1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.129 OF 2010 Suhas Gurappa Humbarwadi ..Appellant V/s. Prakash R. Bolgammawar ..Respondents alias Guttedar Mr.A.V.Anturkar i/b.Mr.Sugandh B. Deshmukh, Advocate, for the Appellant Mr.N.V.Walawalkar with Mr.Amit Survase i/b.M/s.S.Satpute & Co., Advocate, for Respondent No.1 CORAM : R.C.CHAVAN, J. DATE : 16TH JUNE, 2010 P.C. . This Appeal is directed against the Order passed by the learned Joint Civil Judge, Senior Division, Solapur, allowing the Plaintiff s Application for injunction and restraining the Appellant from disturbing the plaintiff s possession over the suit property and from creating third party interest in the suit property. 2 2. Facts which are material are as under :- Respondent No.1 was the owner of the property which had been taken over under the Urban Land Ceiling Act. Ultimately it was found that the State could not have taken over that property. The possession of the property was with MHADA and MHADA was to release possession of the property. The Plaintiff executed a registered Sale Deed in respect of the property on 27th June, 2006 for a consideration of Rs.2,70,00,000/- as against the price for the purpose of registration and stamp duty assessed at Rs.2,59,35,500/-. By this registered document, the plaintiff acknowledged after having received a sum of Rs.17,00,000/- as shown in the Sale Deed that Rs.20,00,000/- were required to be paid to MHADA. The balance was paid by cheques. In respect of two cheques issued for Rs. 10,00,000/- and 13,00,000/- drawn on United Western Bank there is no dispute that they 3 were encashed and received by the Plaintiff. In addition to this, the Appellant purchaser had issued three cheques-one for Rs. 30,00,000/-and two others for Rs.90,00,000/- each in favour of the Plaintiff. It is not in dispute that the Appellant did pay to MHADA on behalf of the Plaintiff a sum of Rs. 19,70,000/- on 28th March, 2007. It also cannot be disputed that the Appellant paid to the income tax department a sum of Rs. 99,46,331/- towards plaintiff s income tax dues from 7th August, 2006 till 1st October, 2008. Thus, the Plaintiff had received from the Appellant Rs.17,00,000/- + Rs.23,00,000/- directly, Rs.19,70,000/- were paid to MHADA and Rs.99,46,331/- were paid to Income Tax i.e.in all Rs.1,78,96,331/-. 3. Yet the Plaintiff put three cheques for Rs.2,10,00,000/- for realisation and they were dishonured in March, 2008. The Plaintiff filed suit on 19th August, 2009 claiming a 4 declaration that the Sale Deed was sham, hollow, without consideration and for an injunction to restrain the Appellant from disturbing plaintiff s possession over the suit property. The Plaintiff also filed an Application along with the suit. After considering the Written Statement and reply filed by the Appellant, the learned Trial Judge passed the impugned Order. Aggrieved thereby, the Appellant is before this Court. 4. I have heard the learned Counsel for the Appellant and the learned Counsel for Respondent No.1. 5. The learned Counsel for the Appellant submitted that the learned Trial Judge should have seen that the suit was barred by limitation even if it is taken that Article 58 of the Limitation Act was attracted. Reliance by the learned Counsel for Respondent No.1 on a Judgment of this Court in MANCHHARAM 5 PRANJIVANDAS vs. PANABHAI LALLUBHAI AND OTHERS reported in ILR BOMBAY SERIES XL BOMBAY 51 is misplaced since in that case the Plaintiff had also claimed recovery of possession and therefore, it was held that there was limitation of 12 years and the Plaintiff was not hindered by restricted period. In any case, it is not necessary to examine question of limitation at this stage for the purpose of deciding the present Appeal. 6. The learned Counsel for the Appellant submitted that the learned Trial Judge had not properly dealt with various Judgments which had been cited before him. It is likewise not necessary to deal with this contention, since it would be a matter of individual perception as to how the Judge deals with the Judgments which are cited before him. While dealing with an injunction application a Judge ought to be as brief as possible, but of course must deal with all the contentions raised. Hence, 6 I do not propose to examine as to whether the learned Trial Judge has rightly or wrongly reacted to the Judgments which were cited before him. 7. The learned Counsel for the Appellant submitted that since possession of the property with MHADA was to be delivered only upon payment of the balance of development charges to MHADA, there was no question of the Plaintiff being in possession of the property. He pointed out that in the Sale Deed it had been recited that the Appellant had been placed symbolic possession and was to recover possession from MHADA after payment of development charges to MHADA. Therefore, according to him, the moment MHADA walked out of the property, the Appellant would be deemed to have been placed in possession and it would not lie in the mouth of the Plaintiff that inspite of recitals in the Sale Deed he was to continue in possession to the exclusion of the 7 purchaser i.e. the Appellant. The learned Counsel for the Appellant submitted that in view of this, there was absolutely no warrant for the Trial Judge to slap an injunction on his client. 8. The learned Counsel for Respondent No. 1 submitted that since MHADA was admittedly in possession of the property at the time of execution of the Sale Deed, after MHADA walked out, the Respondent being the owner of the property, came to possess it and therefore, there is no question of the Appellant being in possession. He pointed out that the Appellant had nowhere claimed that he had been placed in or had acquired possession of the property. He submitted that it was necessary for the Appellant to seek relief that he should be placed in possession of the property, and, in the absence of such relief, finding of the learned Trial Judge that the Plaintiff was in possession of the property could not be 8 assailed. 9. The learned Counsel for the Appellant claimed that on the basis of the recitals in the Sale Deed since the Appellant had become owner of the property, since the property is a vacant peace of land, as owner, he would be taken to be in possession of the property. He also pointed out that merely because the name of the Plaintiff continued in revenue record or Appellant s name may not have been immediately mutated in the revenue record, it does not follow that Appellant was not the owner, and that there was no doubt about the Appellant's ownership. In any case, the Respondent could not question the Appellant's ownership, after having executed the Sale Deed. He pointed out that the claim that the Sale Deed was hollow or void for want of consideration is not based on any factual foundation and therefore, the whole question involved in this Appeal would turn on how the 9 Sale Deed and conduct of the parties are to be interpreted. 10. In this case, if it is presumed for a while that the Sale Deed was for a consideration of Rs.2,70,00,000/- against ready reckoner price of Rs.2,59,00,000/-, in order to take care of infliated element in a money lending transaction, it would be in congruous for the Appellant to have parted for Rs.2,70,00,000/- with Cheques. It is not disputed that the Appellant has parted with in all a sum of Rs.1,78,96,331/-. The Plaintiff cannot dispute that these amounts have been paid by the Appellant either to the Respondent-Plaintiff or on his behalf. Had it been a money lending transaction, the entire consideration would have been shown to have paid to enable the money lender to extract that amount from the borrower. But, the Sale Deed does not show the entire amount was paid to the Vendor. On the other hand, the 10 Agreement prima facie has the elements which would indicate that it was genuine sale and not bogus or sham Agreement as the Plaintiff alleges. 11. The learned Counsel for the Respondents placed reliance on the Judgment of the Supreme Court in the matter of Wander Ltd. And Anr. vs. Antox India P. Ltd., reported in 1990 Supp (1) SCC 717 wherein the Supreme Court had observed in paragraph nine as under :- 9.The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the 11 one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. There can be no doubt that Appellate Court ought to be slow in interfering with exercise of discretion by Trial Judges. However, in this case, interference would be necessary, first, because the Trial Judge had totally over looked the fact of Appellant having parted with huge amount. Secondly, the Plaintiff s putting cheques worth Rs. 2,10,00,000/- for realisation, after having received directly or indirectly a sum of about Rs.1,78,96,331/- should have been noted by the learned Trial Judge in the context of the fact that the total consideration was only Rs. 12 2,70,00,000/-. The learned Trial Judge should have also seen that after having acknowledged that he had either received or the Appellant had paid on his behalf a huge amount, the Plaintiff could not have blocked Appellant s possession, when the Plaintiff had not come to the Court with the entire amount paid on him/on his behalf. Therefore, in the light of these facts, interference in the exercise of discretion by the learned Trial Judge, which was totally unreasonable, is warranted. 12. Apart from the fact a huge amount of about Rs.1,78,00,000/- has been paid by the Appellant, which the Respondents did not bring back to the Court before seeking an injunction, conduct of the Respondents in attempting to put three cheques worth Rs. 2,10,00,000/-for encashment after being well aware of the fact that a sum of Rs. 1,78,00,000/- had been paid by the Appellant speaks volumes of apparently dishonest 13 intentions of the Respondents. If the total consideration was Rs.2,70,00,000/- and a sum of Rs.1,78,96,331/- had been received by the Plaintiff or paid on his behalf, then there was no reason for the Respondents to put for encashment the three cheques worth Rs. 2,10,00,000/- or to cry hoarse that the cheques were, dishonoured, because, he was not at all entitled to receive the amounts under those cheques. In view of this, the learned Trial Judge should have seen that the Plaintiff had not come with clean hands, had tried to distort the facts and to wrest possession of the property after the Appellant had taken the trouble of clearing it of the encumbrances and the charges which the Plaintiff was liable to bear. In view of this, the interim Order passed by the learned Trial Judge restraining the Appellant from disturbing so called possession of the Respondents cannot at all be sustained. Actual possession of the property at the time 14 of registered Sale Deed was with MHADA. It was notionally delivered by the Plaintiff to the Appellant by registered Sale Deed and therefore, the moment MHADA walked out, in terms of the Sale Deed which, prima facie appears to be not bogus, hollow or sham, the Appellant would be deemed to be in possession of the property. In view of this, the learned Trial Judge should have seen that the Plaintiff had not made out any case for grant of injunction. Hence, the Appeal is allowed. The impugned Order restraining the Appellant from disturbing the Plaintiff s possession over the suit property as also from creating third party interest through servants or agents stands set aside. The learned Counsel for the Respondent No.1 prays for stay of this Order for a period of eight weeks. Prayer is granted. (R.C.CHAVAN, J.)