Madhya Pradesh High Court
Tejprakash Pandya vs Suresh Jain on 22 January, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:1692
1 MP-3353-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
MISC. PETITION No. 3353 of 2020
TEJPRAKASH PANDYA
Versus
SURESH JAIN AND OTHERS
Appearance:
Shri Vinay Puranik - Advocate for the petitioner.
Shri Prashant Sharma - learned counsel for respondent No.1.
ORDER
(Reserved on 8/1/2025) (Order passed on 22/1/2025)
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 defendant No.1 / petitioner being aggrieved by the order dated 23/9/2020 passed in Miscellaneous Civil Appeal No.11/2020 by the 5th Additional District Judge, Dewas whereby the order dated 24/7/2020 passed in Civil Suit No.54-A/2020 by the 4th Civil Judge, Class I, District Dewas has been set aside and the application under Order 39 Rule 1 and 2 of the CPC preferred by plaintiff / respondent No.1 has been allowed.
3. As per the plaintiff, on 22/9/2016 he entered into an agreement with defendant No.1 for purchase of the suit land bearing Survey No.86 area 0.250 hectare, Patwari Halka No.33, Gram Nagokhedi, Tehsil and District Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 1/25/2025 5:00:11 PM NEUTRAL CITATION NO. 2025:MPHC-IND:1692 2 MP-3353-2020 Dewas for a total consideration of Rs.10,00,000/-. A written agreement in this regard was also executed between them. A sum of Rs.8,00,000/- was paid by the plaintiff to defendant No.1 by way of earnest money. The remaining amount of Rs.2,00,000/- was to be paid to defendant No.1 on 21/12/2017 after which demarcation of the suit land was to be carried out followed by delivery of possession. Thereafter the sale deed was to be executed. Defendant No.1 however did not receive the balance amount of Rs.2,00,000/- from plaintiff and did not get the suit land demarcated and deliver its possession to him on 21/12/2017. The plaintiff requested defendant No.1 on a number of occasions to perform his part of the contract but he did not do so. The plaintiff issued a legal notice to defendant No.1 on 19/4/2018 for performance of the contract but he instead attempted to sell the suit land 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 22/9/2016, for delivery of possession of the suit land, mesne profits and permanent injunction restraining defendant No.1 from alienating the suit land in favour of third persons.
5. The defendant No.1 has contested the plaintiff's claim by filing his written statement submitting that it is plaintiff who has failed to perform his part of the contract. He did not pay the balance sale consideration prior to 21/12/2017 though defendant No.1 was ready and willing to execute the sale deed in his favour. By a notice dated 17/5/2018 he had intimated the plaintiff that he has performed his part of the contract but it is the plaintiff who has Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 1/25/2025 5:00:11 PM NEUTRAL CITATION NO. 2025:MPHC-IND:1692 3 MP-3353-2020 not got the sale deed executed from him upon payment of balance sale consideration.
6. Along with the plaint the plaintiff also filed an application under Order 39 Rule 1 and 2 of the CPC praying for issuance of temporary injunction restraining defendant No.1 from alienating the suit land during pendency of the suit. The defendant No.1 contested the application by filing his reply to the same. The trial Court rejected plaintiff's application for issuance of temporary injunction. However in appeal preferred by plaintiff the said order has been set aside and the application has been allowed.
7 . Learned counsel for defendant No.1 has submitted that the appellate Court has erred in setting aside the well reasoned order passed by the trial Court. The plaintiff has failed to demonstrate prima facie case, balance of convenience and irreparable injury in his favour as had rightly been held by the trial Court. The appellate Court has however without adverting to the facts of the case held that it is defendant No.1 who has failed to perform his part of the contract and has illegally granted temporary injunction in favour of plaintiff. The documents on record have not been appreciated in proper perspective. It is hence submitted that the impugned order deserves to be set aside.
8. Per contra, learned counsel for the plaintiff has supported the impugned order and has submitted that in the facts and circumstances of the case the appellate Court has rightly granted temporary injunction in favour of the plaintiff hence no interference is called for.
9. I have heard the learned counsel for the parties and have perused Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 1/25/2025 5:00:11 PM NEUTRAL CITATION NO. 2025:MPHC-IND:1692 4 MP-3353-2020 the record.
10. The execution of the agreement to sale dated 22/9/2016 is not in dispute between the parties. Out of the total sale consideration of Rs.10,00,000/- the plaintiff has paid a substantial amount of earnest money of Rs.8,00,000/- to defendant No.1 at the time of execution of the agreement. Under the agreement the balance amount of Rs.2,00,000/- was to be paid by 21/12/2017 prior to which demarcation of the suit land had to be carried out and a publication had to be got made by plaintiff in the news paper inviting objections to the proposed sale. In case of non receipt of any objection the sale deed was to be executed and if any objection was received, then the same was to be resolved by defendant No.1.
11. For the purpose of ascertaining as to which party to the contract has been in breach of the terms of the contract, the most important documents to be considered are communications sent by defendant No.1 to the plaintiff. In a reply dated 17/5/2018 to plaintiff's notice dated 19/4/2018, though defendant No.1 had blamed the plaintiff for non-execution of the sale deed within the stipulated time but therein he specifically stated that he is still ready to receive the balance amount of sale consideration and execute the sale deed in favour of plaintiff. He further stated that certain disputes have arisen in his family which he shall get resolved within a period of 3 months and shall execute the sale deed in favour of plaintiff. Thereafter on 16/8/2016 plaintiff tendered the balance amount of sale consideration of Rs.2,00,000/- to defendant No.1 for execution of the sale deed. Defendant No.1 then on 6/9/2018 again intimated the plaintiff that as he has stated Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 1/25/2025 5:00:11 PM NEUTRAL CITATION NO. 2025:MPHC-IND:1692 5 MP-3353-2020 earlier there is certain dispute in his family which has not been resolved as yet and he wants time for execution of the sale deed and extend the date of performance of the contract. He specifically stated that execution of the sale deed shall be done by him in last week of November.
12. Thus, from the facts as have come on record, it is evident that defendant No.1 has been seeking time for execution of the sale deed on account of disputes having arisen in his family. He stated that he will get the disputes resolved and execute the sale deed. He has however admittedly not done so. The plaintiff on the other hand has offered the balance amount of sale consideration to defendant No.1 requesting for execution of the sale deed. In the reply notice dated 6/9/2018 defendant No.1 did not state that plaintiff is in breach of terms of the contract hence he shall not execute the sale deed in his favour. From the conduct of the parties it is evident that time was not the essence of contract which has been extended by defendant No.1 himself. Though it was earlier contended by him that plaintiff has not performed the obligations imposed upon him under the agreement but despite that he stated that he would execute the sale deed upon resolution of the disputes in his family. The issue as to whether the terms of the contract have not been performed by the plaintiff, for the present, are hence not of much significance.
13. Recently the Apex Court in Ramakant Ambalal Choksi V/s. Harish Ambalal Choksi and Ors. , 2024 SCC On-line SC 3538 has held that in a suit seeking specific performance of a sale agreement, notwithstanding Section 52 of Transfer of Property Act, there can be occasion for grant of Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 1/25/2025 5:00:11 PM NEUTRAL CITATION NO. 2025:MPHC-IND:1692 6 MP-3353-2020 injunction restraining pendente lite transfers in a fit and proper case. It has been held as under :-
"45. Quite often, in these types of litigations, it is sought to be argued that an injunction restraining the defendant from transferring the suit property was absolutely unnecessary as no post-suit transfer by the defendant can adversely affect the result of the suit because of the provisions of Section 52 of the T. P. Act whereunder all such transfers cannot but abide by the result of the suit. It is true that the doctrine of lis pendens as enunciated in Section 52 of the T. P. Act takes care of all pendente lite transfers; but it may not always be good enough to take fullest care of the plaintiffs interest vis-a-vis such a transfer. We may give one appropriate illustration of a suit for specific performance of contract based on an agreement of sale. In a suit wherein the plaintiff prays for specific performance and if the defendant is not restrained from selling the property to a third party and accordingly a third party purchases the same bona fide for value without any notice of the pending litigation and spends a huge sum for the improvement thereof or for construction thereon, the equity in his favour may intervene to persuade the Court to decline, in the exercise of its discretion, the equitable relief of specific performance to the plaintiff at the trial and to award damages only in favour of the plaintiff. It must be noted that Rule 1 of Order 39 of the Code clearly provides for interim injunction restraining the alienation or sale of the suit property and if the doctrine of lis pendens as enacted in Section 52 the T. P. Act was regarded to have provided all the panacea against pendente lite transfers, the Legislature would not have provided in Rule 1 for interim injunction restraining the transfer of suit property. Rule 1 of Order 39, in our view, clearly demonstrates that, notwithstanding the Rule of lis pendens Section 52 of the T. P. Act, there can be occasion for the grant of injunction restraining pendente lite transfers in a fit and proper case. (See: Sm. Muktakesi Dawn and Ors. Vs. Haripada Muzumdar & Anr. Reported in AIR 1988 Cal
25)."
14. In the present case intention of defendant No.1 to sell the suit land is evident. From the discussion as aforesaid, it is clear that plaintiff has been ready and willing to perform his part of the contract but defendant No.1 has not done so despite seeking time from plaintiff. The earnest money paid by plaintiff is 80% of the total sale consideration. Defendant No.1 hence deserves to be injuncted from alienating the suit land any further. Thus, the Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 1/25/2025 5:00:11 PM NEUTRAL CITATION NO. 2025:MPHC-IND:1692 7 MP-3353-2020 injunction which has been granted by the appellate Court in the facts and circumstances of the case is perfectly justified.
15. In view of the aforesaid discussion, I do not find any error having been committed by the appellate Court in allowing plaintiff's application for issuance of temporary injunction. The said order is accordingly affirmed, as a result of which the petition is dismissed.
(PRANAY VERMA) JUDGE SS/-
Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 1/25/2025 5:00:11 PM