Gujarat High Court
Rekhaben Chandrakant Mandanka vs Mukeshbhai Ambalal Patel & 7 on 4 August, 2017
Author: C.L.Soni
Bench: C.L. Soni
C/AO/263/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 263 of 2016
With
CIVIL APPLICATION NO. 7145 of 2016
In
APPEAL FROM ORDER NO. 263 of 2016
With
CIVIL APPLICATION NO. 12214 of 2016
In
APPEAL FROM ORDER NO. 263 of 2016
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REKHABEN CHANDRAKANT MANDANKA....Appellant(s)
Versus
MUKESHBHAI AMBALAL PATEL & 7....Respondent(s)
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Appearance:
MR JIGAR P RAVAL, ADVOCATE for the Appellant(s) No. 1
MR PARTHIV B SHAH, ADVOCATE for the Respondent(s) No. 1 - 4
MS ARCHANA R ACHARYA, ADVOCATE for the Respondent(s) No. 5 - 8
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 04/08/2017
ORAL ORDER
1. This Appeal is filed by original plaintiff under Order XLIII of the Civil Procedure Code, 1908 ("the Code") against the order dated 19.03.2016 passed by learned Principal Senior Civil Judge, Vadodara rejecting the application Exh.5 preferred by her in her suit being Special Civil Suit No.507 of 2012. Civil Application No.7145 of 2016 is filed seeking interim injunction pending this appeal. Civil Application No.12214 of 2016 is preferred by respondent No.5 for additional evidence under Order XLI Rule 27 of the Code.
2. For the sake of convenience the appellant shall be referred as Page 1 of 12 HC-NIC Page 1 of 12 Created On Sun Aug 13 11:25:40 IST 2017 C/AO/263/2016 ORDER the plaintiff and the respondents shall be referred as the defendants.
3. In the suit, the plaintiff has prayed for specific performance of the contract on the basis of agreement to sale dated 03.09.2009 stated to have been executed by defendant No.5 for the suit land and to declare that the sale deed dated 27.01.2012 executed by defendants No.5 to 8 in favour of defendants No.1 to 4 is false, null and void, illegal and ineffective being without consideration and also to declare that defendants No.5 to 8 since have no right in the suit land, they have got no right or authority to transfer or alienate suit land to anybody and also for permanent injunction restraining the defendants from selling or transferring the suit lands or from making any change or creating any third party interest in the suit land. In such suit, the plaintiff prayed for interim injunction at Exh.5 which has come to be rejected by impugned order.
4. As per the case of the plaintiff, under the agreement to sale, sale consideration of Rs.95 lacs was fixed for the suit land, out of which Rs.1 lac was paid as earnest money and the rest of the payment was to be made within fifteen days after the title clearance for suit land was obtained.
5. It appears that at one stage of hearing of the appeal, learned advocate Mr.Raval for the plaintiff made statement at bar that the plaintiff was ready and willing to deposit the amount of balance consideration of Rs.94 lacs with the trial court and sought three months time to deposit the said amount. The Court however granted eight weeks time to deposit such amount vide order dated 29.12.2016 which reads as under:
"1. Learned advocate Mr.J.P. Raval for the appellant, upon instructions, states at bar that the appellant is ready and willing to deposit amount of balance consideration of Rs.94 lacs with the learned trial Court and he seeks time of three months for Page 2 of 12 HC-NIC Page 2 of 12 Created On Sun Aug 13 11:25:40 IST 2017 C/AO/263/2016 ORDER depositing the amount.
2. Considering the lis involved in the subject matter and also considering the fact that the suit is for specific performance of the sale agreement, the appellant is always required to be ready and willing to deposit the amount of balance consideration.
3. However, in the interest of justice, time to deposit amount of Rs.94 lacs is granted for eight weeks from today.
4. S.O. to 28.02.2017. The statement made by Mr.Parthiv B. Shah, learned advocate for the respondent No.4 on 12.09.2016 in Civil Application is continued."
However, the said amount was not deposited but the plaintiff moved Civil Application No.3034 of 2017 seeking permission to deposit Rs.40 lacs and to permit her to file an undertaking for balance amount of Rs.54 lacs. Such application came to be rejected by order dated 22.02.2017 which reads as under:
"1. By way of the present application, the application seeks permission to submit either solvency certificate and/or bank guarantee or undertaking for the remaining amount of Rs.54 lacs.
2. On 29.12.2016, this Court has passed the following order in the main Appeal from Order:-
1. Learned advocate Mr.J.P. Raval for the appellant, upon instructions, states at bar that the appellant is ready and willing to deposit amount of balance consideration of Rs.94 lacs with the learned trial Court and he seeks time of three months for depositing the amount.
2. Considering the lis involved in the subject matter and also considering the fact that the suit is for Page 3 of 12 HC-NIC Page 3 of 12 Created On Sun Aug 13 11:25:40 IST 2017 C/AO/263/2016 ORDER specific performance of the sale agreement, the appellant is always required to be ready and willing to deposit the amount of balance consideration.
3. However, in the interest of justice, time to deposit amount of Rs.94 lacs is granted for eight weeks from today.
4. S.O. to 28.02.2017. The statement made by Mr.Parthiv B. Shah, learned advocate for the respondent No.4 on 12.09.2016 in Civil Application is continued.
3. Considering the statement made at bar by the learned advocate for the appellant/applicant, upon instructions, the Court has passed the above order. According to the applicant, she is able to make arrangement of Rs.40 lacs but, for the balance amount, the applicant has made a request to permit her to file an undertaking. Further, the applicant may be relieved from depositing sum of Rs.54 lacs in cash.
4. Thus, looking to the nature of the suit, more particularly, provisions of Section 16(c) of the Specific Relief Act and statement made by the learned advocate for the applicant at the time of admission hearing of the main Appeal from Order, this Court is not inclined to entertain present application as sufficient time was provided to make arrangement of consideration amount and, therefore, the same is hereby rejected."
It was, thereafter, learned advocate Mr.Raval stated before the Court that the plaintiff was ready and willing to give bank guarantee for Rs.94 lacs but there appears to be no order made permitting plaintiff to give bank guarantee and the appeal was directed to be listed before the appropriate Court.
6. Learned advocate Mr.Raval submitted that since defendant Page 4 of 12 HC-NIC Page 4 of 12 Created On Sun Aug 13 11:25:40 IST 2017 C/AO/263/2016 ORDER No.5 has executed the agreement to sale and received earnest money as Karta of family, the defendants No.6 to 8 being the family members are bound by the agreement. Mr.Raval submitted that as per one of the terms of the agreement, it is after the defendants No.5 to 8 get title clearance for the suit land, the plaintiff is to pay rest amount of consideration and to get the sale deed executed in her favour. Mr.Raval submitted that though the plaintiff gave notice on 07.03.2010 asking the defendants No.5 to 8 to give the documents showing title clearance of the suit land, they did not act as required by the agreement and thereafter also the plaintiff issued notice on 27.04.2012 for executing sale-deed in her favour. Mr.Raval submitted that the above such notices issued by the plaintiff would show that the plaintiff was always ready and willing to perform her part of contract, however, keeping the plaintiff in dark and to deprive her right to get the sale deed executed, defendants No.5 to 8 executed sale deed in favour of defendants No.1 to 4 which is illegal, null and void and ineffective as the plaintiff has been holding agreement to sale for the suit land in her favour and based on such agreement, the plaintiff became entitle to ask for execution of the sale deed in her favour. Mr.Raval submitted that learned Judge for the reasons not germane to grant of injunction in the suit for specific performance of the contract, has rejected the application at Exh.5. Mr.Raval submitted that when the execution of the agreement to sale could not be disputed, the plaintiff could not be denied interim injunction on the ground that the agreement was not registered. Mr.Raval also submitted that learned Judge committed serious error in refusing to grant equitable relief to the plaintiff on the ground of delay in bringing the suit. Mr.Raval submitted that in spite of existence of agreement to sale in favour of the plaintiff, where defendant No.5 to 8 have made sale deed in favour of defendants No.1 to 4, there is all possibility that the suit land further change hands and if injunction prayed for is not granted, the plaintiff will suffer irreparable loss. Mr.Raval thus urged to quash and set aside the impugned order and Page 5 of 12 HC-NIC Page 5 of 12 Created On Sun Aug 13 11:25:40 IST 2017 C/AO/263/2016 ORDER to allow the application at Exh.5.
7. Learned advocate Mr.Shah appearing for defendants No.1 to 4 submitted that the plaintiff has no case for specific performance of the contract on the basis of the alleged agreement to sale for the suit land as not only the agreement is not registered but undisputabely, though defendants No.5 to 8 are the co-owners of the suit lands, they have not executed the agreement to sale. Mr.Shah submitted that when the defendant No.5 is not the only owner of the suit land, the relief for specific performance of the contract is not available for undivided and uncertained portion of the land belongings to defendant nos.5 to 8. Mr.Shah submitted that from the contents of the first notice of the plaintiff, it clearly appears that the plaintiff had knowledge about refusal to execute sale deed in connection by the defendants No.5 to 8 and still after long time, the suit was filed and in the meantime since the defendant No.1 to 4 have acquired right title and interest in the suit lands, the plaintiff could not be made entitled to equitable relief in exercise of powers under Order XXXIX of the Code. Mr.Shah submitted that as mandatorily required by the provisions of Section 16(C) of the Specific Relief Act, the person holding agreement to sale has not only to aver in the plaint about his readiness and willingness to perform the contract but such readiness and willingness has to continue till the final decision of the suit. Mr.Shah submitted that not only there is no averment in the plaint that the plaintiff is ready and willing to perform the contract but she has backed out from the statement made before this Court to deposit the amount of remaining consideration. Mr.Shah submitted that once the statement was made before this Court to show readiness and willingness for depositing the rest amount of the consideration and then not to deposit such amount would show that the plaintiff is not ready and willing to perform the contract and, therefore, she is not entitled to any equitable relief in her favour in exercise of discretionary jurisdiction of this Court. Mr.Shah submitted that defendants No.1 to 4 are bona fide purchasers and the plaintiff Page 6 of 12 HC-NIC Page 6 of 12 Created On Sun Aug 13 11:25:40 IST 2017 C/AO/263/2016 ORDER having no prima facie case for grant of injunction in her favour, the Court may not interfere with the impugned order in exercise of powers under Order XLIII of the Code especially when on consideration of the material, learned Judge has taken a possible view in the matter.
8. Learned advocate Ms.Acharya appearing for defendants No.5 to 8 submitted that there is no agreement executed for the purpose of sale of the suit land in favour of the plaintiff. She submitted that suit land is joint property and in respect of the joint property, the agreement alleged to have been executed cannot be enforced. Ms.Acharya submitted that there is no averment in the plaint that the defendant No.5 acted as Karta of the family and, therefore, the agreement alleged to have been executed by defendant No.5 would not bind the other joint owners and cannot be enforced for any part of the land of Survey No.87. Ms.Acharya submitted that it is not a case of the plaintiff that she was ever put into possession of the land under the agreement nor even there is any injunction operating in connection with the suit land from the year 2012 and after the date of alleged agreement since the plaintiff has not being vigilant to immediately approach the Court though in the year 2010 she was refused making sale deed, she is not entitled to equitable relief. Ms.Acharya thus, urged not to interfere with the impugned order especially when, as submitted by learned advocate Mr.Shah, the plaintiff have not shown any readiness and willingness to perform the contract.
9. The Court, having heard learned advocates for both the sides, finds that as per the revenue entries, defendants No.5 to 8 are the joint owners of the land bearing Survey No.87 ad-measuring 1 hectare 14 are 32 gunthas i.e. 1,20,568 Sq. feet (11,432 Sq. meters). The alleged agreement is for 45,000 sq. feet for the eastern side of the land of Survey No.87. Undisputabely, the alleged agreement is Page 7 of 12 HC-NIC Page 7 of 12 Created On Sun Aug 13 11:25:40 IST 2017 C/AO/263/2016 ORDER executed only by defendant No.5. If the land bearing Survey No.87 is not divided, the agreement for uncertained portion of the land at this stage would not make the plaintiff entitled for equitable relief. The alleged agreement is handwritten agreement made on simple paper and neither registered nor executed before the Notary. The defendant No.5 has taken stand in his reply that the writing of the agreement was got-up and that pursuant to demand for advance of Rs.1 Lac from the husband of the plaintiff, he was lent Rs.1 Lac but Rs.1 Lac was not received by him for the suit land. The alleged agreement is dated 03.09.2009. The plaintiff gave first notice on 09.03.2010 only to defendant No.5 stating that defendant No.5 was not giving the copy of the permission dated 25.03.1980 issued by the Collector, the copies of revenue records in the 7-12 forms, 6-A form and 8-A form, not giving 'No Objection Certificate' and was not getting the site inspection done through the DILR for 50,000 sq. feet of land on eastern side. It is further stated that though repeated requests were made but defendant No.5 was not replying and was behaving in rude manner and, therefore, his bad intention was apparent and he was not ready to make sale of the suit land to her. In such notice, the plaintiff has also called upon defendant No.5 to provide all the above referred documents within 15 days and to start process for taking permission from the Government. It is also mentioned that the plaintiff was ready and willing to make payment of the remaining amount of consideration. Though such notice was not replied by defendant No.5, however the plaintiff could know that the defendant No.5 was not willing to make sale of the suit land in her favour. Still however the plaintiff did not take any action, it was only when a public notice came in the newspaper on 23.12.2011 at the instance of her advocate Shri Vijay Kumar Prajapati stating that his client demanded title clearance certificate for the land bearing Survey No.87, the plaintiff lodged objections on 24.12.2011 with advocate Shri Vijay Kumar Prajapati stating that since in the land bearing Survey No.87, the rights of the plaintiff were involved, advocate Shri Page 8 of 12 HC-NIC Page 8 of 12 Created On Sun Aug 13 11:25:40 IST 2017 C/AO/263/2016 ORDER Vijay Kumar Prajapati should not issue title certificate. After such objection, the plaintiff served one more legal notice dated 27.04.2012 to defendant No.5 asking the defendant No.5 to handover all documents concerning the land and to execute the sale deed by accepting the remaining amount of consideration within 10 days. The defendant No.5 served reply dated 07.05.2012 stating that there was no agreement made for sale of the land and Rs.1 Lac taken as loan could not be considered as earnest money and also stating that before about 4 years, when he had gone to repay the said amount, the husband of the plaintiff refused to take the amount. During exchange of notices and the reply, the defendants No.5 to 8 sold 4,545 Sq. meter land from eastern side of Survey No.87 to defendants No.1 to 4 under registered sale deed executed on 11.01.2012 for consideration of Rs.80 Lacs paid through cheques of different dates between January, 2012 to March, 2013.
10. The plaintiff has averred in the plaint that she deals in the business of purchase, sale and development of the lands. Being in such business, she could have inquired as to the joint ownership of the land bearing Survey No.87 of defendants No.5 to 8. She could have also got the agreement to sale registered. On having come to know about disinclination of defendant No.5 in the year 2010 to execute the sale deed for the land under the agreement allegedly executed by defendant No.5 and having seen public notice for title clearance given by one advocate Shri Vijay Kumar Prajapati for his client, the plaintiff could have filed the suit at that very stage but having failed to take timely action and after the sale deed was made in favour of defendants No.1 to 4, the question as regards grant of equitable relief will have different consideration, especially, when in a suit for specific performance of the contract, in a given facts situation, the Court has its discretion to refuse the relief for specific performance. It is not that irrespective of the nature of the document for alleged agreement and irrespective of the conduct of the plaintiff Page 9 of 12 HC-NIC Page 9 of 12 Created On Sun Aug 13 11:25:40 IST 2017 C/AO/263/2016 ORDER in not taking immediate action having known about disinclination of landowners to execute the sale deed, the Court should grant the equitable relief of injunction wherever the suit for specific performance is filed.
11. Even when the Court is prima facie satisfied that the plaintiff has not complied with the requisites as regards the readiness and willingness to perform the contract, the Court may in its discretion refuse to grant the interim injunction. As submitted by learned advocate Mr.Shah for defendants No.1 to 4 and as it appears on perusal of the plaint that there are no clear averments in the plaint that the plaintiff has always been ready and willing to perform the essential terms of the contract which she is required to perform. However, it is submitted by learned advocate Mr.Raval that the plaintiff has averred in the plaint that she was ready to purchase the suit land at Rs.95 lac and in her notice she has stated that she is ready and willing to perform her part of the contract to pay remaining amount and called upon the defendants to execute the sale deed, and therefore, it could be said that the plaintiff has complied with requisites as per Section 16(C) of the Specific Relief Act. However, the issue as to whether the plaintiff has complied with the provisions of Section 16(C) of the Specific Relief Act could be decided on evidence in the trial but at this stage the observations made by the Hon'ble Supreme Court in the context of provisions of Section 16(C) of the Specific Relief Act in paragraphs No.21 and 22 of the decision in the case of Padmakumari and others Vs. Dasayyan and others, reported in 2015 (8) SCC 695 need to be reported and they are as under:
"21. The second important legal contention raised by Defendants
12 to 15 is that the pleadings of the plaintiff are not in conformity with Order 6 Rule 3 CPC, Clause 3 of Form 47 in Appendix A, extracted hereinabove. A careful reading of Para 6 of the plaint makes it very clear that the averment as provided under Clause Page 10 of 12 HC-NIC Page 10 of 12 Created On Sun Aug 13 11:25:40 IST 2017 C/AO/263/2016 ORDER 3 is not in stricto sensu complied with by the plaintiff. The same is evidenced from the averments made at Para 6 of the plaint which reads thus:
"6. The plaintiff is ready and willing to perform his part of the contract by paying the balance of sale consideration of Rs 63,000 and take the sale deed in accordance with the provisions of the agreement deed dated 19-4-1992."
22. Upon a careful reading of the abovesaid paragraph we have to hold that the plaintiff has not complied with the legal requirement which is mandatory as provided under Section 16(c) of the Specific Relief Act. Section 16(c) fell for consideration and has been interpreted by this Court in a number of cases, referred to supra, upon which reliance has rightly been placed and the said decisions are applicable to the fact situation in support of Defendants 12 to 15 and, therefore, we have to hold that the concurrent finding of fact recorded by the High Court on Issue (I) is erroneous in law and is liable to be set aside."
12. To show her readiness and willingness to perform the contract, the plaintiff made statement before this Court through her advocate to deposit Rs.94 Lacs, however when the Court granted time to deposit such amount of Rs.94 Lacs, the plaintiff did not deposit such amount but she came forward with application to permit her to deposit Rs.40 Lacs and to give security of Rs.54 Lacs which was not accepted by the Court. Be that as it may, the Court finds that in the facts of the case and on available material, when the Court below has taken the view possible in the matter, this Court would not substitute its view even if another view is possible in exercise of powers under Order XLIII of the Code. From the impugned order, it does not appear that the learned Judge has either misdirected himself on any issue of law or has taken wrong approach while deciding on question of grant of interim injunction and, therefore, it cannot be said that the learned Judge has exercised his discretion either illegally or in a perverse way. In such view of the matter, the Court finds no interference is Page 11 of 12 HC-NIC Page 11 of 12 Created On Sun Aug 13 11:25:40 IST 2017 C/AO/263/2016 ORDER required in the impugned order by this Court in exercise of powers under Order XLIII of the Code. The Appeal and Civil Application No.7146 of 2016 are, therefore, required to be dismissed. They are accordingly dismissed.
13. As regards the Civil application No.12214 of 2016 is concerned which is filed for additional evidence by learned advocate Ms.Acharya on behalf of defendant No.5, the Court finds that since for taking decision on the merits of the Appeal, the Court did not require any other document, the Application is not entertained and stands disposed of accordingly leaving it open to the defendant no.5 to present the documents placed with application before the Court below if so permissible.
14. At this stage, learned advocate Mr.Raval requests to order for continuous of the statement made by learned advocate Mr.Shah for defendants No.1 to 4 to maintain status quo in respect of the suit land for a period of four weeks. Such request is opposed by learned advocate Mr.Shah. The Court finds that since the Court is confirming the view for not granting injunction, the request made by learned advocate Mr.Raval cannot be accepted.
(C.L.SONI, J.) Gupta* Page 12 of 12 HC-NIC Page 12 of 12 Created On Sun Aug 13 11:25:40 IST 2017