Gujarat High Court
Suvas Reality Pvt. Ltd vs Riddhi Siddhi Land Build Developers ... on 16 December, 2021
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/AO/128/2021 ORDER DATED: 16/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 128 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/APPEAL FROM ORDER NO. 128 of 2021
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SUVAS REALITY PVT. LTD
Versus
RIDDHI SIDDHI LAND BUILD DEVELOPERS PVT. LTD.,
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Appearance:
MR NAVIN PAHWA, SENIOR ADVOCATE with ARJUN R SHETH(7589) for
the Appellant(s) No. 1,2,3
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 3,4
MR KASHYAP R JOSHI(2133) for the Respondent(s) No. 1
MR.VISHAL J DAVE(6515) for the Respondent(s) No. 2
MS. HIRAL U MEHTA(7003) for the Respondent(s) No. 2
NIPUN SINGHVI(9653) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 16/12/2021
ORAL ORDER
1. The present appeal from order is filed under Order 43 Rule 1 of the Civil Procedure Code, 1908 at the instance of the appellants (original defendants No.1, 2 and 3) being aggrieved and dissatisfied by the order dated 7.10.2021 passed in Special Civil Suit No.20 of 2021 by the 3 rd Additional Senior Civil Judge and ACJM, Ankleshwar, Dist. Bharuch, below Ex.5 application restraining the defendants from alienating the suit property or creating any third party right on the suit property pending hearing and/or final disposal of the Special Civil Suit No.20 of 2021.
2. The respondent No.1 (original plaintiff) filed the Special Civil Suit No.20 of 2021 seeking the following reliefs, which read thus :-
Page 1 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022C/AO/128/2021 ORDER DATED: 16/12/2021 "1) A decree for specific performance of the Agreement for Sale dated 20-08-2012 be passed in favor of the Plaintiff Company and against the Defendant Company thereby directing the Defendants to execute the Conveyance Deed and get the same registered in favour of the Plaintiff Company in respect of the suit property, and also permanently restrain the Defendants from alienating the suit property to any other third party till the suit property is transferred to the Plaintiff Company do all other acts, deeds and things as may be necessary In this regard;
2) In the alternative; If the Hon'ble court finds that the Plaintiff Company is not entitled to the relief of specific performance of Agreement for Sale dated 20-08-2012 OR if the Honourable Court finds that the Specific performance of the Agreement for Sale is not possible, then the suit be decreed for the alternative relief by way of decree for recovery of Rs. 4,00,00,000/-(Rupees Four Crores only) and damages against the defendants, jointly and severally, with interest @ 18% from the date of the agreement till realization of the decree amount, with future interest @ 18% till realization.
3) Pass any other and further relief in favor of Plaintiff Company, as may be deemed fit by this Honorable Court under the facts and circumstance of the case."
2.1 The respondent No.1 (original plaintiff) filed application below Ex.5 below in the Special Civil Suit No.20 of 2021 seeking the following reliefs, which read thus :-
Page 2 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021
"i) The honorable court may be pleased to restrain
Defendants from alienating the suit property or creating any third party rights on the suit property, pending hearing and final disposal of the present suit.
ii) The honorable court may be graciously pleased to grant the exparte ad-interim injunction in accordance with Order 39 Rule 3, in favor of plaintiff company till determination of present injunction application.
iii) Pass any other and further relief in favor of Plaintiff Company, as may be deemed fit by this Honorable Court under the facts and circumstance of the case."
3. The facts giving rise to this appeal from order may be summarized as under :-
3.1 It is the case of the respondent No.1 (original plaintiff) that the plaintiff Company had entered into an agreement to sell with the appellant Company to purchase the suit property through the respondent No.2 (original defendant No.5) the erstwhile director on 20.8.2012. It is further alleged by the plaintiff that earnest money/part-payment of Rs.4 crores through RTGS which was duly credited into the account of the defendant Company and as such awaiting clearance to be obtained by the defendant Company from GIDC for smooth execution of conveyance deed and hence it was mutually agreed between the parties that the remaining amount of sale consideration i.e. Rs.1,04,00,000/- was to be paid at the time of conveyance deed.Page 3 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022
C/AO/128/2021 ORDER DATED: 16/12/2021 3.2 It is further case of the plaintiff that earnest money of Rs.4 crores were credited into the account of the defendant Company and thereafter agreement to sell was executed.
However, the defendant Company after obtaining all the clearances from the GIDC in January, 2021 did not execute the conveyance deed which has resulted into great hardship to the plaintiff Company.
3.3 In view of above, the plaintiff prayed for injunction in favour of the plaintiff and restraining the defendants from alienating the property creating third party rights, in absence thereof would result irreparable loss to the plaintiff Company.
The above referred facts are germane for adjudication of the present appeal from order.
4. Heard Mr. Navin Pahwa, learned Senior Advocate assisted by Mr. A.R. Sheth, the learned advocate appearing for the appellants, Mr. Kashyap R. Joshi, the learned advocate appearing for the respondent No.1 and Mr. Vishal J. Dave, the learned advocate appearing for the respondent No.2.
The respondents No.3 and 4 though served have chosen not to appear in the matter.
5. Mr. Navin Pahwa, learned Senior Advocate appearing for the appellants submitted that the suit filed by the plaintiff was barred by the provisions of the Limitation Act, Registration Act, Stamp Act and the Contract Act. He further submitted that the appellants herein purchased the suit property i.e. Plot No.3001 situated in GIDC, Ankleshwar from M/s. Gujarat Page 4 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021 Leather Company Ltd., who were the Official Liquidator nominated by the Gujarat High Court on 14.8.2015. He submitted that the appellant Company was not owner of the suit property in the year 2012 and hence execution of sale agreement dated 20.8.2012 is void ab initio. He further submitted that the respondent No.2 (original defendant No.5) who was director of the appellant Company during the aforesaid period falsely and fabricately by inflicting bogus and false signature and the authority letter of the defendant No.6 entered into a criminal conspiracy with the appellant Company and in collusion with the plaintiff constructed a forged documents and the plaintiff after a period of 2012 to 2021 has filed the present suit for specific performance.
5.1 Mr. Pahwa vehemently submitted that the respondent No.2 (defendant No.5) conducted mischief with the plaintiff Company and earnest money of Rs.4 crores was falsely transferred and the plaintiff Company with the help of defendant No.5 falsely presented the amount as credit in the account of the appellant Company. However, no such amount was credited and was shown in the annual income of the appellant Company which shows that the said transaction is fabricated and false transaction.
5.2 Mr. Pahwa relied on the documentary evidence produced at Mark 3/4 to 3/6. He relied upon the affidavit filed by the appellants before the Court below. He also relied upon the written statement filed by the appellants herein before the Court below and the documents produced alongwith the written statement. Relying upon the said documents he submitted that the disputed transaction is between the plaintiff Page 5 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021
- Riddhi Siddhi Land Build Developers Pvt. Ltd., and the respondent No.2 i.e. Kailashchandra Ramgopal Lohia. He submitted that the e-mail transactions, intimation to execute conveyance deed at page-19 is between Riddhi Siddhi Land Build Developers Pvt. Ltd., and Kailashchandra Ramgopal Lohia. He relied on communications between the the plaintiff and the respondent No.2 dated 29.6.2015, 11.7.2015, 3.10.2018 and 15.10.2018 and substantiating the stand submitted that as such the appellant Company had never entered into such kind of agreement with the plaintiff.
5.3 Mr. Pahwa submitted that the GIDC allotted industrial plot No.3001 by office order dated 19.8.2021. He further submitted that the appellant Company in possession of the suit property consequently sub-allotted the said plots in favour of 50 (fifty) plot holders. The above referred fact is substantiated from the affidavit filed by the respondent No.2. The list of allottee is duly produced at pages 238, 239 and 240 of the present appeal from order which is forming part of the record.
5.4 Lastly Mr. Pahwa submitted that the appellant No.1 is ready and willing to file an undertaking to furnish bank guarantee of Rs.4 crores before the learned Principal Senior Civil Judge at Ankleshwar, which according to the respondent (plaintiff) was transferred in the appellant's account which prejudice to the rights and contentions that may be taken by the appellant at the time of hearing of the suit.
6. Mr. Kashyap R. Joshi, the learned advocate appearing for the respondent No.1 relied upon the affidavit-in-reply filed by him and submitted that the order of status-quo passed by Page 6 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021 the Court below is just and proper and the same would secure the interest of the plaintiff. He submitted that the undertaking tendered by the appellant herein may not be considered by this Court in view of the fact that the appellants herein are seeking specific performance of contract and the appellant cannot come out with entirely a new case which is not forming ground of appeal memo.
6.1 Mr. Joshi submitted that since the appellant herein is in possession of the suit property the Court has rightly granted interim injunction else the suit filed by the plaintiff would be rendered infructuous. He lastly submitted that this Court may not interfere in the order passed by the Court below.
7. Mr. Vishal J. Dave, the learned advocate appearing for the respondent No.2 submitted that to reserve his right to make submissions at the time of hearing of the suit keeping all the rights and contentions open.
8. The issue involved in an interlocutory application before the trial Court was to see whether the plaintiffs approaching the Court have plausible case and whether there is chance of succeeding at the end of trial. If the answer is in affirmative, then the next duty of the Court is to see whether the damages that the plaintiffs are likely to suffer for the action of the defendants complained of can be compensated in terms of money and if such compensation can be ascertained then the interlocutory order of injunction should normally be refused. In the event of the Court is of the view that such compensation Page 7 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021 cannot be ascertained then also, it is the duty of the Court to see the balance of convenience and inconvenience of the parties.
8.1 In the case of Best Sellers Retail (India) Pvt. Ltd., vs. Aditya Birla Nuvo Ltd., and Ors., reported in AIR 2012 (5) SC 2448, the Hon'ble Supreme Court in paragraphs 14 to 18 held as under :-
"14. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable. In Dalpat Kumar & Anr. v. Prahlad Singh & Ors. [(1992) 1 SCC 719] this Court held:
"Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages."Page 8 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022
C/AO/128/2021 ORDER DATED: 16/12/2021
15. In the present case, the respondent no.1 itself had claimed in the plaint the alternative relief of damages to the tune of Rs.20,12,44,398/- if the relief for specific performance was to be refused by the Court and break-up of the damages of Rs.20,12,44,398/- claimed in the plaint was as follows:
"I. Net Book stock amount on 28.02.2010 is Rs.1,15,97,638/-.
II. Loan amount due as on 27.01.2010 is Rs.44,81,584/-.
III. Amount due as per Statement of Accounts as on 28.02.2010 is Rs.20,65,176/-.
IV. Projected Loss of profit on sales, for the balance 7 year term of the Agency Agreement amounts to a sum of Rs.10,31,00,000/-.
V. Loss of Goodwill, Reputation including amount spent on advertisement Rs.2,00,00,000/-.
VI. Loss of amount which Plaintiff would incur for relocating the store to other place in the Brigade Road, Bangalore and to continue its business for rest of the term 7 years would amount to Rs.6,00,00,000/- along with simple interest at the rate of 24% p.a. from the date of payment till realization as the same being a commercial transaction."
16. Mr. Venugopal, learned counsel appearing for the respondent no.1, however, submitted that future profits and loss of goodwill of the respondent no.1 cannot be calculated in terms of the money, but the aforesaid statement of Page 9 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021 damages claimed by the respondent no.1 in the plaint would show that the respondent no.1 has itself calculated a projected loss of profit for the balance seven year term of the agreement as Rs.10,31,00,000/- and has also assessed loss of goodwill at Rs.2,00,00,000/- besides the loss of Rs.6,00,00,000/- in relocating the store to another place in Brigade Road, Bangalore.
17. Despite this claim towards damages made by the respondent no.1 in the plaint, the trial court has held that if the temporary injunction as sought for is not granted, Liberty Agencies may lease or sub-lease the suit schedule property or create third party interest over the same and in such an event, there will be multiplicity of proceedings and thereby the respondent no.1 will be put to hardship and mental agony, which cannot be compensated in terms of money. Respondent no.1 is a limited company carrying on the business of readymade garments and we fail to appreciate what mental agony and hardship it will suffer except financial losses. The High Court has similarly held in the impugned judgment that if the premises is let out, the respondent no.1 will be put to hardship and the relief claimed would be frustrated and, therefore, it is proper to grant injunction and the trial court has rightly granted injunction restraining the partners of Liberty Agencies from alienating, leasing, sub-leasing or encumbering the property till the disposal of the suit. The High Court lost sight of the fact that if the temporary injunction restraining Liberty Agencies and its partners from allowing, leasing, sub-leasing or encumbering the suit schedule Page 10 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021 property was not granted, and the respondent no.1 ultimately succeeded in the suit, it would be entitled to damages claimed and proved before the court. In other words, the respondent no.1 will not suffer irreparable injury. To quote the words of Alderson, B. in The Attorney-General vs. Hallett [153 ER 1316:
(1857) 16 M. & W.569]:
"I take the meaning of irreparable injury to be that which, if not prevented by injunction, cannot be afterwards compensated by any decree which the Court can pronounce in the result of the cause."
18. For the aforesaid reasons, we set aside the order of temporary injunction passed by the trial court as well as the impugned judgment and the order dated 16.07.2010 of the High Court. The appeals are allowed with no order as to costs."
8.2 In the case of Kishorsinh Ratansinh Jadeja vs. Maruti Corp. and Ors., reported in AIR 2009 SC 22882, the Hon'ble Supreme Court in paragraphs 12, 18 to 25 held as under :-
"12. In addition to the above, Mr. Ranjit Kumar also referred to the decision of this Court in Mandali Ranganna & others vs. T. Ramachandra [(2008) 11 SCC 1] wherein an additional principle was sought to be enunciated relating to grant of injunction by way of an equitable relief. This Court held that in addition to the three basic principles, a Court while granting injunction must also take into consideration the Page 11 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021 conduct of the parties. It was observed that a person who had kept quiet for a long time and allowed others to deal with the property exclusively would not be entitled to an order of injunction. The Court should not interfere only because the property is a very valuable one. Grant or refusal of injunction has serious consequences depending upon the nature thereof and in dealing with such matters the Court must make all endeavours to protect the interest of the parties.
18. On a careful consideration of the submissions made on the behalf of the respective parties, the scenario which emerges is that while on the one hand the Respondent No.1 is strongly in favour of the status quo of the suit lands being maintained during the pendency of the suit for specific performance filed by it, the appellant and the other joint owners have projected a case of both balance of convenience and inconvenience and irreparable loss on being restrained from developing their own property by the Respondent No.1, purportedly on the basis of a spurious document. Mixed with the aforesaid issues is the issue of the 280 transferees to whom plots have been conveyed by the owners and who were enjoying the same by raising structures which were at different stages of construction. We are faced with a situation where inspite of having obtained the said plots at a point of time when the injunction against the owners was not in force, the transferees, who were not even parties before the Court, have been restrained by an interim order of injunction of a mandatory nature which seriously affects them, but without giving them Page 12 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021 any opportunity of hearing.
19. We have to consider the effect of the third order passed on 7th May, 2008, on Civil Application for Injunction No.5618 of 2008 filed of the previous day on 6th May, 2008, ordering that no construction be raised on the disputed lands on the 280 transferees who were in the process of raising their constructions. As will be apparent from the order itself, the same was passed in great haste without even giving the owners of the lands an opportunity of contesting the application. In fact, the application was disposed of by a cryptic order which does not even contain any reason for passing the same. The Division Bench has merely indicated that to avoid further complications and multiplicity of litigation, the order was being passed not to raise constructions on the disputed land, without even taking into consideration the several transferees who were to be adversely affected by such an order. Even the appellant herein and the Respondents No.2 to 7 were not given an opportunity of filing any affidavit to counter the statements and allegations made in the application for injunction.
20. It is quite obvious that the High Court was completely oblivious to the facts of the case and passed different orders at different times on the applications filed at regular intervals by the Respondent No.1 Corporation.
21. The reasoning provided in the interim order dated 22nd April, 2008, is, to say the least, legally untenable. Having passed an order earlier on 29th February, 2008, based on the principle of lis pendens, the Division Bench of the High Court Page 13 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021 in its second order dated 22nd April, 2008, observed that when the First Appeal was admitted and the matter in dispute as regards the property in question was sub-judice, the properties in question should not be sold and passed an order which was contrary to the initial order which was made in keeping with Section 52 of the Transfer of Property Act.
22. It is well established, that while passing an interim order of injunction under Order XXXIX Rules 1 and 2 CPC, the Court is required to consider three basic principles, namely,
(i) prima facie case;
(ii) balance of convenience and inconvenience;
and
(iii) irreparable loss and injury.
None of the said principles have been considered by the High Court while passing the second and third interim orders dated 22nd April, 2008 and 7th May, 2008, nor has the High Court taken into account the long silence on the part of the Respondent No.1 Corporation in filing a suit after 19 years.
23. In our view, while passing the interim order dated 7th May, 2008, the High Court ought to have considered the effect which its order would have on the 280 transferees to whom some portions of the land had already been sold and who had commenced construction thereupon, particularly when they were not even parties in the appeal, nor were they heard before they were injuncted from continuing with the construction work. Such an order affecting third party rights in their absence, as they were not parties to the proceedings, Page 14 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021 cannot be sustained having further regard to the manner in which the said order was passed. An application for an order which would have far and wide reaching consequences was sought to be disposed of by the Division Bench on the very next day without giving an opportunity of controverting the allegations made therein even to those who were parties in the suit, though it had been brought to the notice of the Court that conveyances had been executed in favour of 280 purchasers. This is not a case where the appellant and the other co-owners had violated any restraint order passed by the Court in transferring the plots in question to the said 280 transferees. The said transfers were effected at a point of time when there was no injunction or restraint order against the appellant and the other owners of the property and as far as the said transfers are concerned, the only order that could have been passed on the said application is the order which was passed at the first instance on 29th January, 2008, based on the principles of Section 52 of the Transfer of Property Act, 1882. The restraint order on the transferees must, therefore, be held to be bad and liable to be set aside.
24. As far as the lands which the appellant and the other joint owners have been restrained from alienating by the second order dated 22nd April, 2008, are concerned, we are of the view that in the event the order of 22nd April, 2008, is set aside, the Respondent No.1 can be compensated in terms of money and no irreparable loss and injury will be caused to it on account thereof. On the other hand, if the owners of the property remain restrained from developing the same, it is Page 15 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021 they, who will suffer severe prejudice, as they will be deprived of the benefit of the user of their land during the said period. The balance of convenience and inconvenience is against grant of such injunction. The success of the suit for specific performance filed by the Respondent No.1 depends to a large extent on tenuous proof of genuineness of the agreement sought to be enforced after 19 years, despite the finding of the Trial Court that the suit was not barred by limitation.
25. The question of conduct of the Respondent No.1 also becomes relevant, inasmuch as, having slept over its rights for more than 19 years, it will be inequitable on its prayer to restrain the owners of the property from dealing with the same, having particular regard to the fact that a large portion of the land has already been conveyed to as many as 280 purchasers who are in the process of erecting constructions thereupon."
9. The agreement to sell between the Riddhi Siddhi Land Build Developers Pvt. Ltd. and Suvas Reality Pvt. Ltd., dated 20.8.2012, alleged communications dated 29.6.2015, 11.7.2015, 3.10.2018 and 15.10.2018 between the plaintiff Company and the respondent No.2 - original defendant No.5. The deed of assignment of lease hold rights dated 5.8.2015 between the Gujarat Leather Industries Ltd., and appellant - Suvas Reality Pvt. Ltd. On 26.3.2021, GIDC allotted industrial Plot No.3001 admeasuring 43,165.00 Sq.Mtrs., to Gujarat Leather Industries Page 16 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021 Ltd. The request for transfer of land of the said industrial plot in favour of the Suvas Reality Pvt. Ltd on certain conditions. Office order dated 27.4.2021, the above referred industrial plot transferred in favour of the Suvas Reality Pvt. Ltd. The sub- plots allotted to 50 (fifty) other allottees by sub-leasing. On 19.8.2021, allotment by the Corporation to the appellant - Suvas Reality Pvt. Ltd in view of the lease deed executed on 2.5.1979 and the assignment deed dated 5.8.2015.
9.1 The suit filed by the appellant herein seeking specific performance of agreement to sell dated 20.8.2012. The GIDC allotted industrial plot No.3001 by office order dated 19.8.2021. The office order is produced thus :-
OFFICE ORDER Sub: Sub-Division of Industrial Plot No. 3001 at Ankleshwar Industrial Plot Estate.
The Corporation has Sub-Division Industrial Plot No. 3001 having plot area of 43165.00 Sq.mtrs. to you in Ankleshwar Industrial Plot Estate / Area of the Corporation on 02/05/1979. The Lease Deed has been executed on dtd.02/05/1979 & Deed of Assignment executed on 05/08/2015. You have applied to the Corporation for Sub-Division of plot No.3001, admeasuring 43165.00 sq.mtrs. as under:
Sr. Proposed Area in COP Road Total
no. Plots Sq. mt. Area Area
Page 17 of 26
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C/AO/128/2021 ORDER DATED: 16/12/2021
1. 3001/1 990.00 55.16 121.00 1,166.16
2. 3001/2 990.00 55.16 121.00 1,166.16
3. 3001/3 990.00 55.16 121.00 1,166.16
4. 3001/4 990.00 55.16 121.00 1,166.16
5. 3001/5 990.00 55.16 121.00 1,166.16
6. 3001/6 990.00 55.16 121.00 1,166.16
7. 3001/7 990.00 55.16 121.00 1,166.16
8. 3001/8 990.00 55.16 121.00 1,166.16
9. 3001/9 990.00 55.16 121.00 1,166.16
10. 3001/10 1,369.48 55.16 121.00 1,546.64
11. 3001/11 402.13 55.16 121.00 578.29
12. 3001/12 402.13 55.16 121.00 578.29
13. 3001/13 402.13 55.16 121.00 578.29
14. 3001/14 402.13 55.16 121.00 578.29
15. 3001/15 402.13 55.16 121.00 578.29
16. 3001/16 402.13 55.16 121.00 578.29
17. 3001/17 499.89 55.16 121.00 676.05
18. 3001/18 499.89 55.16 121.00 676.05
19. 3001/19 499.89 55.16 121.00 676.05
20. 3001/20 499.89 55.16 121.00 676.05
21. 3001/21 499.89 55.16 121.00 676.05
22. 3001/22 499.89 55.16 121.00 676.05
23. 3001/23 999.79 55.16 121.00 1,175.95
24. 3001/24 999.79 55.16 121.00 1,175.95
25. 3001/25 499.89 55.16 121.00 676.05
26. 3001/26 499.89 55.16 121.00 676.05
27. 3001/27 499.89 55.16 121.00 676.05
28. 3001/28 499.89 55.16 121.00 676.05
29. 3001/29 499.89 55.16 121.00 676.05
30. 3001/30 499.89 55.16 121.00 676.05
31. 3001/31 402.13 55.16 121.00 578.29
32. 3001/32 402.13 55.16 121.00 578.29
33. 3001/33 402.13 55.16 121.00 578.29
34. 3001/34 402.13 55.16 121.00 578.29
35. 3001/35 402.13 55.16 121.00 578.29
Page 18 of 26
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C/AO/128/2021 ORDER DATED: 16/12/2021
36. 3001/36 402.13 55.16 121.00 578.29
37. 3001/37 250.00 55.16 121.00 426.16
38. 3001/38 250.00 55.16 121.00 426.16
39. 3001/39 250.00 55.16 121.00 426.16
40. 3001/40 250.00 55.16 121.00 426.16
41. 3001/41 1,584.71 55.16 121.00 1,770.87
42. 3001/42 1,116.65 55.16 121.00 1,292.81
43. 3001/43 741.14 55.16 121.00 917.30
44. 3001/44 580.26 55.16 121.00 756.42
45. 3001/45 427.46 55.16 121.00 803.62
46. 3001/46 258.13 55.16 121.00 434.29
47. 3001/47 1,221.76 55.16 121.00 1,397.92
48. 3001/48 1,435.12 56.16 121.00 1,611.28
49. 3001/49 1,416.20 55.16 121.00 1,592.36
50. 3001/50 1,462.46 55.45 120.52 1,638.43
Total 34,357.19 2,758.29 6,049.52 43,165.00
Area of
Plot
Certain terms & Condition have been stipulated by .. the Regional Manager, Ankleshwar as per letter No.GIDC/RM/ANK/ SD/PSO/ANK1/26, dtd. 10/08/2021 The Lessee has paid all dues of the Corporation upto date. He has also paid the Sub-Division fees at the rate of % per Sq.mtr. of Value of the land amounting of Rs.39601730.00/- & N.U Penalty amounting of Rs.3168139.00/- & Corporation's Administrative charges Rs.1,180.00/ -.
This permission will not be in any case considered as permission for building by-laws of the Corporation. This order will not be considered as valid for regularization of unauthorized Construction. If any unauthorized construction exists on the allotted property it will not be considered as Page 19 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021 authorized one and it shall be the sole responsibility of the allottee to get such non-violative construction regularized or violative unauthorized construction removed according to the building regulations of the Corporation. ..
As per the norms, only 1 approach is allowed in the proposed subdivided plot."
9.2 Mr. Vinodkumar Anokhilal Jain, the authorised signatory of the appellant No.1 has filed an undertaking, which is produced thus :-
"AFFIDAVIT CUM UNDERTAKING ON BEHALF OF THE APPELLANT NO. 1 I, Vinodkumar Anokhilal Jain, the authorized signatory of the Appellant no. 1 herein, aged about 45 years, residing at 3Aadinath Society, Behind Bank of Baroda, Station road, Ankleshwar, do solemnly state on oath and affirm as follows:
1. That I am duly authorised on behalf of the Appellant no. 1 to file the present affidavit, and I am sufficiently conversant with the facts of the case and I am in a position to file the present affidavit.
2. This affidavit is being filed without prejudice to the rights and contentions of the appellants.
3. That the original plaintiff / Respondent no. 1 has made the following main prayer in the concerned suit before the Hon'ble Lower Court:Page 20 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022
C/AO/128/2021 ORDER DATED: 16/12/2021 "In the alternative, if the Hon'ble Court finds that the Plaintiff Company is not entitled to the relief of specific performance of agreement for sale dt. 20.08.2012 OR if the Hon'ble Court finds that the Specific performance of the Agreement for sale is not possible, then the suit be decreed for the alternative relief by way of decree for recovery of Rs. 4,00,00,000/ (Rupees Four Crores only) and damages against the defendants, jointly and severally, with interest @ 18% from the date of the agreement till realization of the decree amount, with future interest @ 18% till realization."
4. That in order to secure the said prayer, the Appellant no.1 herein is hereby undertaking that it shall forthwith provide bank guarantee before the Hon'ble Principal Senior Civil Judge at Ankleshwar, in favour of the original plaintiff /Respondent no. 1 herein for amount of Rs. 4,00,00,000/ (Rupees Four crores only) till disposal of the Special Civil Suit no.20 of 2021 and give right to the original plaintiff / Respondent no.1 to invoke the said bank guarantee in the event the Hon'ble Lower Court is pleased to decree payment of Rs. 4,00,00,000/- or higher in favour of the original plaintiff / Respondent no. 1.
5. In view of the aforesaid undertaking, it is humbly prayed that this Hon'ble Court be pleased to set aside and quash the impugned order dt. 07.10.2021 passed by the Hon'ble Principal Senior Civil Judge at Ankleshwar on Exhibit 5 in the Special Civil Suit no. 20 of 2021.
Solemnly affirmed at Ankleshwar this 15 th day of December, Page 21 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021 2021."
10. The power to grant injunction is extraordinary in nature and it has exercised consciously and with circumspection. Grant of injunction is equitable remedy. It is the discretion of the Court and such discretion is required to be exercised in favour of the plaintiff only if the Court is satisfied that unless the defendant is restrained by an order of injunction, irreparable loss or damage will be caused to the plaintiff.
10.1 In the facts of the present case the original plaintiff - present respondent is seeking specific performance of the agreement to sell of 2012. The original defendant - appellant herein are disputing such agreement to sell and substantiating their stand by stating that the said agreement to sell is false and fabricated. The Court below by an order dated 7.10.2021 passed below Ex.5 application directed the parties to maintain status-quo with regard to the nature, structure and character of the suit property and has further restrained the appellant herein from creating any third party rights. The appellant herein have been in possession of the said property and they are in the business of construction and real-estate, carrying on their business in the name of Survas Reality Pvt. Ltd. The appellant Company purchased the suit property from the office of the Official Liquidator attached to this Court which land parcel was of the ownership of the GIDC in 14.8.2015. The alleged agreement to sell between the appellant and the respondent - original plaintiff was prior to 2015 i.e. on 20.8.2012 intending to purchase the suit property was executed between the respondent No.1 and the appellant - Company through the respondent No.2. Acting as director of the Page 22 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021 respondent No.2 Company the respondent No.1 had paid Rs.4 crores as earnest money. It is the case of the appellant that the respondent No.2 relying on a forged board resolution dated 1.8.2012 authorising the respondent No.2 to sell the immovable property on behalf of the appellant Company entered into an agreement to sell dated 20.8.2012 and the same is disputed by the appellant Company.
10.2 The appellant Company purchased the suit property on 14.8.2015. On verifying the record of the GIDC the land continued to be shown in the name of the appellant Company accordingly the name of the appellant Company recorded in the records of the GIDC. The appellant Company paid consideration of Rs.4.37 crores to see that the appellant had its name recorded in the record of the GIDC. According to the appellant, the said amount is received by the appellant from other Company and not from the respondent No.2. The communication between the original plaintiff - respondent No.1 and the respondent No.2 - original defendant No.5 from dated 29.6.2015, 11.7.2015, 3.10.2018 and 15.10.2018 are allegedly the transactions between the plaintiff Company and the respondent No.2. The respondent No.2 has filed Company Application No.100 of 2018 before the NCLT which is pending adjudication against the appellant Company. The appellants No.2 and 3 being investors came to be appointed as director of the Company in January, 2021. The deed of assignment of the suit property was executed between the GIDC, the appellant Company being transferee and the M/s. Gujarat Leather Company Ltd., being transferor on 4.8.2015. The suit property stood transferred to the appellant Company from dated 27.4.2021 and, therefore, the said agreement to sell could not Page 23 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022 C/AO/128/2021 ORDER DATED: 16/12/2021 have been possible to have taken place in the year 2012 as the appellant Company was not the owner of the said property. The said suit property has been sub-plotted by the GIDC and for the said sub-plotting the appellant made the payment of Rs.4.37 crores with the GIDC on 13.8.2021 and the GIDC by order dated 19.8.2021 has permitted sub-plotting (50 plots of the said parcel of land).
10.3 In view of the factual position and even as per the case of the plaintiff undisputedly, the appellant is in possession of the suit property. The agreement to sell dated 20.8.2012 is disputed by the appellant and the appellant has alleged that it is false and fabricated. GIDC by office order dated 19.8.2021 allotted industrial plot No.3001 and consequently sub-allotted the 50 (fifty) plots in favour of the 50 plot holders. The allottees are not parties to the suit proceedings nor were they heard. The present order of status-quo affects the rights of third parties. The plaintiff can be compensated in terms of the money however on the other hand, if the allottees of plot No.3001 are restrained from development, it is they who will suffer severe prejudice as they will be deprived of development of the sub-plots pending the suit proceedings. The balance of convenience and inconvenience is against grant of such injunction.
Though the plaintiff has based his case on conveyance deed to be enforced once the appellants received requisite permission from GIDC. The agreement to sell dated 20.8.2012 will have to be proved by adducing evidence. The plaintiff has also instituted a suit for specific performance with respect to an agreement to sell of 2012 in 2021.
Page 24 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022C/AO/128/2021 ORDER DATED: 16/12/2021 10.4 In light of the limited powers of this Court, the
Appellate Court can certainly interfere with the discretionary order passed by the trial Court in exceptional circumstances and the Appellate Court can interfere with the exercise of discretion of the Court of first instance and substitute its own discretion, where the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions.
10.5 This Court is conscious/aware that the discretion exercised by the trial Court normally may not be interfered with. However, having regard to the prima facie case and balance of convenience, modification of the order passed by the Court below dated 7.10.2021 below application Ex.5 would serve the ends of justice. Permitting further allotment will lead to development of industrial and commercial sector within GIDC area. No useful purpose will be served by keeping the plots idle and the interest of plaintiff is also protected by directing the appellants to furnish the bank guarantee to the tune of Rs.4.5 crores by modifying the order dated 7.10.2021. The appellant is directed to furnish a bank guarantee to the tune of Rs.4.5 crores.
10.6 In view of above, the order dated 7.10.2021 passed in Special Civil Suit No.20 of 2021 by the 3 rd Additional Senior Civil Judge and ACJM, Ankleshwar, Dist. Bharuch, below Ex.5 application is quashed and set aside. The appeal from order is partly allowed to the aforesaid extent. Consequently the civil application is disposed of.
Page 25 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022C/AO/128/2021 ORDER DATED: 16/12/2021 10.7 The appellant is directed to furnish the bank guarantee to the tune of Rs.4.5 crores in the name of Registrar, City Civil Court, Ahmedabad. It is further directed that the appellant shall clearly mention that the Special Civil Suit No.20 of 2021 is pending adjudication before the Court below. The appellant is further directed to furnish an undertaking before the Court below that the appellant shall not claim any equity. This order shall come into effect after the aforesaid conditions are satisfied.
10.8 The trial Court may proceed with the suit proceeding in accordance with law and looking into the controversy of the present appeal from order. The trial Court is directed to expedite the suit proceeding.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 26 of 26 Downloaded on : Wed Jan 12 11:12:18 IST 2022