Hon'ble Ram Surat Ram (Maurya), J.
Delivered by : Hon'ble. Ram Surat Ram (Maurya)
1.Heard Sri Dhruva Narayana, Senior Advocate, assisted by Sri Anadi Krishna Narayana, for the appellant and Sri Siddharth for the respondents.
2.This is plaintiff's first appeal from order dated 18.2.2012 passed by Civil Judge, (Sr. Division), Farrukhabad in O.S. No. 4 of 2012, by which the application for interim injunction, filed by the plaintiff, has been rejected.
3.The appellant filed O.S. No. 4 of 2012 for redemption of the mortgage dated 2.12.2002 and for a direction to respondent-2 to re-convey the property transferred under the deed to the plaintiff, after taking the mortgage money along with 12% interest. It has also been prayed that the defendants be restrained from interfering with the possession, alienating, selling or transferring the property in dispute in any manner.
4.It has been stated in the plaint that the plaintiff had established a factory for manufacturing of cement pipes in the name of Trimurti Pipes Ltd. at Bajpur, district Nainital in the year 1989. For that purpose, he took loan of Rs. 27,54,000/- from U.P. Financial Corporation (UPFC) in the year 1989. For the purpose of running capital, he also took loan of Rs. 20 lakhs from State Bank of India (SBI) in the year 1990. A communal violence had taken in Bajpur in the year 1992, as such his factory was closed and he had suffered a huge loss. Accordingly, he could not repay the loan of UPFC and SBI. The UPFC therefore took possession over the factory unit as well as machinery, etc. of the plaintiff and auctioned/sold them. The sale proceeds were not sufficient to satisfy the loan of the UPFC, as such, it has started recovery proceedings against the plaintiff. The plaintiff filed Civil Misc. Writ Petition No. 43148 of 2002, against the recovery proceedings in which, a conditional interim order dated 8.10.2002 was passed directing the plaintiff to deposit Rs. 4,50,000/- with the UPFC. The plaintiff had arranged Rs. 2 lakhs, but he could not arrange the remaining amount of Rs. 2,50,000/- at that time. The plaintiff was in urgent need of the aforesaid money in order to comply in the interim order. He had very good terms with defendant-1, as such, he requested him to advance Rs. 2,50,000/- for complying with the aforesaid interim order. Defendant-1 agreed to advance Rs. 2,50,000/- to the plaintiff, but he in order to secure his loan, asked the plaintiff to execute a sale deed of the property in dispute. Accordingly, the plaintiff executed the deed dated 2.12.2002 in favour of defendant-2 who is the son of defendant-1. Although, the deed was executed showing it as a sale deed, but it was an anomalous mortgage. The property in dispute was already mortgaged with the SBI, as such, it's sale was not possible. In the meantime, the SBI also started recovery proceedings against the plaintiff. As such, in June 2002, the plaintiff requested defendant-1 to get the mortgage redeemed so that he could arrange money by selling his land to satisfy the loan of SBI. Defendant-2 without any information to the plaintiff, got his name mutated over the land in dispute on 16.8.2010. In spite of repeated requests, the defendants did not agree for redemption of the mortgage. On these allegations, the suit has been filed.
5.In this suit, the plaintiff also filed an application for interim injunction restraining the defendants from interfering with his possession over the land in dispute and alienating, selling or transferring it in any manner, during the pendency of the suit.
6.The trial court issued notice to the defendants on the application for interim injunction. The defendants put appearance and filed their objections and counter affidavits to the application for interim injunction, in which they have stated that the deed dated 2.12.2002 is a sale deed and not an anomalous mortgage. The defendant has voluntarily executed the deed without any undue influence or coercion, transferring his all rights in the property in dispute. Possession over the property in dispute was also delivered to the defendants. There was no intention of the parties to mortgage the land in dispute for loan. As, the locality, where the land in dispute is situate, is now developing for residential purposes, as such, value of the land in dispute has been increased. Accordingly, the plaintiff has malafide filed this suit on false allegations and wants to extract some money from the defendants. The possession over the property in dispute has already been handed over to defendant 2 on the date of execution of the sale deed. The plaintiff has no right to challenge the sale deed after about nine years of its execution. The plaintiff has neither prima facie case, nor balance of convenience is in his favour, nor any irreparable injury will occur to him, if the interim injunction is not granted. The application for interim injunction is malafide and is liable to be rejected,
7.The trial court heard the application for interim injunction and by order dated 18.2.2012, came to the conclusion that the deed dated 2.12.2002 prima facie appeared to be a sale deed and possession has also been delivered to the vendee. There is nothing on record to suggest that the plaintiff intended to mortgage his property or the deed was executed for securing the loan. There is no condition for re-purchase either in the deed or from any other deed thereafter. Accordingly, it was found that the plaintiff has no prima facie case. It has been further held that prima facie it is proved that the land in dispute was sold to defendant 2 who is the owner of the property in dispute, as such, balance of convenience also lies in favour of defendant-2. Accordingly, it is held that the plaintiff was not entitled for any interim injunction. On these findings, the application for interim injunction was rejected by the order dated 18.2.2012. Hence, the present appeal has been filed by the plaintiff.
8.The counsel for the appellant submitted that the plaintiff has a fair case which entitles him to the relief claimed in the suit. As such, the trial court ought have granted the interim injunction and status quo ante ought to have been maintained in order to preserve the property and protect the right of the plaintiff. The trial court has illegally mixed the prima facie case with the prima facie title which is not relevant consideration for passing the order on the application for interim injunction. In support of his contention, he placed reliance on the judgment of this court in Rahmullah and others vs. The District Judge, Siddharth Nagar and others, reported in 1999 RD 1. The counsel for the appellant further argued that for deciding the real nature of the deed, the intention of the parties has to be looked into. From the recital of the deed, it is apparent that the plaintiff was in need of the money to satisfy the condition of the interim order and defendant-1 was friend of the plaintiff, accordingly, he agreed to advance money to the plaintiff. Thus intention of the plaintiff was to borrow the money and in order to secure the loan he had executed the deed which is a mortgage. He further argued that the property in dispute was mortgaged with the SBI, as such, it could not have been sold. Accordingly, the deed cannot be treated as a sale deed. He further argued that the property was a very valuable property and Rs. 2,50,000/- was not proper consideration. As it was transferred for a meager amount, as such, the intention of the parties was very clear that it was not a sale deed but a mortgage. In support of his aforesaid contention, he placed reliance on the judgment of this court in Smt. Bhagwan Devi vs. Smt. Beni Bai and others, reported in 2006 (64) All LR 10.
9.The counsel for the respondent submitted that a bare perusal of the deed shows that it was a sale deed and not a mortgage. Possession over the property in dispute has also been delivered at the time of execution of the sale deed. No interest has been retained by the plaintiff at the time of execution of the deed accordingly, the intention of the parties was to transfer the land and not to mortgage it. Land was agricultural land as such sale consideration of Rs. 2,50,000/- was proper in the year 2000. It is only in the year 2009-10, when the locality, where the land in dispute is situate, started developing for residential purposes, then it's value has been increased. There was an oral deal between the plaintiff and the defendants for selling his house, in the year 2009-10. The defendants have given Rs. 21 lakhs. to the plaintiff, but now he is not ready for executing the sale deed and wants to grab his earnest money. As such, in order to create undue pressure upon the defendants, this suit has been filed on false allegations. The plaintiff is neither in possession over the property in dispute nor has any title. Accordingly, he is not entitled for interim injunction.
10.It is well settled that for grant of interim injunction, the court is required to record findings on (i) Prima facie case; (ii) Balance of convenience; (iii) Irreparable injury, which is likely to be caused to the parties for not granting the interim injunction.
11.The word 'prima facie case' has been interpreted time to time by the courts. Hon'ble Apex Court, in United Commercial Bank Vs. Bank of India, AIR 1981 S.C. 1426 held that 'prima facie case' means in the facts and circumstances of the case, there is a bonafide contention between the parties and a serious question is to be decided. This court in the case of National Textiles Corporation (U.P.) Ltd. Vs. Swadeshi Cotton Mills, 1987 A L J 1266 (D.B.) held that in order to pass an interim order, the Court is to take immediate decision, estimating relative strength of the each parties case. If the plaintiff has a week case or is meat by a strong defense the Court may refuse an injunction. In this case, it was found that if the plaintiff has frivolous, vexatious and not even stateable case, the Court therefore rejected the injunction application.
12. Order 39 Rule 3 C.P.C. mandates for issue of notice to the defendants before passing any order. Thus the Court has to form opinion on 'prima facie case' of the plaintiff after hearing the defendant. It only after examining the case of the plaintiff and the defendant, the court is required to form an opinion regarding 'prima facie case' of the plaintiff. The word 'prima facie' means 'at first sight'. The existence of the right of the plaintiff should be so apparent that one can see on bare looking at it that he has a case in his favour on the basis of which relief can be granted.
13.Even if, the plaintiff may not have title of the property in dispute at the time of filing of the suit but from the rival contention of the parties, the court is satisfied that the plaintiff is on better footing, and on trial relief may be granted to him in all probabilities. Then it can be said that prima facie case is in favour of the plaintiff. It is in this context, it has been held that prima facie case shall not mean frima facie title. Thus finding in respect of the 'prima facie case' is not required to be recorded only by examining a good drafting of the plaint but by examining rival contention of the parties and their supporting evidence.
14.In the light of the aforesaid proposition, we have to examine the facts of this case. In this case, the registered sale deed was executed on 2.12.2002. In the sale deed, it has been mentioned that the property was free from all encumbrances and the transferor has right to execute the sale deed. In the sale deed, payment of the sale consideration and delivery of possession have also been mentioned and it was stated that the transferor or their heirs and legal representatives had no interest left in the land in dispute. From reading of the sale deed, it is apparent that it is a sale deed without reserving any right in the property in dispute. There Is nothing on record to suggest that the deed was executed for securing the loan without any intention to transfer it. It may be mentioned that necessity for the money is the reason for selling the properties in most of the cases. On it's basis alone, it cannot be presumed that it was a deed for securing loan.
15.Hon'ble Apex Court in various cases held that intention of the parties has to be gathered from the recital of the sale deed and attending circumstances thereto. For the purposes of deriving the intention, the sale deed ought to be read as a whole. The counsel for the respondent has cited judgment of Hon'ble Apex Court in C. Cheriathan vs. P. Narayanan Embranthiri reported in (2009) 2 SCC 673. In which it has been held that when character of the document is in question, although heading thereof would not be conclusive, it plays a significant role. Intention of the parties must be gathered from the document itself but therefor circumstances attending thereto would also be relevant. In the case of Smt. Bhagwan Devi vs. Smt. Beni Bai and others, reported in 2006 (64) All LR 10, three documents were executed on the same day. Possession was not transferred and for that purpose a rent deed was executed and transferor was required give rent instead of transferring possession. Dictum of that case is not applicable in this case. Accordingly, the trial court has committed no illegality in coming to the conclusion that the plaintiff has no prima facie case in his favour.
16.The Supreme Court in Dalpat Kumar Vs. Prahlad Singh (1992) 1 SCC 719, held that the burden in on the plaintiff to prove that there is prima facie case in his favour which need adjudication. Existence of right and it's infraction by the defendant is a condition for grant of interim injunction.
17.The question relating to balance of convenience has also to be looked into at the time of grant of interim injunction. The property in dispute was transferred for consideration to defendant-2 in the year 2002 and possession was delivered to him. The name of defendant 2 was also mutated over the property in dispute. Accordingly, title and possession of defendant-2 is proved. The sale deed was never questioned within limitation. It is only after a lapse of about ten years, the plaintiff started to say that it was a mortgage and not a sale. Defendant-2 is owner of the land in dispute from the date of the sale deed, it would not be proper to restrain him from exercising his right over it. Therefore, balance of convenience also does not lies in favour of the plaintiff.
18.The other question that arises for consideration is as to what irreparable injury will be caused to the plaintiff in case interim injunction is not granted to him. The appellant has filed the suit for redemption of the mortgage in which mortgage money has been fixed. In case the mortgage is redeemed, then he will get back possession over the property in dispute. Accordingly, there will be no loss, what to say about the irreparable injury, if any, to the plaintiff in case the interim injunction is not granted.
19.Hon'ble Apex Court in Kashi Math Samsthan and another Vs. Shrimad Sudhindra Thirth Swami and another, (2010) 1 SCC 689 held that if there is no prima facie case for trial, question for considering balance of convenience and irreparable injury is not required.
20.In view of the above, we find no merit in the appeal. It is dismissed accordingly.
21.However, it is made clear that the various observations and findings in this order were made only for deciding the application for interim injunction. The trial court will not be prejudicial while deciding the suit on merit by the findings and observations made by this court or in the impugned order.
Order dt: 13/04/2012 Jaideep/-