Gujarat High Court
Mrugen Atulkumar Trivedi vs Abhijat Parashar Mehd on 18 October, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/AO/10/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 10 of 2019
With
CIVIL APPLICATION (FOR INJUCTION) NO. 1 of 2019
In R/APPEAL FROM ORDER NO. 10 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI Sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MRUGEN ATULKUMAR TRIVEDI
Versus
ABHIJAT PARASHAR MEHD
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Appearance:
MR JV JAPEE(358) for the Appellant(s) No. 1
MR.MEHUL SHAH, SENIOR COUNSEL WITH MR BHAVESH B CHOKSHI(3109)
for the Respondent(s) No. 5
MR ISHAN MIHIR PATEL(6508) for the Respondent(s) No. 6,7
MR.MIHIR THAKORE, SENIOR COUNSEL WITH MR SALIL M THAKORE(5821)
for the Respondent(s) No. 2,3,4
MR ZUBIN F BHARDA(159) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 18/10/2019
CAV JUDGMENT
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C/AO/10/2019 CAV JUDGMENT
[1] The present Appeal from Order under Order XLIII Rule 1 read with section 104 of the Code of Civil Procedure is filed against the order dated 13.11.2018 passed by the learned Chamber Judge, City Civil Court, Ahmedabad rejecting the notice of motion for interim injunction during the pendency of Civil Suit (CCC) No.1119 of 2018.
[2] The background facts which has led the filing of the present Appeal from Order before this Court is that a suit property is situated in T.P.Scheme No.3/5 in Final Plot No.709, Paiki sub Plot No. 21 (21/A and 21/B) in Shanti Sadan Co- operative Housing Society Limited, admeasuring 1106 square meters, out of which, undivided half portion of said property is the subject matter of the suit property. The said property was demolished and new construction has been commenced. It has been asserted by the appellant - original plaintiff that this property bearing Plot No.21 of aforesaid society was originally held by grandfather of respondent Nos.1 and 2 herein, and after his death, son's name mutated in record of society and the said property was treated as Paranjayray Vaikunthray Mehd, HUF property. This property after death, as stated above, is transferred in the joint name of respondent Nos.1 and 2 herein and they became the joint owners and occupiers of the suit property having equal right, title or interest in the suit property.
[2.1] It is the case of the appellant - original plaintiff that respondent No.1 undisputedly having his half portion of share in the property had decided to sell the said portion to the Page 2 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT appellant for a sale consideration of Rs.1,36,43,750/- and for that, it is the case of appellant that an amount of Rs.11 lakhs have been paid and in response to which, the agreement to sell came to be entered into by respondent No.1 with present appellant on 23.04.2015. As per the say of the appellant, certain clearances were to be effected by respondent No.1 namely, to obtain title clearance certificate, to obtain NOC from the society and to obtain the signature of respondent No.2 for partition of the land, since respondent No.1 had started residing at Delhi.
[2.2] It is the case of the appellant that since respondent No.1 failed to undertake such steps, so as to give finality to sell transaction, a notice came to be issued by appellant on 06.04.2018 calling upon respondent No.1 to execute sale document. Since no steps were taken by respondent No.1 in response to the notice, evasive reply was given, and ultimately, the appellant - plaintiff was forced to file a Civil Suit in the Court of learned City Civil Judge, Ahmedabad for seeking declaration and permanent injunction, since before filing the suit in a reply to the notice, it was brought to the notice by respondent No.1 that his brother i.e. respondent No.2 erroneously deleted his name from the society by making misrepresentation, obtained the signature in confirmation deed, and simultaneously, respondent No.2 and his family members have executed sale transaction in favour of respondent No.5 herein. When that came to be noticed, the aforementioned suit was filed for seeking declaration to the effect that sale deed dated 20.06.2016 be declared as illegal and void and not binding upon the present appellant, as his agreement is much prior in point of time and further during Page 3 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT subsistence of agreement, this transaction has taken place and as such, a relief was also sought to the effect to grant specific performance of agreement dated 23.04.2015, alongwith the suit. The appellant has also filed a notice of motion for seeking interim relief to protect the subject matter of suit and specific injunction is sought in terms of paragraph 16 of application inter alia praying to restrain the respondent, its servants and agents from in any manner dealing with the property, or not to create any third party interest and not to put up any construction. This detail interim relief can be referred to from paragraph No.16 on page 73 of compilation.
[2.3] This injunction application / notice of motion after completion of pleading was heard at length by the learned Chamber Judge, City Civil Court, Ahmedabad and vide an order dated 13.11.2018 was pleased to reject the same and it is against this order of rejection of notice of motion, the appellant
- original plaintiff has filed present Appeal from Order.
[3] Learned advocate Mr.J.V.Japee appearing on behalf of appellant - original plaintiff has vehemently contended that there is a serious collusion between the defendants inter se to defeat the interest of present appellant in the property and respondent Nos. 1 and 2 are the real brothers and taking advantage of his position, as an advocate at Delhi, respondent No.1 has created and concocted the story that his brother and other family members have not dealt with improperly and an impression is sought to be created that he has been duped but in reality, according to the learned advocate Mr.Japee, that these defendants inter se in collusion to each other have made an attempt to defraud the interest of appellant in the suit Page 4 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT property. Mr.Japee, learned advocate has further contended that respondent No.1, on the contrary, has specifically admitted the receipt of consideration in response to the transaction namely Rs.11 lakhs, has also not disputed the factum of agreement, being executed between him and appellant with respect to his share, and still however, learned trial Judge has refused to grant interim relief, as prayed for.
[3.1] Learned advocate Mr.Japee has further submitted that, on the contrary, upon receipt of the payment of Rs.11 lakhs, as indicated above, certain formalities were required to be undertaken by respondent No.1 for obtaining NOC from the society, for getting signature of respondent No.2 for partitioning the land and also to secure the title clearance certificate, deliberately under one pretext to the other, respondent No.1 has failed to perform his obligation, which has ultimately led the appellant to institute suit. So in a situation like this, the subject matter of the suit deserves to be protected, having not done so the learned Chamber Judge has committed an error. It has further been submitted that the appellant - original plaintiff is unaware about the inter se conflict between defendants, but is clearly conscious about the fact that whenever any relinquishment of right is to be affected, the same should be through registered deed as required under Section 17 of the Registration Act and unless and until, such valid relinquishment is taking place, the person continued to be holding the portion and here respondent No.1 is as such continued to be holding undivided share in the property, which has been transacted with appellant by virtue of agreement to sell dated 23.04.2015. It has been submitted by learned advocate Mr.Japee for the appellant that just with a Page 5 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT view to defeat the agreement the inter se steps have been taken to see that the appellant is prejudicially affected even after grabbing Rs. 11 lakhs from him. Under this set of circumstance, the respondent No.5 having entered into transaction, cannot be said to be a bona fide purchaser since a transaction has been that of undivided portion of land, and therefore, no right, title or interest can be said to have been created in favour of respondent No.5 and having failed to appreciate this material of aspect, the learned Chamber Judge has committed an error in passing the impugned order.
[3.2] With a view to substantiate his agreement, learned advocate Mr.J.V.Japee for the appellant has referred to and relied upon few decisions namely, in the case of Suraj Lamp and Industries Pvt. Ltd. versus State of Haryana and Anr. reported in AIR 2012 SC 206, in the case of Bankey Behari versus Surya Narain Allas Munnoo reported in (2004) 11 SCC 393 and in the case of Yellapu Uma Maheswari and Another versus Buddha Jagadheeswararao and Others reported in (2015) 16 SCC 787, and thereby has contended that respondent No.5 cannot claim any right as bona fide purchaser, since relinquishment so called deed singed by respondent No.1 is unregistered document.
[3.3] Learned advocate Mr.J.V.Japee for the appellant has submitted that here is the case, in which, the parties i.e. respondents have not come with clean hands and a systematic attempt is made to defeat the agreement of appellant as can be seen from the pleadings, and the learned Judge ought to have granted interim relief, as prayed for. By virtue of Page 6 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT provisions of the Registration Act and the Transfer of Property Act, the sale transaction, which has taken place by other defendants with respondent No.2 has no sanctity in the eye of law, and therefore, since these are the triable issues, which are yet to be adjudicated, the subject matter of suit deserves to be protected. It is the say of learned advocate Mr.Japee by referring to certain documents from the paper-book compilation that these respondents - brothers have inter se created a story and reflected a show as if respondent No.2 has defrauded respondent No.1, but in fact, in reality both brothers have inter se designed a plan against the appellant, and thereby, with a sizeable amount, the property in question has been transferred. This might be on account of either a price rise or some extraneous course, but in the manner, in which, having agreed the transaction, having agreed the terms of transaction and having acknowledged the amount by respondent No.1, the learned Judge ought not to have disbelieved the stand of the appellant. As a result of this, the order in question is nothing, but a clear deviation from a transaction with appellant.
[3.4] Learned advocate Mr.J.V.Japee for the appellant has further contended that legal rights have already been emerged by virtue of agreement to sell and making part payment in response to it and entering into transaction with respondent No.5 without getting registered relinquishment by virtue of Section 42 of the Gujarat Cooperative Societies Act also, the subsequent transaction said to have been executed, has no sanctity in law. In this view of the matter, refusal to grant injunction will seriously prejudice the legitimate right of the appellant. It has been submitted that ultimately the Page 7 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT proposition of law is to this effect that during pendency of adjudicating process and during proceedings if triable issues have arisen, the normal trend is to protect the interest and to preserve the subject matter and here is the case, in which, the relief which has been sought in notice of motion, if granted no serious prejudice is likely to cause to any of the parties. As a result of this, learned trial Judge ought to have granted the relief, as prayed for.
[4] Learned advocate Mr.Zubin F.Bharda appearing on behalf of respondent No.1, who entered into transaction with present appellant, has submitted candidly that in a reply to the notice given on 10.04.2018, truthfully respondent No.1 has admitted the execution of document with appellant, has clearly conveyed that relinquishment, which has been utilized against him is a forged document by other defendants and has in terms denied the family arrangement, which is said to have taken place. On the contrary, respondent No.1 having realized all these facts about his relinquishment from the property, his deletion of name from the society on the basis of forged document, has attempted to file First Information Report, but since the same was not precipitated any further, was constrained to file a private complaint and the said private complaint is now on the verge of attaining finality. Learned advocate Mr.Bharda has submitted that respondent No.1 has never put his signature on any document and on the contrary, has been duped by other defendants who are close family members and has betrayed and as such Mr.Bharda, learned advocate has submitted that apparently respondent No.1 supports the case of present appellant.
Page 8 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT[5] To meet with the stand taken by learned advocate Mr.J.V.Japee for the appellant and learned advocate Mr.Zubin F.Bharda for the respondent No.1, the other respondents appeared through their respective counsel and have opposed. Learned senior counsel Mr.Mehul Shah with learned advocate Mr.Bhavesh B. Chokshi for the respondent No.5, who is the purchaser and learned advocate Mr.Ishan Mihir Patel for the respondent Nos.6 and 7 and learned senior counsel Mr.Mihir Thakore with learned advocate Mr.Salil M.Thakore for the respondent Nos.2, 3 and 4 have vehemently opposed.
[6] This defence has been headed by learned senior counsel Mr.Mihir Thakore, who has vehemently contended that the plot in question originally belonged to the grandfather and after death, the property divested and after mother having been passed away on 30.09.1999, the oral partition took place amongst the family members on 14.04.2000, which is recognized under the provisions of the Hindu Law. Since, this being a family partition, need not be registered and as such pursuant to the transaction if the sale has taken place, there is hardly any grievance left out to be raised by the present appellant. It has been submitted that, on the contrary, power of attorney has been executed by respondent No.1, a specific affidavit has also been filed by respondent No.1 confirming the oral partition and it is only thereafter, the name is deleted and the transaction has taken place, even for deletion of name in the society, respondent No.1 has participated in such process, and therefore, now at this stage, is not permitted to raise a contrary plea. On the contrary, a valid document, with the consent of all the family members, is executed in favour of respondent No.5 and which fact has been visible from the Page 9 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT record. There is a specific resolution is also passed by the society, as a result of which, the contention which has been raised by unregistered deed of relinquishment etc. has no significance in the eye of law. On the contrary, under the provisions of Income Tax Act also, the partnership factum is recognized and further on 21.10.2010, the partition deed in registered form has also been effected and since these documents are of public domain, there was a deemed knowledge not only to the plaintiff about this fact, but also to defendant No.1 i.e. respondent No.1 herein and this effect has already been given in the society registered also, therefore, it is not possible to construe that respondent No.5 is not a bona fide purchaser. On the contrary, valid right, title and interest have already been transferred in favour of respondent No.5 and as such there is no error committed by the learned Chamber Judge in rejecting notice of motion.
[6.1] Learned senior counsel Mr.Mihir Thakore has further submitted that agreement to sell in favour of the appellant is not creating any legal right, and additionally, this agreement is an unregistered agreement and as against huge amount which has been fixed, only Rs. 11 lakhs have been paid as per the say of appellant, and that too in cash, for which, the appellant has not disclosed any source or no material is produced to support such factum of payment of Rs.11 lakhs. When that be so, the story put up by the appellant is not possible to be digested. Learned senior counsel Mr.Thakore from the paper- book compilation has submitted that registered sale transaction has taken place in favour of respondent No.5, executed by all respondent Nos.2, 3 and 4 and respondent No.1 having relinquished his interest from the property such Page 10 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT transaction cannot be allowed to the tinker with by the appellant by seeking injunction. Further, the agreement to sell if to be looked into, the same is not possible to be accepted on its face value, since about alleged cash sale of Rs.11 lakhs, which is around 6% of the total consideration, even logically it is not possible to be believed that upon receipt of such paltry amount, possession said to have been transferred, and therefore, there is no error committed by the learned Chamber Judge in disbelieving the case of the appellant.
[6.2] Learned senior counsel Mr.Mihir Thakore has further submitted that appellant has not come with clean hands, and therefore, no equitable relief can be granted. On the contrary, an attempt was made by filing another Suit No.887 of 2018 and not to allow the construction. It has been submitted that the suit which has been filed on the basis of agreement is dated 23.04.2015 whereas the suit has been filed for seeking its performance and incidental relief in July 2018 after almost a period of three years. As a result of this, learned Judge has rightly not granted any interim relief. Learned senior counsel Mr.Mihir Thakore has further submitted that every steps have been taken by respondent No.1 and now a summersault is made for some extraneous reason, as a result of which, the stand taken by learned advocate Mr.Zubin F.Bharda for the respondent No.1 is also out of place. On the contrary, here is the case, in which, over the period of time, huge property has come out in the form of residential flats and the same has been after obtaining necessary permission from the competent authorities and several family members are actually residing, and therefore, now to injunct the defendants, at the instance of plaintiff, who is fully aware about the development of such Page 11 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT land and the huge building, the same would result in to grave injustice if granted, seven storeyed building has come up and huge investment has been made. As a result of this, hardly any case is made out by the appellant to seek injunction and the learned trial Judge has rightly disbelieved the case of appellant.
[7] Learned senior counsel Mr.Mehul Shah with learned advocate Mr.Bhavesh B.Chokshi for the respondent No.5 has vehemently opposed the stand of the appellant. Learned senior counsel Mr.Shah has submitted that here is the case, in which, a lawful transaction has taken place in favour of him, a registered sale document has taken place and after obtaining necessary permission from all the competent authorities, seven storeyed building have already come up consisting of 42 flats and his sale deed which is registered is of June 2016, which was already in the public domain from date of its registration, and therefore, the appellant having waited to allow such huge construction to come up and then after two years made an attempt to seek injunction is clearly indicating the intent behind it, and therefore, on this count alone, against the registered sale deed holder who is a bona fide purchaser no injunction can be granted. Learned senior counsel Mr.Shah has submitted that more than Rs.18 crores have already been invested in developing the property, plans have been sanctioned, additional emphasize have been purchased and all defendants have confirmed the transaction, on the contrary, at the relevant point of time, defendant No.1 i.e. respondent No.1 herein did take all necessary steps which then ultimately facilitated a registered transaction with defendant No.5. When that be so, there is hardly any reason for appellant now to seek Page 12 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT injunction with concocted supported of respondent No.1.
[7.1] Learned senior counsel Mr.Mehul Shah has further submitted that the defendants inter se have partitioned there share and then sale transaction has taken place with defendant No.5, he becomes a bona fide purchaser since full consideration has been paid and the possession is divested and there is no iota of evidence found by the learned court below that he was aware about the transaction in any form of present appellant. On the contrary, defendant No.1 has purchased the property after public advertisement and after taking all necessary steps, as required, and as such, before entering into transaction, defendant No.5 has taken all precautions and completed formality. When that be so, to come up for injunction after almost a period more than two and half years is nothing but a serious attempt to abuse the process of law, and therefore also, the Court below has rightly not granted injunction in favour of appellant.
[7.2] Learned senior counsel Mr.Mehul Shah has further submitted that there is no prima facie case of any nature made out by the appellant and there is no balance of convenience in favour of appellant, and there is no irreparable loss of any nature would cause to the appellant which cannot be compensated in terms of money. When that be so, the relief of injunction is not to be granted, hence, no error is committed. On the contrary, the attempt is made to confuse the prima facie case and prima facie title, and thereby, attempted to seek injunction. By referring to certain decisions, learned senior counsel Mr.Shah has opposed the present Appeal from Order. The decisions, which are in the case of Dalpat Kumar Page 13 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT and another versus Prahlad Singh and others reported in AIR 1993 SC 276, in the case of Mandali Ranganna & Ors. etc. versus T.Ramachandra & Ors. reported in AIR 2008 SC 2291, in the case of Veetrag Holdings Pvt. Ltd. versus Gujarat State Textile Corporation Ltd. reported in 1996 (1) G.L.H. 179 and in the case of Digambar Adhar Patil versus Devram Girdhar Patil (died) and another reported in AIR 1995 SC 1728, and by referring to a definition of "transfer" in the Transfer and Property Act, it has been submitted by learned senior counsel Mr.Shah that oral partition and family arrangement can take place, even oral contracts are also recognized, if the same are well supported by sequence of events whereas here in the case, in which, defendant No.1 has developed the property armed with registered sale transaction. That being so, no error is committed by the Court below in refusing the relief. Learned senior counsel Mr.Shah has further submitted that oral partition has been recognized time and again and recent decision which is in the case of Sita Ram Bhama versus Ramvatar Bhama reported in AIR 2018 SC 3057, the partition need not be held to be registered compulsory. So far as cash transaction is concerned, which is asserted by the appellant that is Rs.11 lakhs have been paid in cash, for which, he is under an obligation to substantiate, burden lies on him about the source of said cash payment. This aspect has also been dealt with by decision which is in the case of Harshadkumar Kantilal Bhalodwala & Anr. versus Ishwarbhai Chandubhai Patel & Ors. reported in 2010(2) GLR 1041 as a result of this, since appellant has measurably failed in establishing or supporting his stand, the learned trial Judge has rightly refused the relief of injunction. Apart from Page 14 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT this, learned senior counsel has submitted that here is the case, in which, a big cost based project is going-on for which no injunction can be granted and for supporting this, a reference is made to a decision which is in the case of M.P.Housing Board versus Anil Kumar Khiwani reported in AIR 2005 SC 1863 and then ultimately, the submission last in line is that a detail order is passed by the learned trial Judge with cogent reasons such discretion should not be so likely be interfered with, as has been observed in a decision which is in the case of Wander Ltd. and another versus Antox India P.Ltd. reported in 1990 (Supp) SCC 727 and by making such submissions, a vehement stand is taken by learned senior counsel Mr.Shah to oppose the grant of any relief. Several documents have been referred to and relied upon and has submitted that at such a stage where property is fully developed to make an attempt to injunct is nothing but a clear example of public motive. Hence, the same may not be encouraged.
[8] As a part of rejoinder, learned advocate Mr.J.V.Japee for the appellant has then referred to certain documents from the paper-book compilation and has submitted that fraud is committed with the appellant by two brothers who have conspired with each other. Hence, since triable issues are involved in the proceedings, a request is made to maintain status quo of the suit property so as to see as no irreversible situation can be created.
[9] As a part of sur-rejoinder, learned senior advocates have opposed the stand of appellant and has then clarified that registration is not required once partition has taken place, Page 15 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT and thereby, has reiterated that oral partition is very much recognized in the eye of law and the same was already mentioned even in the Income Tax proceedings as well. It has been thereafter contented by learned senior counsel Mr.Mehul Shah that pleadings of fraud are not made out as has been tried to be made out here in the appellate forum, the entire construction of 42 flats is over, out of which, 10 flats are already booked. Hence, in the absence of any legitimate right being emerged in any form in favour of appellant even equitably also appellant is not entitled to seek any relief. As a result of this, a request is made to dismiss the appeal, as no case is made out.
[10] Having heard learned advocates appearing for the parties and having gone through the documents contained in the paper-book, which is supplied to the Court alongwith appeal, certain significant circumstances are not possible to be unnoticed by this Court.
[11] First of all, it appears that the exercise of discretion by the learned Chamber Judge appearing to be on close perusal of documents on record and after dealing with the respective stand of the parties, the order is backed by reasons. So prima facie, there appears to be no irregularity of any nature visibly from the tenor of order impugned. Further, if the documents which are attached with the paper-book compilation and the pleadings of appellant to be seen, it appears that the base of the suit is an agreement to sell dated 23.04.2015 which document is undisputedly not a registered document. Further, a consideration in part which has stated to have been paid of Rs. 11 lakhs is the cash payment to Page 16 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT respondent No.1, and for which, the source of such amount has also not been substantiated, as found from the record. Additionally, it is found that for claiming right and for enforcement and the incidental reliefs are against and based upon unregistered agreement to sell of the year 2015 only, and a challenge to the registered transaction of June 2016 for which the suit appears to have been filed in July 2018. So, there is a considerable time consumed by appellant for attempting to seek a relief of injunction, which is equitable in nature.
[12] Further, it appears that registered transaction which has taken place in favour of defendant No.5 has already been utilized by respondent No.5 by constructing and developing the property and at present there are as many as 42 flats stated to have been constructed, out of which, 10 flats have already been booked and this entire construction, huge in nature, has come up after getting appropriate permission from the competent authority namely, the Ahmedabad Municipal Cooperation, which permission letters / orders are also part of the record. It further appears that pursuant to the oral partition, which took place, later on, the same is deduced in a valid registered document dated 21.01.2010, effect of which, has already been given to society's registered which can be seen from the paper-book compilation. It further appears that respondent No.1, who is named as Abhijat Parashar Mehd, has given in writing on 14.04.2000 related to the HUF property and the same is signed by him on 01.06.2000, notarized by Mr.G.S.Vyas Notary on 01.06.2000. The respondent No.1 further has appeared to have given a letter in society on 01.06.2000 indicating that having shifted himself permanently Page 17 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT to Delhi as per the family arrangement and oral understanding between his brother i.e. respondent No.2 about partitioning the property has requested to delete his name from the society's share certificate and other records by passing appropriate resolution and the same is declared to be binding upon him and his legal heirs. Such document is also on the paper-book compilation and then it appears that Shanti Sadan Society has deliberated the said letter of respondent No.1 and respondent No.2 dated 01.06.2000 in a Managing Committee Meeting dated 11.06.2000 and passed a resolution No.6, on 03.06.2016 accepting the request which resolution is also part of the paper-book compilation on page 12.
[13] Additional circumstance which is also not possible to be unnoticed is an order under Section 171(3) of the Income Tax Act which relates to Mr.Parashar P. Mehd, HUF property and such order is signed by the Income Tax Officer, Ahmedabad for the year 2000 - 2001 as well as 2001-2002 taking cognizance of the respective affidavits of both respondents i.e. respondent No.1 and respondent No.2 confirming and accepting the complete partition and such complete partition dated 14.04.2000 is recognized by the Income Tax Officer. The said document is also part of the record. It further appears from the paper-book compilation that this partition is given effect to in the registered format and the same is registered on 21.01.2010.
[14] It further appears from the record that there is a registered sale document executed by the owners of property in question in favour of defendant No.5 i.e. M/S Sheth Buildhome LLP and this sale transaction / deed of conveyance Page 18 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT is a registered document, which is registered in the office of Sub-Registrar, Memnagar. A perusal of this registered document, it indicates that payment of consideration is through demand draft dated 17.06.2016 drawn on Axis Bank, Mumbai and total payment has been passed on. This kind of registered deed has been executed in more than one and the total consideration of more than 4 corers and odd amount is paid with respect to the property in question. These documents namely the deeds of conveyance are part of the record indicating the amount of consideration paid by defendant No.5. Now, as against this, one another deed of confirmation has also been executed on 20.06.2016 which is a registered document with full consideration confirming the transactions which have taken place by virtue of registered documents bearing Serial Nos. 4706, 4707 and 4708 and noticeably these registered documents are signed by defendant No.1 as well as his family members. The signature, photographs and thumb impression of defendant No.1 are also visible from the record and for execution thereof, a Pan Card of defendant No.1 is also kept as it appears, and thereafter, the society has passed a resolution No.1 taking note of recognizing said share and thereby transfer is effected in the name of defendant No.5 namely M/S. Sheth Buildhome and LLP. Prior to that, even possession receipt has also been executed upon such completion of aforesaid formality in favour of respondent No.5, a fresh share certificates have been issued and the Chairman and Secretary have also given a certificate to that effect on 27.06.2016 which is also a part of appeal compilation. All the sequence of events indicate that registered documents have taken place between the parties to the proceedings in favour of defendant No.5 and it is Page 19 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT thereafter, the said land is developed by obtaining necessary permission from the Ahmedabad Municipal Cooperation in the form of commencement letter (rajachithi) in the month of February, 2018, plans have been sanctioned and huge construction has come up, as indicated above. Now all these documents are forming part of the compilation, which are not possible to be unnoticed by the Court while dealing with the order in question since they have been projected before the Court during the course of hearing.
[15] A further fact is also to be observed is that surprisingly respondent No.1 has instituted suit, being Civil Suit No.1943 of 2016 for a relief to set aside not only the sale documents, but the registered Kabuliatnama while entering into transaction with defendant No.5. This suit in which injunction application was also submitted, but then nothing further is pointed out before the Court as to whether said injunction is granted or not granted, but the same has been referred to in paper-book compilation. From the aforesaid documents, which are brought to the notice of the Court, it prima facie reflects that at one point of time, respondent No.1 has all throughout executed all necessary registered documents so as to give effect to the transaction to respondent No.5 and then on account of some circumstance appeared to have executed a summersault by filing the civil suit and the criminal complaint as well. However, be that as it may, it appears ex facie from the record that there is a registered sale transaction in favour of the defendant No.5, property appears to have been fully developed lawfully and it appears that there is a much delay by appellant in seeking equitable relief of injunction claiming to have acquired interest Page 20 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT from unregistered agreement to sell of April 2015, and therefore, delay is also not possible to be unnoticed by this Court.
[16] On the basis of this scenario of factual details, a perusal of the order in question is indicating that the learned Judge has also taken note of the aforesaid circumstances at length and has clearly observed that in support of the story of payment of cash amount of Rs.11 lakhs, no much details are provided by the appellant which onus is lying upon him only. Further, the learned trial Judge has clearly taken note of after examining all these issues that looking to the record the appellant - original plaintiff was in knowledge of the property, being a property of HUF of P.P. Mehd and was also aware about the fact that the property in question was undivided for which he entered into transaction. Learned trial Judge has also examined the effect of relinquishment of his right of defendant No.1 from the property and has also taken note of certain admissions of defendant No.1 i.e. respondent No.1 herein about the property being of HUF and the factum of oral partition and the family arrangement. Learned trial Judge has also found rightly that the aforesaid documents generate an impression that defendant No.1 has throughout participated in the process of deletion of his name from the record of disputed property. The affidavits which have been executed by defendant No.1 has given an impression that originally defendant No.1 has supported the other defendants and thereby allowed the transaction to carry out. With respect to possession, it has been clearly found by the learned trial Judge that not a single document is shown to the Court that even at the time of transaction with appellant and even at this juncture Page 21 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT to indicate that defendant No.1 was in possession as a joint owner of disputed property, and therefore, to claim possesory right even remotely is not found in favour of appellant. So far as amount of Rs.11 lakhs is concerned, the learned trial Judge has also believed the version of defendant, since there is no source of such payment is declared by the appellant - original plaintiff and it has also been found that handing over joint possession to the plaintiff on the basis of only Rs.11 lakhs which comes to only 6.5% is not a believable plea, as a result of which also, such circumstances examined by the trial Court at length. By way of deed, even defendant No.1, his wife and son as well as defendant Nos. 6 and 7 have also admitted that defendant Nos. 2 to 4 have sold the whole disputed properties to defendant No.5 and defendant No.1 has never objected, and therefore, conduct of defendant No.1 is visualized by the learned trial Judge of now supporting the plea of plaintiff is found to be creating a hurdle in right of defendant No.5. It has also been observed by the Court below that more than Rs.4 crores have been paid to the Ahmedabad Municipal Corporation for purchasing of F.S.I. fees etc., and the Municipal Cooperation has sanctioned the plan and had given commencement certificate in addition to total sale consideration of Rs.4,60,00,000/- given by him by virtue of registered sale documents, and thereby has erected a residential complex. Learned Judge has further found that these are the undisputed circumstances and now defendant No.1 taking plea that he was forced to put the signature, he was unaware about the proceedings, signatures have been forged and thereby to file civil as well as criminal proceedings are the issues to be examined at length not at this stage. But when prima facie bunch of circumstances are learning in Page 22 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT favour of bona fide purchaser i.e. defendant No.5, the learned trial Judge appears to have rightly exercised the discretion, and therefore, the order in question is not possible to be interfered with.
[17] The proposition propounded by the Apex Court while exercising appellate jurisdiction has indicated that unless and until there is any material irregularity or perversity is reflecting and the view taken by the learned trial Judge is reasonably probable on the basis of documents then such view is not to be substituted and as such the said proposition of law which has been consistently observed by the Courts. Some observations contained in a decision in the case of Wander Ltd. and another (supra) requires to be referred hereinafter. The relevant observations contained in paragraph No.14 as such reproduced hereinafter:
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had Page 23 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph :
... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.
The appellate judgment does not seem to defer to this principle."
[18] One further observations which are related to grant of refusal of injunction are also eloquent enough to be observed. One decision of the Apex Court in the case of Dalpat Kumar and another (supra) has propounded that prima facie case and prima facie title cannot be confused, prima facie case can be examined during the course of adjudication and thereby detailed out a principle that normally no injunction relief can be granted against the registered sale deed holder. The observations contained in paragraph Nos.5 and 6 since are relevant, reproduced hereinafter:
"5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima Page 24 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.Page 25 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT
6. Undoubtedly, in a suit seeking to set aside the decree, the subject-matter in the earlier suit, though became final, the Court would in an appropriate case grant ad interim injunction when the party seeks to set aside the decree on the ground of fraud pleaded in the suit or for want of jurisdiction in the Court which passed the decree. But the Court would be circumspect before granting the injunction and look to the conduct of the party, the probable injuries to either party and whether the plaintiff could be adequately compensated if injunction is refused. This case demonstrates (we are not expressing any opinion on the plea of fraud or their relative merits in the case or the validity of the decree impugned), suffice to state that the conduct of the respondent militates against the bona fides. At present there is a sale deed executed by the Court in favour of the first appellant. If ultimately the respondent succeeds at the trial. They can be adequately compensated by awarding damages for use and occupation from the date of dispossession till date of restitution. Repeatedly the Civil Court and the High Court refused injunction pending proceedings. For any acts of damage, if attempted to make, to the property, or done, appropriate direction could be taken in the suit. If any alienation is made it would be subject to doctrine of lis pendence under Section 52 of the Transfer of Property Act. The High Court without adverting to any of these material circumstances held that balance of convenience lies in favour of granting injunction with the following observations, "keeping in mind the history, various facts which have been brought to my notice, and looking to the balance of convenience and irreparable loss, I think it will be in the interest of justice to allow these appeals and grant temporary Page 26 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT injunction that the appellants may not be dispossessed from the suit property". The phrases "prima facie case"; "balance of convenience" and "irreparable loss"
are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts are eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience. The respondents can be adequately compensated on their success."
[19] From the aforesaid observations, here in a case in which, defendant No.5 is a registered sale deed holder, huge payment has been made, huge construction has made out, land has been developed lawfully, is not required to be injuncted on the basis of mere plea of fraud being executed with respondent No.1 [20] Yet another decision, which is not possible to be unnoticed is a decision in the case of M.P.Housing Board (supra) which deals with an injunction issue related to cost base project. The Apex Court while dealing with an injunction issue related to construction of commercial complex under a self-finance scheme has observed that grant of injunction, restraining from further allotment or construction is not proper. The observations which are made by the Apex Court in paragraph No.20 are worth to be taken note of, as the same is mentioned hereinafter:
Page 27 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT"20. Time has come when the Courts should be slow in interfering at interim stage with schemes which are based on costing India is having cost-push economy. In a self-financing scheme based on costing, an interim injunction has a cascading effect. Failure on the part of even one contributory in contributing the amount to the cost results in total failure of the project. The developer, like the housing board, makes an initial investment by borrowing funds from the market. Therefore, an interim injunction at the initial stage of the project would result in the total collapse of the entire project. It would also affect the contributions made by other co-purchasers. Several components go into costing, including the lease rent payable to the State Government. These aspects have not been considered by the trial Court."
[21] Now in the light of aforesaid proposition of law, a bare perusal of the judgments, which have been relied upon by learned advocate for the appellant, it appears that the issues which have been raised can well be examined during the course of trial of the suit. But to consider the interim relief, at this stage, is to deprive the legitimate owner from exercising his right over the property and the effect of unregistered family settlement, the effect of unregistered and unstamped partition deed and the incidental issues which have been raised about oral partition, the same are at the best can be said to be examined at the time of dealing with the main suit proceedings and as such to apply such decisions, as referred to above, in its absolute form would be intercepting the legitimate rights of lawful owner.
[22] Further, it appears that more than enough Page 28 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT documentary evidence has led before the trial Court by the respective parties and on the basis of which, the discretion is exercised and as such this discretion is not possible to be branded as perverse in any form since word "perversity" is well defined by catena of decisions by the Apex Court. As a result of which, no case is made out by the appellant to seek any interim relief. Since facts are sufficient enough to come to this conclusion, the judgments relied upon by the respective parties are not necessary to be enlisted at length to avoid unnecessary burden of the present order, but the main issue which encircling around the injunction on the basis of aforesaid factual matrix being the center of controversy. The judgments related to such issue are considered by the Court at length, at this stage, and in such exercise, one another decision which has been pressed into service by the learned senior counsel Mr.Mehul Shah, which is in the case of Mandali Ranganna & Ors. etc. (supra) about the conduct of parties while examining prima facie case, balance of convenience, etc. The observations contained in paragraph No.18 have been noticed by the Court, which reads as under:
"18. While considering an application for grant of injunction, the court will not only take into consideration the basic elements in relation thereto, viz., existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties.
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 be entitled to an order of injunction. The court will Page 29 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT not interfere only because the property is a very valuable one. We are not 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. Contentions raised by the parties must be determined objectively."
[23] So far as the judgments related to documents and its admissibility are the judgments which will have to be dealt with at length at the time of adjudication and examining the controversy, but here the Court found that one decision is not possible to be unnoticed is a decision in the case of Harshadkumar Kantilal Bhalodwala & Anr. (supra), in which, the circumstances related to cash payment as a part of consideration is dealt with by the Court and in respect of such, the observations contained in paragraph Nos. 7 and 9 are worth consideration. Hence, reproduced hereinafter:
"7. On considering the impugned order passed by the learned trial Court allowing application Exh. 5, it appears that solely relying upon the alleged agreement to sell dated 16.1.2006/20.1.2006, which is specifically disputed by the executant, learned Judge has held that there is a prima facie case in favour of the plaintiffs and accordingly observed that the balance of convenience as well as irreparable loss would be in favour of the original plaintiffs. It is to be noted that original defendants No.3 and 4 have purchased the property by registered sale deed after the original land owners gave public notice in the local newspaper intending to sell the land in question and when no objections were Page 30 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT submitted by anybody inclusive of the plaintiffs, the original defendants no. 3 and 4 have purchased the property on payment of full sale consideration. Under the circumstances, it can be said that the original defendants No. 3 and 4 are the bona fide purchasers of the land in question on payment of full sale consideration. In view of such a situation, the balance of convenience can be said to be in favour of bona fide purchaser i.e. defendant Nos. 3 and 4. Nothing is on record that original plaintiffs had submitted any objection pursuant to the public notice / advertisement in the local newspaper given by the original land owners intending to sell the land in question. Under the circumstances, the learned trial Court has materially erred in holding the prima facie case as well as the balance of convenience in favour of the original plaintiffs. As such on considering the entire order passed by the learned trial Court, the learned Judge has not assigned any reason how the balance of convenience would be in favour of the original plaintiffs. As stated above, solely relying upon the alleged agreement to sell dated 16.1.2006(20.1.2006), which has been seriously disputed, the learned Judge has observed that there is a prima facie case and balance of convenience in favour of the plaintiffs. It cannot be disputed that while considering the application for injunction under Order 39 Rule 1 and 2 Code of Civil Procedure, Court is required to consider the three aspects i.e. (I) prima facie case, (ii) balance of convenience (iii) irreparable loss in terms money if the injunction as prayed for is not granted. While granting the injunction all the three aforesaid conditions are to be satisfied. Even if there is prima facie case in favour of the plaintiffs but the balance of convenience is not in favour plaintiffs and / or if it is found that the plaintiff can be compensated in terms of money even if the Page 31 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT injunction is not granted, the Court may not grant even interim injunction. In the present case, the learned Judge has not considered the aforesaid aspects more particularly, with respect to balance of convenience and the irreparable loss in terms of money if the interim injunction as prayed is not granted.
9. Now, so far as the decisions relied upon by the learned Advocate for the respondent No.1 herein original plaintiffs Ramdev Food Products (P) Ltd. (supra) and Wander Ltd.(supra) are concerned, even in the said decision also the Hon'ble Supreme Court has specifically observed that the Appellate Court can interfere with the order of the trial court when it is found that discretion has been exercised by the trial Court arbitrarily or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunction. As observed herein above, in the present case while granting the injunction the learned Judge has ignored the settled principles of law regulating grant or refusal of interlocutory injunction i.e. prima facie case, balance of convenience and irreparable loss in terms of money. There is no prima face case in favour of the original plaintiff. As stated above defendants No. 3 and 4 are the bona fide purchaser of the land in question after payment of full sale consideration and after public advertisement/ notice and when no objections were received and, therefore, the balance of convenience is in favour of the defendants No. 3 and 4."
[24] In the context of aforesaid factual details and the proposition of law laid down by various decisions reported herein above, the judgments which have been relied by learned advocate for the appellant at this stage are not of any Page 32 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT avail. The reason is that the facts are distinct from the case on hand and the observations made by the Apex Court are in the context of a situation prevailing before the Court. So far as the judgments related to the effect of unregistered document of partition deed, the said circumstance will have to be examined at the time of adjudication of the suit, and therefore, when prima facie material is giving an effect that no case is made out by the appellant - plaintiff to seek an injunction, at this stage, no much emphasize is possible to be given. As a result of this, leaving it open for the learned trial Judge to consider it at an appropriate stage, the Court is of the opinion that at this stage, the same are not possible of any assistance to the appellant.
[25] From the foregoing discussion, in considered opinion of this Court, it appears that no error is committed of such a nature which calls for any interference. However, the Court also cannot unnotice the pendency of criminal case as well as civil suit filed by defendant No.1 resultantly, to adjust the equity between parties and considering principle of lis pendence any further transaction related to suit property is to be treated as subject to outcome of main suit, and would bind the parties and further looking to this peculiar circumstance, liberty is kept open requesting the learned trial Judge to expeditiously deal with and dispose of suit on merits independently.
[26] With these observations, the present Appeal from Order stands dismissed with no order as to costs. Rule is discharged.
Page 33 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019 C/AO/10/2019 CAV JUDGMENT[27] It is needless to state that while deciding the main suit proceeding, the learned trial Judge may deal with and decide on the basis of available material and evidence on record uninfluenced by the observations made in the impugned order as well as present order as the same are at the interim stage.
[28] In view of the order passed in the main matter, Civil Application does not survive and stands dismissed accordingly. Rule is discharged.
Sd/-
(A.J. SHASTRI, J.) DHARMENDRA KUMAR Page 34 of 34 Downloaded on : Sun Oct 20 01:36:51 IST 2019