Present Appeal from Order has been filed by the appellant-original defendants being aggrieved with the impugned order passed below Exh.5 in Special Civil Suit No.149/2010 by 6th Additional Sr. Civil Judge, Vadodara dated 13th October, 2012 granting the application partly by directing to maintain status quo and restraining the defendants from transferring the property.
Heard learned counsel, Shri Mehul Shah for the appellants.
Learned counsel, Shri Shah has referred to the impugned order and has tried to submit that whether the consideration has been paid is disputed and as stated in the impugned order, the amount of consideration has been paid. He submitted that as there is no prima facie material or evidence with regard to the payment of consideration, it cannot be accepted. In support of his submissions, he has referred to and relied upon the judgment of this High Court in case of Harshadkumar Kantilal Bhalodwala & Anr. Vs. Ishwarbhai Chandubhai Patel & Ors., reported in 2010 (2) GLR 1041. He, therefore, submitted that the injunction could not have been granted. He has also referred to banakhat dated 16.08.2010 and submitted that there is no mention about the consideration.
Though the submissions have been made, as it transpires from the record, full consideration has been paid and the possession could not be handed over for the reason, which has been stated in the subsequent agreement dated 11.02.2011 and the said agreement clearly refers to the fact that since the premises was tenanted, the construction could not be completed and, therefore, another banakhat was entered into on 16.08.2010. Therefore, it is in these circumstances, the amount of consideration may not have mentioned since it is for extension of time. The original banakhat is dated 18.07.2009, thereafter as stated above in the agreement dated 11.02.2011, the transaction has taken place and the contentions, which have been raised by learned counsel, Shri Shah can be examined on the basis of the evidence at the trial including the dispute raised with regard to the payment of consideration.
In any view of the matter, the impugned order cannot be said to be erroneous or perverse. Therefore in light of the guidelines laid down by the Hon ble Apex Court in catena of judicial pronouncements with regard to the approach of the appellate court, it does not call for any interference. The Hon ble Apex Court in a judgment in case of Wander Ltd. & Anr. Vs. Antox India P. Ltd., reported in 1990 (Suppl.) SCC 727 has made observation that unless the order is said to be perverse even second view is possible, normally the court should not interfere with the discretionary order. In the facts of the present case, the order passed by the court below with detailed reasoning is just and proper and this Court is in complete agreement with the same in asmuchas by impugned order, the Court has only directed restraining the original defendants from transferring the suit property in any manner to avoid any further complication or multiplicity of proceedings. Therefore, the impugned order cannot be said to be erroneous or misdirected, which would call for any interference.
Therefore, present Appeal from Order with Civil Application deserves to be dismissed in limine and accordingly stands dismissed.
Sd/-
(RAJESH H.SHUKLA, J.) Gautam Page 4 of 4