Andhra Pradesh High Court - Amravati
Nalluri Sai Vasavi, vs Kolluri Nageswara Rao, on 13 September, 2022
Author: Kongara Vijaya Lakshmi
Bench: Kongara Vijaya Lakshmi
HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI
AND
HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
C.M.A. No.120 of 2022
Judgment: (Per Hon'ble Smt Justice Kongara Vijaya Lakshmi,J)
This CMA is filed, under Order XLIII Rule 1 of CPC, challenging
the order and decree dated 18.02.2022 passed in IA No.517 of 2020
in OS No.119 of 2020 on the file of I Additional District Judge,
Guntur, wherein temporary injunction was granted restraining the
appellant herein from alienating the petition schedule properties till
the disposal of the suit.
The appellant herein is the respondent in IA No.517 of 2020
and defendant in OS No.119 of 2020. The respondent herein is the
petitioner in the said IA and plaintiff in the said suit.
The parties are hereinafter referred to as they were arrayed in
the suit for the sake of convenience.
The plaintiff filed the above suit 'for specific performance of
contract of sale' dated 08.12.2018 and to direct the defendant to
execute a registered sale deed in respect of the plaint schedule
property or in the alternative to refund Rs.91,00,000/- with interest at
24% p.a., from the date of suit till the date of realization.
2
The case of the plaintiff as seen from the plaint is that the
defendant sold the plaint schedule property under a contract of sale
dated 08.12.2018 for a consideration of Rs.1.00 Crore and the
plaintiff paid an amount of Rs.67,00,000/- to the defendant towards
promissory notes debts due to the plaintiff by the defendant and the
promissory notes were cancelled. The plaintiff also paid an amount
of Rs.15,00,000/- towards the said sale. It was further averred that
the plaintiff has to pay the balance amount of Rs.18,00,000/- within
11 months and it is also stated that he paid further amounts on
subsequent dates and in all he paid an amount of Rs.91,00,000/- to
the defendant towards sale consideration and that he is always ready
and willing to perform his part of contract, but the defendant is not
ready and willing to perform his part of contract. A registered legal
notice was issued on 17.11.2020 and rejoinder on 03.12.2020 with
regard to typographical error. Hence, he prayed for specific
performance of contract of sale.
Written statement was filed by the defendant stating, inter
alia, that the signatures of the defendant are forged, there is no
consideration for the said agreement of sale, the defendant did not
execute any promissory note in favour of the plaintiff or any third
party and that the suit is bad for non-joinder of proper and necessary
parties.
3
In the said suit, plaintiff filed IA No.517 of 2020, under Order
XXXIX Rules 1 and 2 of CPC, seeking to grant ex parte ad-interim
injunction restraining the defendant and her men from alienating the
petition schedule property to third parties.
Counter affidavit is filed to the said IA by the defendant
denying the allegations made therein and reiterating the contents of
the written statement. It is stated in the counter affidavit that the
plaintiff failed to implead the person who is holding the registered
development agreement-cum-GPA and that the suit is liable to be
dismissed on the said ground. The agreement of sale is not
sufficiently stamped and not registered under the Indian Stamp Act
and the Registration Act, hence the same is not admissible in
evidence. There is no proof with regard to actual payment of the
alleged amount and any payment of more than Rs.2,00,000/- has to
be made either through cheque or demand draft or through RTGS or
through Bank or electronic transfer only, but there is no proof of such
payment and prayed to dismiss the IA.
The trial Court, after discussing the principles for grant of
temporary injunction, allowed the said IA granting temporary
injunction in favour of the plaintiff. At para 12 of the order, the trial
Court observed as follows.
4
"The petitioner from the recitals in Ex.P1,
averments in the plaint and legal notice has made
out a prima facie case in his favour. The
respondent is contending that there is no prima
facie case in favour of the petitioner. Simply
saying that there is no prima facie case is not
sufficient but the respondent has to explain as to
why there is no prima facie case in favour of the
petitioner which the respondent has not done in
this case. The petitioner is claiming that he has
paid huge amount of Rs.91,00,000/- under Ex.P1.
Therefore, there is balance of convenience in
favour of the petitioner, as much inconvenience
would be caused to the petitioner if the injunction
is not granted compared to the inconvenience
caused to the respondent in case of grant of
injunction. There is also irreparable injury that is
going to be caused to the petitioner if the
injunction is not granted for the reason that the
respondent has made her intention very clear in
the counter affidavit that she was intending to sell
the petition schedule property. As such, the
petitioner is entitled to grant of temporary
injunction till the disposal of the suit. This point
is answered in favour of the petitioner."
The above paragraph shows that the temporary injunction
order was passed basing on the assertion of the plaintiff that he has
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paid an amount of Rs.91,00,000/- coupled with the fact that in the
counter affidavit which was filed to the said IA the defendant has
stated that she is intending to sell the petition schedule property.
The said observation is based on para 8 of the counter to the said IA,
which reads as follows.
"I submit that mere filing of the suit for
specific performance based on a forged document
namely the agreement of sale dated 08.12.2018
even if alienated during the pendency of the suit it
will not cause loss to the petitioner/plaintiff in as
much as under the principles of doctrine of lis-
pendency, those sales would not be binding on
the petitioner/plaintiff and he can have the fruits
of the decree if really the petitioner/plaintiff
succeeds in the suit. Therefore, there is no
necessity for a specific order to be passed by this
Hon'ble Court restraining me from alienating the
suit schedule property. Therefore, the balance of
convenience is not in favour of the
petitioner/plaintiff. There is no prima facie case in
favour of the petitioner/plaintiff. The comparative
hardship that may be faced by the
petitioner/plaintiff is nil as against the hardship
that may be faced by me in alienating one of the
suit schedule property to meet my livelihood in as
much as my husband had deserted me and I have
to look after the welfare of my old age mother
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and the mentally ill-health son. Therefore, the
present petition sponsored by my husband as well
as the developer through the petitioner/plaintiff is
a bigger conspiracy against me to push me to the
wall, so as to pressurize me to come to terms.
Therefore, the present petition which is purely a
speculative is liable to be dismissed."
The contention of the learned counsel for the defendant before
the trial Court is that there is no proof of payment of the said amount
of Rs.91,00,000/-, but the trial Court observed that "whether the
agreement of sale is true, valid and binding contract or not and
whether the endorsements made in the said agreement are true and
valid can be decided only after a full-fledged trial". As seen from the
said observation, it appears that the endorsements made on the said
agreement with regard to payment was also taken into consideration
by the trial Court.
Learned counsel for the appellant/defendant Sri N. Aswani
Kumar vehemently contended and elaborately argued by taking this
Court to various averments made in the written statement and
counter to the IA and submitted that the IA ought to have been
dismissed. He submitted that there is absolutely no proof with regard
to the said payment of Rs.91,00,000/- and that the signatures of the
7
defendant were forged and that no prejudice would be caused to the
plaintiff in view of doctrine of lis pendens.
Sri N. Sai Phanindra Kumar, learned counsel appearing for the
respondent/plaintiff submits that all those issues would be gone into
by the trial Court after adducing evidence.
Learned counsel for the appellant/defendant has placed
reliance on the judgment of the Division Bench of this Court reported
in Bhimavarapu Nageswaramma v. Bommu Sivareddy1, and
submits that while granting temporary injunction it is the duty of the
Court to take into consideration the affidavit and relevant documents
before it records any finding. In the said judgment it was held that
non-consideration of the material documents on record on the point
in issue, vitiates the finding recorded by the Court below and
remanded the matter for fresh consideration by setting aside the
impugned order therein.
Learned counsel for the respondent/plaintiff filed a memo by
enclosing the copies of judgments relied upon by him. The first
judgment relied upon by him is in Yakkali Srinivasulu v. Shaik
Khasim2. The appellant in the said case contended that the
agreement of sale therein was cancelled and the advance amount
1
2022(2) ALD 1
2
(2022) 1 ALT 595
8
was forfeited and that the endorsement for extension of time is
forged and fabricated one and that he cannot be curtailed from
alienating the petition schedule property and he would suffer
irreparable loss if he is restrained from selling the property and that
no prejudice would be caused to the respondents therein in view of
Section 52 of the Transfer of Property Act and that the suit is barred
by limitation. The Division Bench of this Court held that the seeker of
the relief of temporary injunction should establish prima facie case,
balance of convenience and irreparable loss in the event of non-
granting of such relief and observed that "we find some force in the
arguments of the learned counsel for the respondents herein to keep
the property intact pending the suit. In so far as the arguments of
the learned Senior Counsel and the defence taken by the appellant
herein are concerned they are matters of evidence which can be gone
into during the course of trial in the main suit".
Learned counsel for the respondent/plaintiff also relied upon
the decision of the Division Bench of this Court reported in K. Ravi
Prasad Reddy v. G. Giridhar3, wherein the contention was
recorded as follows.
"The 1st defendant/appellant in
CMA.No.45/2021 filed objection/counter, denying
3
AIR 2022 AP 59: 2022 SCC Online AP 135
9
the averments of the petition and contending that
the plaintiff is falsely pleading that the respondent
is selling the property and that there is no
necessity for restraining the alienation of the
property as the plaint filed by the plaintiff is
registered and notice has been on the said
respondent. He further pleaded that in view of
specific provision of Section 52 of Transfer of
Property Act (for short "T.P.Act"), there is no
necessity for expressive order as provided in the
civil procedure code. Such a pre-emptive
restraining order would affect the right to property
conferred on the respondent, who will be well
within his right to sell the property to the
prospective buyers after informing and appraising
about the pendency of the suit."
And the observation of the Division Bench of this Court is as follows.
"29. Now coming to the second point, the
impugned judgment shows that the learned IV
Additional District Judge, Kurnool, on
consideration of the pleadings of the parties and
the material before it, viz., Ex.P1-agreement of
sale and receipt of a sum of Rs.1,00,000/-, dated
11.03.2014 and subsequent receipts of
Rs.2,00,000/- on 30.06.2014, Rs.5,00,000/- on
05.04.2016 and Rs.1,00,000/- on 07.04.2016,
came to the conclusion that the plaintiff/1st
respondent had established prima facie case in his
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favour. The balance of convenience was also
found in favour of the plaintiff who obtained the
agreement of sale by paying amounts mentioned
above, in the years 2014 and 2016. Further, the
learned court below considered that the 1st
defendant admitted to have executed the sale
deed in favour of defendants Nos.2 and 3 during
the pendency of the suit and those defendants
Nos.2 and 3 had also executed sale deed in favour
of third persons with respect to part of the suit
property, and came to the conclusion that if such
act is repeated in future it would lead to
multiplicity of proceedings and would also cause
irreparable loss to the plaintiff, with respect to the
decree of specific performance of contract.
.............
33. The Wander Ltd. v. Antox India P.Ltd.
(1990 (Supp) SCC 727) fell for consideration in
Gujarat Bottling Co.Ltd. v. Coca Cola Co. (1995) 5
SCC 545) wherein the Hon'ble Supreme Court
observed that under Order 39 CPC the jurisdiction
of the court to interfere with an order of
interlocutory or temporary injunction is purely
equitable and, therefore, the court, on being
approached, will, apart from other considerations,
also look to the conduct of the party invoking the
jurisdiction of the Court, and may refuse to
interfere unless his conduct was free from blame.
Since the relief is wholly equitable in nature, the
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party invoking the jurisdiction of the court has to
show that he himself was not at fault and that he
himself was not responsible for bringing about the
state of things complained of and that he was not
unfair or inequitable in his dealings with the party
against whom he was seeking relief. It is relevant
to reproduce paragraph No.47 as under:
"47. In this context, it would be
relevant to mention that in the instant case
GBC had approached the High Court for the
injunction order, granted earlier, to be
vacated. Under Order 39 of the Code of Civil
Procedure, jurisdiction of the Court to
interfere with an order of interlocutory or
temporary injunction is purely equitable and,
therefore, the Court, on being approached,
will, apart from other considerations, also
look to the conduct of the party invoking the
jurisdiction of the Court, and may refuse to
interfere unless his conduct was free from
blame. Since the relief is wholly equitable in
nature, the party invoking the jurisdiction of
the Court has to show that he himself was
not at fault and that he himself was not
responsible for bringing about the state of
things complained of and that he was not
unfair or inequitable in his dealings with the
party against whom he was seeking relief.
His conduct should be fair and honest. These
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considerations will arise not only in respect
of the person who seeks an order of
injunction under Order 39 Rule 1 or Rule 2 of
the Code of Civil Procedure, but also in
respect of the party approaching the Court
for vacating the ad interim or temporary
injunction order already granted in the
pending suit or proceedings".
..............
35. We therefore hold on point No.1 in
paragraph-14 that Section 52 of the Transfer of
Property Act does not operate as a bar to the grant
of temporary injunction under Order 39 Rules 1 & 2
CPC, in the discretion of the trial court, on fulfilment
of pre-conditions for grant of temporary injunction,
which are settled in law, restraining alienations as
well. On point No.2, we hold that the order granting
temporary injunction does not suffer from any error
of law or jurisdiction and calls for no interference in
the exercise of our appellate jurisdiction."
He also relied upon the decision reported in Saketa Vaksana
LLP v. Kaukutla Sarala4, wherein the Hon'ble Supreme Court held
as follows.
4
(2020) 11 SCC 773
13
"22. We find that there are seriously disputed
questions of fact involved in this matter. The first
issue is whether possession of the suit property was
at all handed over to the Appellant - Developer or
not. On the one hand, the Appellant - developer
relied on Clause 7 of the Agreement dated
17.10.2017 to show that possession of the suit
property was handed over to them at the time of
execution of the Agreement. On the other hand, the
Respondents submitted that it was only symbolic
possession which was given to the Appellant -
Developer, while physical possession remained with
the Respondent - Landowners. The Respondents
averred that they are growing vegetables, and have
a guest house, servant quarters and a shed on the
suit property.
23. The second issue is whether part
consideration for the suit property was paid by the
Appellant - Developer to the Respondent -
Landowners or not. The Appellant - Developer
submitted that it had paid a total of
Rs.17,25,00,000/ to the Respondents, and only
Rs.3,72,03,750/ was the balance payable for the suit
property. The Respondents however, submitted that
the Appellant - Developer had paid only
Rs.14,25,00,000/, and was still liable to pay
Rs.10,73,95,000/ towards the balance sale
consideration for the entire suit property, as well as
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some part of the land already transferred in favour
of the Appellant - Developer.
.............
25. Since both the issues raised are seriously
disputed which will be decided during the course of
trial, we are of the view that the Orders dated
14.08.2019 passed by the division bench of the High
Court do not warrant any interference. The High
Court has already granted a Temporary Injunction
restraining the Respondents from alienating or
creating third party rights in the suit property till the
disposal of the Suit. The interest of the Appellant -
Developer has been sufficiently protected with
respect to ownership of the suit property."
In the light of the said judgments referred to above, the issues
as to whether the plaintiff has in fact paid the said amount of
Rs.91,00,000/- to the defendant or not, whether there is any proof of
such payment or not, whether the signatures of the defendant on the
said agreement are forged or not, whether the agreement is
sufficiently stamped and registered or not and whether the same is
admissible in evidence or not and whether proper and necessary
parties are impleaded or not can be gone into at the time of trial. As
seen from the counter affidavit filed in the said IA, it is categorically
stated by the defendant that grant of injunction restraining alienation
15
would create hardship to her as she has to take care of her mother
and son. When such is the stand of the defendant, the balance of
convenience and irreparable injury would warrant an order of
temporary injunction. Apart from that, the plaintiff has also shown
the prima facie case, balance of convenience and irreparable injury by
filing agreement of sale dated 08.12.2018 and the copy of legal
notice issued.
Rule 1 of Order XXXIX of the Code of Civil Procedure, 1908,
which deals with the cases in which temporary injunction may be
granted, reads as follows.
"Order-XXXIX, Rule-1. Cases in which
temporary injunction may be granted.- Where in
any Suit it is proved by affidavit or otherwise--
(a) that any property in dispute in a suit is in
danger of being wasted, damaged or alienated by any
party to the suit, or wrongfully sold in execution of a
decree, or
(b) that the defendant threatens, or intends, to
remove or dispose of his property with a view to
defrauding his creditors,
(c) that the defendant threatens to dispossess
the plaintiff or otherwise cause injury to the plaintiff
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in relation to any property in dispute in the suit, the
court may by Order grant a temporary injunction to
restrain such act, or make such other Order for the
purpose of staying and preventing the wasting,
damaging, alienation, sale, removal or disposition of
the property or dispossession of the plaintiff, or
otherwise causing injury to the plaintiff in relation to
any property in dispute in the suit as the court thinks
fit, until the disposal of the suit or until further
orders."
As seen from the above, it is clear that if any property which is
in dispute in a suit is in danger of being wasted, damaged or
alienated by any party to the suit, or if the defendant threatens or
intends to dispose of the property the Court may grant temporary
injunction.
In view of the facts and circumstances of the case, we see no
grounds to interfere with the impugned order dated 18.02.2022
passed by the learned I Additional District Judge, Guntur in IA No.517
of 2020 in OS No.119 of 2020.
Accordingly, the CMA is dismissed. However, the trial Court is
directed to dispose of the main suit itself in accordance with law
within a period of six (6) months from the date of receipt of a copy of
this order. There shall be no order as to costs.
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As a sequel thereto, the miscellaneous applications, if any,
pending in this CMA shall stand closed.
_____________________________
KONGARA VIJAYA LAKSHMI, J.
_____________________________ DUPPALA VENKATA RAMANA, J.
Date: 13th September 2022 Nsr 18 HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI AND HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA C.M.A. No.120 of 2022 Date: 13th September 2022