority. The defendant further agreed that time is essence to adhere the terms and conditions of the agreement. The counsel also would vehemently contend that the plaintiff failed to perform his part of obligations and hence, issued legal notice and terminated the agreement and entire amount is forfeited.
20. It is also specifically contended that the defendant is at liberty to form layout and deal with schedule property as he likes and reserves his right to proceed against for recovery of loss. The counsel also would vehemently contend that the plaintiff falsely contend that the defendant issued a legal notice 17 and demanded to pay the balance amount. The counsel would vehemently contend that after lapse of eight years, the appellant has field the suit for specific performance of contract and sought temporary injunction and the plaintiff never had benefit of temporary injunction and hence, the Trial Court rightly rejected the same making an observation that time limit is fixed for six months. The plaintiff never took action immediately after plan is approved. The counsel also contends that suit is barred by limitation and there is no prima facie case and the plaintiff fails to substantiate his readiness and willingness. It is contended that the defendant executed a registered GPA dated 20.03.2020 in favour of one P Nagaraj by receiving the consideration amount of Rs.13,03,71,000/-, now he is developing the property. In order to defeat his right and for taking advantage of escalation of the land value, the plaintiff filed the suit on 05.10.2020. Hence, it does not require any interference.
21. The counsel for the respondent in support of his arguments relied upon the judgment reported in (1999) 8 SCC 587 in the case of SHAKUNTALA (SMT) vs NARAYAN 18 GUNDOJI CHAVAN AND OTHERS wherein the Apex Court held that notice issued by the defendant for refusal to perform his part of the contract held limitation period of three years will commence from the date of such notice and brought to notice of this Court discussions made in paragraphs 7 and 8.
22. The counsel also relied upon the judgment reported in (2011) 9 SCC 126 in the case of KHATRI HOTELS PRIVATE LIMITED AND ANOTHER vs UNION OF INDIA AND ANOTHER and referring this judgment, the counsel would vehemently contend that Article 58 of the Limitation Act is very specific that the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word "first" has been used between the words "sue" and "accrued". This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will hot give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the 19 period of limitation counted from the day when the right to sue first accrued.
23. The counsel also relied upon the judgment reported in (2008) 11 SCC 1 in the case of MANDALI RANGANNA AND OTHERS vs T RAMACHANDRA AND OTHERS and referring this judgment brought to notice of this Court paragraph 22 wherein discussion was made with regard to grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not e entitled to an order of injunction. The Court will not interfere only because the property is a very valuable one. However, oblivious of the fact that grant or refusal of injunction has serious consequence depending upon the nature thereof. The Courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the Courts is imperative.
24. The counsel also relied upon the judgment reported in (2015) 8 SCC 390 in the case of FATEHJI AND COMPANY 20 AND ANOTHER vs L M NAGPAL AND OTHERS wherein held that suit for specific performance of agreement to sell immovable property, bar of limitation of three years prescribed under Article 54 as to filing of suit, applicability in present case, rejection of plaint on ground of limitation propriety discussed.
25. The counsel also relied upon the judgment reported in 2022 LIVELAW (SC) 588 in the case of U N KRISHNAMURTHY (SINCE DECEASED) THR. LRS. vs A M KRISHNAMURTHY and the counsel referring this judgment would vehemently contend that the Apex Court discussed the readiness and willingness invoking Section 16(c) of the Specific Relief Act for granting relief of specific performance and the Court is obliged to take judicial notice of the phenomenal rise in the price of real estate. Having paid an insignificant amount the plaintiff was not entitled to discretionary equitable relief of specific performance.
26. The counsel also relied upon the judgment reported in LAWS (KAR)-2017-5-16 in the case of MADHUKAR G ANGUR vs MADHUSUDHAN MISHRA and brought to notice of 21 this Court Section 38 of the Specific Relief Act does not permit a plaintiff to file a suit for permanent injunction and unless plaintiff pleads that there was an obligation made by law upon the defendant and also held that plaintiff does not have a prima facie in his favour and the Trial Court is not justified in concluding that plaintiff has balance of convenience in his favour.
27. In reply to the arguments of the counsel for the respondent, the counsel for the appellants would vehemently contend that there is no any forfeiture clause in the agreement. Even after the withdrawal of the plan also, the defendant withdrew the amount. The plan was withdrawn on 01.01.2013 and amounts are paid subsequently up to March 2013 and specifically pleaded for having made the payment and the same is not denied by the defendant. The counsel further contend that though the defendant contend that amount was paid in favour of his son and the same is for different purposes, nothing is placed on record to substantiate the same. Admittedly, the amounts were received by the defendant even after the withdrawal of the plan also and the same has not been taken note of by the Trial 22 Court. The Trial Court fails to take note of the fact that there is no approval of plan and unless approval of plan is produced, the question of limitation does not arise.
28. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record as well as the principles laid down in the judgments referred supra, the point that would arise for the consideration of this Court are:
1) Whether the Trial Court committed an error dismissing the application filed under Order 39 Rules 1 and 2 of CPC vide order dated 01.06.2022 and whether it requires interference of this Court?
2) What order?
Point No.1:
29. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record, it discloses that there is no dispute that the property originally belongs to the family of the defendant and the defendant got the property by way of gift. It is also not in 23 dispute that he had entered into an agreement of sale for Rs.10,75,00,000/-. It is also not in dispute that under the sale agreement, an amount of Rs.1,50,00,000/- was paid. It is the contention of the appellant that they made the payment of Rs.3,35,00,114/-. The contention of the defendant is that he only had received an amount of Rs.2,50,00,000/- and disputed regarding receipt of remaining amount. But he plaintiff has produced the bank statement for having made the payments through cheques. The counsel for the respondent would contend that some payments are made in favour of his son and the same is in respect of different transaction. But no such document is placed before the Court to prove the same that the same is in respect of different transaction. It is also important to note that in terms of the agreement, there is a mention with regard to delivery of possession as on the date of agreement for the purpose of development in terms of clause - 7 that the first party agreed and today handed over the possession of the suit schedule property to the second party to develop and form layout as per the plan approved by the concerned authority. 24 Hence, it is clear that possession was delivered for the purpose of development.
30. It is also important to note that in terms of claue-5, both have agreed and fixed the time for agreement for six months from the date of approval of the layout plan from the concerned authority and further agreed time is essential to adhere the terms and conditions to this agreement. It is also important to note that after the approval of the plan, time is also stipulated to make the payment within 180 days. The first payment on furnishing of the plan i.e., Rs.1,00,00,000/- within 30 days and second payment is Rs.1,00,00,000/- after 60 days and third additional payment after 90 days to the tune of Rs.2,00,00,000/- and remaining Rs.2,50,00,000/-, 135 days from the date of approval of layout plan and as full and final settlement to be made remaining amount within 180 days. The details are also given in the agreement itself.
31. Now, the question before this Court is that in terms of the agreement, Rs.10,75,00,000/- is the total consideration. It is also not in dispute that plan was approved on 29.09.2012 25 and thereafter, for payment is concerned, six months time was stipulated. It is also important to note that within a span of three months, the plan was withdrawn i.e., on 01.01.2013. The defendant also not disputes the said fact. But it is the contention of the defendant that they have informed that no steps are taken for acquiring the property and intimated the same but the fact is that once it was withdrawn, the same has to be re-sanctioned and no such material is placed before the Court to show that for having re-sanctioned the plan. Once it was cancelled, it has to be re-obtained and duty cast upon the defendant to obtain the same and communicate the same to the plaintiff to complete the transaction. Till date, no such plan was obtained by the defendant. When the time stipulation is very clear, six months time is given to conclude the contract, in terms of the agreement from the date of approval of plan, when there is no re-sanction of plan, the Trial Court ought to have taken note of the said fact. But the Trial Court made an observation in paragraph 14 that plaintiff did not take nay legal action against the defendant, after expiry of the agreed period. The plaintiff did not take any legal action against the defendant after 26 correspondence of the letters also. The defendant has to first make out his case that he had obtained the plan and only he relies upon the approved plan on 29.09.2012 and when the same was cancelled, he cannot rely upon the earlier sanction of plan and the same was not valid and the Trial Court failed to take note of the said fact into consideration. The Trial Court also while coming to the conclusion that the plaintiff has not made out prima facie case, held that the plaintiff instituted the suit in the month of October 2020 but not taken any action from 2012 to 2020 and the said observation is erroneous.
32. The plaintiff specifically pleaded in the plaint as well as in the reply to the notice that he had made the payment and even the defendant has received the amount subsequent to the withdrawal of the plan. The plan was withdrawn on 01.01.2013, the payments were made on 03.01.2013, 06.01.2013, 12.02.2013, 23.03.2013 and the last payment was made to the tune of Rs.5,00,000/- and the defendant continued to receive the amount even after cancellation of the approved plan. The bank statement also produced to show that the defendant has 27 encashed the said amount and the same were also drawn through the Vishweshwarayya Co-operative Bank Limited. But the defendant did not give any explanation for receiving the said amounts and said payments were also made in favour of the defendant only. The defendant only contends that one of the payments is made in favour of his son and the same is in respect of different transaction. But not placed any material before the Court to prove the same. But the fact is that even after cancellation of plan also, the defendant went on receiving the amount and when the cancellation of plan came to the knowledge of the plaintiff, the plaintiff did not make the payment and insisted for obtaining fresh approval of plan from BMICAPA. But the defendant has not produced any material before the Court to show that he has obtained new plan after the cancellation. When such being the case, the Trial Court ought to have taken the note of said fact into consideration.
33. No doubt, the plaintiff has sought for the relief of specific performance based on the agreement and apart from that sought for the relief of refund of the amount with 18% 28 interest. It is the contention of the defendant that notice was issued with regard to the cancellation of agreement and forfeiture. But, on perusal of the agreement, it discloses that there is no forfeiture clause. Thus, the defendant cannot unilaterally cancel the agreement without obtaining the fresh approved plan. These are the issues which have to be considered by the Trial Court to know the fact that on whose instance, there was a breach and the same is a matter of trial.
34. The material available on record discloses that there is an agreement and also the payment of earnest money and there is a clasue-5 in the agreement that discloses period for specific performance as six months after getting the approval. The material discloses that approval was given on 29.09.2012 and the same was cancelled on 01.01.2013 and no fresh approval is obtained by the defendant in terms of clause - 5 of the agreement. But the defendant contend that no payment was made. On perusal of clause-5 and other conditions, it is clear that after the approval, then only the plaintiff has to make the payment within six months and to get the sale deed registered. 29
35. The main contention that there was a delay in filing the suit and the same is a mixed question of fact and law and with regard to breach also, the parties have to adduce their evidence and the Court has to take note of the fact that at whose instance, there was a breach. The fundamental condition in the agreement is clause - 5 that time is essence of contract for completion of contract and only on getting the approval, time is also stipulated for payment and maximum period is 180 days. But plan was cancelled within a period of three months from the date of the approval and period of six months also not elapsed and even after approval of plan and after cancellation of approved plan also continued to receive the amount from the appellant. No doubt, the principles laid down in the judgments referred supra are with regard to Article 54 and Section 55 of the Transfer of Property Act and Section 16(c) of the Specific Relief Act for readiness and willingness. Readiness and willingness only comes into play after the conditions are fulfilled. In the case on hand, primarily, the condition of the agreement has not been fulfilled i.e., no approved plan at all. Even assuming that the 30 plaintiff is not entitled for the relief of specific performance, alternative relief is also sought for refund of the amount with 18% interest. If the property is sold, it will cause prejudice to the plaintiff who had approached the Court for the relief of specific performance and even for alternative relief.
36. It is also settled law that while passing an order of injunction, the Court should take note of the material available on record while appreciating the case for exercising the discretion. In the judgment referred by the counsel for the respondent itself in the case of NANDALI RANGANNA in paragraph 22 it is held that a person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The Court will not interfere only because the property is a very valuable one. However, oblivious of the fact that grant or refusal of injunction has serious consequence depending upon the nature thereof. The Courts dealing with such matters must make all endeavours to protect the interest of the parties. The said principle is very clear that the Court has to 31 protect the interest of the parties. In the case on hand, when there is an agreement and the same is not disputed, clause-5 is very clear that approval must be obtained by the defendant, there is no such approval and approval which was given also withdrawn and thereafter, not made any efforts to get the approval. It is also contended by the defendant that the payments were not made but in the absence of approval, the question of making payment does not arise. All these factors has to be considered by the Trial Court, thus, the matter requires full pledged trial. The Trial Court lost sight on all these materials while considering the discretionary relief of temporary injunction and rejected the same in coming to the conclusion that the plaintiff has not made out the prima facie case.
37. The learned counsel for the respondent relied upon several judgments referred supra i.e., SHAKUNTALA's case and also the case of KHATRI HOTELS PRIVATE LIMITED and so also the case of FATHHJI wherein discussed with regard to Article 54 of the Limitation Act. Admittedly, the notice was issued, reply was given and re-joinder also issued and sur- 32 rejoinder also given. When notices were exchanged and also when clause-5 is very clear with regard to performance of agreement subject to obtaining of approval, admittedly, no such approval is obtained by the respondent. The same is mixed question of fact and law. At the stage of considering the discretionary relief of temporary injunction, the Court has to exercise its discretion when there is no dispute with regard to the execution of the agreement and also acknowledging the part payment. The Court also take note of approval and cancellation of and even after the cancellation of the approval, continued to receive the amount and failed to get the fresh order of approval. These are the aspects which have to be considered during the course of the trial and it requires full pledged trial. The documents are produced before the Court to show that the defendant started to sell the property and when the said fact came to know, the appellant filed the suit and sought the relief and same ought to have been taken note of by the Trial Court. But the Trial Court rejected the application only on the ground that the plaintiff has not acted upon. But fails to take note of claue-5 of the agreement wherein specific stipulation is made 33 that time runs for a period of six months from the date of approval. Admittedly, there is no such approval before the Court.
38. The counsel for the appellant also relied upon several judgments referred supra wherein discussion was made with regard to prima facie case, balance of convenience and irreparable loss for considering the application for grant of temporary injunction and also discussed Article 54 and 62 of the Limitation Act which indicates that both these Articles are distinct and operate in different fields for the relief of specific performance as well as for refund of money since alternative relief is also sought.
39. In the case on hand, when the agreement was admitted and apart from that receipt of part sale consideration also admitted and also admitted that no approval was obtained as stipulated in clause-5 of the agreement, the Trial Court ought to have taken note of these facts into consideration and also the receipt of amount after approval and also cancellation. The appellant has filed the suit for the relief of specific performance 34 and also sought for the relief of refund of the amount. On perusal of the agreement, there is no clause for forfeiture. Though, the counsel for the respondent contends that amount has been forfeited, the same is against the terms of the agreement when no such recital is made in the contract. The defendant also cannot enjoy the money of the plaintiff which he had received and acknowledged and primarily he did not obtain the approval from the concerned authority after the cancellation of the earlier approval. The Trial Court ought to have taken note of these facts into consideration while rejecting the application. Thus, the Trial Court fails to apply its judicious mind in considering the material available on record particularly recital of agreement and the same has not been discussed. The Trial Court has not passed reasoned order except coming to the conclusion that the plaintiff did not act and failed to take note of the obligation on the part of the defendant in performing his obligation of getting the approval. Hence, it requires interference of this Court. Accordingly, I answer the above point as affirmative.
35Point No.2
40. In view of the discussions made above, I pass the following:
ORDER The miscellaneous first appeal is allowed. The impugned order dated 01.06.2022 passed on I.A.No.1 filed under Order 39 Rules 1 and 2 of CPC in O.S.No.1015/2020 by the III Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru is set aside. Consequently, I.A.No.1 is allowed restraining the defendant/respondent from alienating the suit schedule property which is morefully described in the application of the suit, till the disposal of the suit.
Sd/-
(H.P. SANDESH) JUDGE SN