Madhya Pradesh High Court
Chandan Kumar vs Aakash on 4 April, 2025
Author: Pranay Verma
Bench: Pranay Verma
1 MP-5299-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 4 th OF APRIL, 2025
MISC. PETITION No. 5299 of 2024
CHANDAN KUMAR
Versus
AAKASH AND OTHERS
Appearance:
Shri Priyesh Ghosh, learned counsel for the petitioner.
Shri Satish Jain, learned counsel for respondent No.1.
ORDER
1. With the consent of learned counsel for the parties the matter is finally heard.
2. This petition under Article 227 of the Constitution of India has been preferred by the plaintiff/petitioner being aggrieved by the orders passed by the Courts below whereby his application under Order 39 Rule 1 and 2 of the CPC for issuance of temporary injunction restraining the defendant No.1 from alienating the suit property has been rejected.
3. As per the plaintiff, on 18.07.2022 defendant No.1 had entered into a written agreement with him for sale of the suit property for a total consideration of Rs.30,00,000/- upon payment of earnest money of Rs.25,00,000/-. The remaining amount of Rs.5,00,000/- was to be paid within a period of one year and thereafter the sale deed was to be executed. The agreement to sale was also got registered in the office of the Sub Registrar, Neemuch. In January, 2023 he requested defendant No.1 for execution of the sale deed in his favour but he Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 15-04-2025 18:40:23 2 MP-5299-2024 denied to do so and instead attempted to alienate the suit property in favour of third persons.
4. On such contentions the plaintiff has instituted an action before the trial Court for specific performance of contract dated 18.07.2022 and for permanent injunction restraining defendant No.1 from alienating the suit property in any manner. Along with the plaint he also filed an application under Order 39 Rule 1 and 2 of the CPC for issuance of temporary injunction restraining defendant No.1 from alienating the suit property or creating any third party interest with respect thereto. The application was contested by defendant No.1 by filing his reply to the same submitting that he had got involved in gambling business at the behest of plaintiff who stated that he has to recover a sum of Rs.10,00,000/- from him. The alleged agreement was got executed from him by plaintiff by force only towards the security for the said amount. He has not voluntarily entered into any agreement to sale with the plaintiff.
5. The Courts below have rejected plaintiff's application for issuance of temporary injunction by observing that possession of the suit property is still with defendant No.1. The amount which has been paid by plaintiff to defendant No.1 is contrary to the provisions of the Income Tax Act. There is no material produced by the plaintiff to show the source of the earnest money and that the defence of defendant No.1 at the present stage appears to be probable.
6. Learned counsel for the plaintiff has submitted that the Courts below have illegally rejected plaintiff's application for issuance of temporary injunction. The agreement to sale is a registered document hence ought to have been acted upon. Therein defendant No.1 has admitted receiving an amount of Rs.25,00,000/- by way of earnest money. The defence of defendant No.1 is not liable to be considered at the present stage. Only for the reason that possession has Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 15-04-2025 18:40:23 3 MP-5299-2024 not been delivered to plaintiff prayer for injunction restraining alienation could not have been rejected. The factum of execution of the agreement to sale has not been denied by defendant No.1. If the suit property is sold during pendency of the suit, it would create complications in the matter and would defeat the rights of plaintiff. While passing the impugned orders the Courts below have conducted a mini trial which was not permissible at this stage. It is hence submitted that the impugned orders be set aside and plaintiff's application for issuance of temporary injunction be allowed.
7. Per contra learned counsel for defendant No.1 has submitted that no error has been committed by the Courts below in rejecting plaintiff's application for issuance of temporary injunction. There is no proof as regards payment of Rs.25,00,000/- by plaintiff to defendant No.1. The plaintiff is a gambler and had got defendant No.1 involved in gambling and for securing the amount which he is allegedly demanding from defendant No.1 the document in question was got executed. The amount as stated to have been paid was not legally permissible to be paid. Mere recital in the agreement to sale cannot be said to be conclusive at this stage. Both the Courts below have passed concurrent orders which do not require any interference in view of which the petition deserves to be dismissed.
8. I have considered the submissions of the learned counsel for the parties and have perused the record.
9. In the agreement to sale dated 18.07.2022 though there is a recital that an amount of Rs.25,00,000/- has been paid by plaintiff to defendant No.1 in cash but no document has been produced by plaintiff to show either the source of such amount or the factum of such payment. Since the document recites payment having been made earlier in cash the plaintiff could have demonstrated from his Bank account or any other document that such amount was available with him and Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 15-04-2025 18:40:23 4 MP-5299-2024 has been withdrawn and paid by him to defendant No.1. The amount is quite a huge amount and is not normally expected to be kept in cash by any person. It is not the case where amount has been paid by plaintiff to defendant No.1 through the Bank or any other documented mode of transaction. The same being in cash it was imperative for plaintiff to demonstrate its availability and withdrawal which has not been done by him. Pertinently under the Income Tax Act an amount of Rs.20,000/- and above cannot be paid in cash. The amount in question is much more then that i.e. Rs.25,00,000/-.
10. The defendant No.1 has ever since the execution of the agreement been making complaints to various authorities as regards the stand taken by him that the same has been got executed from him by plaintiff illegal and only for securing the alleged amount of gambling. It is hence not a case that such defence has been taken by defendant No.1 for the first time in the suit. If major part of the sale consideration had already been paid by the plaintiff there was no reason for him not to have paid the remaining amount then itself and got the sale deed executed in his favour. Instead he chose not to pay the balance amount of Rs.5,00,000/- and to get the sale deed executed after a year. The same does not appear to be a natural conduct. If plaintiff was possessed of almost the entire funds of the sale consideration he could have very well paid the remaining amount also and got the sale deed executed.
11. The Courts below have considered the case of both the parties and have rejected plaintiff's application for issuance of temporary injunction. They were bound to give reasons in support of their conclusions hence it cannot be said that any mini trial has been conducted by them. The orders passed by them are within their jurisdiction and it cannot be said that in passing them jurisdiction has Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 15-04-2025 18:40:23 5 MP-5299-2024 been exercised illegally or perversely. The impugned orders hence are not liable to be interfered with on merits.
12. It may further be seen that interests of plaintiff are well protected by the provisions of Section 52 of the Transfer of Property Act which embodies the principle of lis pendence . If any alienation is made by defendant No.1 during pendency of the suit the same would obviously be subject to the final outcome of the suit and no rights of plaintiff would be defeated in case alienation is made by defendantNo.1.
13. It is however directed that in case defendant No.1 wishes to alienate the suit property during pendency of the suit then he would include a recital in the sale deed that the property being sold thereunder is a subject matter of this suit pending between the parties.
14. With the aforesaid modification in the impugned orders the petition stands disposed off.
(PRANAY VERMA) JUDGE ns Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 15-04-2025 18:40:23