Court No. - 34
Case :- FIRST APPEAL FROM ORDER No. - 1486 of 2019 Appellant :- Madhulata Singh Respondent :- Somil Gupta Counsel for Appellant :- Manish Kumar Nigam Counsel for Respondent :- Nipun Singh,Sumit Suri
Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.
1. Heard Sri Manish Kumar Nigam, learned counsel for appellant and Sri Nipun Singh, learned counsel for respondent.
2. This is an appeal under Order XLIII Rule 1 C.P.C. arising from the judgment and order dated 14.3.2019 passed by Sri Abhishek Upadhyay, Additional Civil Judge, (S.D.), Kanpur Nagar on application 6-C2 of plaintiff-respondent granting an interim injunction in his favour by directing appellant not to transfer property in dispute or execute any sale agreement or builder agreement in favour of another person, during pendency of the case.
3. It is evident from record that builders agreement between the parties was executed on 7.3.2014 for construction of residential multi-story building. Defendant-appellant was under an obligation to get map of proposed construction sanctioned from the Development Authority. The map submitted by defendant-appellant was rejected by Vice Chairman, Kanpur Development Authority (hereinafter referred to as 'K.D.A.') on the ground that disputed land is a commercial land and map for residential construction cannot be allowed.
4. Learned counsel for appellant could not dispute that this order is appellable before Commissioner of the Division and thereafter before State Govt. by means of a revision, but no such remedy has been availed by defendant appellant. Instead treating the order of Vice Chairman, K.D.A. as a pretext, appellant is of an opinion that now builders agreement has frustrated and therefore, cannot be executed.
5. Learned Trial Court has found that the agreement and its terms and conditions are not in dispute. The plaintiff-respondent has already discharged his part of obligation under the agreement. The default is on part of the defendant-appellant. Therefore, in interest of justice and having found prima facie case, balance of convenience in favour of the plaintiff- respondent, Court below has granted interim injunction as noted above.
6. Learned counsel for appellant contended that the suit as framed and filed by plaintiff itself, is not maintainable.
7. We are not satisfied with the submission that the suit filed by plaintiff respondent is not maintainable nor it can be said that builders agreement has frustrated. Execution of builders agreement and obligation of defendant-appellant are admitted. Hence, prima facie case lies in favour of plaintiff-respondent. Further, plaintiff-respondent has invested a sum of Rs.32,26,600/- and transfer of land in dispute to any other person would tilt the balance against plaintiff-respondent. In case no ad-interim injunction is granted, it is plaintiff-respondent who shall suffer irreparable loss and injury for reasons noted above.
8. Looking at the over all facts as noted herein above, we do not find any error having been committed by court below in granting temporary injunction in favour of plaintiff-respondent. As the matter involves immovable property and the court below upon being satisfied that plaintiff- respondent has prima facie case, balance of convenience and irreparable loss in his favour has only restrained defendant-appellant from creating third party rights/interest in the land in dispute, hence, we do not find any fault in the order of the Trial Court in granting interim injunction in favour of plaintiff-respondent.
9. No other point has been raised.
10. In view of the above, the appeal is dismissed.
Order Date :- 31.7.2019 Vivek Kr.