Karnataka High Court
Sri.S.Abhiramaiah vs Smt.Saroj Bagaria on 16 January, 2023
Author: Ravi V. Hosmani
Bench: Ravi V. Hosmani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
MISCELLANEOUS FIRST APPEAL NO.6210 OF 2022 (CPC)
BETWEEN:
SRI. S. ABHIRAMAIAH,
S/O B. SRINIVASAPPA,
AGED ABOUT 48 YEARS,
R/A NO.3/224, KALINAYAKANAPALLI,
PACHAPANATTI, KRISHNAGIRI,
TAMILNADU - 635 113.
...APPELLANT
[BY SRI. K.SUMAN, SR. COUNSEL FOR
SRI. PHANIRAJ KASHYAP, ADVOCATE (PH)]
AND:
1. SMT. SAROJ BAGARIA,
D/O LATE NANDARAM AGARWAL,
AGED ABOUT 71 YEARS,
RESIDING AT NO.16/5,
BINNY CRESCENT BENSON TOWN,
BANGALORE - 560 046.
2. M/s. SHREKARA INFRASTRUCTURES,
NO.836, III MAIN, E-BLOCK, II STAGE,
RAJAJINAGAR, BANGALORE - 560 010.
REP. BY V. ABHISHEK.
...RESPONDENTS
[BY SRI. G.KRISHNA MURTHY, SR. COUNSEL FOR
SRI. BHARGAVA D. BHAT, ADVOCATE FOR C/R2;
SRI. AJIT P.B., ADVOCATE FOR R1 (PH)]
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THIS MISCELLANEOUS FIRST APPEAL FILED UNDER ORDER
43 RULE 1(r) OF CPC., AGAINST THE ORDER DATED 28.07.2022
PASSED ON I.A.NO.1 IN O.S.NO.34/2022 ON THE FILE OF THE IV
ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, REJECTING I.A.NO.1 FILED UNDER ORDER 39 RULES
1 AND 2 OF CPC.,
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 29.11.2022, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING AT DHARWAD BENCH THROUGH VIDEO
CONFERENCE:
JUDGMENT
Challenging impugned order dated 28.07.2022 passed by IV Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, in O.S.No.34/2022 on I.A.no.1 filed under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, 1908 (for brevity 'CPC'), this appeal is filed.
2. Appellant herein was plaintiff, while respondent no.1 herein was defendant no.1 and respondent no.2 herein is proposed defendant no.2, hereinafter be referred to as such. 3
3. O.S.no.34/2022 was filed seeking for:
a. Direction to defendant not to alienate suit schedule property in name of third parties;
aa. for specific performance of agreement dated 26.09.2018 directing defendant to execute sale deed in terms of agreement;
ab. In event of defendant failing to execute sale deed, to get executed sale deed on behalf of defendant in favour of plaintiff at cost of defendant;
ac. For declaration that registered sale deed dated 24.12.2021 executed by defendant in favour of proposed defendant no.2 - M/s. Shrekara Infrastructures as unlawful etc.
4. Agricultural land bearing Sy.no.87/2A2 (87/2) situated at Addevishwanathapura Village, Hesaragatta Hobli, Bangalore North Taluk, measuring 03 acres 01 guntas was subject matter of suit (hereinafter referred to as 'suit property' for short).
5. In said suit, plaintiff filed I.A.no.1 under Order XXXIX Rule 1 and 2 of CPC, against defendant for temporary injunction restraining defendant and all persons claiming through her, namely M/s. Shrekara Infrastructures, 4 represented by its partners from meddling in any manner with suit schedule property such as developmental activities, sale, encumbrances etc., that too in respect of suit property during pendency of appeal.
6. In affidavit filed in support of said application, it was stated that during pendency of proceedings between plaintiff in respect of suit property and though plaintiff was all along ready and willing to pay balance sale consideration, defendant no.1 in utter disrespect to Court high handedly executed registered sale deed on 24.12.2021 to proposed defendant no.2 - M/s. Shrekara Infrastructures in order to frustrate plaintiff's right to obtain decree for specific performance and alleging that proposed defendant no.2 was likely to meddle with suit property, take up developmental activist, sale proceedings and creating charge etc.
7. It was further stated that said temporary injunction was required to avoid multiplicity of proceedings and for proper adjudication of plaintiff's right. It was stated that 5 plaintiff had good case on merits and even balance of convenience and irreparable loss and injury were in favour of plaintiff.
8. Said application was opposed by filing objection. It was stated that reliefs prayed in application were not maintainable as plaintiff was seeking several relief in one application, which was opposed to Karnataka Civil Rules of Practice. It was further stated that prior to filing instant suit plaintiff had earlier filed O.S.no.837/2019, wherein he had sought permanent injunction against defendant no.1 from alienating suit property. In said suit, he had filed application under Order XXXIX Rule 1 and 2 of CPC, which after hearing, Principal Civil Judge dismissed application on 06.09.2019, holding plaintiff had failed to make out prima facie case. It was further stated that said suit was transferred due to pecuniary jurisdiction and present suit was in continuation of said proceedings. Therefore, plaintiff could not maintain present application after dismissal of application for same relief earlier. Plaintiff's assertion of being ever ready and 6 willing to perform his part and in utter disregard of plaintiff's right, defendant no.1 had sold suit property was denied.
9. It was further stated that plaintiff who had entered into agreement to sell for total sale consideration of Rupees Seven Crores, but had paid mere Rupees Five Lakhs as advance and agreed to pay balance amount within six months.
Defendant no.1, who was senior citizen had decided to sell suit property only because of her urgent needs for funds. But, plaintiff's recalcitrant attitude defeated very purpose as strict timeline specified was grossly violated. Notwithstanding same, plaintiff got issued legal notice on 10.01.2019, calling upon defendant no.1 to execute registered sale deed. In her reply dated 19.02.2019, defendant no.1 in good faith indicated willingness to complete transaction provided plaintiff adhered to strict timeline and completed transaction by getting sale deed registered after paying balance sale consideration of Rupees Six Crores Ninety Five Lakhs within three months after receipt of reply.
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10. Despite above reply, plaintiff did not change his stance and insisted upon execution of special power of attorney by issuing another notice dated 06.03.2019. Constrained by such acts, defendant no.1 got issued notice of termination of agreement of sale on 04.04.2019. Since agreement of sale was terminated, plaintiff who had not even paid one percent of total sale consideration as advance had no right to prevent defendant no.1 from transacting with her own property. To meet her urgent needs that too after rejection of I.A. filed by plaintiff in O.S.no.837/2019, defendant no.1 got executed registered sale deed on 24.12.2021 in favour of proposed defendant no.2, which was justified. It was alleged that suit filed by plaintiff was only with intention to harass defendant and extract money. Defendant no.1 also denied plaintiff establishing prima facie case or balance of convenience and irreparable loss and therefore, sought for rejection.
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11. On rival contention, trial Court framed following points for its consideration:
1. Whether plaintiff has made out grounds to get temporary injunction by restraining the defendants from taking up development activities or alienate the suit schedule property?
2. Who has balance of convenience?
3. Who will be put to hardship if temporary injunction is granted?
12. After answering point no.1 in negative, points no.2 and 3 in favour of defendant no.2 proceed to pass impugned order rejecting application with costs.
13. Aggrieved thereby, plaintiff is in appeal.
14. Sri. K. Suman, learned Senior Counsel appearing for Sri. Phaniraj Kashyap, Advocate for plaintiff - appellant submitted that impugned order passed by trial Court was opposed to settled principles governing grant of injunction. Learned Senior Counsel further contended contrary to settled law that it was for purchaser to establish that he was bonafide purchaser. Therefore, reason assigned while rejecting 9 application for temporary injunction that plaintiff failed to establish that proposed defendant no.2 was not bonafide purchaser for value would be illegal. It was also submitted observation of trial Court that plaintiff had delayed in approaching Court was contrary to material on record as plaintiff had earlier filed O.S.no.837/2019, much prior to execution of sale deed in favour of proposed defendant no.2 and wherein defendant no.1 had entered appearance. It was submitted insofar as delay in seeking relief of specific performance that it was settled law, amendment of plaint once allowed would relate back to date of suit and hence, reasoning of trial Court was not justified.
15. It was further submitted that in a suit for specific performance and for permanent injunction, plaintiff filed I.A.no.1 under Order XXXIX Rule 1 and 2 of CPC, for restraining defendants from carrying out development activities and alienating suit property. It was submitted that on 26.09.2018, defendant no.1 executed an agreement of sale in respect of 03 acres 01 guntas of suit property for total sale 10 consideration of Rupees Seven Crores, after receipt of advance sale consideration of Rupees Five Lakhs. As per agreed terms and conditions, sale transaction was to be completed within six months. Subsequently, in a meeting with plaintiff, defendant no.1 agreed to execute registered sale agreement by receiving balance amount of Rupees Sixty Five Lakhs and after conversion of land, accept balance sale consideration of Rupees Six Crores Thirty Lakhs and execute registered sale deed. On 10.01.2019, plaintiff was constrained to issue legal notice calling upon defendant no.1 to execute registered sale agreement as agreed. But, he got issued untenable reply calling upon plaintiff to complete transaction as per agreement of sale within three months, by paying entire balance sale consideration of Rupees Six Crores Ninety Five Lakhs. To said reply, plaintiff issued rejoinder stating that demised property was agricultural land and had to be got converted, for which General Power of Attorney of defendant no.1 was required and plaintiff had to obtain clearances from several authorities such as, BDA, BWSSB, BESCOM, KIADB etc. It was also stated that 11 plaintiff was ready and willing to pay Rupees Sixty Five Lakhs, if defendant no.1 executed registered agreement of sale. Instead of responding to said offer, on 04.04.2019, defendant no.1 got issued notice of termination of agreement of sale. On said cause of action, plaintiff filed suit on 14.06.2019. It was submitted that though initially plaintiff may not have sought for specific performance of agreement of sale dated 26.09.2018 and also for declaration against sale deed executed by defendant no.1 to defendant no.2, since plaintiff's application for amendment of plaint was allowed, said amendment would relate back to date of filing suit.
16. It was further submitted that proposed defendant no.2 purchased suit property in interregnum after O.S.no.837/2019, filed against defendant no.1 was returned on ground of lack of pecuniary jurisdiction for re-presentation before Court of Senior Civil Judge, Bangalore Rural District by 06.01.2022. Even before date of re-presentation of plaint, proposed defendant no.2 purchased suit property. Therefore, even without said proposed defendant no.2 establishing that 12 he was bonafide purchaser, considering irreparable loss and injury being caused to said defendant was not justified.
17. On above grounds, learned Senior Counsel sought for setting aside of impugned order and for grant of injunction as sought for.
18. On other hand, Sri. G. Krishna Murthy, learned Senior Counsel appearing for Sri. Bhargava D. Bhat, Advocate for proposed defendant no.2 submitted that during December, 2021, defendant no.1 approached proposed defendant no.2 stating that she was urgently in need of funds to meet family exigencies. After negotiation and verification of her title, he purchased suit property under registered sale deed dated 24.12.2021 for total sale consideration of Rupees Four Crores Fifty Five Lakhs. In pursuance of same, vacant physical possession was handed over. As such, he was in possession and enjoyment of suit property. It was submitted that proposed defendant no.2 was bonafide purchaser in good faith. Therefore, as per Section 19(b) of Specific Relief Act, 13 plaintiff could not seek specific performance against proposed defendant no.2. No material was placed before trial Court to substantiate that proposed defendant no.2 was aware of purported agreement of sale between plaintiff and defendant no.1. Under such circumstances, as plaintiff could not specifically enforce agreement of sale against proposed defendant no.2, even ancillary relief of injunction could not be granted.
19. It was further submitted that proposed defendant no.2 had got Katha transferred in his name and paid taxes and charges to concerned authorities. Since he was in business of developing real estate, on 20.04.2022, he obtained permission for developing residential layout, and also got approval for formation of residential layout on 29.09.2022. Therefore, plaintiff failed to establish either prima facie case or balance of convenience and also irreparable loss and injury.
20. Learned Senior Counsel further submitted that plaintiff had suppressed fact that he had originally filed 14 O.S.no.837/2019 before Principal Civil Judge, Bangalore Rural District, which was a bare suit for injunction filed against defendant no.1 from alienating suit property even after defendant no.1 had terminated agreement of sale deed dated 26.09.2018. Plaintiff had consciously not sought relief of specific performance. In said suit, he had filed I.A. no.1 under Order XXXIX Rule 1 and 2 of CPC to restrain defendant no.1 from alienating suit property. After hearing, learned Trial Judge dismissed said application on 06.09.2018 after recording finding that plaintiff had failed to make out prima facie case. Said order was currently under challenge in M.A.no.85/2019 before II Additional Senior Civil Judge, Bangalore Rural District. Even pendency of said appeal was also suppressed.
21. It was further submitted that after rejection of I.A.no.1, plaintiff filed application to amend plaint in O.S.no.837/2019 to include relief of specific performance of agreement of sale and for declaration against sale deed in favour of proposed defendant no.2. In view of allowing of said 15 application, relief sought exceeded jurisdiction of Civil Court. Therefore, on 06.12.2021, plaint was returned for being re- presented before Senior Civil Judge. Upon such re- presentation, it was registered as O.S.no.34/2022. By misusing above circumstances, plaintiff had once again filed I.A.no.1 seeking for dual prayers and thereafter restricting it to similar prayer as sought in I.A.no.1 filed in O.S.no.837/2019. Since O.S.no.34/2022 was continuation of O.S.no.837/2019, present application was barred by principles of res judicata, by relying upon decision of Hon'ble Supreme Court in Cotton Corporation of India v/s United Industrial Bank, reported in AIR 1983 SC 1272.
22. Learned Senior Counsel further submitted that as per agreement of sale dated 26.09.2018, time fixed for completion of transaction was six months. Even then, when plaintiff got issued legal notice on 10.01.2019, defendant no.1 in reply had clearly stated that she was ready to complete transaction and called upon plaintiff to do needful within three months. Plaintiff failed to take advantage of even such 16 extension of time. Consequently, defendant no.1 terminated agreement of sale dated 26.09.2018. In view of termination of agreement of sale, without seeking for declaration about termination, suit was not maintainable.
23. Even though plaintiff sought to substantiate readiness and willingness by pleading that he had obtained loan of Rupees Four Crores Sixty Eight Lakhs, no document was produced to support such contention.
24. It was submitted that whether clause 3 of agreement of sale dated 26.09.2018 was an agreement of sale by itself or was an agreement to enter into agreement of sale would also require to be considered. Even as per plaintiff, transaction was to be completed in stages wherein plaintiff - purchaser was required to pay Rupees Seventy Lakhs and to get registered agreement of sale executed. Since no further term provided for execution of registered sale deed, it was only an agreement to enter into another agreement. Therefore, as per decisions of Hon'ble Supreme Court in case 17 of Speech and Software Technologies Pvt. Ltd. v/s Neos Interactive Ltd., reported in (2009) 1 SCC 475, and in Randhir Singh Chandok v/s Vipin Bansal and Anr., reported in 2006 SC OnLine Delhi 1123, had held that agreement to enter into agreement was not specifically enforceable.
25. Relying upon ratio in J.P. Builders v/s A. Ramadas Rao, reported in (2011) 1 SCC 429, it was submitted that readiness and willingness to perform his part of contract should be established by plaintiff throughout relevant point of time. It was further submitted that person seeking benefit of specific performance of contract must maintain blemish less conduct. It was submitted that by suppressing filing of earlier suit and rejection of similar application earlier conduct of plaintiff was not above board and therefore, not entitled for any relief, by relying upon ratio in Aniglase Yohannan v/s Ramlatha and Ors., reported in (2005) 7 SCC 534.
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26. Reliance was also placed on decision of Hon'ble Supreme Court in Skyline Education Institute v/s S.L. Vaswani and Anr., reported (2010) 2 SCC 142 and on decision of this Court in Lalithakshi A. v/s Sadashivappa Basappa Patil and Anr., reported (1983) 2 KLJ 289, limits of exercise of jurisdiction by first appellate Court in appeal against discretionary orders. It was further submitted that plaintiff seeking temporary injunction in suit for specific performance was required to establish strong prima facie case based on undisputed facts.
27. Referring to decisions of Hon'ble Supreme Court in Dalpat Kumar v/s Prahlad Singh, reported in (1992) 1 SCC 719 and Gujarat Bottling Company Ltd. v/s Coca Cola Co., reported in AIR 1995 SC 2372, it was submitted that while considering application for grant of injunction, Courts were required to examine amount of substantial mischief or injury likely to be caused to parties, if injunction is refused and compare it with that likely to be caused to other side if injunction is granted. It was submitted that while 19 exercising such discretion trial Court found that proposed defendant no.2, who had purchased suit property for Rupees Four Crores and Fifty Five Lakhs would suffer greater hardship than plaintiff who had merely paid Rupees Five Lakhs as advance towards total sale consideration of Rupees Seven Crores. And as exercise of discretion by trial Court was in terms of legal principles, no interference was called for and sought for dismissal of appeal.
28. Heard learned Senior counsel, perused impugned order and record.
29. From above submission, it is not in dispute that O.S.no.34/2022 was filed after O.S.no.837/2019 filed by plaintiff against defendant no.1 seeking for injunction against non-alienation before Civil Court, which came to be returned for re-presentation before Court of Senior Civil Judge on account of increase in valuation of suit reliefs after amendment of plaint adding prayer for specific performance of agreement of sale. It is also not in dispute that plaintiff's 20 application for temporary injunction restraining alienation of suit property, was rejected by order dated 06.09.2018 in O.S.no.837/2019 and thereafter plaintiff had filed application for amendment of plaint.
30. While it is contended by plaintiff that after re-presentation of plaint, suit was to be considered afresh and therefore, I.A.no.1 was tenable before trial Court, and as agreement of sale in favour of plaintiff was earlier to sale deed executed by defendant no.1 in favour of proposed defendant no.2. It is further case of plaintiff that since proposed defendant no.2 was a real estate developer, who was likely to form layout thereby change nature of suit property and thereafter, alienate it in favour of third parties, which would frustrate appropriate relief being granted to plaintiff and therefore, trial Court was in error in denying temporary injunction; it is contention of defendants that, very intention of defendant no.1 while executing agreement of sale on 26.09.2018 was her urgent requirement of funds. Therefore, there was clear understanding between contracting parties 21 regarding time within which transaction was to be completed. However, plaintiff failed to adhere to such stipulations. Even bonafide offer of defendant no.1 to complete transaction within three months after receipt of reply dated 19.02.2019, was not complied.
31. While passing impugned order, trial Court observed that plaintiff had sought relief of specific performance belatedly that too after cancellation of agreement of sale and failed to establish that proposed defendant no.2 was not bonafide purchaser. Further reason assigned for refusing injunction was that doctrine of lis pendens would protect plaintiff's interest. Therefore, it held plaintiff failed to establish prima facie case. Further, on ground that plaintiff had paid meager amount of Rupees Five Lakhs as token advance, it held plaintiff failed to establish balance of convenience and hardship.
32. From above submission, point that arises for consideration is:
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"Whether impugned order passed by trial Court rejecting I.A.no.1 filed by plaintiff under Order XXXIX Rule 1 and 2 of CPC for temporary injunction to restrain defendants from alienating suit property, was justified?"
33. In a suit for specific performance of agreement of sale, firstly plaintiff is required to prima facie establish due execution of agreement of sale apart, as well as enforceability of same. From rival contention, there does not appear to be serious dispute about execution of agreement on 26.09.2018. However, whether said agreement is an agreement of sale or an agreement to enter into agreement is required to be examined.
34. Clauses 1 to 3 of agreement dated 26.09.2018 read as follows:
1. The total sale consideration of the schedule property is Rs.7,00,00,000/- (Rupees Seven Crores only).
2. The Purchaser has paid an advance of sale consideration of Rs.5,00,000/- (Rupees Five Lakhs only) to the Seller in cheque bearing No.511233, drawn on M/s Canara Bank, Agriculture Finance Unit, Basavanagudi Branch, Bangalore and the Seller acknowledges receipt of the said advance amount herewith.23
3. The Purchaser shall complete the sale transaction within 6 Months after entering to Register Agreement of Sale. The Seller is paying Rs.65,00,000/- at the time of Register Agreement of Sale.
35. On perusal of above, there is indication about parties entering into agreement of sale in respect of suit property. Total sale consideration stipulated is Rupees Seven Crores and Rupees Five Lakhs was paid as advance. From clause 3, time for completion of sale transaction is mentioned as Six months after entering into registered agreement of sale. It is also mentioned that seller would pay Rupees Sixty Five Lakhs at time of registration of agreement of sale. But, there is no time stipulation or time limit for execution/registration of agreement of sale. Hence, what was intention of parties at time of execution of agreement dated 26.09.2018, would require recording of evidence.
36. Though reasons assigned by trial Court for refusing injunction namely delayed filing of suit for specific performance and failure of plaintiff to establish that proposed 24 defendant no.2 was not a bonafide purchaser would not be justifiable, they would however be factors that could be taken into account insofar as conduct of plaintiff, which would be a valid consideration.
37. However, observation of trial Court that plaintiff had filed suit after cancellation of agreement and sale of suit property in favour of proposed defendant no.2 would also be a valid consideration, as plaintiff has not sought any declaration about validity of cancellation of agreement by defendant no.1. Insofar as balance of convenience and hardship, fact that plaintiff had paid meager advance amount would be a valid consideration.
38. Indeed, manner of reasoning by trial Court may be argued as falling short, that by itself would not be justifiable reason to interfere, especially in an appeal against discretionary orders. In view of law laid down by this Court in Lalithakshi and by Hon'ble Supreme Court in Skyline Education Institute's case (supra), scope for interference 25 would be extremely limited. It is further held in Mohd. Mehatab Khan v/s Kushbukhan, reported in (2013) 9 SCC 221, scope for interference would be limited to examining whether impugned order was wholly untenable or perverse. It was further held that even if view taken by trial Court was one of possible views, there could be no interference.
39. Trial Court while considering application has weighed circumstances of both parties which would be in compliance of ratio in Dalpat Kumar and Gujarat Bottling Co. Ltd., (supra). Fact that plaintiff had paid meager advance amount and had not initially filed suit for specific performance, would be considerations to be taken into account while assessing conduct as per ratio in Aniglase Yohannan's case (supra).
40. Whether agreement dated 26.09.2018 is a mere agreement to enter into agreement and therefore not enforceable or it is an agreement of sale and plaintiff was 26 ready and willing to perform his part of contract would require recording of evidence and trial.
41. Hon'ble Supreme Court in Ramesh Vajabhai Rabari v/s Pratiksha Real Estate (P) Ltd., reported in (2014) 12 SCC 190, under similar circumstances suit for specific performance of agreement being filed after its termination and seller executing sale deed in favour of third party, held as follows:
"11. It is further clear that the suit which the petitioner has filed against termination of his agreement, is yet to record a finding in favour of the petitioner that the termination of agreement was bad in the eye of the law and the decree of specific performance which he has sought by way of relief in the suit is clearly an eventuality. In that view of the matter Respondent 1 who is claiming the property in question through V.B. Patel and Co. at least is at an advantage to the extent that V.B. Patel and Co. has been able to prima facie establish that an agreement of sale had been executed in his favour by the erstwhile deceased owner Edmond D'Mello and possession also was delivered to him in pursuance thereof, he also adduced evidence in support of his plea regarding his possession on the same for the last 30 years.
12. The petitioner in any case has neither established his prima facie title to the suit property as the agreement of sale stands 27 cancelled and a decree of specific performance is yet to be passed in his favour, nor is he in possession of the property in spite of the development agreement in his favour who has not taken any steps to develop the property from 2005 to 2007 due to which the development agreement itself was terminated. The petitioner therefore cannot be conferred the benefit of an order of injunction in his favour in absence of any ingredient which can be held to be the determining factor for grant of an order of injunction. Consideration for awarding an order of injunction in favour of a party claiming it, is too well settled to be reiterated or discussed herein; suffice it to say that the three basic ingredients while considering an application for grant of injunction which are establishment of prima facie case, actual physical possession of the property in question and last but not the least balance of convenience and hardship are the three determining factors to claim an order of temporary injunction in the pending suit. The petitioner although failed to prove any of the three prime factors to claim injunction succeeded in obtaining an order of temporary injunction which the Division Bench of the High Court has reversed and rightly so as the petitioner obtained a development agreement from some of the successors of Edmond D'Mello which however was also terminated apart from the fact that the original owner Edmond D'Mello had already executed an agreement of sale in favour of V.B. Patel and Co. to whom the possession was also delivered and Respondent 1 Pratiksha has obtained an agreement in its favour from V.
13. However, the decree of specific performance as already stated is yet to be passed in favour of the petitioner whereas 28 Respondent 1 is claiming through V in whose favour the erstwhile owner Edmond D'Mello had executed the agreement of sale in pursuance of which possession was also delivered 30 years ago. The petitioner having entered into an agreement of sale 30 years later from some of the co-sharers which agreement too was terminated on 2-4-2007 obviously cannot be granted an order of injunction restraining Respondent 1 from claiming the property through V which prima facie not only has got interest in the property but also actual physical possession of the same. On the contrary, the petitioner as of now has neither any semblance of title nor has possession on the property nor prima facie case nor balance of convenience in his favour as he is yet to take possession and develop the property.
14. In view of these existing facts and circumstances of the matter, we are of the view that the learned Single Judge was not justified in granting an order of injunction in favour of the petitioner and the same has rightly been reversed by the Division Bench of the High Court by assigning valid reasons. We, thus find no merit in these special leave petitions to interfere with the impugned judgment and order [Pratiksha Real Estate (P) Ltd. v. Ramesh Vajabhai Rabari, Appeal No. 683 of 2012, decided on 18-6-2013 (Bom)] . Accordingly, they are dismissed."
42. Admittedly, plaintiff is not in possession of suit property and as observed above, is yet to prove nature of agreement and his entitlement for relief. Under circumstances, rejection of application 29 for injunction does not call for interference. Point for consideration is thus answered in negative.
43. Consequently, following:
ORDER Appeal is dismissed.
Sd/-
JUDGE GRD