1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO.7 OF 2011. Mr. Haroon Ebrahim Son of late Ibrahim Mohamed Age 55 years, residing at Panaji, C/o. M/s. Magnum Constructions, Magnum Chambers, V. V. Dempo Marg, St. Inez, Panaji .. Appellant. Vs. 1. Mr. Ajit Sukhija, Son of late Dr. (Col.) Chamanlal Sukhija Major of age, resident of H.No.165, Campal, Panaji 2. Mrs. Guida Minocheri, Daughter of Mr. Trindade D'Silva, Age 57 years, married, Resident of 3A, Kakkad House, “A” wing, Sir V. Thakersey Marg, Opp. Liberty Cineme, Mumbai 400020. 3. Mr. Khodaram J. Minocheri, Husband of Mrs. Guida Minocheri, The defendant no.1 age 54 years, resident of 3A, Kakkad House, “A” wing, Sir V. Thakersey marg, Opp. Liberty cineme, Mumbai 400020 4. Mrs. Ondulia Rolanda Vales D'Silva, Alias Rolanda Vales D'Silva, Alias Ondulia Rolanda Vales, Alias Ondulia Rolanda Vales Silva, Alias Rolanda D'Silva widow of Mr. Trinidade D'Silva Age 90 years, resident of 7, Marina House, New Marine Lines Mumbai 400 020 5. Mrs. Sandra D'Silva Mahomed Daughter of Mr. Trinidade D'Silva 2 Wife of late Dr. Adam Mahomed, Age 54 years, married, residing at Sub 1, Lot 834, Albersvilla Port Shepstone, RSA, South Africa 6. Mr. Edgar Francisco Dias Vales, Son of Edgar Francisco da Purificacao Vales, age 54 years, Residing at Avenida da Republic, 97/R/C 1050-190, Lisboa, Portugal 7. Miss Maria Filomena Fernandes Age 67years, unmarried, Residing at House No.E-346, Opp. Bazilio's Jim, St. Inez, Panaji, Goa. .. Respondents. Mr. S. S. Kantak, Advocate General and Ms. S. Mordekar, advocate for the Appellant. Mr. S. D. Lotlikar, Senior advocate and Ms. S. Pai Kir and Mr. H. Kankonkar, advocates for respondent no.1. CORAM :- A. P. LAVANDE, J. Reserved on : 13 th June, 2011. Dictated on : 5 th July, 2011. ORAL JUDGMENT : Heard learned Counsel for the parties. Admit. By consent of the learned Counsel for the parties heard forthwith. 2. By this appeal, the appellant takes exception to the order dated 4th January, 2011 passed by the Civil Judge, Senior Division, Panaji by which an application for injunction filed by respondent no.1 in Special Civil Suit No.58/2008/A 3 has been allowed. 3. In the appeal, notice was issued only to respondent no.1 since respondent no.1, who is the plaintiff in the above suit, sought injunction against the appellant. As such, notice to other respondents has been dispensed with. 4. Briefly the facts relevant for disposal of the appeal are as under : Respondent no.1/ plaintiff filed the above suit against the appellant and respondent nos.2 to 7 seeking the following reliefs : “(i) For a declaration that the power of attorney dated 31/8/2005 is null and void, and all acts, if any, done by the defendants nos.1, 6 and 7 on the strength of the said power of attorney, are null and void and shall not produce any legal effects, as far as the properties and assets and rights of the deceased Ms. Augusta Iria Vales;” (ii) For a declaration that the sale deed dated 16/2/2006, to the extent that it purports to dispose off the Plot No.C-1 and Plot No.C-3, in which late Ms. Augusta Iria Vales had undivided half share, is null and 4 void; (iii) For a consequential direction, for cancellation of the said deed of sale dated 16/2/2006, from the records of the Office of the Registrar of Ilhas at Panaji, in so far as it pertains to LOTE No.C-1 and LOTE No.C-3, described in paragraphs 9 and 11 of the plaint; (iv) For an order directing the defendants 1 to 7 to restore possession of the plots, being LOTE No.C-1 and LOTE No.C-3, to the plaintiff, to be held by him for the beneficiaries and legal representatives of Ms. Augusta Iria Vales; (v) For a direction, restraining the defendant no.5 from carrying on any construction activity in any plots, described in paragraphs 9 and 10 of the plaint; (vi) For a permanent injunction, restraining the defendant no.5 from creating third party rights in favour of any person whatsoever in respect of plots C-1 and C-3, more particularly described in paragraphs 9 and 10 of the plaint; (vii) For a temporary injunction in terms of the prayer clause (vi) above. (viii) For costs. Along with the suit, the plaintiff filed an 5 application for temporary injunction restraining defendant no.5 (the appellant herein) from doing or carrying on any construction activities in the plot nos.C1 and C3 described in the plaint and also temporary injunction restraining him from creating any third party rights in respect of the said plots. The application was contested by defendant no.5. 5. The case of the plaintiff in the suit was that the power of attorney dated 31st August, 2005 pursuant to which sale deed dated 16th February, 2006 was executed in favour of defendant no.5 in respect of the suit plots was null and void since Ms. Augusta Iria Vales who had executed the power of attorney was not in fit condition to execute the same since she was of 89 years old and was bedridden. She had a fall just before the purported execution of the power of attorney. It is, therefore, the case of the plaintiff, who is one of the heirs of Ms. Augusta, who had expired on 1st May, 2007 that the power of attorney was obtained by playing fraud on her. The said power of attorney was executed in favour of defendant nos.1,6 and 7. 6. It was further the case of the plaintiff that consideration mentioned in the agreement dated 28th 6 October, 1996 to which addendum agreement dated 5th March, 1998 was executed, was Rs.72 Lacs and since the sale deed was executed for a consideration of Rs.40 Lacs, the sale deed was vitiated on the ground of inadequacy of consideration. It was further the case of the plaintiff that the power of attorney had no authority to share the consideration in equal proportion since late Ms. Augusta was entitled to bigger area and as such, she was entitled to higher consideration and not equal as stated in the sale deed. According to the plaintiff, the power of attorney- defendant no.1, who had executed the sale deed on behalf of late Ms. Augusta, had acted beyond his powers and as such, the sale deed was also vitiated. 7. The application for injunction was contested by defendant no.5 on several grounds including the ground that the plaintiff had no locus standi to file the suit in respect of the property of late Ms. Augusta. The trial Court, upon appreciation of the materials placed on record, held that the plaintiff as an heir of late Ms. Augusta had locus to file the suit. The trial Court recorded the finding that the power of attorney clearly entitled defendant no.1 to execute the sale deed. The trial Court did not find favour with the stand taken 7 by the plaintiff that on account of old age of Ms. Augusta Vales and since she was bedridden, she was not fit mentally or physically to execute the power of attorney. The trial Court held that there was no evidence produced by the plaintiff in support of this stand. On the contrary the affidavit of Mrs.Medhekar, the Notary before whom the power of attorney was executed, clearly established that Ms. Augusta was in a perfect state of mind to execute the sale deed. In so far as the equal share of the consideration in terms of the sale deed is concerned, the trial Court relied upon the agreement and stated that there was nothing wrong in sharing the consideration equally. However, the trial Court found favour with the ground taken by the plaintiff that on account of inadequacy of consideration, the sale deed was vitiated and consequently, granted injunction holding that all the three factors required for grant of injunction were made out by the plaintiff. The trial Court held that the property which was agreed to be sold for Rs.72 Lacs in the year 1996, could not have been sold for Rs.40 Lacs in the year 2006 having regard to the fact that the land prices have increased considerably in Goa and more particularly in Panaji. 8. Mr. Kantak, learned Counsel appearing on behalf 8 of the appellant submitted that the trial Court having given a finding against the plaintiff on all the issues except inadequacy of consideration, could not have granted injunction since inadequacy of consideration by itself cannot be a ground to set aside the sale deed. Mr. Kantak placed reliance upon Section 25 of the Contract Act and the judgments in the case of Vijaya Minerals Pvt. Ltd Vs. Bikash Chandra Deb; AIR 1996 Calcutta 67 and Ramchandra Singh Vs. Basdeo Singh and another; AIR 1982 Allahabad 437. 9. Learned Counsel, therefore, submitted that the trial Court has clearly erred in granting injunction on the sole ground that the consideration for transferring the property was inadequate after holding that the power of attorney was validly executed in favour of defendant nos.1, 6 and 7. Learned Counsel further submitted that the power of attorney was validly executed and since in the agreement it was agreed to share the consideration in equal shares, there was nothing wrong in having the same condition in the sale deed although the sale deed was executed by the power of attorney. According to the learned Counsel, the agreement dated 28th October, 1996 was executed on the understanding that a developable area of 6000 square metres was available 9 and since the same was not available in the year 2006 and much less area was available for development, the consideration was reduced to Rs.40 Lacs and as such, the sale deed does not stand vitiated on account of the fact that the sale consideration has been reduced. According to the learned counsel, the agreement was never terminated and in spite of the best efforts made to settle the encroachers/ persons having claims in the suit property, the same could not be settled and as such, the sale deed was executed in respect of the suit property for a consideration of Rs.40 Lacs although in the original agreement consideration mentioned was Rs.72 Lacs. He, therefore, submitted that the impugned order is liable to be set aside and the injunction granted by the trial Court deserves to be vacated. 10. Mr. Lotlikar, learned Senior Counsel appearing for respondent no.1 submitted that the trial Court has correctly held against the appellant in so far as inadequacy of consideration is concerned, but has erred in giving finding against respondent no.1 while deciding the application for injunction. According to learned Counsel, late Ms. Augusta was of 89 years old and was bedridden prior to purported execution of the power of attorney and as such, in the 10 absence of any statement in the power of attorney that the Notary had visited the house of the executant, the defence of the appellant that the power of attorney was executed at the residence of late Ms. Augusta cannot be accepted and, therefore, the execution of the power of attorney becomes suspicious. According to learned Senior Counsel, the power of attorney has to be strictly construed and if the power of attorney is perused, it only gives power to defendant nos.1,6 and 7 to jointly effect the sale in respect of the suit property and does not authorise one of the said defendants to execute the sale deed. Learned Counsel further submitted that defendant no.1 had himself share in the property and as such he was put on notice that there was a conflict of interest and as such, he had no authority to agree to share the consideration equally when admittedly late Ms.Augusta was entitled to half share in the area admeasuring 8816.50 square metres of Lote No.C1 andC3 and Ondulia was entitled to half share in the area admeasuring 4322.50 square metres of Lote No.C1 and half of C3 as far as Ms.Augusta is concerned. According to learned Counsel, the interest of the constituted attorney was in conflict with his principal late Ms.Augusta and in the absence of any specific authority to share equally the consideration of the sale deed, this 11 defendant no.1 could not have agreed to share the consideration equally. According to the learned Counsel, the power of attorney does not in clear terms authorise defendant nos.1, 6 and 7 or any one of them to share the consideration equally. According to learned Counsel, the agreement dated 28th October, 1996 stood terminated and as such, the sale deed executed on 16th February, 2006 was not pursuant to the said agreement and, therefore, even though late Ms. Augusta had agreed to share the consideration in equal shares in the absence of any authority, defendant no.1 had no authority to share the consideration equally. According to the learned Counsel, in the original agreement, it was stipulated that the liability to settle the encroachers and/ or persons having claim in the suit property was on the appellant and as such, the constituted attorney had no authority to incorporate the recital in the sale deed that the vendors were not able to bring about any settlement with the encroachers and / or the persons having claims in the suit property. According to learned Senior Counsel, these facts clearly establish that the constituted attorney had acted in excess of the authority conferred on him and consequently, the sale deed executed in favour of the appellant by which it was agreed to share the consideration equally stands 12 vitiated. Learned Counsel further submitted that it is itself inconceivable that the property which was agreed to be sold for consideration of Rs.72 Lacs in the year 1996 could be sold for Rs.40 Lacs in the absence of any material on record to show that there was reduction in the developable area in the suit property. Learned Counsel, therefore, submitted that the impugned judgment and order is liable to be sustained though on different grounds and no interference is warranted with the impugned judgment and order. In support of his submissions, Mr. Lotlikar placed reliance upon the judgment of the Apex Court in the case of Jugraj Singh and another Vs. Jaswant Singh and others; AIR 1970 (2) SCC 386 and Mohanshet Purushottam Gujar Vs. Mrs. Jayashri Vasantro Mahagaonkar; AIR 1979 Bombay 202. 11. I have carefully considered the rival submissions, perused the record and the judgments relied upon. 12. Perusal of the impugned order discloses that the trial Court has recorded all the findings except one in favour of the appellant. The only finding against the appellant is that the consideration for sale deed was inadequate in as much as the property which was agreed to be sold for 72 13 Lacs could not have been sold for Rs.40 Lacs after a period of almost 10 years. This finding is not sustainable in view of Section 25 of the Contract Act. Explanation 2 to Section 25 of Contract Act provides that an agreement to which consent of the promisor is freely given is not void merely because the consideration is inadequate, but inadequacy of consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given. 13. In the case of Vijaya Minerals Pvt. Ltd. (supra), learned Single Judge of Calcutta High Court has held that short of undue influence or duress, an agreement between the parties cannot be rendered nugatory on the ground that consideration is not adequate. The Courts do not entertain plea of inadequacy of consideration as a ground for refusal to perform an obligation under the contract. In the case of Ramchandra Singh (supra), the same principle has been reiterated. Therefore, it is evident that the sole ground on which the trial Court has granted injunction is unsustainable in law. 14. In view of the above, it is evident that the 14 impugned order cannot be sustained on the ground on which it has been passed. In this Court, on behalf of respondent no.1 several submissions have been made in respect of the stand taken by the plaintiff before the trial Court in support of his prayer for temporary injunction. From perusal of the impugned order it is evident that all these contentions have not been dealt with by the trial Court. The question, therefore, is whether this Court in appeal from order in an application for injunction should consider several contentions advanced on behalf of both the parties for the first time. Since the order granting or refusing injunction is a discretionary order and the jurisdiction to be exercised by the appellate Court is very limited, to see that the discretion has been exercised by the trial Court on well settled principles, in my view, it would be just and proper to remand the matter to the trial Court for fresh decision on the application for temporary injunction filed by respondent no.1. It is well settled that the appellate Court should not normally interfere with an order of grant or refusal of an injunction unless the discretion has not been exercised on well settled principles and the appeal from order granting or refusing the injunction is appeal on principle. (See Wanders Ltd. and another Versus Antox India Private Ltd.; 1990(Supp.) SCC 15 727). I am, therefore, of the considered opinion that it would be in the interest of justice to set aside the impugned order and remand the matter to the trial Court to decide the application afresh. I, therefore, do not deem it necessary to give findings on several issues raised before me in appeal as the same may prejudice the either parties before the trial Court. Needless to mention that all the contentions of both the parties are kept open. 15. In the result, therefore, the impugned order dated 4th January, 2011 is quashed and set aside and the matter remanded to the trial Court to decide the application dated 10th July, 2008 in accordance with law after considering the submissions made by the learned Counsel appearing for the parties. The parties to appear before the trial Court on 19th July, 2011 at 10.00 a.m. Since the application was for injunction filed in the year 2008, the trial Court to decide the application expeditiously and in any case on or before 30th August, 2011. 16. Appeal from Order stands disposed of in aforesaid terms. Considering the facts and circumstances of the case, the parties to bear their own costs. A. P. LAVANDE, J. SMA 16