IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 FAO.No. 357 of 2011 ---------------------------- I.A.1085/2011 IN OS.117/2011 of SUB COURT,NEYYATTINKARA .................... APPELLANT (S): COUNTER PETITIONER:DEFENDANT: ----------------------------------------------------------------------------- K.JAYAN, S/O.KRISHNAN, KRISHNA NIVAS, PANDAPATHINKADAVU, OTTASEKHARAMANGALAM PO., NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) RESPONDENT(S): PETITIONER:PLAINTIFF: ------------------------------------------------------------ G.SANILKUMAR, S/O.GLADSON, USHUS, CRA 14, CHOOZHAMPALA, MUKKOLA PO, KUDAPPANAKUNNU, THIRUVANANTHAPURAM, NOW RESIDING AT TC 29/1464, MGRA 42, MEPPALLY GARDENS, PETTAH P.O, THIRUVANANTHAPURAM-695 024. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 12/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & A. M. SHAFFIQUE, JJ. ------------------------------------------------------- F.A.O.No.357 of 2011 ----------------------------------------- Dated, this the 12th day of December, 2011 J U D G M E N T K.M.Joseph, J. Appellant is the defendant in a suit for specific performance of an agreement for sale dated 27.12.2008 which was subsequently renewed on 11.5.2010 and in the alternative for realisation of advance amount of Rs.41,90,000/- along with interest. By the impugned order, the court below has allowed the application for injunction restraining the appellant from alienating the plaint schedule property to any person other than the respondent and inducting strangers into the plaint schedule property till the disposal of the suit. 2. We heard the learned counsel for the appellant. Learned counsel for the appellant would submit that, the order of injunction being an equitable relief, prima facie case was not established. He would point out that, it is clear that, plaintiff is guilty of breach of contract. He would submit that there is no evidence for payment of nearly Rs.15 lakhs alleged to have been paid by the respondent/plaintiff to the Bank. Appellant had entered into the agreement with the respondent when he was pressurized for money on the understanding that the liability to the Bank will be discharged by the plaintiff which the plaintiff has not FAO 357/2011 -2- done. The learned counsel for the appellant would submit that, in such circumstances, the court below was not justified in granting any injunction. 3. We are of the view that appellant has not made out any case for interference. Admittedly, even according to the appellant, an amount of Rs.26,88,000/- has been received by him in a contract in which the total consideration was admittedly Rs.50 lakhs. The court below would reason that as to who has committed default is a matter to be examined at trial. We would think that it cannot be said that the order is such that it warrants interference in the appellate jurisdiction. While declining to interfere with the impugned order, we direct that the court below shall finally dispose of the suit untrammelled by any of the observations contained either in its order or in this order. We, also however, direct that the trial court will dispose of O.S.No.117/2011 at the earliest. (K.M.JOSEPH) JUDGE. (A. M. SHAFFIQUE) JUDGE. MS