Gujarat High Court
Manoj Vinodchandra Shah vs Saumik Dilipbhai Mehta on 11 July, 2023
C/AO/173/2022 JUDGMENT DATED: 11/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 173 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/APPEAL FROM ORDER NO. 173 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MANOJ VINODCHANDRA SHAH
Versus
SAUMIK DILIPBHAI MEHTA
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Appearance:
MR TATTVAM K PATEL(5455) for the Appellant(s) No. 1
DEV D PATEL(8264) for the Respondent(s) No. 3
MR MEHUL SHARAD SHAH(773) for the Respondent(s) No. 2
MR. CHETAN G VADUKAR(6875) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 11/07/2023
ORAL JUDGMENT
1. This appeal has been filed at the instance of the Page 1 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 appellant herein original plaintiff against the order passed by the learned 2nd Additional Senior Civil Judge, Kalol, whereby the learned Judge was pleased to dismiss the application Exh.5 filed by the appellant herein original plaintiff.
2. The facts leading to the filing of this appeal may be summarized as follows: -
2.1 It is the case of the plaintiff that the property in question is the lands being Survey Nos. 347 to 356, 359, 360, 361, 363, 364, 366, 367, 372, 374 to 379, 381/B, 2017, 2018, 2021 to 2024, 2026, 2028, 2030 in total admeasuring 3,85,351.28 square meter paiki 3,34,448 square meter i.e. 4,00,000 square yard situated at mauje village - Santej, Taluka & District - Kalol (hereinafter referred to as "lands in question" for short). 2.2 It is also the case of the plaintiff that the respondent no.2 society, being the original owner of the subject lands, has executed one agreement to sell dated 29.04.2021 in favour of the respondent nos.1 and 3 and the said agreement to sell clearly mentions that the respondent Page 2 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 nos.1 and 3 includes their heirs, successors, assignees etc. as mentioned in the said agreement to sell. That as per the said agreement to sell, the total area agreed to be sold was 4,00,000 square yards for total consideration fixed at Rs.2,32,04,00,000/- and out of which, the said respondent no.1 and 3 have made payments of Rs.1,00,000/- vide cheque no.000122 dated 28.04.2021, Rs, 11,00,00,000/-
vide cheque no.000123 dated 28.04.2021 and Rs.10,00,000/- in cash to the respondent / defendant no.2 society. That the said agreement to sell is signed by all the parties and is duly notarised.
2.3 It is also the case of the plaintiff that the said notarized deed dated 29.04.2021 entails the characteristic of agreement to sale which was executed qua the subject lands by the respondent - defendant no.2 in the favour of the respondent nos.1 and 3 and as per the said agreement it was the responsibility of the respondent / defendant no.2 to get the title clear of the lands in question and to execute the sale deed in the favour of the respondent / defendant nos. 1 and 3. That as per the terms of the said agreement to sell Page 3 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 dated 29.04.2021, neither of the parties (proposed purchasers) were barred from transferring and/or assigning their right over the subject lands on the basis of the said agreement to sell in favour of a third party. 2.4 It is also the case of the plaintiff that thereafter, on the basis of the said agreement to sell and as the rights of the respondent nos. 1 and 3 derived under the agreement to sell, the said respondent no.1 executed a deed of assignment dated 17.05.2021 in the favour of the present appellant qua 50% share / interest in the lands in question. That the deed of assignment dated 17.05.2021 was executed by the respondent/defendant no.1 in favour of present appellant - plaintiff, who was one of the parties to the agreement to sell dated 29.04.2021 and by this deed the respondent no.1 agreed to assign his rights acquired pursuant to and on the basis of the agreement to sell dated 29.04.2021. That as per the said agreement to sell dated 29.04.2021, the respondent no.1 was having 50% share in the subject lands and said share was agreed to be assigned in the favour of the present appellant - plaintiff. That by way Page 4 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 of the said assignment deed, the respondent no.1 agreed to sell the suit land in favour of the appellant, which was purchased through the agreement to sell dated 29.04.2021 and in view of the said assignment deed, the respondent no.1 assigned his ownership rights in the favour of the present appellant. That the said agreement was executed in time and valid on the date of execution of said assignment deed in the favour of the appellant and thereby, the respondent no.1 agreed to assign rights in the suit land to the extent of his share of 50% i.e. 200000 square yards out of total area admeasuring 400000 square yards for a consideration of Rs.8,00,00,000/- as per the said assignment deed. It is the case of the plaintiff that the execution of said deed of assignment in favour of present appellant is not disputed.
2.5 It is the case of the appellant the original plaintiff that repeatedly requests were made to the respondent nos.1 and 2 to act and perform in accordance with the terms of the agreement to sale and deed of assignment, but none of them adhered to the said request of the appellant original Page 5 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 plaintiff and therefore, the appellant original plaintiff was constrained to issue a notice dated 02.02.2022 to comply with the terms of deed of assignment and agreement to sell and a request was made to execute the sale deed in the favour of the appellant original plaintiff. 2.6 It is the case of the appellant - original plaintiff that thereafter, since the respondent no.2, started acting contrary to the original agreement dated 29.04.2021 and to defeat the right, title and interest of the appellant original plaintiff, has executed sale deed no.17901 dated 21.12.2021 of the lands in question paiki block no.363 admeasuring 20344 square meters in favour of the original defendant no.4 in lieu of consideration of Rs.3,79,00,000/- and another sale deed no.856 dated 17.01.2022 of the land paiki Block No.366 admeasuring 20572 square meters in lieu of consideration of Rs.3,83,00,000/- in favour of the respondent no.4.
2.7 It is the case of the appellant - original plaintiff that thereafter, the appellant was served with a copy of caveat in context of the lands in question and therefore, the Page 6 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 appellant herein was constrained to file Special Civil Suit No.16 of 2022 seeking specific performance of agreement to sell dated 29.4.2021 and 17.05.2021 and also an order directing the respondent no.2 to execute the sale deed in favour of the appellant and also prayed to pass order that the sale deed dated 21.12.2021 executed by the respondent no.2 in favour of the respondent no.4 is not binding upon the appellant and also prayed to set aside sale deed no.856 dated 17.01.2022 and sale deed no.17901 dated 21.12.2021 and also filed an application for interim injunction under Order 39, Rule 1 and 2 of the Code of Civil Procedure, 1908.
3. That the learned 2nd Additional Senior Civil Judge rejected the interim injunction application at Exh.5 by an order dated 20.9.2022 mainly on the ground that the deed of assignment dated 17.05.2021 executed in the favour of the appellant original plaintiff is without the consent of the respondent/defendant no.2 society and the learned trial court while rejecting the injunction application held that the said assignment without consent is not valid. Page 7 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023
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4. Being aggrieved and dissatisfied with the said order passed by the learned trial Court, the appellant original plaintiff has filed the present Appeal from Order before this Court.
5. Heard Mr.Dhaval Dave, learned Senior Advocate assisted by Mr.Tattvam Patel, learned advocate for the appellant and Mr.Mehul Sharad Shah, learned advocate for the respondent No.2, Mr.Dev Patel, learned advocate for the respondent No.3 and Mr.Chetan Vadukar, learned advocate for the respondent No.4 and have examined the impugned order of the learned trial court and also the averments and contentions made in the application for injunction and the objections thereto in depth and in detail. Though served, none appears for the respondent No.1.
6. Mr.Dhaval Dave, learned senior counsel appearing for the appellant submits that that the impugned order dated 20.09.2022 passed by the learned trial Court is perverse and bad in law and it has resulted in failure of justice and irreparable injury to the appellant and submits that the learned trial court has erred in discarding the deed Page 8 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 of assignment executed in favour of the appellant. Mr.Dave submits that the agreement to sell dated 29.04.2021 and deed of assignment dated 17.05.2021 are not disputed and/ or denied by any of the party. Mr.Dave further submits that the appellant at this stage relies upon paragraph no.2 at Page No.14 and 15 (In Civil Application), wherein factum of execution of assignment deed and receipt of consideration from the appellant original plaintiff is admitted by the defendant no.1 and the learned trial Court ought to have appreciated that the consent of the defendant no.2 is not required for execution of assignment deed in the favour of the appellant original plaintiff and therefore, the learned trial Court has misread the judgement in the case of Khardah Company Lt. Vs. Ravmon & Co. reported in AIR 1962 SC 1810, more particularly, paragraph 7 to the disadvantage of the appellant original plaintiff. Mr.Dave, therefore, submits that considering the ratio laid down in the above referred decision, rights arising under the agreement is assignable and not forbidden under any law and without any negative covenant assignment in the favour Page 9 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 of the appellant cannot be ignored in totality merely in the absence of consent being obtained or not and therefore, the learned trial Court ought not to have refused injunction relying on the aforesaid judgement.
6.1 Mr.Dave further submits that in the case of Kapilaben and Others Vs. Ashok Kumar Jayantilal Sheth reported in (2020) 20 SCC 648 relied upon by the learned trial Court while passing the impugned order to the disadvantage of the appellant also cannot be sustained and the learned trial Court ought to have appreciated that rights under the contract are assignable unless the contract is personal in its nature or incapable under law for such assignment. Mr.Dave, therefore, submits that the learned trial Court has misconstrued the said judgement and failed to appreciate the rights and obligations arising out of a contract of sale. In the case of the appellant, what was assigned was right and not obligation and therefore, learned trial Court ought to have allowed the injunction application filed by the appellant original plaintiff. Page 10 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023
C/AO/173/2022 JUDGMENT DATED: 11/07/2023 6.2 Mr.Dave further submits that the appellant relies upon the provisions of Section 15 of the Specific Relief Act which clearly provides for who may obtain specific performance and in view of the aforesaid provision, the assignment deed is rightly executed in the favour of the appellant and it is not barred under any law. In support of his submission, Mr.Dave relies upon judgment in the case reported in AIR 2004 SC 348 wherein in paragraphs 9 and 13, the Honourable Apex Court observed as under:
" 9. In our considered opinion, reading the document as a whole and particularly keeping in view the fact that a long period of ten years was fixed for obtaining reconveyance, no implied prohibition of transfer or assignment can be inferred in the document particularly in view of the clear provisions of section 15(b) of the Specific Relief Act 1963 which read as under:
"15. Who may obtain specific performance - Except as otherwise provided by this chapter, the specific performance of a contract may be obtained by-
(a) any party thereto;
(b) the representative in interest or the principal, of any party thereto;Page 11 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023
C/AO/173/2022 JUDGMENT DATED: 11/07/2023 Provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party."
13. In our considered opinion, in the absence of any words or expressions in the documents indicating prohibition on assignment or transfer of right of repurchase and in the face of clear provisions of section 15(b) of the Specific Relief Act, 1963 , an implied prohibition cannot be read into the terms of the documents. Merely because in the documents, there is mention of 'heirs' of the contracting parties but not their 'assignees' or 'transferees', the legal right of assignment available to the benefit of original contracting party under section 15(b) of the Act cannot be denied to it."
Mr.Dave, therefore, submits that in view of the decision referred above, in the absence of express prohibition, the Page 12 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 assignment is a matter of right and consent of original party and in the present case the respondent no.2 is not at all required and relevant. Even otherwise, as per the original agreement to sell dated 29.04.2021, the word "assignee" is clearly mentioned and therefore intention of parties was to include assignees and therefore, assignment being a matter of right, the appellant is entitled to get the relief of injunction and the learned trial Court has rejected the said application contrary to the ratio laid down by the Hon'ble Supreme Court.
6.3 Mr.Dave further submits that the learned trial Court has ignored and failed to consider the factual aspects and thereby, has committed a serious error in not granting injunction by ignoring three important ingredients that lie at the benefit of the appellant i.e. prima facie case, balance of convenience and irreparable injury and that the learned trial Court has erred in passing the impugned order on the ground that there is no privity of contract between society and the plaintiff and even in the execution of deed, prior consent or subsequent intimation is not made to society by Page 13 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 the plaintiff. That the learned trial Court ought to have appreciated that on bare perusal of the Agreement to Sell, it does not expressly restrain a transfer of acquired rights over the subject land in favour of a third party. That the assignment of rights can be conferred by a party and in the instant case, on perusal of the pleadings, it transpires that the execution of the deed as well as the Agreement to Sell is not denied and/or disputed by any of the party and therefore, the learned trial Court ought to have appreciated that such an admission of the execution of the Agreement to Sell as well as Deed of assignment is sufficient enough to establish the appellant's/plaintiff's prima facie case. Further, the learned trial Court ought to have appreciated that, the said Deed has not been cancelled / terminated by its executor i.e. defendant no.1 and therefore, considering the said fact, the appellant original plaintiff has a prima facie case for grant of injunction and therefore, the said application ought to have been allowed by the learned trial Court.
6.4 Mr.Dave further submits that it is not the case of Page 14 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 the defendant that, cheques towards consideration were dishonoured but the cheques given by the plaintiff were not deposited by the defendant no.1 and therefore, the learned trial Court ought to have appreciated that there was never any refusal, denial or incapacity on the part of appellant original plaintiff to pay consideration amount and therefore, non-deposit of cheques by the defendant may not be used to the disadvantage of the appellant original plaintiff while refusing the injunction application. Mr.Dave further submits that the learned trial Court while passing the impugned order has erred in holding that the plaintiff in connivance with defendant no.1 intends to make complex litigation in context of the lands in question and such observation is ex-facie unwarranted and uncalled for at the stage of deciding an application for grant of injunction under Order 39 of the Code of Civil Procedure, 1908. 6.5 Mr.Dave further submits that the learned trial Court has also erred in concluding that the defendant no.4 would suffer irreparable loss, if the injunction is granted and the learned trial Court ought to have appreciated that Page 15 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 the transaction in favour of the defendant no.4 has already caused irreparable loss / injury to the plaintiff and by refusing the injunction, the learned trial Court has allowed the defendants to deal with the property, which ultimately results into multiplicity of proceedings and divulgence of interest of the lands in question and therefore, the learned trial Court, considering the settled legal position, ought not to have rejected the injunction with a view to avoid multiplicity of proceedings.
6.6 Mr.Dave further submits that the notice dated 02.02.2022 issued to the defendant no.1 by the appellant original plaintiff clearly refers to the agreement to sale and assignment deed executed in favour of the appellant and after issuance of this notice dated 02.02.2022 by the appellant, the defendants unilaterally behind the back of the appellant have cancelled the original agreement to sell dated 29.04.2021 by executing cancellation agreement dated 09.03.2022 which clearly transpires that, it was only after receipt of notice by the appellant dated 02.02.2022, the respondents in connivance with one another and with a Page 16 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 view to frustrate right of the appellant have executed the cancellation deed. Even the declaration executed on 09.03.2022 is after the notice dated 02.02.2022 and therefore, a declaration of such a nature without involving the present appellant original plaintiff unilaterally executed between the respondents / defendants is in nature of a sham and bogus documents cannot in any manner be relied upon and looked into at the time of deciding an injunction application. Those collusive documents would not frustrate the rights of the appellant original plaintiff over the lands in question. It is therefore, undisputed that the deed of assignment is never disputed and therefore, after the assignment agreement the respondent / defendant no.1 could not have executed the cancellation agreement. Thus, the present being the case requires thorough trial and pending the suit, the rights of the parties deserves to be protected by allowing the injunction application filed by the appellant.
6.7 In support of his submissions, Mr.Dave has relied upon the following decisions.
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(i) Maharwal Khewaji Trust (Regd.) Vs. Baldev Dass reported in (2004) 8 SCC 488;
(ii) Julian Educational Trust Vs. Sourendra Kumar Roy and Others reported in (2010) 1 SCC 379;
Mr.Dave, therefore, submits that considering the ratio laid down by the Hon'ble Apex Court, the lands in question are immovable property and unless case of extraordinary injury being shown by the respondents / defendants, the learned trial Court ought not to have rejected the injunction application filed by the appellant. Mr.Dave lastly urges to allow the present Appeal from Order and thereby, may be pleased to allow the application Exh.5 filed by the appellant in Special Civil Suit No.16 of 2022.
7. On the other hand, Mr.Mehul Sharad Shah, learned advocate appearing for the respondent No.2 has vehemently opposed the present appeal and has submitted that the present appellant original plaintiff has no privity of contract with the original defendant No.2- original owner of the land. Mr.Shah further submits that the suit has been Page 18 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 filed to create a cloud over the title and as on date, no amount of the defendant Nos.1 and 3 is lying with the defendant No.2. Mr.Shah has drawn the attention of this Court towards the fact that not a single cheque of the present appellant is cleared nor a single rupee is paid by the present appellant to the original defendant Nos.1 & 3 under the so-called Assignment Agreement and therefore, the suit is nothing but an abuse of process of the Court. 7.1 Mr.Shah further submits that earlier the defendant no.1 and 3 contacted the defendant No.2 - Gulmarg Society to purchase the land and therefore, the defendant No.2 had executed one Agreement to Sell (banakhat) in favour of defendant No.1 and defendant No.3 on 29.04.2021 for a total consideration of Rs.232 Crores. Mr.Shah further submits that on 28.04.2021 a cheque of Rs.1 lakh and a cheque of Rs.11 crores was given and Rs.10 lakhs were paid in cash and after getting the signature on the agreement, the defendant Nos.1 & 3 informed the defendant No.2 not to deposit the cheques as they do not have enough balance in the Bank Account. Mr.Shah Page 19 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 further submits that the defendant No.2 received an amount of Rs.90 lakhs from one Bansi Developers on three different dates i.e. 21.06.2021, 30.06.2021 and 10.08.2021 through RTGS on behalf of the defendant nos.1 and 3. However, the defendant Nos.1 & 3 were not in a position to pay the remaining amount and, therefore, they have returned the original Agreement to Sell to the defendant No.2 showing their unwillingness to continue with the agreement and, therefore, the said sale agreement has been cancelled. Mr.Shah further submits that when the defendant Nos.1 & 3 had returned the original agreement to sell document to the defendant No.2 society and an amount of Rs.90 lakhs was also returned by two cheques of Rs.45 lakhs each dated 10.03.2022 to the defendant Nos.1 & 3 to be paid back to Bansi Developers and therefore, after 10.03.2022, the defendant No.2 was not having any amount of the defendant Nos.1 & 3 with account of the society.
7.2 Mr.Shah further submits that the respondent No.2 received the notice dated 02.02.2022 from the appellant whereby he came to know that the respondent Page 20 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 No.1 alone had executed an alleged assignment deed dated 17.05.2021 in favor of the appellant without consent of the respondent No.2 and 3 for his 50% share, arising out of the agreement to sell. Mr.Shah further submits that the defendant No.2 society also came to know that with a mala fide intention, the defendant No.1 had also executed one such agreement on 29.10.2021 in favour of Pratik Vaghela and Maulesh Soni and thereafter they have also agreed to cancel the agreement upon knowing the true and correct facts and they have also executed registered declaration on 09.03.2022. Mr.Shah further submits that thereafter, the respondent No.1 has executed declaration dated 09.03.2023 inter alia stating that such Assignment Deed was signed by him under coercion as he had borrowed Rs.18 Lakhs from the appellant. The respondent No.1 had specifically stated that he has not received any amount of Rs.18 Lakhs towards Assignment Deed and that the details of 13 cheques have been stated in the Assignment Deed but, not a single cheque is deposited in the Bank as the appellant is not having sufficient balance in the Bank and it is an Page 21 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 admitted fact that the appellant has not paid any amount to defendant No.1.
7.3 Mr.Shah further submits that thereafter the respondent Nos.1 and 3 have executed a registered declarations as well as cancellation agreement dated 09.03.2022 stating that they have no further right, title and interest in the suit property and all the amount as mentioned in the agreement dated 29.04.2021 has been returned to or not paid by the respondent Nos.1 and 3 and no amount remains to be repaid by the Respondent No.2 and that they were not able to arrange the rest of the fund or perform their obligation under the said agreement and therefore they have cancelled the said agreement dated 29.04.2021. Mr.Shah further submits that even before the assignment deed being executed by the respondent no.1 in favour of the appellant, Survey Nos. 372, 375, 376, 377, 378 and 379 have been sold in favour of the respondent No.4 through registered sale deed on 06.04.2021 before the execution of the alleged assignment deed on 17.05.2021 and in all the respondent No.4 has purchased 17 survey Page 22 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 numbers out of a total of 34 survey numbers mentioned in the agreement to sell. Mr.Shah further submits that the respondent No.4 had purchased the land after giving a public notice and having taken a search report from the sub-registry and therefore the respondent no.4 has become the bonafide purchaser for consideration after public notice for the said parcels of lands. Mr.Shah submits that the appellant has preferred a suit seeking specific performance of an agreement to which he is not a party and which has already been cancelled by the parties thereto and the said relief is sought based on an assignment deed which is not only without consideration but also not valid in the eye of law.
7.4 Mr.Shah further submits that it is settled proposition of law that a party to a contract cannot assign his obligation or liabilities without the consent of the other party. In the present case, the defendant No.1, under coercion, signed Assignment Deed even without the consent of the defendant No.2 - original owner as well as the defendant No.3 who is a partner of the defendant No.1. It is Page 23 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 also clear that the present appellant - original plaintiff has not given any cheque to the defendant No.1, though 13 cheques are referred to in the so-called Assignment Deed, it is an admitted fact that not a rupee is deposited from the account of appellant - original plaintiff. Mr.Shah further submits that when the defendant Nos.1 & 3 had executed a cancellation deed and had accepted the money paid to the defendant No.2 back to their account and when the cancellation deed of agreement to sell was executed, any Assignment Deed executed by the defendant No.1 under coercion, in favour of the plaintiff, has no value in the eye of law. It is also an admitted fact that the present appellant - original plaintiff has no privity of contract with the defendant No.2 and, therefore, he cannot seek any relief including the relief of specific performance against the defendant No.2. Therefore, it is apparent that the suit is filed merely with a mala fide intention to create a cloud over the title, and this is nothing but a stone throwing activity to extract money by creating a defective title and such kind of practice is required to be deprecated in strong words by this Page 24 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 Court. Mr.Shah, therefore, submits that looking to the above totality of facts and circumstances of the case and also the evidence on record, the present Civil Application as well as the Appeal from Order may kindly be dismissed at its threshold in as much as the plaintiff is not having any prima facie case in his favour and if an injunction is granted, it would cause irreparable loss to the defendant No.2 which cannot be compensated in terms of money and also it would cause great prejudice to the defendant No.2, more particularly, when there is no agreement executed by the defendant No.2 in favour of the plaintiff and therefore, the Appeal from Order may kindly be dismissed in the interest of justice.
7.5 Mr.Shah further submits that the learned trial Court has passed the impugned order considering the evidence on record as well as essential ingredients like prima facie case, balance of convenience and irreparable loss and even otherwise there is no illegality, perversity or error apparent on the record in the findings arrived at by the learned trial Court in its impugned order and therefore Page 25 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 considering the ratio laid down by the Hon'ble Supreme Court as well as this Court, no interference is warranted in the present appeal from order at the behest of the appellant.
8. Mr.Dev Patel, learned advocate appearing for the respondent No.3 submits that the appellant has not sought relief for cancellation of the Cancellation Deed dated 9.3.2022 whereby the alleged agreement to sell stood cancelled and therefore, when the appellant is seeking specific performance of an agreement which does not exists then, it cannot be said that he has prima facie case in his favour. Mr.Patel further submits that the agreement dated 29.4.2021 does not demarcate and separate the rights and liability of the respondent Nos.1 and 3 and therefore, the respondent No.1 could not have assigned his rights and obligations without the consent of the respondent No.3 as such rights and liabilities are not assignable and the appellant's case is based upon an assignment deed which has been executed by the respondent No.1 in favour of the appellant without taking the consent of the respondent No.2 and/or the respondent No.3 and therefore, the said Page 26 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 assignment amounts to novation and therefore, the same is not valid.
9. Mr.Chetan Vadukar, learned advocate for the respondent No.4 has also vehemently opposed the present Appeal from Order by contenting that the impugned order passed by the learned trial Court below at Exh.5 inter alia rejecting plaintiff's application for temporary injunction, is legal, just and does not require any interference. Mr.Vadukar further submits that the impugned order has been passed after considering the relevant factors as to prima facie case, balance of convenience and irreparable loss and said fact is clear from the point of determination framed by the learned trial Court. In absence of any illegality or irregularity, reliefs sought by the appellant original plaintiff are not maintainable in the eye of law. 9.1 Mr.Vadukar further submits that so called MoU which is under question was executed on 29.04.2021 and the so called Assignment deed was executed on 17.05.2021 but the respondent No.4 has purchased land bearing Survey Nos.372, 375, 376, 377, 378 & 379 on 06.04.2021 by way of Page 27 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 Registered Sale deeds out of the 34 survey numbers prior to so called MoU and Assignment deed came in to the existence. Mr.Vadukar further submits that the respondent No.4 has also purchased total 17 survey numbers out of the 34 survey numbers i.e. lands in question owned by the defendant no.2 herein by way of various registered sale deeds on various dates and the respondent No.4 has published a "Public Notice" to invite objections from the public in the daily newspaper on 27.03.2021 for some of the pieces and parcels of the captioned land and has also taken a Sub-Registrar Search report and over and above the respondent No.4 has obtained search of Revenue Records from 1951 for all that pieces and parcels of land and from the entire process the respondent No.4 has neither received any objections nor any adverse remarks in the titles of the aforesaid parcels of land which the respondent No.4 has purchased, and thereafter got executed the Registered Sale deeds in favour of the respondent No.4 by paying huge amount towards consideration to the respondent no.2 herein.
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C/AO/173/2022 JUDGMENT DATED: 11/07/2023 9.2 Mr.Vadukar further submits that the respondent No.4 did not find any Agreement to Sell and/or Deed of Assignment and / or MoU executed in favour of the present appellant nor in favour of the respondent Nos.1 and 3 in the title search process, and after carefully examining the titles of the lands in question, the respondent No.4 has proceeded to execute the Sale deeds and thereby the respondent No.4 has become a bonafide purchaser of said parcels of land with consideration. On the other hand the appellant has failed to show his due diligence before entering into the so called Assignment Deed dated 17.05.2021 and/or has not followed the principle of "caveat emptor" while entering into so called Assignment Deed dated 17.05.2021 and therefore the suit is filed with a mala fide intention to create a cloud over the title, and this is nothing but a stone throwing activity to extract money by creating illusions of defective title and such kind of practice is required to be deprecated in strong words by this Court. Mr.Vadukar further submits that the defendant no.1 and the appellant herein have acted in collusion so as to entangle the suit land in the frivolous Page 29 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 litigation and thereby deny the benefits to the actual owners of the suit land and therefore, present Appeal from Order is required to be dismissed in the interest of justice. 9.3 Mr.Vadukar further submits that the so called MoU/Agreement was nothing but mere understanding between the parties and it is clear from the entire reading of the so called Assignment dated 17.05.2021 that there was no understanding between the parties as to what would be the individual share of the respondent nos.1 and 3 in the suit land and/or partners of equal shares. Mr.Vadukar further submits that so called assignment agreement itself says that it is executed without rights, titles, interest and consideration therein and therefore, it is ab initio null and void in the eye of law, more particularly, when the suit is filed for specific performance of the said so called MoU dated 29.04.2021 which is cancelled. Mr.Vadukar further submits that in fact there is no cause of action that has arisen for filing of the said suit against the respondent No.4 and the same is clear from the reliefs sought in the suit itself.
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C/AO/173/2022 JUDGMENT DATED: 11/07/2023 9.4 Mr.Vadukar further submits that looking to the totality of facts and circumstances of the case and also the evidence on record, the factors of prima facie case, balance of convenience and irreparable loss are not in favour of appellant herein and if an injunction is granted, it would cause irreparable loss to the defendant no.2 and the respondent No.4, more particularly, when the respondent No.4 has already owned and possessed by virtue of duly executed Registered Sale deeds of the 17 survey numbers out of the 34 survey numbers i.e. lands in question prior to the institution of the suit, and the name of the respondent No.4 has already been mutated in the revenue records for all 17 survey numbers of land without any objection from public, including appellant herein.
10. This Court in Jivraj Tea Limited Vs Dayalji Vanravan Kotecha, reported in 2022(0)AIJEL-HC 244893 in paragraph 10 observed thus :
"10. It is well settled principles of law that in an Appeal against exercise of 'discretion' by the Court of first instance, the power of appellate Page 31 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 Court to interfere with the exercise of discretion is restrictive. Merely because on facts, the appellate Court would have concluded differently from that of the Court below, that would not, by itself, provide justification for appellate Court to interfere. To justify interference, the appellant would have to demonstrate that the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunction. An appeal against the exercise of discretion is an appeal on principle.........."
11. In Wander Limited and another Vs Antox India P.Ltd, reported in 1990 (Supp) Supreme Court Cases 727, the Honourable Apex Court in paragraph 14 observed thus :
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will Page 32 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that Page 33 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721) "...These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston ....the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case."
The appellate judgment does not seem to defer to this principle."
12. In view of the above settled principles of law, this Court has very limited power to interfere with the order passed by the learned trial Court and only in exceptional circumstances, the Appellate Court can interfere with the discretionary order passed by the learned trial Court. The Appellate Court cannot reevaluate the entire evidence and arrive at a conclusion contrary to the conclusion arrived at by the learned trial Court unless the said order is found to Page 34 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 be invalid, illegal, arbitrary, perverse or contrary to the settled principles of law. Keeping in mind the above principles, this Court has only to see as to whether the learned trial Court has committed any error in passing the impugned order. At the same time, this Court is also required to see whether the cardinal principles of law governing the injunction i.e. prima facie case, balance of convenience and irreparable loss are satisfied or not in passing the order or not ?
13. From the record and submissions of the learned advocates for the respective parties, the case of the plaintiff mainly based on the deed of assignment dated 17.5.2022 whereby the respondent No.1 executed a deed of assignment in favour of the appellant of 50% share / interest in the lands in question and the appellant has filed the suit for specific performance of contract of the agreement to sell executed by the respondent No.2 in favour of the respondent Nos.1 and 3 on 29.4.2021, the cancellation of sale deed executed by the respondent No.2 in favour of the respondent No.4 and for permanent injunction. That in fact, the Page 35 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 appellant is not a party to the agreement to sell dated 29.4.2021 and is claiming specific performance as an assignee executed on 17.5.2022. The agreement to sell dated 29.4.2021 was cancelled by a deed on 9.3.2022 and the respondent Nos.1 and 3 also gave declarations on 9.3.2022 to the effect that the agreement to sell dated 29.4.2022 has been cancelled and hence on the date of filing of the suit, the agreement to sell was cancelled. Moreover, the defendant No.2 had received an amount of Rs.90 lakhs from one Bansi Developer on 21.6.2021, 30.6.2021 and 10.8.2021 through RTGS on behalf of the defendant Nos.1 and 3 but as the defendant Nos.1 and 3 were not in a position to pay the amount of Rs.90 lakhs was returned by two cheques of Rs.45 lakhs on 10.3.2022 and the original agreement to sell was returned. This prima facie proves that the agreement to sell dated 29.4.2021 was put to an end and all the transactions between the defendant Nos.1 and 3 and the defendant No.2 had ended on 10.3.2022 i.e. before the deed of assignment was executed on 17.5.2022. That the respondent No.4 has purchased 17 Page 36 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 survey numbers out of the total 34 survey numbers after going through the due process of giving a public notice in the daily newspaper on 27.3.2021 and obtaining a Search Report from the Sub Registrar's office has got executed the sale deed on 29.4.2021 i.e. prior to the execution of the assignment deed on 7.5.2021. That prima facie on 17.5.2021 the respondent No.1 - original defendant No.1 had no right or interest in the lands in question as all the transactions with the original owner defendant No.2 had been concluded and some of the lands were purchased by the defendant No.4. Prima facie, it appears that the respondent No.1 had executed the assignment deed on 17.5.2022 but had not received any amount from the appellant and the appellant has not paid any amount to the respondent No.2 and consideration is an important aspect of a valid and concluded contract. It is also clear that there is no privity of contract between the appellant and the respondent No.2 and on the date of execution of the assignment deed i.e. on 17.5.2022 no rights were in Page 37 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 existence with the respondent No.1 which could be assigned to the appellant.
14. In the facts and circumstances of the case, the learned trial Court has prima facie appreciated all the evidence in its proper perspective and all the ingredients of prima facie case, balance of convenience and irreparable loss have been considered in detail. Therefore, in the considered opinion of this Court the impugned order passed by the learned trial Court is found to be just and proper and no illegality or perversity is committed by the learned trial Court while passing the impugned order.
15. Under the circumstances, the present Appeal from Order fails and the same is hereby dismissed. The order dated 20.9.2022 passed below Exh.5 in Special Civil Suit No.16 of 2022 by the learned 2 nd Additional Senior Civil Judge, Kalol is hereby confirmed. There shall be no order as to costs.
16. While parting with the order, it is clarified that this Court has examined the impugned order passed by the learned trial Judge within the limited scope of Order 43, Page 38 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023 C/AO/173/2022 JUDGMENT DATED: 11/07/2023 Rule 1(r) of the Code of Civil Procedure whereas the main controversy involved in the suit is at large before the trial Court to be adjudicated through full fledged trial. Therefore, the learned trial Judge shall not be influenced by any observations recorded by this Court herein above while deciding the suit at the end of trial. The findings recorded by this Court are tentative in nature and the learned trial Judge shall decide the case on merits as per the evidence led by the parties during the course of trial and decide the suit in accordance with law.
17. In view of the above, the Civil Application does not survive and the same stands disposed of accordingly.
(S. V. PINTO,J) H.M. PATHAN Page 39 of 39 Downloaded on : Tue Jul 11 20:48:37 IST 2023