1. Rule.Mr.P.V.Hathi,learned counsel, waives service of notice of Rule for the respondent. On the facts and in the circumstances of the case,this petition is being heard and decided today.
2. This petition, under Articles 226 and 227 of the Constitution of India, has been preferred with a prayer for issuance of a writ of certiorari or any other appropriate writ or order, to quash and set aside the impugned judgment and order dated 31-7-2009, passed by the learned Presiding Officer, Fast Track Court No.7,Rajkot, in Civil Misc. Appeal No.21 of 2009 whereby, the order dated 4-10-2008 passed below the application at Exh.5 in Regular Civil Suit No.61 of 2008, by the learned Principal Senior Civil Judge, Rajkot, has been confirmed.
3. Briefly stated, the relevant facts of the case are that the respondent herein (plaintiff before the Trial Court), instituted a Suit for specific performance of an Agreement to Sell, executed by the petitioners (original defendants in the Suit) in favour of the respondent. Inter alia, a prayer for declaration and grant of permanent injunction was also made. The case of the respondent-plaintiff before the Trial Court is that the respondent and the petitioners were well known to each other. The petitioners were owners-in-possession of a house bearing Revenue Survey No.481/2 Paiki, Plot No.57, admeasuring 144-4-0, situated in Marutinagar, Rajkot. By an Agreement to Sell dated 12-5-2005, the petitioners agreed to sell the Suit house to the respondent, for a total sale consideration of Rs.6,31,000/-. The respondent paid Rs.50,000/- on the same day to the petitioners, against the sale consideration. Thereafter, the respondent paid an amount of Rs.5,00,000/- towards the sale price of the said house and the petitioners issued a receipt for the said amount, dated 17-4-2008. As per the Agreement to Sell, an amount of Rs.81,000/- towards sale consideration remained outstanding, therefore, the respondent requested the petitioners to execute the Sale Deed for the suit house, after accepting the remaining amount of the sale consideration. However, the petitioners gave an evasive answer and did not execute the Sale Deed in favour of the respondent. Apprehending that the petitioners would sell the house to some other person and part with the possession thereof, the respondent was constrained to file the above-mentioned Suit. Along with the Suit, the respondent preferred an application at Exh.5, for grant of a temporary injunction, restraining the petitioners from selling, transferring or alienating the suit house and preventing them from parting with the possession thereof, till the final disposal of the Suit.
3.1 The application at Exh.5 was contested by the petitioners by filing a written statement, and written objections vide Exh.17, contending that they had borrowed an amount of Rs.14,00,000/- from the respondent for the purpose of business and that they had executed an Agreement to Sell as a security for the said amount,in favour of the respondent. The case of the petitioners before the Trial Court is that subsequently, they have made the payment of an amount of Rs.14,00,000/- by various cheques, and nothing is due from them. According to the petitioners,the Agreement to Sell was a security for the said borrowing transaction and is not binding upon them as no amount is due. The petitioners have also denied the issuance of the receipt dated 17-4-2008, for the amount of Rs.5,00,000/- in favour of the respondent, on the ground that they were not in Rajkot on that date, and that the signature on the said receipt, is not genuine.
3.2 The Trial Court, after hearing the rival parties on the application at Exh.5, found that the Agreement to Sell does not contain any recitals to the effect that it has been executed as a security for any amount borrowed by the petitioners from the respondent. The Trial Court also found that, it is clearly mentioned in the said Agreement that the petitioners have agreed to sell the suit house to the respondent for the sale consideration mentioned therein. The contention raised on behalf of the petitioners that they have not issued any receipt for Rs.5,00,000/- has also not been believed by the Trial Court on the ground that the bills for purchases outside Rajkot, produced by the petitioners to show that they were not in Rajkot on the date, do not conclusively prove that the said receipt has not been issued by them. The Trial Court found that a prima facie case exists in favour of the respondent-plaintiff and the balance of convenience is also in his favour. Further, it found that if the respondent is not protected, he would suffer irreparable loss, therefore, the application at Exh.5 came to be allowed by impugned order dated 4-10-2008. The Lower Appellate Court has confirmed the findings of the Trial Court and the appeal filed by the petitioners against the order of the Trial Court below application at Exh.5 has been dismissed. Aggrieved thereby, the petitioners have approached this Court by filing the present petition.
4. Mr.Anshin H.Desai, learned counsel for the petitioners has submitted that the Agreement to Sell has been executed as a security for an amount of Rs.14,00,000/- that had been borrowed by the petitioners from the respondent. The said amount has been repaid by cheques and there is ample evidence on record to show that the said cheques have been deposited in the Bank Account of the respondent. As such, the purpose for which the Agreement to Sell had been executed no longer exists and the said Agreement has no binding on the petitioners as there is no other transaction for which payment is due from the petitioners. According to Mr.Desai, the factum of payment of Rs.14,00,000/- by cheques cannot be denied and it is for the petitioners to show for which purpose this amount has been paid. The value of the Suit house has now escalated, therefore, the respondent has filed the Suit in order to pressurise the petitioners. It is further submitted that the receipt of Rs.5,00,000/- purportedly issued by the petitioners to the respondent does not contain the genuine signature of petitioner No.1. The respondent has utilised the services of a private Hand Writing Expert and has relied upon his opinion, to the effect that the signature is that of the petitioner No.1, but this has been done without sanction from the Court. It is contended that,in any case,the fact that the petitioners were not in the City of Rajkot on the date on which the receipt is said to have been issued, can be proved by bills for purchases made by them, in the City of Surat. The said receipt is,therefore, false and fabricated. It is further contended by the learned counsel for the petitioners that the Agreement to Sell is not a registered one and the period mentioned therein for execution of the sale deed is two years whereas, had it been a genuine Agreement to Sell, the period normally admissible for execution of a Sale Deed would be 90 days and,therefore, the said Agreement to sell has no legal effect and cannot bind the petitioners.
4.1 It is further submitted that the findings of the Trial Court,as confirmed by the lower Appellate Court to the effect that, had this Agreement to Sell been executed as a security against the amount borrowed by the petitioners, then it would have been mentioned therein, are patently erroneous, as neither the petitioners nor the respondent are in possession of a valid licence for money lending, and such a recital could not have been recorded in the said Agreement. It is reiterated by the learned counsel for the petitioners that the said Agreement was not meant to be anything more than a security for the amount borrowed by the petitioners, though it is not so stated therein. The learned counsel for the petitioners has contended that as the impugned orders of the Trial Court and the lower Appellate Court are erroneous and unsustainable in law, the same may be quashed and set aside, and the petition allowed.
4.2 In support of the above submissions,the learned counsel for the petitioners has placed reliance upon:
(a) Khimjibhai Harjivanbhai Patadia v. Patel Govindbhai Bhagvanbhai, 2006(4) GLR 3058
(b) Tejram v. Patirambhau, (1997) 9 SCC 634
(c) J.M.Patel v. D.B.Patel, 2007(1) GLR 79
5. The petition has been strongly contested by Mr.P.V.Hathi,learned counsel for the respondent. It is submitted by him that the execution of the Agreement to Sell has not been denied by the petitioners. The submission that the said Agreement has been executed as a security for an amount of Rs.14,00,000/- borrowed by the petitioners from the respondent is denied outright, as the said agreement does not contain any such recital. Apart from an amount of Rs.50,000/- that has been paid on the date of execution of the Agreement to Sell, the respondent has paid a further amount of Rs.5,00,000/- for which there is a valid receipt. It is submitted that the findings of the Trial Court that production of Bills for purchases made in Surat on the date mentioned in the receipt, does not prove that the receipt has not been issued by the petitioners, as a Bill can be raised in any name,is perfectly legal and valid. Further, there is no evidence to the effect that the petitioners have borrowed an amount of Rs.14,00,000/- from the respondent. The cheques issued for the said amount, in any case, have nothing to do with the Agreement to Sell which has not been executed as a security. It has wrongly been contended on behalf of the petitioners that the Agreement to Sell has been executed as a security against a borrowing. The receipt for Rs.5,00,000/- has been signed by the petitioner and the signature of petitioner No.1 has been verified by a Hand Writing Expert,in whose opinion it has been made by petitioner No.1 himself. Moreover, the respondent has produced an affidavit of the person who has attested the Agreement to Sell. The learned counsel for the respondent has further contended that the contents of the Agreement to Sell clearly reveal that the petitioners have promised to sell the suit house to the respondent,which is also proved by the affidavit of the person who was one of the Attesting witnesses. Lastly, it is contended that there are concurrent findings of fact, recorded by both the Courts below in favour of the respondent, and against the petitioners, which have been arrived at after making a thorough scrutiny of the material on record. On the basis of the above, both Courts have found that the respondent has a prima facie case and the balance of convenience is in his favour. Moreover, it has also been found by the Courts below that the respondent would suffer irreparable loss if interim relief is not granted to him. As the impugned orders are perfectly legal and valid, this Court, while exercising supervisory jurisdiction, may not interfere with the same.
5.1 In support of the above submissions, the learned counsel for the respondent has placed reliance upon Ibrahim Shah v. Noor Ahmed, 1983(2) GLR 961.
6. I have heard the learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record. The execution of the Agreement to Sell dated 12-5-2005 is not disputed by the petitioners. However, it is contended on their behalf that the said Agreement to Sell has been executed as a security against the amount of Rs.14,00,000/- borrowed by the petitioners from the respondent. Both the Courts below have scrutinised the said Agreement to Sell, which was produced at Mark 4/2 before the Trial Court, and have found that there is no such mention in the said Agreement that it has been executed as a security against any amount borrowed by the petitioners, from the respondent. It has also been found by both the Courts below that apart from a contention to this effect raised by the petitioners, they have been unable to produce even a shred of evidence, in support of the same. It is significant to note that the petitioners have not denied the execution of the Agreement to Sell, nor the fact that they have signed thereupon, in the presence of two attesting witnesses. One of those witnesses, has filed an affidavit in support of the respondent, which has been taken note of by both the Courts below. In the absence of any evidence to show that the petitioners have borrowed an amount of Rs.14,00,000/- from the respondent, and as both the Courts below found that there is no material on record to suggest that the Agreement to Sell has been executed as a security against any amount borrowed, the findings of both the Courts below in this regard are just and proper. In the absence of any material on record to the contrary, an inference cannot be made and more cannot be read into the recitals of the Agreement to Sell, than what is contained therein. It is for the petitioners to show that they have a prima facie case for the grant of a temporary injunction, which they have not been able to do, before both the Courts below. The submission of the learned counsel for the petitioners that it is for the respondent to show for which purpose a cheque of Rs.14,00,000/- has been issued to him by the petitioners, does not carry any weight, in the face of the concurrent findings of fact that there is no material on record to show that the Agreement to Sell was executed as a security for an amount borrowed by the petitioners from the respondent. Insofar as the receipt dated 17-4-2008 issued by the petitioners to the respondent, acknowledging the payment of Rs.5,00,000/-, which is produced at mark 4/3 before the Trial Court is concerned, both the Courts below have found the contention of the petitioners that the receipt is false and fabricated,to be unconvincing. Whatever be the evidentiary value of this piece of evidence might be,is to be decided by the Trial Court, at the time of trial. Similarly,the genuineness of the receipt is also a matter of trial. Suffice it to say, that insofar as the grant of temporary injunction is concerned, both the Courts below, on the basis of evidence on record, have found that there is a prima facie case in favour of the respondent-plaintiff as also the balance of convenience and the factor of irreparable loss, therefore, the temporary injunction granted by the Trial Court has been confirmed by the lower Appellate Court, by passing the impugned order.
7. Coming to the judgments relied upon by the learned counsel for the petitioners, the judgment in Khimjibhai Harjivanbhai Patadia v. Patel Govindbhai Bhagvanbhai (Supra) relied upon by the learned counsel for the petitioners turns upon its own facts, which are on a totally different footing than those obtaining in the present case. Similarly, Tejram v. Patirambhau (Supra) is a judgment passed in appeal at the final stage, whereas the case in hand emanates from an order below Exh.5, which is interim in nature,as the suit is yet to be decided. In J.M.Patel v.
D.B.Patel (Supra), it has been held that before granting an ad-interim inunction, the Court is required to examine minutely the merits of the case and ascertain whether the plaintiff has a prima facie case to succeed,or not. Admittedly, the Trial Court has found, after examining the evidence on record, that a prima facie case exists in favour of the respondent, which findings have been confirmed by the lower Appellate Court. The above-mentioned judgments are,therefore,not helpful to the petitioners, on the facts and in the circumstances of the present case.
8. At this stage, it would not be proper for this Court to go into the aspect regarding the time for execution of the Sale Deed as mentioned in the Agreement to Sell,as that would also be a matter of evidence to be decided during trial. There are concurrent findings of both the Courts below that prima facie, the petitioners agreed to sell the suit house to the respondent for a sale consideration of Rs.6,31,000/-, out of which Rs.50,000/- has been paid, and there is no evidence to suggest that the said Agreement was executed as a security against a borrowing by the petitioners. As the said findings have been arrived at on the basis of material on record and are factual in nature, this Court while exercising supervisory jurisdiction, is not inclined to interfere with the same, especially as no error of law or jurisdiction is apparent on the face of the impugned orders.
9. On the basis of the above discussion, and as the impugned judgments of the Trial Court as well as the Lower Appellate Court do not suffer from any legal infirmity, the interference of this court is not warranted.
10. The petition fails and is dismissed. Rule is discharged.
(Smt.Abhilasha Kumari,J) arg Top