Delhi High Court
R.K. Goel & Others vs Amrit Singh & Others on 20 April, 1999
Equivalent citations: 1999IIIAD(DELHI)760, 80(1999)DLT331, 1999(50)DRJ94
Author: K.S. Gupta
Bench: K.S. Gupta
ORDER K.S. Gupta, J.
1. This appeal by the plaintiffs-appellants is directed against that part of the order of a learned single Judge dated 29th September 1997 passed in I.A. No. 8395/96 by which the ex parte ad-interim injunction order dated 12th September, 1996 was vacated against defendant No. 3 and was made absolute against the remaining defendants but subject to the plaintiffs making deposit of Rs. 20 lakhs in fixed deposit in the name of the Registrar of this court.
2. Suit for specific performance was filed by the plaintiffs, inter alia, alleging that under an agreement dated 14th June, 1995 defendants agreed to sell their land comprised in Mustail No. 17, Khasra No. 19 Min 22, 23 and Mustail No. 18, Khasra No. 1, 2, 3, 8 min, 9, 10/1 and 10/2, total measuring 41 bighas situated in the Revenue Estate of Village Asalatpur Khawad, Tehsil Mehrauli, New Delhi for a total sale consideration of Rs. 39,12,084/- @ Rs. 4,58,000/- per acre, to the plaintiffs. Plaintiffs paid Rs. 3 lakhs as earnest money/part payment to the defendants, which payment has been duly acknowledged by them in the aforesaid agreement to sell. As per the terms of the agreement, defendants were to obtain 'Income-tax clearance certificate' and 'No objection certificate' from the concerned authorities and to execute the sale deed in respect of the said land in favour of the plaintiffs on or before 14th September, 1995. It is stated that on 28th July, 1995 plaintiffs handed over duly signed No Objection Certificate Form to the defendants to enable them to obtain Income-tax clearance certificate and No objection certificate from the concerned authorities. On 2nd September, 1995 plaintiff No. 1 visited the house of the defendants who assured him that they would obtain the Income tax clearance certificate and No Objection Certificate needed for execution of the sale deed on or before 14th September, 1995.
3. It is further pleaded that on 14th September, 1995 plaintiffs went to the office of Sub-Registrar, Delhi, with the entire balance sale considera-tion to be paid to the defendants at the time of the execution of the sale deed. Although plaintiffs waited for the defendants upto 4 PM in the office of the Sub-Registrar but the defendants did not turn up to execute the sale deed. Thereafter, on 27th January, 1996 plaintiffs got a legal notice served on the defendants calling upon them to obtain No objection certificate and to execute the sale deed within 30 days. Defendants got the reply dated 17th February, 1996 sent taking false, frivolous and untenable pleas. It is asserted that the plaintiffs had been ready and willing and are still ready and willing to perform their part of the contract. Defendants are, however, avoiding to execute the sale deed in favour of the plaintiffs.
4. In the suit aforesaid I.A. No. 8395/96 under Order 39 Rules 1 & 2 read with Section 151 CPC was filed by the plaintiffs and by the order dated 12th September, 1996 ex parte ad interim injunction was issued restraining the defendants, their agents, attorneys, assigns from selling, transferring, alienating, mortgaging or parting with possession of the suit land until further orders.
5. All the four defendants have contested the suit by filing a joint written statement. Execution of the agreement to sell dated 14th June, 1995 and receipt of Rs. 3 lakhs by way of earnest money from the plaintiffs is not denied. However, it is alleged that Ram Mehar Singh, defendant No. 3 was not a party to the said agreement nor he received any money. Plaintiffs have tempered the said agreement to sell by writing the words "for self and as power of attorney of Shri Ram Mehar Singh" in front of the names of defendants 1 & 4. It is stated that defendant No. 3 later on also became interested to sell his share in the land alongwith the remaining defendants who happen to be his brothers and obtained No objection certificate on 4th August, 1995.
6. It is further pleaded that the plaintiffs with a view to avoid Income Tax liability filled the amount in the form for No objection certificate below Rs. 5 lakhs. In that event Income tax clearance certificate was not needed and as such the defendants did not apply for Income tax clearance certificate. Defendants obtained No objection certificate from the concerned authorities on 4th August, 1995 and accordingly informed the plaintiffs on 7th August, 1995 by sending letters under certificate of posting and through registered post. However, the plaintiffs did not contact the defendants nor paid the balance amount to them upto 14th September, 1995. Aforesaid agreement to sell was, therefore, cancelled by the defendants and information to that effect was sent to the plaintiffs on 15th September, 1995 through letters sent under certificate of posting as well as registered post. The time was the essence of the agreement. It is denied that the plaintiffs kept waiting for the defendants upto 4 PM on 14th September, 1995 in the office of Sub Registrar, Delhi or that the plaintiff No. 1 visited the house of the defendants on 2nd September, 1995, as alleged. It is claimed that the plaintiffs had no money before 14th September, 1995 and only on 10th January, 1996 they sold the land at Village Sihi in District Gurgaon, Haryana.
7. Reply to I.A. 8395/96 has been filed by the defendants on the grounds similar to that taken in the joint written statement.
8. We have heard learned counsel for the parties and have been taken through the record.
9. As noticed above, the correctness of the order under appeal has been assailed on two counts. As regards the first ground of vacating of the ex parte ad interim injunction against defendant No.3/respondent No. 3, we may observe that statements of R.K. Goel, plaintiff No. 1 and defendant No. 3 were recorded under Order 10 Rule 2 CPC on 15th January, 1999 by the single Judge. Plaintiff No. 1 stated that he had given draft agreement to defendant No. 1 and when the draft agreement was returned to him signatures/thumb impression of only defendant Nos. 1, 2 and 4 were there. Regarding defendant No. 3 he was informed that defendant No. 1 had the power of attorney of defendant No. 3 and, therefore, he made an endorsement on the agreement to sell to that effect. In his deposition defendant No. 3 stated that he never gave any power of attorney either in favour of defendant No. 1 or defendant No. 4. He was not prepared to sell his land and he never entered into any agreement to sell nor received any amount for the same. He only signed No objection certificate thinking that in case his brothers will sell the land he will be left alone but now he is not prepared to sell his share in the suit land. It is thus admitted by both the sides that the agreement to sell dated 14th June, 1995 is not signed by defendant No. 3. As is manifest from the statement made by plaintiff No. 1 under Order 10 Rule 2 CPC he was informed that defendant No. 1 had the power of attorney of defendant No. 3, which fact has been denied on oath by defendant No. 3 in his statement recorded on 15th January, 1999. Defendant No. 3 has further denied of having received any amount by way of earnest money/part payment from the plaintiffs. That being so, mere ground of defendant No. 3 having obtained No objection certificate for sale of his share in the suit land would not entitle the plaintiffs to seek ad interim injunction prayed for against defendant No. 3. In terms of the order under appeal the learned single Judge had thus rightly vacated the ex-parte ad interim injunction against defendant No. 3, but on different ground.
10. Turning to the second count, we are of the view that having found the three conditions, namely, prima facie case, irreparable injury and balance of convenience, which are the pre-requisites for grant of ad interim injunction in favour of the plaintiffs there was absolutely no occasion for learned Single Judge to have burdened the plaintiffs with the onerous condition of depositing an amount of Rs. 20 lakhs in fixed deposit in the name of the Registrar as a condition for making the said order dated 12th September, 1996 absolute against the defendants excepting defendant No. 3. Even no valid reason has been assigned for imposing this condition. On this score alone the order to that extent cannot be legally sustained and deserves to be set aside.
11. Consequently, the appeal is accepted partly. Only part of the order under appeal in regard to deposit of Rs. 20 lakhs in fixed deposit in the name of the Registrar by the plaintiffs as a condition for making the aforesaid order dated 12th September, 1996 absolute, is set aside. No order as to costs.