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Mahesh Chand Heda and anr. Vs. Mahesh Prasad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 164/1979
Judge
Reported in1980WLN(UC)401
AppellantMahesh Chand Heda and anr.
RespondentMahesh Prasad
DispositionAppeal allowed
Cases ReferredM. L. Devendra Singh v. Syed Khaja
Excerpt:
.....1 & section 151--temporary injunction-- prima facie case for specific performance established--sale of plot to cause irreparable loss to appellant--balance of convenience in favoar of appellant--held, rejecting of application for grant of temporary in junction cannot be upheld.;the additional district judge was right in holding a prima facie case for grant of specific performance of the contract of sale of the plot of land had been cstablised in the present case. if the respondent is permitted to sell the plot of land in question to a third party during the pendency of the suit, the effect would be that purchaser may make conductions over the land in dispute which may lead to further complication as well as litigation cawing delay in appellants securing possession of the land in..........temporary injunction restraining the dependent respondent from alienating to any other person the plot of land in respect of which the suit for specific performance of the agreement of the sale had been filed by the appellants against the respondent.2. the facts giving rite to the aforesaid suit for special performance may be briefly stated as under: the respondent is the owner of a plot of land measuring 318 sq. yds., situated at ajmer. on 15th march, 1977 the respondent entered in to an agreement with the appellants for the sale of the said plot of the land for a sum of rs. 20,000/- and an agreement of sale thereinafter referred to as the 'agreement') was executed by the parties out of the sale price a sum of rs. 4,000/- was paid in advance as earnest money at the time of execution of.....
Judgment:

S.C. Agarwal, J.

1. This appeal has been filed by the appellants under Section 101 read with Order 48 Rule ICPC against the order dated 29th August, 1979 pasted by the Additional District Judge Ajmer, in Civil Suit No. 181 of 1979 whereby the Additional District Judge, rejected the application filed by the appellants under Order 30 Rule 1 C.P.G lead with Section 151 G P.G for grant of a temporary injunction restraining the dependent respondent from alienating to any other person the plot of land in respect of which the suit for specific performance of the agreement of the sale had been filed by the appellants against the respondent.

2. The facts giving rite to the aforesaid suit for special performance may be briefly stated as under: The respondent is the owner of a plot of land measuring 318 sq. yds., situated at Ajmer. On 15th March, 1977 the respondent entered in to an agreement with the appellants for the sale of the said plot of the land for a sum of Rs. 20,000/- and an agreement of sale thereinafter referred to as the 'Agreement') was executed by the parties Out of the sale price a sum of Rs. 4,000/- was paid in advance as earnest money at the time of execution of the Agreement on 15th March, 1977 and It was agreed that the be dance amount of Rs. 16,000/- would be paid by the appellants at the time of registration of the sale deed. In paragraph 2 of the Agreement a for aid it was provided that the respondent would obtain the no-objection certificate from the Competent Authority under the Urban Land (Ceiling and Regulations) Act, 1976, thereinafter referred to be as the 'Act') for the sale of the said plot to the appellants. In paragraph 5 of the Agreement it was s(sic)lpulated that the no-objection certificate from the Competent Authority was expected to be secured within 8 months subject of further extension by 4 months only and that on failure of of the respondent to obtain the no objection certificate the respondent shall refund to the appellants the earnest money amounting to Rs. 4,000/- with interest at 12% per annum. In paragraph 6 of the Agreement it was laid down that if the respondent fails to execute and registered the sale deed within the period of one month of the intimation referred to in paragraph 2, the appellants would not only be entitled to the refund of the earnest money amounting to Rs. 4,000/- but would also be entitled to receive from the respondent a further sum of Rs. 4,000/- as liqui dated damages. It appears that the respondent did not take any steps to obtain the requisite no objection certificate from the Competent Authority under the Act during the period stipulated under paragraph 5 of the Agreement. After expiry of period prescribed in paragraph 2 of the Agreement the appellants paid a further sum of Rs. 1,000/- to the respondent on 25th August, 1978 In the receipt dated 25th August 1978 executed by the respondent it is stated that the aforesaid sum of Rs. 1,000/ had been received towards earnest money in addition to the sum of Rs. 4,000/- received on 15th March, 1977 towards earnest money for sale of the plot of land, and it was stated that the balance amount of Rs. 15,000/-would be payable before the sub-Registrar at the time of registration and the other conditions of the agreement would remain effective and binding on the parties, On 29th August, 1978 the respondent moved an application before the Competent Authority under the Act for the grant of no-objection certificate and the Competent Authority under Act, by its communication dated 6th November, 1978 informed the respondent that do action could be taken on the aforsaid application of the respondent till a decision was taken on the return filed by the respondent under Section 6(1) of the Act. On 19th February, 1979 the respondent gave a notice to she appellants whereby he informed them that he had failed to obtain the no objection certificate from the Competent Authority under the Act and that the Agreement had became inoperative and was therefore, being revoked. The said letter was followed by another letter dated 14th March, 1979 addressed by the respondent to the appellants whereby the respondent enclosed a cheque of Rs. 6,050/- on account of refund of the earnest money with interest. On 25th July, 1979 the appellants filed the suit for specific performance for the contract of sale of plot of land aforesaid against the respondent. The aforesaid suit was accompanied by an application under Order 39 Rule 1 read with Section 151 C.P.G for grant of temporary injunction restra(sic)ning the respondent from alienating the plot of land to any other person during the pendency of the suit. In his reply dated 10th August, 1979. to the said application the the respondent pleaded that no prime facie case for grant of injunction had been made out in view of the conditions laid down in paragraph 5 and 6 of the Agreement referred to in the plaint The respondent also pleaded that the appellants would not suffer any irreparable loss if the injunction is not granted in as much as express provision has been made in paragraph 5 and 6 of the Agreement with regard to payment of damages to the appellants.- The respondent also pleaded that the balance of convenience was in his favour. The aof(sic)esaid reply was supported by an affidavit of the respondent wherein he has stated that in accordance with said Agreement the said respondent has cancelled the said Agreement and the respondent was entitled to tell the land in dispute to any other eligible person. The Additional Distirct Judge, Ajmer by his order dated 29th, August, 1979 rejected the application for grant of temporary injunction as filed by the appellants In the order aforesaid the Additional District Judge held that although a prima facie case for spec fie performance of the contract of sale of the plot of and for grant of an injunction restraining the alienation of the plot of land had been established in favour of the appellant and no irreparable loss would be caused to the appellants if the injunction is not granted in favour of the appellants in as much as if the sale deed h executed by the respondent in favour of any person after she filing of the sult the purchser would be bound by the decree that is passed in the suit of the appellants. The Additional District Judge has also held that as no irreparable loss would be cawed to the appellants, it could not be said that the balance of convenience was in favour of the appellants, Being aggrieved by the aforesaid order of the Additional District Judge dismissing the application for grant of temporary injunction, appellants have filed this appeal before this Court.

3. I have heard Mr. U.N.T. Bhandari, the learned Counsel for the appellants. The respondents appeared is person,

4. Shri U.N. Bhandari, the learned Counsel for the appellants, has submitted that the Additional District Judge, having held that the appellants have established a prime facie case in their favour, erred in dismissing the application for grant of temporary injunction on the view that if the injunction was refused no irreparable loss would be caused to the appellants. Shri Bhandari has submitted if the respondent is tot rest reined from selling the land in dispute during the pendency of the suit the result would be that the land will be purchased by third partier who would make constructions over the some and serious complications might arise. Shri Bhandari has also submitted that the Additional District judge has erred in holding that the balance of con vnenience does not lie in favour of appellants.

5. A persual of the terms of the Agreement shows that in clause 2 of the Agreement an obligation has been imposed on the respondent to secure the no objection certificate from the Competent Authority under the Act for the sale of the said plot of land to the appellants. Clause 5 of the Agreement prescribes the time limit of one year within which the no objection certificate must be secured from the Competent Authority under the Act & also precribes the consequence for the failure on the part of tie respondent to secure the no objection certificate within the said period. Clause 6 prescribes the consequences for the failure on the part of the respondent to execute the sale deed after the issue of the re-objection certificate by the Competent Authority under the Act.

6. The condition laid down in clause 5 of the Agreement is intended for the benefit of the purchasers, viz, the appellant and it was open to the appellant to waive thelr rights, in the present case the respondent did not take steps to obtain the no objection certificate from the Competent Authority under the Act within the period prescribed under the Agreement. The appellants, however, did not choose to exercise their rights under Clause 5 of the Agreement, on the other hand the appellant, on 29th August 1978, paid a further sum of Rs. 1,000/- to the respondent and in the receipt executed by the respondent it was stated that the ether conditions of the Agreement would remain effective and binding on the parties. This shows that even though the respondent had failed to fulfil the obligation imposed on him under clause 5 of the Agreement, the parties on 25th August, 1975, were proceeding on tie basis that the Agreement was effective and binding on the parties Clause 5 of the Agreement cannot, therefor, be relied upon as bar to the maintainability of the suit for specific performance of the cur tail for sale of the plot of land.

7. For it is possible to hold that the suit fir specific performance of the contract does not lie became it is necessary to obtain a no-objection certificate from the Competent Authority under the Act before the execution of the sale deed. In Mrs Chandra Vidyavati Vs Dr. C.L, Katial (1) AIR 1964 SC 978, the Supreme Court was dealing with an agreement for sale of property which provided that the Vendor shall obtain the permission of the Chief Commissioner to the transaction of sale within two months of the agreement. It was submitted on behalf o the vendor that the contract, being of a contingent nature, was not enforceable. The Supreme Court negatived the said contention and held that the court had got to enforce the terms of the court & enjoin upon the vendor to make the necessary application to the Chief Commissioner and that it would be for the Chief Commissioner tod(sic)ecide whether or not to grent the necessary sanction and that the High Court was right in decreeing the suit for specific performance of the contract. In the present care the Competent Authority under the Act, in its letter dated 6th November, 1978, has only stated that no action could be taken on the application submitted by the respondent for grant of no-objection certificate till a decision was taken on the return filed by the respondent under Section 6(1) of the Act. The Competent Authority has not rejected the application of the respondent for the grant of no-objection certificate under the Act and, therefore, at this stage it cannot be held that the suit for specific performance of the contract is not maintainable.

8. Clause 6 of the Agreement lays down that in the event of the failure on the part of the respondent to execute or register the sale deed within the period of one month of the intimation of the grant of the no-objection certificate by the Competent Authority under the Act, Me appellants would be entitled to the refund of he earnest money amounting to Rs. 4,000/-but would also be entitled to receive from the respondent a further sum of Rs. 4,000/- as liquidated damages. In the first instance it may be observed that the said clause is not attracted in the present ca3e because the no-objection certificate has not yet been granted by the Competent Authority under the Act and thus there is Do question of failure on the part of the respondent to execute or register the sale deed within a period of one month of the intimation of the grant of no-objection certificate under Clause 2 of the Agreement More ever, as laid down by the Supreme Courl in M. L. Devendra Singh v. Syed Khaja, (2) AIR 1973 SC 2467, the fact that the parties themselves have provided a sum to be paid by the party breaking the contract does not, by itself, remove the strong presumption contemplated by the use of the words 'unless and until the contrary improved' in the explanation to Section 10 of the Specific Relief Act, 1963 and that the sufficiency or insufficiency of any evidence to remove such a presumption is a matter of evidence. The fact that the parties themselves specified a sum of money to be paid in the event of break is, no doubt, a piece of evidence to be considered whether the presumption has been repelled or not, but it is nothing more than a piece of evidence and it is not conclusive decisive. The evidence is yet to the adduced in the case and it this stage it cannot be said that the presumption contained in the Explanation to Section 10 of the Specific Relief Act 1963 has been removed.

9. In my opinion, therefore, the Additional District Judge was right in holding that a prime facie case fir grant of specific performance of the contract of sale of the plot of land had been established in the present case Having arrived at the aforesaid findings, the Additional District Judge, in my view. was not right refusing to grant an injunction restraining the respondent from allienating the plot of land to a third person during the pendency of the suit on the ground that the appellants would no' suffer any irreparable loss and that the blance of convenience was not in favous of the appellant If the respondent is permitted to sell the plot of laud in question to a third party during the' pendency of the suit, the effect would be that the purchaser may make constructions over the land in dispute which may lea to further complication as well as litigation causing delay in the appellants securing possession of the land in dispute. It cannot, therefore, be said that the appellant would not suffer irreparable loss if the injunction prayed for is not granted in their favour On the other hand the respondent would not suffer any loss if he is restrained from alienating the land during the pendency of the suit. The balance of convenience also lies in favour of the appellants. The order passed by the Additional District Judge rejecting the application for grant of temporary injunction cannot, therefore, be upheld in the facts and circumstances of the present case.

10. He the result the appeal is allowed the order dated 29th August 1973 passed by the Additional District Judge Ajmer, is set aside and respondent is restrained from alienating the plot of land In dispute to any person during the pendency of the Civil Suit No. 131 of 1970, The Additional District Judge is directed lo dispose of the case expeditiously faking into consideration the fact and circumstances of the case there will be no order as to costs in this appeal.


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