Gujarat High Court
Ramnikbhai Vajubhai Kyada vs Bhupatbhai Lavjibhai Thumar on 14 June, 2013
Author: S.H.Vora
Bench: S.H.Vora
RAMNIKBHAI VAJUBHAI KYADA....Appellant(s)V/SBHUPATBHAI LAVJIBHAI THUMAR C/AO/288/2012 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER NO. 288 of 2012 With CIVIL APPLICATION NO. 8722 of 2012 In APPEAL FROM ORDER NO. 288 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.H.VORA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
YES 2 To be referred to the Reporter or not ?
NO 3 Whether their Lordships wish to see the fair copy of the judgment ?
NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
NO 5 Whether it is to be circulated to the civil judge ?
NO ================================================================ RAMNIKBHAI VAJUBHAI KYADA....Appellant(s) Versus BHUPATBHAI LAVJIBHAI THUMAR & 5....Respondent(s) ================================================================ Appearance:
MR MRUGEN K PUROHIT, ADVOCATE for the Appellant(s) No. 1 MR KAMAL M SOJITRA, ADVOCATE for the Respondent(s) No. 1 - 6 ================================================================ CORAM:
HONOURABLE MR.JUSTICE S.H.VORA Date : 14/6/2013 CAV JUDGEMNT
1. Present Appeal from Order under Order 43 Rule 1 and 2 of the Code of Civil Procedure, 1908 (for short CPC ) has been preferred by the appellant (Orig. Plaintiff) challenging the impugned order dated 23.5.2012 passed by the learned Principal Senior Civil Judge, Gondal passed below Exh-5 in Special Civil Suit No.38 of 2011, by which the learned trial Judge has dismissed the application for interim injunction restraining the respondents (original defendants) from transferring, selling or alienating the disputed property to anyone till final disposal of the suit.
2. The appellant (original plaintiff) has instituted the aforesaid said suit in the Court of learned Principal Senior Civil Judge, Gondal for specific performance of contract dated 9.2.2011 executed by the respondent Nos.1 and 2 (original defendant Nos.1 and 2) in favour of the appellant original plaintiff in respect of the properties, more particularly described in para 2 of the injunction application for consideration of Rs.25 lac. It is the case of the appellant that at the time of entering into agreement to sell, the appellant has paid Rs.5 lac in cash to the respondent Nos.1 and 2 and balance consideration was to be paid within one month i.e. on 9.3.2011. It is the case of the appellant that the said transaction took place in presence of two estate brokers, namely Ramani Dinesh Karsanbhai and Parshottam Shamjibhai and both of them signed the agreement as witnesses to the said transaction. According to the appellant, though respondents were served by way of second notice dated 30.3.2011, they did not give any heed and therefore, the appellant original plaintiff has filed the aforesaid suit for the aforesaid relief.
3. The injunction application was resisted by the respondents. It is the specific case of the respondents that the appellant has stated false facts in the application that the respondents are the members of one family. Both the said estate brokers have denied the execution and writing dated 9.2.2011 and also denied alleged payment of Rs.5 lac made in their presence and for that purpose, both of them have filed separate affidavit before the Court. The respondent Nos.1 and 2 specifically denied that they are administrator of suit property for respondent Nos.3 to 6 and therefore, the appellant has created false and bogus documents. On this count and in view of the submissions made before this Court, learned advocate for the respondents have urged to dismiss the Appeal from Order with costs.
4. Learned advocate Mr. Purohit for the appellant has vehemently submitted that the learned trial Judge has materially erred in dismissing the injunction application against the respondents. It is submitted that the learned trial Judge has not properly appreciated the principles of law with regard to agreement to sell under the provisions of the Specific Contract Act and has not appreciated that all the required ingredients provided under Order 39 Rule 1 and 2 stands in favour of the appellant as the appellant was and is ready and willing to perform his part of contract by paying balance consideration of Rs.20 lac on the date agreed and there was no reason on the part of the learned trial Judge to dismiss the injunction application. In support of his submission, learned advocate Mr. Purohit has relied upon decision rendered in Appeal from Order No.120 of 2011 in case of Rajiv Maheshkumar Mehta Vs. Mahendrasinh Madarsang Vaghela passed by this Hon'ble Court (Coram: Hon ble Mr. Justice J.C. Upadhyaya) on 8.5.2012.
5. Appeal from order is opposed by learned advocate Shri KM Sojitra. It is submitted that the so called agreement dated 9.2.2011 is got up and the respondent Nos.1 and 2 have not entered into agreement to sell in question with the appellant for consideration of Rs.25 lac through brokers named in the injunction application and further denied that the respondent Nos.1 and 2 on behalf of respondent Nos.4 to 6 executed any agreement to sell on 9.2.2011 in favour of the appellant and received part payment of Rs.5 lac out of total consideration of Rs.25 lac. In nutshell, all the facts stated by the appellant in injunction application are false and got up story and denied each and every averments made in the injunction application as being true. It is contended that the respondent Nos.1 and 2 are the owners of some portion of land bearing survey No.215, whereas respondent Nos.4 to 6 are the owners of some portion of land bearing survey Nos.215 and
216. All these three pieces of land are owned and possessed by the respondent Nos.1 to 6 in their individual capacity and the respondent Nos.1 and 2 are not administrator or authorized to enter into any transaction for and on behalf of respondent Nos.4 to 6 and thus, the suit properties are not HUF properties. At the end, learned advocate for the respondents urged to dismiss the present Appeal from order.
6. Heard learned advocates appearing on behalf of the respective parties at length.
7. At the outset, it is required to be noted that learned advocate for the appellant made a statement at bar that he is not pressing any relief against respondent Nos.3 to 6 with regard to pieces of land bearing survey Nos.215 and 216 and confines his submissions with respect to the signatory of agreement dated 9.2.2011 i.e. respondent Nos.1 and 2 so as to prevent them by way of suitable injunction. So now, the present Appeal from order requires to be decided against respondent Nos.1 and 2 only.
8. In the case on hand, the execution of the agreement to sell is disputed and even the receipt of part sale consideration which is alleged to have been paid by cash is also disputed. In that case, initially, burden to prima facie prove such payment, which is alleged to have been made by cash, is upon the appellant, who asserts that the said payment is made by him. When the factum of payment of part sale consideration, which has been alleged to have been made by cash is seriously disputed in the case, the appellant is required to produce reliable and cogent evidence to show whether he has withdrawn the said amount from any bank account or he has borrowed from anyone. In the present case, the appellant has not produced anything to show that while making the payment of Rs.5 lac, as alleged, he has withdrawn the said amount from any bank account or borrowed from anyone. Learned advocate for the appellant is not in a position to point out any corresponding documentary evidence in form of IT return or bank passbook or any other pieces of evidence. Therefore, the Court has no hesitation to say that the appellant has prima facie failed to prove and/or establish the payment of Rs.5 lac by way of part sale consideration.
9. Considering the impugned order passed by the learned trial Judge, it appears that both the estate brokers have denied the execution of so called agreement dated 9.2.2011 in their presence and also denied the payment of part consideration by the appellant to the respondent Nos.1 and 2 in their presence. So, in Court s considered opinion, the appellant has failed to prove his prima facie case. If any injunction pending hearing of the suit is granted, then the respondent Nos.1 and 2 would be put into irreparable loss and therefore, the learned trial Judge has rightly dismissed the injunction application.
10. The decision relied upon by the learned advocate for the appellant in case of Rajiv Maheshkumar Mehta (supra) is not applicable to the facts of the present case, because in the said case, the party has made payment by different cheques, whereas in the case on hand, it is not so and therefore, the said case is not applicable to the facts of the case on hand.
11. In view of above and for the reasons stated above, the impugned order passed by the learned trial Court dismissing Exh-5 application requires to be upheld and more particularly the present proceedings is duly registered before the office of the Sub Registrar in accordance with the provisions contained in section 52 of the Transfer of Property Act.
12. Accordingly, present Appeal from order stands dismissed. Notice discharged.
Consequently, CA also stands disposed of. Ad interim relief stands vacated forthwith. No costs.
(S.H.VORA, J.) shekhar FURTHER ORDER Learned advocate appearing for the appellant prays to extend the interim relief granted earlier so as to approach the Hon ble Apex Court. The request is accepted. Interim relief granted earlier to continue for six weeks from today.
(S.H.VORA, J.) shekhar Page 6 of 6