Orissa High Court
Minati Pradhan vs Akash India Multi Complex Limited ... on 22 September, 2017
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT, CUTTACK.
C.M.P. No.1543 of 2016
An application under Article 227 of
the Constitution of India.
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Minati Pradhan ... Petitioner
Versus
Akash India Multi Complex Limited ... Opposite Party
Registered Office No.92/1116,
At Dumuduma (Ka), P.O./P.S.-Khandagiri,
Bhubaneswar, Dist.-Khurda
For Petitioner : M/s. Samir Kumar Mishra,
J. Pradhan, S. Rout,
P.K. Jena, P.S. Mohanty
S. Biswal.
For sole Opposite Party : M/s. Gautam Mukherji,
S.D. Ray, P.K. Satapathy,
A.C. Panda, S. Priaydarsini
M/s. Prasanta Ku. Satapathy,
K.C. Panda,
B.P. Sarangi.
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PRESENT :
THE HONOURABLE MR. JUSTICE BISWANATH RATH
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Date of hearing :6.09.2017 Date of Judgment : 22.09.2017
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Biswanath Rath, J.This Civil Miscellaneous Petition involves challenge to the order under Annexures-4 & 5. The order vide 2 Annexure-4 involves dismissal of the interim application under Order 39 Rule 1 & 2 at the instance of the petitioner and the order vide Annexure-5 is dismissal of the appeal as against the order vide Annexure-4 by the appellate authority.
2. Short background involved in the case is that the petitioner as the plaintiff filed Civil Suit No.63 of 2015 impleading the present opposite parties and two others as defendants praying therein for a decree for specific performance of contract and further seeking a direction to the defendants to execute and register the sale deed in favour of the plaintiff in respect of suit land within the time fixed by the Court, further on failure of the same to execute and register the sale deed in favour of the plaintiff through the process of Court with an alternative prayer that in the event, the contract is not legally enforceable to direct the defendant Nos.1 & 2 to refund the entire consideration money alongwith 12% interest per annum till its realization and also for cost and other reliefs. The plaintiff in filing the suit has the specific plea that the suit property belongs defendant Nos.1 & 2. For urgent need of money the defendant Nos.1 & 2 approached the plaintiff-petitioner intending to sale the disputed property for consideration amount of Rs.15,900/-. The defendant Nos.1 & 2 also assured the plaintiff that in the event of making of the payment, they will deliver the 3 possession of the property with a promise to enter into the execution and registration of a sale deed after their names are duly recorded in the Government Record. It is accordingly on payment of money the defendant Nos.1 & 2 executed an agreement for sale in favour of the plaintiff-petitioner on 5.11.2000, on receipt of entire consideration amount in presence of witnesses with delivery of possession in favour of the plaintiff. It is further contended that when the plaintiff-petitioner was in possession of the suit land and while the petitioner was going on asking the defendant Nos.1 & 2 to execute and register the sale deed, the defendant Nos.1 & 2 went on delaying the matter of execution as well as the registration and in the meantime on 25.2.2015 the petitioner was threatened by a stranger the defendant No.3 claiming to have purchased the suit land on 10.07.2010. Further, it has also been brought to his notice that a mutation has already been granted in her favour on 10.07.2010 involving the disputed land. The petitioner while filing the suit for above relief also filed an application under Order 39 Rule 1 & 2 of C.P.C praying therein for add interim injunction. This petition was registered as I.A. No.45 of 2015 and the I.A. was disposed of on contest between the parties with an order of rejection. An appeal was filed challenging the rejection of the I.A. and the Additional District Judge dismissed the F.A.O. No.165 of 2016 giving rise the present C.M.P. 4
3. Assailing the impugned order, learned counsel for the petitioner submitted that for the trial Court finding a prima facie case in favour of the petitioner and for the claim of right over the disputed property by the different parties, one party claiming to have entered into an agreement with vendor, the defendant No.3 being the other party claiming to have purchased the same property from the same vendor, the trial Court instead of rejecting the application under Order 39 Rule 1 & 2 should have allowed the application. Learned counsel for the petitioner on the same analogy also claimed that the lower appellate authority has also failed to appreciate the above aspect of the matter and passed the wrong and illegal impugned order, which requires to be interfered with and set aside.
4. Referring to the decisions 1st in the case in between Gangadhar Raut v. Binod Bihari Nayak as reported in 1998 (I) OLR - 199, 2nd in the case in between Dattu s/o Namdev Thakur v. State of Maharashtra and others as reported in (2012) 1 Supreme Court Cases 549 and 3ly an unreported decision involving Civil Appeal No.10997 of 2013, learned counsel for the petitioner submitted that for the decisions involved herein having direct application to the case at hand, the petitioner is entitled to 5 get an order of injunction and as such prayed this Court for interference with the impugned order by setting aside the same.
5. Sri Gautam Mukharjee, learned counsel for the opposite party the defendant No.3 objecting the submissions made by the learned counsel for the petitioner taking this Court to the pleadings involved in the plaint, main prayer as well as the alternate prayer involved in the suit and further taking this Court to the concurrent finding of fact by both the Courts below with regard to the finding on possession of the disputed property in favour of the defendant No.3 and further referring to the decisions of the Hon'ble Apex Court as reported in 2015 (Supl.2) OLR 848, 2006 (Supl.2) OLR 486 and AIR 2012 (SC) 1440 submitted that for the concurrent finding of fact on the position of the parties on possession over the disputed property and further for the involvement of a grater question as to the maintainability of suit filed in the year 2016 involving the plaintiffs claim on a unregistered agreement of the year 2000 and further for the decisions referred to therein, Sri Mukharjee, learned counsel submitted that there appears, there is no infirmity in the impugned order.
6. Considering the rival contentions of the parties, this Court finds, there is no dispute that the plaintiff's case involving 6 the civil suit No.63 of 2015 has a clear plea that the unregistered agreement between the parties such as plaintiff and defendant Nos.1 & 2 for sale of the disputed land in the year 2000 and at the same time, the plaint averments also discloses the claim of the defendant No.3 to have purchased the suit land in the year 2010, it appears, not only the plaint discloses two prayers, prayer no.2 as an alternate prayer, it is at this stage, for the concurrent finding of fact of the Courts below on the possession of the defendant no.3 over the disputed property and further for the existence of the alternate prayer involving the civil suit this Court finds, the plaintiff will not become remediless in the event of refusal of injunction.
7. Now taking into consideration some of the decisions of this Court, this Court finds, in the case in between Smt. Kanakalata Panda versus Sri Ashok Kumar Sinha as reported in 2015 (Supp.II) OLR 848 in paragraph nos.7, 8 & 9 held as follows:
"7. The case of the plaintiff-appellant is based on an agreement for sale dated 23.12.2013, but it is refuted by the respondent-defendant no.1 that he has not executed and signed the agreement in question. Admittedly, an amount of Rs.80,000/- was deposited by the plaintiff in the account of respondent-defendant no.1. But the defendant no.1 alleges in his show cause that he has received the money towards repayment of hand loan incurred by the plaintiff. The veracity of rival pleadings of both the parties can only be adjudicated during the trial. Thus, it appears that the plaintiff-appellant has a fair question raised in the suit. Hence, she has a prima facie case in her favour.
8. During the course of argument, learned counsel for the appellant strenuously urged that the plaintiff-appellant does not lay her claim on the basis of possession over the suit property. The learned trial Court on perusal of the alleged deed of agreement has also found 7 that there is no recital in the said deed of agreement with regard to delivery of possession of the suit land to the plaintiff. Thus, it appears prima facie that the plaintiff- appellant is not in possession over the suit land to seek a protection under Section 53-A of the Transfer of Property Act. The plaintiff-appellant has not made out any case to prevent the true owner of the suit land from dealing with her property independently. As such, the balance convenience lies in favour of defendant no.1-respondent.
9. Any transfer of the suit property, during pendency of this suit, will be hit by the doctrine of lis pendens. As such, the plaintiff-appellant is not going to suffer any loss much less any irreparable loss, if the injunction is refused. This view gets support from a decision in the case of M/s. East End Infotech Pvt. Ltd. and others -v- M/s. Esskay Machinery Pvt. Ltd. and others, reported in 2006 (Supp.-II) OLR 486. This Court in the said case at paragraph :11 held as follows:
"11. The only other ground which needs to be considered is whether any irreparable injury would be caused to the appellants, if injunction is not grated. In view of pendency of the suit any alienation that may be made by respondent No.2 will be hit by the doctrine of lis pendens. As such, no irreparable injury can be said to be caused to the appellant and any alienation that may be made would be subject to decision of the civil Court. It is immaterial whether the said alienees are impleded as parties.
(see M/s. Graftex Pvt. Ltd. & Ors. -v- Sri Lord Lingaraj Mahaprabhu, Bije Bhubaneswar, 1998 (II) OLR 404) Only because the plaintiff-appellant has an arguable case in the suit, it does not entitle her to get an order of injunction against the true owner restraining her from dealing with her property independently, more particularly when she does not satisfy that the balance of convenience lies in her favour and she will suffer irreparable loss, if the order of injunction is not granted in her favour."
Similarly, taking into consideration the decision of the Hon'ble Apex Court in the case in between Raheja Universal Limited versus NRC Limited & Others as reported in AIR 2012 Supreme Court 1440 in paragraph No.44 this Court finds in paragraph no.44 of the said decision reads as follows:
"44. Thus, on a plain reading of the statutory provisions, it is clear that an agreement for sale or an agreement to sell itself does not create any interest or charge in such property. Mulla on 'Transfer of Property Act', 9th Edition, page 181, clearly states that Section 54 enacts that an agreement for the sale of land does not itself create an interest in land. There was a considerable conflict of decisions as to the application of the rule against perpetuity to such 8 agreements. This conflict has been resolved by judgment of this Court in the case of Rambaran Prosad v. Ram Mohit hazra [AIR 1967 SC 744] where this Court held that a mere contract for sale of immovable property does not create any interest in the immovable property. In this case, this Court held as under:-
"10. In the case of an agreement for sale entered into prior to the passing of the Transfer of Property Act, it was the accepted doctrine in India that the agreement created an interest in the land itself in favour of the purchaser. For instance, in Fati Chand Sahu v. Lilambar Singh Das (1871) 9 BLR 433 a suit for specific performance of a contract for sale was dismissed on the ground that the agreement, which was held to create an interest in the land, was not registered under S.17, clause (2) of the Indian Registration Act of 1866. Following this principle, Mark by J. in Tripoota Soonduree v. Juggur Nath Dutt (1875)24 WR 321 expressed the opinion that a convenant for pre-emption contained in a deed of partition, which was unlimited in point of time, ws not enforceable in law. The same view was taken by Baker J. in Allibhai Mahomed Akuji v. Dada Alli Isap, AIR 1931 Bom 578 where the option of purchase was contained in a contract entered into before the passing of the Transfer of Property Act. The decision of the Judicial Committee in Maharaj Bahadur Singh v. bal Chanad (AIR 1922 PC 165) : 48 IA 376 was also a decision relating to a contract of the year 1872. In that case, the proprietor of a hill entered into an agreement with a society of jains that, if the later would require a site thereon for the erection of a temple, he and his heirs would grant the site free of cost. The proprietor afterwards alienated the hill. The society, through their representatives, sued the alienees for possession of a site defined by boundaries, alleging notice to the proprietor requiring that site and that they had taken possession, but been disposed. It was held by the Judicial Committee that the suit must fail. The Judicial Committee was of the opinion that the agreement conferred on the society no present estate or interest in the site, and was unenforceable as a convenant, since it did not run with the land, and infringed the rule against perpetuity. Lord Buckmaster who pronounced the opinion of the Judicial Committee observes as follows:
"Further, if the case be regarded in an other light- namely, an agreement to grant in the future whatever land might be selected as a site for a temple-as the only interest created would be one to take effect by entry at a later date, and as this date is uncertain, the provision is obviously bad as offending the rule against perpetuities, for the interest would not then vest in present, but would vest at the expiration of an indefinite time which might extend beyond the expiration of the property period."
(11) But there has been a change in the legal position in India since the passing of the Transfer of Property Act. Section 54 of the Act states that a contract for sale of immovable property "does not, of itself, create any interest in or charge on such property". Section 40 of the Act is also important and reads as follows:
"40. Where, for the more beneficial enjoyment of his own immovable property, a third person has, independently of any interest in the immovable property of another or of any easement thereon, a right to restrain the enjoyment in a particular manner of the latter property, or 9 Where a third person is entitled to the benefit of an obligation arising out of contract, and annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon.
Such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right of obligation nor against such property in his hands."
The second paragraph of S.40 taken with the illustration establishes two propositions: (1) that a contract for sale does not create any interest in the land, but is annexed to the ownership of the land and (2) that the obligation can be enforced against a subsequent gratuitous transferee from the vendor or a transferee for value but with notice. Section 14 of the Act states as follows:
"14. No transfer of property can operate to create an interest which is to take effect after the lifetime of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that person, and to whom, if he attains full age, the interest created is to belong."
Reading of S. 14 along with S. 54 of the Transfer of Property Act its manifest that a mere contract for sale of immovable property does not create any interest in immovable property and it therefore follows that the rule of perpetuity cannot be applied to a covenant of pre-emption even though there is no time limit within which the option has to be exercised. It is true that the second paragraph of S. 40 of the Transfer of Property Act make a substantial departure from the English law, for an obligation under a contract which creates no interest in land but which concerns land is made enforceable against an assignee of the land who takes from the promisor either gratuitously or takes for value but with notice. A contract of this nature does not stand on the same footing as a mere personal contract, for it can be enforced against an assignee with notice. There is a superficial kind of resemblance between the personal obligation created by the contract of sale described under S.40 of the Act which arises out of the contract, and annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon and the equitable interest of the person purchasing under the English Law, in that both these rights are liable to be defeated by a purchaser for value without notice. But the analogy cannot be carried further and the rule against perpetuity which applies to equitable estates in English law cannot be applied to a covenant of pre-emption because S.40 of the Statute does not make the covenant enforceable against the assignee on the footing that it creates an interest in the land."
8. Taking into consideration the above two decisions this Court finds, both the decisions have the full support to the case of the opposite party.
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9. Perusal of the impugned orders passed by the trial Court this Court finds, the trial Court has a clear recording that the plaintiff has no document to show his possession over the disputed property except an unregistered agreement between the petitioner and the defendant Nos.1 & 2, that too created in the year 2000 involved in a suit of 2015 bearing a doubt on the maintainability of the suit, further the plaintiff-petitioner having a case of refund of investment with interest at particular rate, and for the claim of the defendant No.3 being based on a registered sale deed, further considering the findings of both the Courts below on possession in favour of opposite party the defendant No.3, this Court observes the petitioner has not only no prima facie case but also has no balance of convenience. There is also no irreparable loss to be caused to the plaintiff for no grant of injunction at this stage.
10. Under the circumstance, there is no scope for interfering in the impugned orders. Accordingly, while refusing to interfere in the impugned orders, this Court dismisses the Civil Miscellaneous Petition for having no merit. Considering that the suit is yet to be finally adjudicated, to protect the right of both the parties to enjoy the benefit of the decree ultimately to be passed, 11 this Court directs the opposite party the defendant No.3 to file an undertaking in the trial Court indicating therein that in the event, the suit is decided as against it, it shall not claim any equity for the developments taken place over the disputed property in the meantime.
11. The Civil Miscellaneous Petition stands dismissed, but however, with the observations made hereinabove. There is no order as to cost.
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(Biswanath Rath, J.) Orissa High Court, Cuttack.
The 22nd day of September, 2017/Ayas.