[1] This appeal under Order 43 of the Code of Civil Procedure is preferred against the order dated 17th December 2011 passed by the learned 12th Additional Senior Civil Judge, Vadodara in Special Civil Suit No.804/2011 whereby the learned Judge has rejected the application Ex.5 preferred by the appellant. The appellant is the plaintiff who has filed Special Civil Suit No.804/2011 in the Court of learned Senior Civil Judge (S.D.), Vadodara for cancellation of sale deed dated 29th June 2011 executed by the respondent No.2 in favour of the respondent No.1, as the Power of Attorney of the appellant.
[2] It is the case of the appellant in the suit that the appellant is the owner of the land bearing Survey No.747, City Survey No.643, T.P. Scheme No.2, F.P. No.416 paiki admeasuring 110 square meters, which is referred to as "the suit property". The appellant became the owner of the suit property, by virtue of the registered sale-deed in her favour on 31st December 2010. It is further the case of the appellant in the suit that the appellant has executed Power of Attorney in favour of the respondent No.2 only for the purpose of development of the suit land and it was decided that the respondents shall pay Rs.50 Lakhs as sale consideration and the respondents, after paying only Rs.15 Lakhs, gave cheque for an amount of Rs.22,98,168/- in favour of the appellant and remaining amount of Rs.12,01,832/- was not paid. It is also the case of the appellant in the suit that the respondents misused the Power of Attorney and on the basis of the Power of Attorney, a sale-deed was executed in favour of the respondent No.1. Though it was agreed between the parties that the Power of Attorney was only for the purpose of developing the land and for such purpose, the respondents agreed to pay Rs.50 Lakhs to the appellant. On the aforesaid factual aspects, the suit came to be filed for the above stated relief. The appellant also preferred an application Ex.5 for interim injunction restraining the respondents from making any construction on the suit land and also transferring or alienating the suit property in any manner till the suit is finally heard and decided. Pursuant to the notice issued in the application Ex.5, the respondents appeared and filed their reply and objected to grant of any interim injunction as prayed for by the appellant in the application Ex.5. Learned Judge, after hearing the parties and examining the documents on record, came to the prima facie conclusion that the Power of Attorney was executed by the appellant, for the purpose of execution of the sale deed and there is no document on record about so-called agreement of payment of Rs.50 Lakhs to be made by the respondents to the appellant for development of the land in question. The learned Judge has further found that on the basis of Power of Attorney, the sale deed has been executed in favour of the respondent No.1 in the office of the Sub Registrar. Thus, a registered sale deed has come into existence. The learned Judge has, therefore, found that in absence of any agreement or any other documents to establish that the respondents ever agreed to pay Rs.50 Lakhs, the question of grant of any interim injunction would not arise. The learned Judge thus recorded that the appellant - plaintiff has failed to establish prima facie case in her favour or the case also did not have any merits warranting for grant of injunction as the balance of convenience is not in favour of the appellant. Accordingly, the learned Judge has rejected the application Ex.5.
[3] Learned advocate for the appellant has submitted that the parties clearly intended to develop the land and not to execute any sale deed on the basis of the Power of Attorney. He has further submitted that if the respondents had not agreed to pay Rs.50 Lakhs to the appellant, there was no question of giving cheque of Rs.22,00,000/- and odd amounts. Learned advocate for the appellant has also submitted that in fact, the Power of Attorney was misused by the respondents and a sale-deed was executed on the basis of the Power of Attorney against the intention of the parties. Learned advocate for the appellant has submitted that as against agreed amount of Rs.50 Lakhs, the respondents paid only Rs.15 Lakhs to the appellant. Therefore, looking to the over all facts and circumstances as stated above, it cannot be said that the intention of the parties was to execute the sale deed in favour of the respondent No.1 on the basis of the Power of Attorney. Learned advocate for the appellant has, therefore, urged that the appellant has good case in the suit on merits, and the learned Judge ought to have granted interim injunction in favour of the appellant to protect the property in question. The learned advocate for the appellant has submitted that the cheque for an amount of Rs.22,00,000/- and odd amounts which was given by the respondents was dishonoured and, therefore, it is a fit case where the respondents should be injuncted from making any construction on the subject land or from transferring the suit property till the final disposal of the suit.
[4] I have heard learned advocate for the appellant and I have also perused the copy of the Power of Attorney produced on record, as also the order passed by the learned Judge. The contents of the Power of Attorney clearly reveal that it was for specific performance of execution of sale deed. The intention of the parties is clearly found from the contents of the Power of Attorney, that it was for sale of land and not for the purpose of developing the land. The power of attorney is a specific power of attorney and not a general power of attorney. Therefore, the arguments of learned advocate for the appellant that the appellant in fact intended through this power of attorney to permit the respondents only to develop the land, cannot be accepted.
[5] Learned Judge has found that there is no other agreement between the parties for payment of Rs.50 Lakhs for the purpose of development of the land. In fact, except the document of power of attorney as stated above, there is no agreement between the parties for payment of consideration of Rs.50 Lakhs by the respondents to the appellant for development of the land as canvassed by the learned advocate for the appellant.
[6] On the basis of power of attorney, as recorded by the learned Judge, the registered sale deed has already been executed in the office of the Sub Registrar and on the basis of this registered document, the respondent No.1 has already become the owner of the suit property. It is also the case of the appellant that, the appellant received only Rs.15 Lakhs and the respondents were under obligation to pay remaining amount, as agreed between the parties. As rightly observed by the learned Judge, these all facts are required to be proved in the suit and today, from the documents on record, the appellant has miserably failed to satisfy the Court for grant of injunction in her favour. I do not find any case in favour of the appellant as documents on record clearly reveal that the appellant clearly intended through the power of attorney to execute the sale deed in favour of the respondent No.1 and as per the sale deed itself, the appellant has already received Rs.15 Lakhs. Simply because, the cheque for an amount of Rs.22 Lakhs which was given by the respondents came to be dishonoured, that would itself be no ground to believe that the said amount was also agreed to be paid towards the sale transaction in respect of the land in question, especially when it was the specific case of the respondents that the amount agreed to be paid was in respect of some other land. I, therefore, do not find any substance in this appeal and, therefore, this appeal is required to be dismissed. Accordingly, the appeal stands dismissed.
[ C. L. SONI, J. ] vijay Top