Calcutta High Court (Appellete Side)
Sujan Maity vs Sri Raj Kumar Koley & Ors on 17 January, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:
The Hon'ble Justice Jyotirmay Bhattacharya AND The Hon'ble Justice Ishan Chandra Das F.M.A.T. 685 of 2016 (CAN 7943 of 2016) Sujan Maity
-Versus-
Sri Raj Kumar Koley & Ors.
For the Defendant/Appellant : Mr. Keshab Chandra Das. Heard on: 17th January, 2017. Judgement on: 17th January, 2017. Jyotirmay Bhattacharya, J. :-
This first miscellaneous appeal is directed against an order being 50 dated 7th April, 2016 passed by the Learned Civil Judge, 2nd Court at Hooghly in Title Suit No. 369 of 2013.
By the impugned order, the plaintiff and the defendant no.3 were directed to maintain status quo as regards the nature, character, possession and construction over the suit property as on the date of passing of the impugned order till the disposal of the suit. The defendant no.3 was further restrained by an order of temporary injunction from transferring the suit property to any third person.
The legality and/or propriety of the said order is under challenge in this appeal at the instance of the defendant no.3.
Let us now consider as to whether there is any merit in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure.
The plaintiff filed a suit for specific performance of contract. An agreement was entered into between the plaintiff and the defendant no.1 for sale of the suit property for a consideration of Rs. 2,00,000/-, on 19th July, 2007. Admittedly, the defendant no.1 was the owner of the suit property at the time of execution of the said agreement. The defendant no.1 executed the said agreement on acceptance of a sum of Rs. 30,000/- as earnest money. The parties agreed to complete the said transaction within Poush of 1414 B.S. It was stated therein that in spite of repeated requests to complete the said transaction on acceptance of the balance consideration money, the defendant no.1 did not execute a proper deed of conveyance for transferring his right, title and interest in respect of the suit property in favour of the plaintiff. The plaintiff also came to learn that the defendant no.1 sold the suit property to the defendant no.2 on 17th February, 2009 who in turn again sold the suit property to the defendant no.3 in the year 2010. The plaintiff went to the defendant no.3 on 24th August, 2011 and informed him about the entire incident regarding the transaction held between the parties concerning the suit property. He also claimed that he is a bonafide purchaser for value without notice. However, since the defendant threatened to sell the suit property to third person and/or also trying to demolish the bamboo fencing of the suit property, the instant suit was filed.
After filing the said suit, injunction was sought for by the plaintiff for restraining the defendant from changing the nature and character of the suit property and from transferring, selling, alienating the suit property to any third party till the disposal of the suit.
The defendant no.3 contested the said suit by filing written objection claiming therein that he was a bonafide purchaser for value without notice and they claimed that the plaintiff was not entitled to get any injunction order against the defendant no.3.
The learned Trial Judge after considering the pleadings of the parties held that when the execution of the deed of agreement for sale between the plaintiff and the defendant no.1 is not denied, the injunction which is sought for by the plaintiff by way of interim measure, cannot be denied at this stage, when the defendant's plea about he being the bonafide purchaser for value without notice is yet to be established in the suit during its trial.
The learned Trial Judge held that if the injunction as sought for, is not granted and parties are permitted to change the nature and character of the suit property, then the relief which is claimed in the suit by the plaintiff, may ultimately be frustrated.
Under such circumstances, the learned Trial Judge was pleased to pass the impugned order of injunction.
Let us now consider the legality of such interim order in the context of the submission made by the learned advocate appearing for the appellant.
The learned advocate for the appellant submits that the agreement for sale which was allegedly executed between the plaintiff and the defendant no.1, was not a registered agreement. According to him, such an unregistered agreement is incapable of being performed specifically by suit.
We do not find any merit in such contention of the learned advocate appearing for the appellant. An agreement for sale, be it oral or written, is capable of being performed specifically by suit, provided however, existence of such agreement is proved and the agreement is found to be legal, valid and enforceable and the party who is seeking enforcement, is found to be ready and willing to perform his part of the contract all throughout.
On perusal of the pleadings of the parties, we are of the view that all the aforesaid ingredients for passing an order of injunction in such a suit for specific performance of contract are present in the instant case. Execution of the agreement for sale between the plaintiff and the defendant no.1 is not denied.
It is not the case of the defendant that the agreement was terminated by the defendant no.1. It is also not the case of the defendant that the earnest money which was received by the defendant no.1 at the time of execution of the agreement, was returned to the defendant no.1.
Thus, when the agreement has not been terminated and the defendant no.1 is still enjoying the benefits of the earnest money received by him at the time of execution of the said agreement, we are of the prima facie view that he cannot avoid the agreement being specifically performed subject to fulfilment of the condition contained in Section 16(c) of the Specific Relief Act.
We have seen that already the suit property was sold twice. If we permit the suit property to be transferred further by not granting injunction, there would be every possibility of multiplication of proceedings. That apart, nature and character of the suit property should not be allowed to be altered during the pendency of the suit.
As such, we hold that the learned court below did not commit any illegality in passing the impugned order of injunction in the facts of the present case.
We thus, find no merit in this appeal.
The appeal thus, stands dismissed.
The judgement and order passed by the learned Trial Court is affirmed. Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the stay application.
The application for stay being CAN 7943 of 2016 is thus, deemed to be disposed of. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.) dp