IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 FAO.No. 130 of 2010() --------------------- OS.740/2009 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/RESPONDENT/DEFENDANT --------------------------------------------------------- AHAMMED SHAH, S/O.ABDUL KHADER ROWTHER, NO.30 NOORJAHAN MANZIL, CHANDRA NAGAR, KUNNANUR AMSOM, PALAKKAD DISTRICT. BY ADV. SRI.K.GOPALAKRISHNA KURUP SMT.K.DEEPA (PAYYANUR) RESPONDENT: APPELLANT/DEFENDANT ----------------------------------------------------------- B.P.SHARAFUDHEEN, S/O.B.P.USMAN, SUMAYA MANZIL, CHAKKANTHARA, KOPPAM AMSOM, PALAKKAD TALUK. BY ADV.SRI.BINOY VASUDEVAN. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 18/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = FAO.No.130 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of May, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.The defendant appeals against an order of temporary prohibitory injunction granted restraining him from alienating or otherwise, encumbering the property which is the subject matter of the suit for specific performance, from which this appeal arises. 2.The fact that the plaintiff had agreed to purchase the aforesaid property from the appellant and that they have a written agreement between them is not in dispute. In terms of that agreement dated 12.1.2008, the period for FAO130/10 -: 2 :- performance was prescribed as 11 months with certain provisions for payment of part consideration. The total consideration was to be determined at the rate of Rs.7,50,000/- per cent for 41 cents and an amount of Rs.25 lakhs was paid as advance. The suit was filed in December, 2009 seeking specific performance. 3.Along with the suit, an application for temporary injunction against alienation or otherwise encumbering the property was also filed. In answer thereto, the defendant produced an undelivered advocate's notice and copies of agreement that he had entered with different other parties for the sale of certain parcels out of the property. 4.Taking into consideration the recitals in the document and other relevant facts and factors, the court below has granted an order of temporary injunction. Hence this appeal by the defendant. FAO130/10 -: 3 :- 5.The existence of the agreement is not in dispute. That an amount of Rs.25 lakhs has been received by the defendant as advance in terms of the agreement is also not in dispute. The agreement is one for sale of immovable property. No condition of agreement is pointed out which could take it away from the presumptions normally available to an agreement for sale of immovable property, which includes the presumption that time is not of the essence of a contract for such sale. We hasten to add that these observations are being made only for the purpose of disposal of this appeal and will not bind the parties at final hearing. Yet, going by the materials on record, we are satisfied that the amount of Rs.25 lakhs paid by the plaintiff to the defendant was essentially an advance and not security and there was no reason why the plaintiff cannot but be held to have a strong prima facie case that his suit is likely to be decreed. If that were so, the question of balance of convenience and irreparable injury has to be answered with FAO130/10 -: 4 :- reference to one more yardstick. We find that the balance of consideration that the plaintiff may have to pay is a fairly voluminous sum and the bonafides of the plaintiff has to be best demonstrated by depositing such funds also in which event, the order of temporary injunction granted by the court below could sustain till the end of the trial of the suit. The learned counsel for the respondent plaintiff, in consultation with his client, states that the entire remaining amounts in terms of the agreement for sale could be deposited before a bank and fixed deposit receipt produced before the court below within two weeks from now. Recording the aforesaid submission as an undertaking and a condition for the continuance of the order impugned, we dismiss the appeal affirming the impugned order directing that it will be on condition on the respondent providing fixed deposit in terms of what is recorded above. It is also clarified that any statement in this FAO130/10 -: 5 :- appellate order will not weigh with the court below at the trial and disposal of the main matter. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/2710