RAJIV MAHESHKUMAR MEHTA - Appellant(s) Versus MAHENDRASINH MADARSANG VAGHELA & 3 - Respondent(s) ========================================================= Appearance :
MR KAMAL TRIVEDI, SR.ADVOCATE with MR NIKUNT K RAVAL for Appellant(s): 1, RULE SERVED for Respondent(s) : 1 - 4.
MR SN SHELAT, SR.ADVOCATE WITH MR ND GOHIL for Respondent(s) : 1 -
4. ========================================================= CORAM :
HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 08/05/2012 CAV ORDER The challenge in this appeal from order is to the order dated 28.2.2011 passed by learned 7th Addl.Sr.Civil Judge, Ahmedabad (Rural), passed below temporary injunction application, Exh.5 in Special Civil Suit No.19 of 2011. The appellant herein is the original plaintiff and the respondent herein are the original defendants in the suit and, therefore, for the sake of convenience, the appellant and the respondents shall be herein after referred to as the plaintiff and the defendants respectively.
The plaintiff filed the above-referred suit, seeking various reliefs, namely, specific performance of agreement for sale of a land bearing block No.592, admeasuring 10528 sq.yrds., executed on 1.9.2009 by the defendants in favour of the plaintiff or in the alternatively to recover the amount of damages with running interest @ 18% p.a. and also prayed for the decree of permanent injunction restraining the defendants from transferring or alienating the suit land to any 3rd party. In the suit, the plaintiff filed an application at Exh.5 seeking temporary injunction, restraining the defendants from transferring or otherwise alienating the suit land to any 3rd party or to create any interest to any 3rd party in the suit land till the pendency and final disposal of the suit. At the time when the suit was filed, the trial Court vide initial order dated 4.2.2010 issued show cause notices to the defendants and after considering the submissions advanced on behalf of both the sides, so also considering the material placed on record before the trial Court, vide impugned order dated 28.2.2011, the trial Court dismissed said application, Exh.5 and, hence, the plaintiff preferred this appeal from order.
Mr.Kamal Trivedi, learned senior counsel with Mr.NK Raval, learned advocate for the appellant - plaintiff at the outset submitted that considering the impugned order passed by the trial Court, an impression can be gathered that the trial Court virtually decided the whole suit at such interlocutory stage. It is submitted that the trial Court in the impugned order observed that the document of agreement for sale was not only doubtful, but was false and fabricated. Rs.40 Lacs came to be paid by the plaintiff to the defendants by way of different cheques and the defendants passed a receipt showing the payment made by the different cheques, but without there being any evidence on record, the trial Court concluded that it was an amount of loan in favour of the defendants. Mr.Trivedi, learned Sr.Counsel submitted that the defendants did not dispute their signatures in the agreement for sale, but they only contended that they had signed only blank papers, which at this stage, without there being any evidence on record, the trial Court accepted such defence and concluded that the defendants had signed only blank paper.
3.1 Mr.Trivedi, learned sr.counsel for the appellant - plaintiff further submitted that after the execution of the agreement, the defendants at periodical interval, recovered part of the amount of the consideration and in token thereof issued receipts and some of the receipts are signed by all the four defendants and some of the receipts are signed by either defendant No.1 or by defendant No.4 and those receipts are about 13 in number, and defendants, though admitted their signatures in the receipts, but contended that they signed only blank papers and the trial Court at such interlocutory stage accepted such defence and concluded that those receipts were false and fabricated and the plaintiff misused the signatures of the defendants, which they had put on blank papers.
3.2 Mr.Trivedi, learned sr.counsel argued that the trial Court observed that the document of agreement for sale was unstamped and unregistered document and, therefore, no specific performance of such document can be ordered. It is asserted that the suit for specific performance of unregistered agreement is maintainable and in support thereof, reliance was placed upon certain decisions, which shall be considered at appropriate stage.
3.3 Mr.Trivedi, learned sr.counsel for the appellant - plaintiff submitted that at different intervals, the defendants received in all Rs.4,11,00,000/- and even pursuant to the condition contained in the agreement for sale, the suit land, which was initially an agricultural land, came to be converted into non-agricultural land by the defendants, but subsequently, they issued a public notice in a newspaper and they attempted to dispose of the suit land to 3rd party. As soon as the plaintiff came to know about this, he issued notices to the defendants and a vague and evasive reply was given by the defendants and, ultimately, the plaintiff filed the above suit. Mr.Trivedi, learned sr.counsel submitted that the trial Court, therefore, committed serious error in observing that the plaintiff has no prima-facie case and the balance of convenience and irreparable loss are not in his favour. It is contended that the plaintiff has a genuine case and triable issues are involved in the suit and in above view of the matter, trial Court should have granted temporary injunction till the pendency of the suit as prayed for by the plaintiff in his application. It is, therefore, submitted that the appeal may be allowed.
Mr.Suresh N.Shelat, learned senior counsel with Mr.ND Gohil, learned advocate for the respondents - defendants supported the impugned order passed by the trial Court and submitted that pursuant to the order dated 28.11.2011, passed in this appeal, original R & P of S.C.S. No.19 of 2011 came to be called for from the trial Court and considering the alleged agreement for sale, allegedly executed by the defendants in favour of the plaintiff, which is available in the original record of the suit, it can safely be said that as a proposed purchase, though the name of Rajiv Maheshkumar Mehta is shown, no particulars are given about his age, address etc. It is further submitted that though in the document as proposed purchasers, the name of Mr.Rajiv Mehta is shown as well as it is mentioned that there are unnamed other purchasers. It is further submitted that considering the tenor and texture of the recitals made in the document, even at this stage, it can definitely be said that the plaintiff misused the signatures of the defendants on a blank papers. No description of the suit land is mentioned in the document except its block number. It is, therefore, submitted that the trial Court did not erred in prima-facie discarding the said agreement at this stage.
4.1 Mr.Shelat, learned sr.counsel asserted that considering the agreement relied upon by the plaintiff, as it stands, on the basis of such vague and ambiguous recitals made in the agreement, no person of ordinary prudence would pay large sum of Rs.4,11,00,000/-. It is further submitted that there is no dispute that at the time when the alleged agreement was entered into, the suit land was agricultural land and in the agreement, even the profession of proposed purchaser Rajiv Maheshkumar Mehta is not mentioned. To put it differently, his profession as an agriculturist is not mentioned and, therefore, it is submitted that the agreement is hit by Section 63 of the Tenancy Act. It is further submitted that admittedly, the alleged agreement is unstamped and unregistered agreement. There are only revenue stamps affixed on the foot of the document. No justification is given by the plaintiff as to why the revenue stamps are affixed. It is, therefore, submitted that if said agreement would be impounded and appropriate stamp duty is paid, then only the same would be admissible in evidence. It is further submitted that in the communication allegedly made to the defendants, dated 14.8.2010, in paragraph 6, the plaintiff alleged that he had paid Rs.4 Crores to the defendants, whereas in the subsequent communication dated 11.12.2010, it is alleged that Rs.4,11,00,000/- came to be paid. Thus, plaintiff himself is not certain as to how much amount, he paid to the defendants by way of alleged part payment of the consideration amount. Mr.Shelat, ld.senior counsel relied upon certain decisions, which shall be discussed at appropriate time. It is, therefore, submitted that the appeal may be dismissed.
I have taken into consideration the submissions advanced on behalf of both the sides, so also original record of S.C.S.No.19 of 2011.
The plaintiff filed the above suit for specific performance of the agreement dated 1.9.2009. Though no further details are mentioned in the said agreement, but it can be gathered at this stage from the document that the four defendants agreed to sell land bearing block No.592 belonging to them and situated at village Ghuma to Rajiv Maheshkumar Mehta etc. It is further averred in the document that Rs.11,00,000/- were paid by the plaintiff by way of earnest money and the amount of consideration was determined at the rate of Rs.6,651/- per sq.yrds. It is averred that at the time when the agreement was executed, suit land was agricultural land and the defendants undertook to take appropriate steps at their cost for conversion of land into non-agricultural land ('N.A. Land', for short) and, thereafter, the final sale-deed to be executed. For execution of final sale-deed, period of 10 months was determined, but it is further stated that before the expiry of said period, if any amount is to be needed by the defendants, then upon payment of said amount, the period shall stand extended automatically. In the agreement, thereafter, time schedule for payment is also mentioned. There is no dispute that except affixing revenue stamps, the document is unstamped as well as unregistered and the document appears to have been written down on a paper and the writings are handwritten.
6.1 In the impugned order, the trial Court in paragraphs 11 and 12, elaborately discussed the evidential value of this agreement. The trial Court came to the conclusion that the document is doubtful and got-up. The trial Court in the impugned order observed that the blank paper, only bearing signatures was misused in such a fashion that subsequently the recitals can be written down in said blank paper, adjusting the same above those signatures. About those 13 receipts produced by the plaintiff, showing the payment made by the plaintiff and received by the defendants or by one of the defendant on behalf of others at different intervals, the trial Court observed that those papers were signed by the defendant/s, but when he/they signed they were blank and, subsequently, the contents were written down. The trial Court further observed that if at all the amount shown in those receipts were in fact paid by the plaintiff to the defendants, then in support of such payment, plaintiff could have produced some evidence in form of his books of accounts etc. showing the source of money and whether the plaintiff paid such amount from his personal saving or whether he borrowed such amount so as to make payment to the defendants. On behalf of the respondents herein reliance was placed upon a case of H.K.Bhalodwala & Anr.Vs.Ishwarbhai Chandubhai Patel & Ors. reported in 2010(1) GLH 112 and more particularly the observations made by this Court in paragraph 6 in said decision. It is true that in said case, it was alleged that the entire payment of earnest money as well as the subsequent payment came to be made by cash and the payment was seriously disputed by other side. This Court observed that no prima-facie evidence was adduced to show that while making the payment as alleged, the plaintiff had withdrawn said amount from his bank account or he had borrowed the money from anyone. It was, therefore, observed that the plaintiff failed to discharge his initial burden to prima-facie prove such payment, which was alleged to have been made by cash. Now, in the instant case, it is true that as per the case of the plaintiff, at the time when the agreement was executed, he paid Rs.11,00,000/- by way of earnest money to the defendants by cash. There is also no dispute that barring one receipt, for the remaining receipts relied upon by the plaintiff, it is his case that the payment was made by cash. However, the receipt dated 15.12.2009, if considered, it transpires that the payment was made through four different cheques issued in the name of the defendants by the family members of the plaintiff, on behalf of the plaintiff. It is the case of the plaintiff that by four different cheques, the payment of Rs.40 Lacs came to be made. It is pertinent to note that the defendants in their written statement though admitted the receipt of Rs.40 Lacs, but contended that the same was only loan transaction and the trial Court in the impugned order at this stage without any evidence on record, much less a prima-facie evidence, believed the defence of the defendants that the payment of Rs.40 Lacs through cheques was in connection with a loan transaction and not towards the part payment of consideration amount. Under such circumstances, in the facts and circumstances of the case, the ratio laid down in H.K.Bhalodwala's case (supra) shall not apply in the instant case.
The trial Court while dismissing the temporary injunction application, Exh.5, heavily relied upon the fact that the agreement was unregistered agreement. On behalf of the appellant, Mr.Trivedi, learned senior counsel submitted that the trial Court committed serious error in dismissing application of temporary injunction by observing that the agreement was unregistered. In support of such submission, reliance was placed upon the decision in the case of Aloka Bose Vs.Parmatma Devi & Ors. reported in AIR 2009 SC 1527, Brij Mohan & Ors. Vs.Smt.Sugra Begum & Ors. reported in JT 1990(3)SC 255 and Nitinkumar Laxmidas alias Lakhubhai and Others Vs.Smt.Savitaben Pranshanker & Ors. reported in 1996(1) GLH 224. In Nitinkumar Laxmidas's case (supra) almost identical was the situation as in that case, a plaintiff filed suit for specific performance of an agreement for sale of land and in said suit, he filed an application for temporary injunction under Order 39 Rule 1 and 2 of the CPC. The trial Court dismissed said application and one of the grounds for dismissing said application was that the agreement for sale was not registered. This Court in paragraph 3 in said decision relying upon earlier decision of this Court in the case of Kaushik Rajendra Thakore Vs.Allied Land Corporation reported at 1987(1)GLH (UJ) 22 observed that though the agreement for sale was required to be registered as per amended Section 17 of the Registration Act, but since there was no corresponding amendment in Section 49 of the Registration Act, 1908, suit of the plaintiff would not fail on the ground of non-registration of the agreement for sale. It was, therefore, observed that the trial Court was erred in holding that it would not act upon such agreement for sale. In Aloka Bose's case (supra) Hon'ble the Apex Court in paragraph 7 in said decision observed that the agreement for sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase for an agreed consideration of agreed terms and it can be even oral. Almost similar view was taken by the Hon'ble Apex Court in Brij Mohan's case (supra). Under such circumstances, in the instant case, the trial Court erred in dismissing the temporary injunction application by holding that the agreement was not registered.
On behalf of the respondents, Mr.Shelat, learned senior counsel relied upon a case of Yashwant Laxman Pal Raikar Vs.Laxman V.Singbal & Ors. reported in 2011(1) CCC 77 (Bom.) wherein in a suit for specific performance of an agreement for sale, the plaintiff came forward with a case that the entire payment was made by cash. In paragraph 13 in said decision, the Bombay High Court observed that on the basis of material available before the trial Court, if the trial Court could find that prima-facie the plaintiffs have made out a case and that there was a triable issue and the facts would warrant of maintaining status quo, then only temporary injunction could be granted. Now in the instant case, it is pertinent to note that as stated above, out of the amount paid by the plaintiff to the defendants as alleged by the plaintiff, Rs.40 Lacs came to be paid by different cheques. It is further pertinent to note that as per the condition embodied in the agreement, the defendants were required to take appropriate steps for conversion of the agricultural land into non-agricultural land. It is pertinent to note that the defendants took appropriate steps for said conversion and vide order dated 20.2.2010, the District Collector, Ahmedabad passed the order of conversion of the land into non-agricultural land. It is further pertinent to note that one of the condition embodied in the agreement was to the effect that the defendants were required to obtain a certificate of Solicitor regarding the title clearance and such certificate of Solicitor was obtained on 25.1.2010. Thus, prima-facie at this stage, it can safely be said that though defendants took steps to perform their part of the agreement, but subsequently, when the plaintiff issued notice to the defendants, showing his readiness and willingness to pay the remaining amount of consideration and requested for execution of final sale-deed and also forwarded a draft sale-deed to the defendants, the defendants did not comply with said notice and, hence, the plaintiff was constrained to file this suit. Furthermore, in the notice dated 14.8.2010 issued by the plaintiff to the defendants, it has been stated that the profession of plaintiff was agriculture and he was "agriculturist".
Despite such facts emerged from the record, the bare reading of the impugned order passed by the trial Court would suggest that the trial Court, without there being any cogent evidence on record, at such interlocutory stage branded the agreement and the receipts as doubtful documents and accepted and believed the defence of the defendants that the payment of Rs.40 Lacs was not towards the part payment of the amount of consideration, but was in connection with a loan transaction. Mr.Trivedi, learned sr.counsel for the appellant, therefore, rightly submitted that the trial Court virtually decided the whole suit at such interlocutory stage. Reliance was placed by him upon a case of Hindustan Petroleum Corpn.Ltd. Vs.Sriman Narayan and Anr. reported in (2002)5 SCC 760 and more particularly paragraph 11 in said decision wherein Hon'ble the Apex Court observed that the controversy raised in said case related to a commercial contract entered into between the parties and more particularly about alleged revocation of contract. It was observed that validity or otherwise of the order of revocation can be considered at the stage of interim injunction only for the limited purpose of ascertaining whether there is prima-facie case in favour of the plaintiff and not for determination of the question finally, but from the discussions in the impugned order, it appears that the High Court had dealt with the matter as if it was deciding the suit. In paragraph 12, in said decision, it was further observed that all such matters are to be considered when the suit is to be taken up for hearing and could not be considered in detail for considering the prayer for interlocutory order of injunction. In Zenith Mataplast Private Ltd. Vs.State of Maharashtra & Ors. reported in (2009)10 SCC 388.
Considering the facts and circumstances involved in said case, in para 31, Hon'ble the Apex Court observed that it may not be appropriate for any Court to hold a mini trial at the stage of grant of temporary injunction. In the facts and circumstances of the case, and as discussed above, the observations made by the Apex Court in the above referred decisions shall squarely apply to the instant case. As observed above, the trial Court virtually decided the whole suit at such interlocutory stage.
In the above view of the matter, this Court is of the opinion that the trial Court erred in dismissing the temporary injunction application filed by the plaintiff. The trial Court appears to have arbitrarily exercised its discretionary powers in refusing to grant temporary injunction as prayed by the plaintiff in his application and it can safely be said that the discriminatory order passed by the trial Court is perverse in nature, which warrants interference by this Court.
In the above view of the matter, this Court is of the opinion that the respondents - defendants are required to be restrained from transferring or otherwise alienating the suit property to any third party or to create any interest in the suit property of any third party till the pendency and final disposal of the suit. However, considering the facts and circumstances of the case and further the fact that the dispute is old, it would be in the interest of justice for both the parties, if the trial Court is directed to expedite the hearing of the suit and to dispose of the suit in accordance with law within the time, which shall be fixed by this Court. It further needs to be observed that whatever discussion is made in this judgment and order by this Court shall be confined only for the disposal of this appeal and shall not have any bearing whatsoever at the time when the trial Court shall hear and decide the suit in accordance with law and the trial Court shall decide the suit in accordance with law on the basis of the evidence that may be led by both the parties before it, uninfluenced by any observations made herein.
For the foregoing reasons, the appeal from order is allowed and the impugned order dated 28.2.2011 passed by learned 7th Sr.Civil Judge, Ahmedabad (Rural) below temporary injunction application, Exh.5 in Special Civil Suit No.19 of 2011 is hereby set-aside and the respondents - defendants, their agents and servants are hereby restrained from transferring or otherwise alienating the suit property bearing block No.592, situated at Village Ghuma and more particularly, described in paragraph 1 in the plaint in the aforementioned suit to any third party and further restrained from creating any third party interest in said property till the pendency and final disposal of the aforementioned suit by the trial Court.
The trial Court is directed to expedite the hearing of the suit and shall dispose of the said suit in accordance with law preferably on or before 31.12.2012. There shall be no order as to costs. The registry to send back the record and proceedings of the aforementioned suit to the trial Court forthwith.
(J.C.UPADHYAYA, J.) (binoy) Top