IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL NO.5216 OF 2019 (CPC) BETWEEN Mr. S.Samiulla, S/o. Mr. Sanaulla Shaik, Aged about 40 years, R/at No.1099, Dastagiri Road, Vijinagapura, Dooravaninagar Post, Bengaluru-560016.
(By Sri.P.D.Surana, Advocate) AND …Appellant 1. Mr. S.Nesanalini Kumar, S/o. Late Stephen A., Aged about 41 years, 2. Mrs. C.Reetha, W/o. Mr. S.Nesanalini Kumar, Aged about 41 years, Rep. by GPA Holder Mr. S.Nesanalini Kumar, 1 & 2 are R/at No.16, 1st Cross, Ramaiah Road, R.S.Palya, M.S.Nagar Post, Bengaluru-560033. Also at Ground Floor, “Aditya Sunshine”
No.409/1, Chikka Banaswadi, CMBR Layout, Banaswadi, Bengaluru-560043.
3. Mr. H.R.Manjunath, S/o. Late Ramakrishna, Major, 4. Mrs. Nethravathi @ Nethra W/o. Mr. H.R.Manjunath Major, 3 & 4 are R/at Hodenur Village, Bannur Post, Hassan District Karnataka-573110.
.. Respondents (By Sri.K.R.Krishnamurthy, Advocate, for R1) This MFA is filed under Order 43 Rule 1(r) of CPC, against the order dated 30.05.2019 passed on I.A.No.II in O.S.No.1528/2018 on the file of the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru City, dismissing I.A.No.II filed under Order 39 Rule 1 & 2 CPC.
This MFA coming on for admission, this day, the Court delivered the following :
JUDGMENT The appellant being the plaintiff in the suit O.S.1528/2018 has preferred this appeal. In a suit for specific performance, he made an application as per I.A.2 under Order 39 Rules 1 and 2 CPC seeking temporary injunction to restrain the defendants from alienating the suit property pending disposal of the suit. The trial court by its order dated 30.5.2019 dismissed the application. Hence, this appeal.
2. The plaintiff’s case is that on 5.3.2017, he entered into contract with the defendants 1 and 2 for purchase of the suit property for a total sale consideration of Rs.30 Lakhs. Having received advance amount of Rs.15 Lakhs, the defendants agreed for executing the registered sale deed within 20 months from 5.3.2017, the time was the essence of the contract. The defendants 1 and 2 went on postponing the execution of the sale deed though he was ready to get the sale deed executed, and in the month of September 2018, the defendants 1 and 2 insisted on the plaintiff to pay additional consideration of Rs.5 Lakhs. Thus the total sale consideration was enhanced to Rs.35 lakhs. They also agreed for executing one more agreement of sale showing the total sale consideration amount as Rs.35 Lakhs. They insisted on payment of additional advance amount of Rs.12 Lakhs. On 25.9.2018 the plaintiff went to the office of Sub-registrar for the purpose of execution and registration of another agreement of sale. The defendants 1 and 2 also came to that place. The second defendant insisted on additional amount of Rs. 3 Lakhs for execution of the agreement. Since the plaintiff did not agree, the second defendant went away from that place without signing the agreement. However, the plaintiff, his brothers who were present and the first defendant completed the execution of sale keeping it pending for obtaining the signature of second defendant. It is further stated that since the agreement of sale dated 25.9.2018 is not completely executed, the first agreement dated 5.3.2018 is still subsisting. The defendants 1 and 2 are still holding Rs.15 Lakhs paid by them under the agreement dated 5.3.2018. The plaintiff has always been ready to pay the balance of sale consideration and perform his part of the contract. Since the plaintiff came to know that defendants are attempting to sell the property to defendants 3 and 4, he filed the suit and sought for temporary injunction to restrain the defendants 1 and 2 from alienating the property in any manner till disposal of the suit.
3. The defendants 1 and 2 deny the transaction of agreements of sale as stated by the plaintiff. They say that they are the joint owners of the suit property. They were the partners of the unregistered firm called M/s Royal Crown which carried on business of supplying chicken from wholesale market to the final consumers. The plaintiff being a wholesale dealer was supplying the chicken to them on credit basis. In connection with supply of chicken from plaintiff to them, they owed a sum of Rs.11,49,208/-. The plaintiff agreed to supply chicken on credit basis, but in March 2017, the plaintiff, all of a sudden insisted on immediate payment of Rs.11,49,208/-. They did not have money to make payment and at that time they promised the plaintiff to pay the amount in a phased manner. The plaintiff insisted on furnishing security to him for payment of money due to him and at that time the plaintiff might have obtained their signatures on blank stamp papers. He also forcibly took two blank cheques from first defendant. When the first defendant realised that the plaintiff was misusing the cheques and the blank stamp paper, he made a complaint against the plaintiff on 29.9.2018 at Banaswadi Police Station. The police secured the presence of the plaintiff to their police station where he agreed to have taken signature of the first defendant on a blank stamp paper towards security of outstanding dues. As they were struggling hard for arranging money for making payment to the plaintiff, the defendants intended to sell the property to defendant No.3 for valuable consideration of Rs.52 Lakhs and out of the advance amount received from defendant No.3, first defendant repaid an amount of Rs.5 Lakhs to the plaintiff. These circumstances clearly indicate that the plaintiff’s intention is to knock off the property of first and second defendants for a very low price. In these circumstances the agreement is tainted with fraud and misrepresentation. They never agreed to sell the property to the plaintiff. Therefore, question of granting injunction does not arise.
4. The learned trial judge, after considering the materials placed before him, has expressed doubt about the transaction of agreement of sale put forward by the plaintiff. The very fact of issuance of notice by the plaintiff to defendants 1 and 2 for recovery of Rs.28,55,000/- due under the cheque dated 3.10.2018 and not demanding specific performance of contract by issuing a legal notice are the keen observations made by the trial court for expressing an opinion with regard to non-existence of a prima facie case and for denial of an order of temporary injunction.
5. The learned counsel for the plaintiff/appellant argues that execution of agreement of sale by defendants 1 and 2 is a transaction totally different and distinct from the transaction of supply of chicken to defendants. Therefore, in the notice issued by the plaintiff to the defendants, demand for recovery of money due to him was only made. It is his argument that for enforcing an agreement of sale, issuance of notice is not compulsory. There are two agreements, 5.3.2017 and 25.9.2018. To the first agreement defendants 1 and 2 were parties. To the second agreement also, defendant No.2 was made a party in the agreement but she did not sign. However, the first defendant has signed the agreement. There is no dispute that the suit property belongs jointly to defendants 1 and 2. There is no bar for ordering specific performance of contract in respect to share of first defendant and in this connection he relies upon judgment of the Supreme Court in the case of A.Abdul Rashid Khan (Dead) and Others vs P.A.K.A.Shahul Hamid and Others [(2000) 10 SCC 636]. Therefore, it is his contention that the entire agreement cannot be totally rejected for want of signature of second defendant to the agreement dated 25.9.2018. He argues further that since the agreement dated 25.9.2018 did not become complete, the plaintiff is entitled to enforce the first agreement dated 5.3.2017 as it was not cancelled. The trial court has failed to appreciate this aspect of the matter and the conclusion reached by it that the plaintiff has made out a prima facie case does not stand to reason. Hence, this appeal needs to be allowed and injunction granted.
6. The learned counsel for the respondents/defendants 1 and 2 submits that plain reading of the plaint does indicate that the parties to the alleged agreement are not at consensus ad idem. The very fact that the plaintiff admits that he was supplying chicken to defendants 1 and 2 and that he was due to be paid a certain sum of money by defendants 1 and 2 shows probability of truth in the contention taken by the defendants 1 and 2. The plaintiff does not dispute the fact that he received Rs.5 Lakhs from defendants 1 and 2 who were able to pay that money to the plaintiff only after entering into an agreement with defendant No.3 for selling the suit property to defendant No.3. The property could fetch more than Rs.50 Lakhs is highly impossible that they agreed to sell the property to the plaintiff for a sum of Rs.30 lakhs. The plaintiff does not dispute the fact of a criminal complaint being registered when he tried to misuse the blank cheques. The dates of the agreement of sale, date of notice issued by the plaintiff and the reply given by defendants 1 and 2 do very well show that the transaction was not an agreement of sale but the money that the defendants 1 and 2 owed to the plaintiff in relation to supply of chicken to them. When the plaintiff clearly says that on 25.9.2018 another agreement was executed by first defendant, the first agreement dated 5.3.2017 cannot be enforced. The plaint does not disclose as to which of the agreements the plaintiff wants to enforce. Therefore the trial court has rightly come to conclusion that there is no prima facie case for grant of injunction. In support of his argument he has placed reliance on two decisions of the Supreme Court in the case of Shanker Singh vs Narinder Singh and Others [(2014) 16 SCC 662] and Mayawanti vs Kaushalya Devi [(1990) 3 SCC 1].
7. After considering the contentions urged by the learned counsel it is to be stated that in a suit for specific performance an order of temporary injunction restraining the defendant from creating third party interest is usually issued to avoid multiplicity of proceedings. But, as a matter of right the plaintiff cannot insist on such order being passed in his favour; he should make out a prima facie case for grant of temporary injunction and in addition he must also be able to show that the balance of convenience lies in his favour and he will be exposed to injury to a great extent if injunction is denied. Prima facie case means plaintiff making out a case for trial. The suit should appear to be not frivolous. Plain reading of the plaint must indicate that the plaintiff has approached the court seeking resolution of a real dispute. If any doubtful circumstances can be made out from the plaint itself or if the defendant is able to show that the plaintiff is not entitled to seek the relief which he has claimed in the suit, temporary injunction should not be issued.
8. Now in this case the plaintiff states about two agreements of sale, 5.3.2017 and 25.9.2018. The plaintiff himself has stated that because second defendant wanted the sale consideration to be increased to Rs.35 Lakhs, an agreement of sale on 25.9.2018 was prepared. It did not come into existence because the second defendant did not sign. The defendants 1 and 2 have denied both the agreements. If the prayer portion in the plaint is seen it appears that the plaintiff wants the execution of sale deed for a total consideration of Rs.30 Lakhs which is the amount mentioned in the first agreement. Very specifically the plaintiff does not claim specific performance based on the agreement of sale dated 5.3.2017. If according to the plaintiff he agreed to have a second agreement executed for enhanced sale consideration of Rs.35 Lakhs, it is doubtful whether he can insist on the first agreement of sale. Admittedly the second defendant has not signed the agreement. It is also undisputed fact that the suit property belongs to defendants 1 and 2 jointly and therefore the first defendant alone cannot execute an agreement in respect of entire suit property, but the learned counsel for the plaintiff argued that one of the joint owners can be directed to execute the sale deed in respect of his share only and in regard to this position he has referred to the judgment of the Supreme Court in Abdul Rashid Khan (supra). There cannot be a second word with the proposition that a joint owner of a property can dispose of his share. But in this case defendant No.2 who did not execute the second agreement is also made a party to the suit. It is not the case of the plaintiff that the first defendant alone entered into agreement of sale with him for selling his share in the property. That apart if the defence put forward by the defendants is seen, it appears that defendants 1 and 2 owed some money to the plaintiff for supply of chicken to the plaintiff. During the time the agreements of sale came into existence, the money that the defendants owed to plaintiff would be normally given deduction. The stand of the plaintiff is that two transactions are different.
Transactions may be different, but normal course of human conduct cannot be ignored especially when the transactions are between the same parties. Moreover the plaintiff got issued a notice to the defendants 1 and 2 on 8.10.2018 demanding repayment of Rs.28,55,000/- in connection with dishonour of cheque issued by defendants 1 and 2. To this notice defendants 1 and 2 replied stating that they intended to sell the house to come out of debt trap and they have already paid Rs.5 Lakhs to the plaintiff. It is also stated in the said reply that defendants never agreed to sell the house to the plaintiff and must have forged blank papers. Defendants have also produced documents to show that they made police complaint against plaintiff alleging forgery. All these transactions took place much before institution of suit. Therefore, as rightly held by the trial court it is difficult to believe the plaintiff’s case. Prima facie case does not appear to exist. The trial court has come to right conclusion to reject the application for temporary injunction. I do not find any merit in this appeal. Therefore, it is dismissed.
ckl Sd/- JUDGE