1. Although this Appeal From Order is listed on the board for admission, with the consent of the learned counsel appearing for both the parties, it has been taken up for final hearing today.
2. This Appeal From Order under Order XLIII Rule 1(r) of Code of Civil Procedure has been filed by the appellants- original plaintiffs (hereinafter referred to as 'plaintiffs' for short) being aggrieved and dissatisfied with the judgment and order dated 30th April, 2012 passed below Ex.5 by the learned 7th Additional Senior Civil Judge, Vadodara, in Special Civil Suit No.748 of 2011 whereby injunction application Ex.5 was rejected.
3. Facts of the plaintiffs in brief as arising from the judgment of the trial court are that the plaintiffs, who are engaged in real estate and development of lands and directors in the different Companies of BRG Group, are in possession of the suit lands bearing Revenue Survey Nos.170/1, 170/4, 170/2, 170/3, 171/1, 216, 217/1, 217/3, 217/4, 218, 173 and 205 situated in Tandalja Village, Taluka and District Vadodara. Defendants 2 to 4 are partners of Bhakti Developers. Defendants 5 to 10 also have interest in the suit lands. It is further case of the plaintiffs that a registered agreement to sale was executed by the defendant Nos.2 and 3 and defendant Nos.6 to 10 in favour of plaintiffs on 17-7-2007 qua the suit lands. As the said agreement was executed in the personal capacity of plaintiffs, same was cancelled with the consent and understanding of the parties and thereafter, ten agreements to sale of the suit lands were executed by the present respondents-original defendants (hereinafter referred to as 'defendants' for short) in favour of different companies of plaintiffs on 29-3-2008 and 30-3-2008 and an agreement of understanding was also made for cancellation of the earlier agreement to sale dated 17-7-2007. According to the plaintiffs, price of the suit lands was fixed at Rs.165/- per sq.ft. and present respondents-original defendants (hereinafter referred to as 'defendants' for short) were to clear the title of the suit lands and obtain NA permission and Rajachiti for construction over the suit lands. Plaintiffs state that on payment of Rs.1,10,00,000/- towards earnest money and Rs.70,00,000/- towards expenses for getting NA permission and Rajachitti to the defendants, the defendants handed over possession of the suit lands to the plaintiffs in which, the plaintiffs have constructed compound wall, fencing, road, security office and site office. Although the plaintiffs were always ready and willing to pay the remaining amount of sale consideration to the defendants, the defendants are not getting the title of suit lands cleared. However, a notice dated 4-3-2011 was given by the defendants 2 and 3 for cancellation of agreement to sale and forfeiture of earnest money. Plaintiffs gave reply on 9-5-2011 asking the defendants to clear the title of the suit lands for payment of balance amount. However, the defendants 2 and 3 gave public notice in “Sandesh” on 14-5-2011 for cancellation of agreements. In reply to the said notice, plaintiffs also gave public notice in “Divya Bhaskar” on 19-5-2011. Defendants 2,3 and 5 also gave reply-cum- counter notice to plaintiffs on 9-6-2011. As the defendants are trying to transfer and sale the suit lands to other persons by defeating the rights of the plaintiffs, the suit was filed by the plaintiffs against the defendants for specific performance of agreement to sale and also for permanent injunction along with an application for injunction below Ex.5 praying for restraining the defendants from interfering and obstructing with the possession of the plaintiffs over the land in question till final disposal of the suit.
4. Upon issuance of notice to the defendants, defendants appeared and filed written statements to the plaint as well as injunction application and upon affording opportunity of hearing to learned counsel appearing for the respective parties and on perusal of the documents produced by the parties, trial court has rejected the injunction application and hence, the present Appeal From Order.
5. Heard learned Senior Advocate, Mr.Tushar Mehta for learned advocate, Mr.Tushar N.Vyas for the appellants, learned Senior Advocate, Mr.Mihir Thakore with learned advocate, Mr.Hriday Buch for the respondent Nos.1 to 5, learned Senior Advocate, Mr.Dhaval C.Dave for respondent Nos.6 to 10 with learned advocates, Mr.Tirthraj Pandya for respondent No.6 and Mr.Parthiv B.Shah for respondent Nos.7 to 10.
6. Learned Senior Advocate, Mr.Tushar Mehta, submitted that trial court has committed an error in holding that plaintiffs are guilty of suppression of material facts. He further submitted that though amount of consideration was fixed in the agreement to sale, refusal to perform their part of contract by the defendants would not absolve the defendants of their liability including clearing of the title of the land in question. According to him, rate fixed in the contract was Rs.217.91 per sq.ft which was bifurcated on a request of the defendants to Rs.165+Rs.52.91 per sq.ft to be divided by the defendants and, therefore, plaintiffs cannot be held to be guilty of suppression of material facts disentitling them to get an injunction in their favour.
7. Mr.Mehta further submitted that though there is no Title Clearance Certificate on record, trial court has proceeded on a wrong footing that defendants 2 to 5 have obtained NA permission and Raja Chitti and hence, any subsequent non-payment by the appellants would amount to non-compliance of the contract and, therefore, according to him, the order passed by the trial court is contrary to law and evidence on record.
8. Mr.Mehta also submitted that the trial court has considered the irrelevant fact such as passing of high tension lines over the land not germane to the issues involved in the suit. He further submitted that as per the terms and conditions of the contract and as per the findings of the trial court, plaintiffs are put in possession of the suit land.
9. Taking this Court through the terms of agreement to sale, he submitted that time is not the essence of the contract. When plaintiffs have paid huge amount towards development of the land, it could not be said that plaintiffs have failed to comply with the terms of the agreements to sale. In the suit also, it was specifically stated that plaintiffs are ready and willing to make payment as per the agreement to sale and, therefore also, from any angle it could not be said that time is the essence of the contract.
10. Mr.Mehta further submitted that the trial court has committed a serious error in holding that as there was no documentary produced by the plaintiffs to show their financial capability, plaintiffs are incapable of paying balance consideration relying only on extract of the passbook. He further submitted that plaintiffs are not only capable of making full consideration amount but are ready and willing to deposit the same to show their bona fides. He further submitted that the plaintiffs have also deposited Rs.10.00 crores as ordered by this Court and are ready and willing to make balance payment within one month, if ordered by this Court. Relying on the decisions of the Hon'ble Apex Court reported in AIR 2000 Bombay 174, AIR 1973 Orissa 4 and AIR 1988 Delhi 79, he requested that the judgment and order passed by the trial court be quashed and set aside and injunction be granted to the plaintiffs by allowing this Appeal From Order.
11. Learned Senior Advocates, Mr.Mihir Thakore and Mr.Dhaval Dave submitted that although ten agreements to sale were executed in favour of the plaintiffs, the company is not joined as party nor any suit is filed by the company, however, by filing one suit by the present plaintiffs in their individual capacity, relief is sought for ten different transactions i.e. ten agreements to sale took place between the defendants and the plaintiff company. He further submitted that for each transaction, plaintiffs have to pay court fee stamp and as court fee stamp is not paid for each agreement to sale, prima facie suit is not tenable and maintainable and when the suit itself is not maintainable, question does not arise to grant injunction and, therefore, trial court has rightly rejected the injunction application.
12. They further submitted that trial court has also held that plaintiffs have suppressed the material facts regarding the price determined for the disputed land and, therefore, when the persons, who have suppressed the material facts, are not coming with clean hands, they are not entitled to get injunction in their favour and hence, it is prayed that this Appeal From Order be dismissed.
13. In this connection, learned Senior Advocate, Mr.Mihir Thakore has relied on the following reported decisions:
i) AIR 1951 SC page 41;
ii) AIR 1961 Kerala 258 and
iii) AIR 2010 SC page 3221
14. Learned Senior Advocate, Mr.Dhaval Dave, also further submitted that power of this Court as an Appellate Court to interfere with the order passed by the trial court is very limited and only in exceptional circumstances, the appellate Court can interfere with the discretionary order passed by the trial Court. He further submitted that the trial court, after considering all the documents on record and after considering the arguments advanced by the learned advocates appearing for the respective parties, has passed a reasoned order. According to him, said order is just, legal and proper and hence, same is not required to be interfered with in this Appeal From Order. In this connection, he has relied on a decision of Hon'ble Apex Court reported in 1990(Supp) Supreme Court Cases 727 in the case of Wander Ltd. and another Vs. Antox India P.Ltd.
15. This Court has gone through the impugned judgment and order passed by the trial court together with the submissions made by learned Senior Advocates appearing for the respective parties. This Court has also gone through the principles laid down by Hon'ble Supreme Court in the decisions relied on by the learned Senor Advocates for the respective parties. Keeping in mind the principles laid down therein, this Court is proceeding further.
16. I am aware that this Court cannot reevaluate the entire evidence appearing on record and arrive at a conclusion contrary to the one arrived at by the trial Court. In normal circumstances, this Court cannot interfere with the findings of the trial court. However, when it is found that order passed by the trial court is invalid, illegal, arbitrary, perverse or contrary to the settled principles of law, this Court has all powers to interfere with the same. Considering the above principles of law, this Court has to see whether the trial court has committed any error in passing the impugned order or not. It has also to see whether the main basic principles of law namely, prima- case, balance of convenience and irreparable loss are satisfied or not in passing the impugned order.
17. It has been held by the Court below on perusing the copy of bank statements of the plaintiffs that considering the amount standing at the credit of the account of the plaintiffs, it seems that plaintiffs are not financially sound and hence are unable to make payment towards sale consideration and, therefore, rejected the application. This is totally a wrong finding arrived at by the trial court as the same bank statements have been placed on record to satisfy the Court that amount of Rs.1,80,00,000/- was paid by the plaintiffs to the defendants through different cheques and only for that purpose, statements was shown and, therefore, from any angle, it could not be said that plaintiffs are not financially sound to make payment of the remaining amount.
18. It is further held by the trial court that even if assuming that the possession is with the plaintiffs, then also, the document is not registered and so also, it could not be said that plaintiffs are in possession of the suit. This is also a totally wrong finding of the trial court because here also, when the original defendants submitted an application for vacating the interim relief, mutual understanding in writing was placed on record clearly showing that the possession of the suit land was handed over to the plaintiffs for development. It also transpires from the record that in pursuance of handing over possession, compound wall along with room of Watchman was also constructed by the plaintiffs apart from other things. It was held by the trial court that merely because compound wall or room is constructed, it could not be said that possession of the suit land is with the plaintiffs as in the agreement to sale, nothing is mentioned regarding possession.
19. If the entire evidence is considered together with the legal position, it transpires that the present plaintiffs are Directors of the company in whose favour the agreements to sale are executed and in the capacity of directors of the companies, single suit was filed by the present plaintiffs for ten different agreements to sale. It may be noted that if the title is defective, then, through the proceedings of the suit, it can be cured. In this connection, Order I Rule 3A requires to be looked into which reads as under:
“3A. Power to order separate trials where joinder of defendants may embarrass or delay trial:- Where it appears to the Court that any joinder of defendants may embarrass or delay the trial of the suit, the Court may order separate trials or make such other order as may be expedient in the interests of justice.”
20. Order 1 Rule 3A of CPC makes it explicitly clear that the Court can permit the plaintiffs to file different suits by passing order thereby defective title can be corrected and, therefore, while deciding injunction application, it is not of much relevance whether the suit is bad for non- joinder or mis-joinder of necessary parties. While deciding the injunction application, what is required to be done by this Court is to see as to whether a prima facie case is made out by the plaintiffs or not apart from proving balance of convenience in their favour.
21. As far as court fee stamp is concerned, it is observed by the trial court that application submitted by the defendants for payment of court fee is pending and notice was issued to the Court Fee Inspector. This clearly shows that if court is satisfied that necessary court fee stamp is not paid, it can pass appropriate order for payment of court fee and, therefore, the arguments of Senior Advocate, Mr.Mihir Thakore in this regard are negatived.
22. The fact that at the time of agreement to sale, Rs.1,18,00,000/- were paid to the defendants and remaining amount was required to be paid as per the terms in the agreement to sale is not disputed. According to the defendants, time is the essence of the contract and, therefore, as per the agreement to sale and as per the mutual understanding, the plaintiffs are required to make certain payment to the defendants and since plaintiffs have failed to make payment of the remaining amount, the agreement to sale was cancelled and since the time being the essence of the contract, plaintiffs are not entitled to get any interim relief.
23. Considering the rival submissions of the parties and considering the terms of the agreement to sale as well as mutual understanding between the parties, whether time is the essence of the contract or not can only be decided at the end of trial after recording of evidence. However, when the plaintiffs are ready and willing to pay the remaining amount of sale consideration and as the plaintiffs have already paid the above referred huge amount at the time of agreement to sale and as possession of the land is with the plaintiffs, then, this Court is of the opinion that plaintiffs have made out a prima facie case and balance of convenience in their favour and great irreparable loss will be caused to the plaintiffs if injunction is not granted.
24. As per the agreement to sale and as per the mutual understanding in writing, the plaintiffs have to pay Rs.165/- per sq. feet to certain defendants and fixed the additional price at Rs.52.91 per sq.ft thereby fixing the price at Rs.217.91 per sq.feet. However, as the said mutual understanding is in the custody of the defendants and merely because plaintiffs could not mention the same in the plaint, it could not be said that this is suppression of material fact.
25. However, the plaintiffs have come with a clear cut case that they are ready and willing to make payment of the remaining part of the amount as per the agreement to sale or as mutually agreed by the parties. This Court has only to see these things for granting interim relief in favour of plaintiffs. It may be noted that during the pendency of this appeal, in pursuance of order passed by this Court, the plaintiffs have deposited Rs.10.00 crores with the trial court. This shows their readiness and willingness to execute the agreement to sale. Considering this fact and also considering the submissions of Mr.Tushar Mehta that if court passes an order, entire remaining amount will be paid by the plaintiffs within one month with the trial court candidly showing that the plaintiffs are ready and willing to make payment to the defendants, interim relief is required to be granted in favour of the plaintiffs. In view of the above, this Appeal From Order deserves to be allowed by quashing and setting aside the impugned judgment and order.
26. Thus, this Appeal From Order is allowed. Judgment and order dated 30th April, 2012 passed below Ex.5 by the learned 7th Additional Senior Civil Judge, Vadodara, in Special Civil Suit No.748 of 2011 is hereby quashed and set aside and application Ex.5 is allowed and the defendants, their agents and servants are hereby restrained from creating any interest in favour of third party or any firm, entering their names in the revenue record and/or creating any charge or encumbrance over the land in question till final disposal of Special Civil Suit No.748 of 2011. The plaintiffs shall deposit Rs.7,37,00,221/- being the remaining amount of sale consideration with the trial court within a month from today. On the said amount being deposited, same shall be invested in a fixed deposit with any nationalized bank initially for a period of two years which shall be renewed from time to time till final disposal of the suit.
27. In view of the above order passed in main Appeal From Order, Civil Applications do not survive and are disposed of accordingly. Notice discharged.
[M.D.SHAH,J.] radhan