39. AO 1200-10 & 1178-10.doc rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1200 OF 2010 WITH APPEAL FROM ORDER NO. 1178 OF 2010 ALONGWITH CIVIL APPLICATION NO. 1492 OF 2010 IN APPEAL FROM ORDER NO. 1200 OF 2010 ALONGWITH CIVIL APPLICATION NO. 1455 OF 2010 IN APPEAL FROM ORDER NO. 1178 OF 2010 Ramdas Damodar Fuge .. Appellant Vs Nivrutti Ganapati Saste & Ors .. Respondents Mr. S.S. Kulkarni for the Appellant Mr. P.S. Dani i/b Mr. T.D. Deshmukh for the Respondents CORAM : B.R. GAVAI, J. DATE : 24th FEBRUARY, 2011. ORAL ORDER: 1. The appellant / plaintiff has filed a suit against the respondents for specific performance, praying therein for a decree that defendant nos. 1 to 8 should execute a sale deed in favour of the plaintiff after receiving the amount of Rs. 9,60,000/- and after getting a lease deed executed in their favour from defendant no. 9. The plaintiff also prayed for decree of injunction restraining defendant nos. 1 to 8 from dealing with 1 39. AO 1200-10 & 1178-10.doc any third party with respect to the suit property. In the alternative, the plaintiff has claimed for damages quantified at Rs. Four crores. 2. In the said suit, the application below Exh 5 was filed for temporary injunction restraining Defendant nos. 1 to 8 from creating any third party interest in the suit property. The same is rejected vide order dated 20th September 2010. Challenging that, Appeal No. 1178 of 2010 has been filed. 3. In the said suit, an application below Exh 40 also filed restraining defendant no. 9 from executing a lease deed in favour of defendant nos. 1 to 8. The said application is also rejected on 6th October, 2010. Hence, challenging the same, Appeal No. 1200 of 2010 has been filed. 4. Since both the Appeals have arisen out of the same suit, same are heard and disposed of by this common order. 5. The facts in brief, giving rise to the present petition are as under: i. Respondent no. 9 under 12.5% scheme implemented by it, has a policy to return 12.5% of land acquired from the land owners and give it on permanent lease to them. Respondent No. 9 is a Planning Authority i.e Pimpary 2 39. AO 1200-10 & 1178-10.doc Chinchwad New Town Development Authority. The land of respondent nos. 1 to 8 was acquired under the said scheme in 1997. As per the scheme, defendant nos. 1 to 8 were entitled to get 29 Ares of land on lease. Said defendant nos.1 to 8 executed a development agreement and power of attorney on 30th September 2003 with the plaintiff for consideration of Rs. 11,60,000/-. Undisputedly, the plaintiff has paid an amount of Rs. Two Lacs to Defendants / land owners. After a period of more than five years, contending that the defendants / land owners were likely to create third party interest, the suit as aforesaid came to be filed. In the said suit, the aforesaid two applications were also filed. Initially, in the application below Exhibit 40, the learned trial Court had restrained Defendant No. 9 from transferring the suit property in favour of the defendants / land owners. Vide order dated 6th October 2010, the said application is rejected. An application below Exh. 5 for temporary injunction restraining the defendants from creating third party interest was also filed. Same is also rejected vide order dated 20th September 2010. Being aggrieved thereby, these two appeals came to be filed. 6. Shri. Kulkarni, the learned counsel for the appellant submitted that from the perusal of the Power of Attorney and the 3 39. AO 1200-10 & 1178-10.doc Development Agreement, it is clear that unless a Lease Deed was executed in favour of the defendants / land owners by defendant no. 9, a right in favour of the plaintiff to develop the land in question did not accrue. He submitted that since the defendants / land owners had not taken any steps for getting a lease executed in favour of defendant no. 9, the plaintiff could not take further steps to develop the land. However, it is submitted that since the market rates were increased, the defendants / land owners with a malafide intention, were dealing with some other third parties with respect to the suit land. The learned counsel submitted that upon a proper and correct interpretation of Power of Attorney and the Development Agreement, it can be seen that unless a lease deed was executed, the plaintiff had no right to develop the land. He, therefore, submitted that since the appellants had parted with substantial amount, the learned trial Court ought to have granted injunction in favour of the present appellant. The learned counsel relied on the judgment of the Apex Court in the case of Julies Educational Trust Vs Sourendra Kumar Roy & Ors reported in (2010) 1 Supreme Court Cases 379 in support of his contention that if the suit property is allowed to be commercially exploited by raising multi storied structure thereupon, then entire object of the suit will be frustrated and in such circumstance, the order of status quo ought to follow. 4 39. AO 1200-10 & 1178-10.doc 7. Shri. Dani, the learned counsel for the respondents / defendant nos. 1 to 8, on the contrary submitted that the appellant has not come to the Court with clean hands. It is submitted that under the development agreement, the appellant / plaintiff was required to take necessary steps for getting a Lease Deed executed from defendant no. 9. It is submitted that the amount of Rs. 11,60,000/- was required to be paid within a period of 24 months from the date of execution of development agreement i.e 30th September 2003. It is further submitted that though only an amount of Rs. Two Lacs was paid and though the post dated cheques for rest of the amount were given, the appellant had instructed his bankers to stop payment and as such, the payment of balance amount was not made to the defendants / land owners. It is, therefore, submitted that by paying a meager amount of Rs. Two Lacs, the appellant is seeking to put restrain on the valuable rights of the defendants / land owners. Shri. Dani, the learned counsel for the respondents further submitted that the learned trial Court by well reasoned order has refused the relief of temporary injunction and as such, no interference is warranted in the present petitions. 8. The scope of Appeal under Order XLIII, Rule 1 of Code of Civil Procedure is limited. Unless it is found that the view taken by 5 39. AO 1200-10 & 1178-10.doc the learned trial Court is either perverse or impossible, it is not permissible for this Court to reverse the same. Equally, it is not permissible for this Court to take another view, if two views are possible and only because this Court finds the other view to be a more appropriate view. 9. While rejecting the application below Exhibit 5, the learned trial Court in paragraph 16 has specifically observed that from the Power of Attorney, it was clear that it was for the plaintiff to get the lease deed executed from defendant no. 9. The learned trial Court found that this fact was suppressed by the plaintiff and as such, the plaintiff was not entitled for equitable relief. The learned trial Court has also negativated the contention of the plaintiff that he had invested huge amount, by observing that the plaintiff had only invested an amount of Rs. Two Lacs which was paid as an earnest money and from 30th September 2003, he had kept silent and not taken any steps for so many years. 10.For appreciating rival contentions, it would be relevant to refer to some of the clauses of the Development Agreement and Power of Attorney. In paragraph 2 of the Development Agreement, the defendants / land owners had clearly averred that since they were not aware about the legal requirements and rules of respondent no. 9, it was not possible for them to 6 39. AO 1200-10 & 1178-10.doc take steps for getting 12.5% land from respondent no. 9 and that since the plaintiff was requiring the land for development purpose, they had decided to enter into a development agreement @ Rs. 40,000/- per Ares. Paragraph 2(b) of the said agreement would reveal that the plaintiff was required to make payment of 25% of the agreed amount at the time of execution of the development agreement, 25% on the date of lease deed and 50% within a period of 24 months from the date of registration of development agreement. Clause (b) clearly reveals that the entire consideration amount was to be paid within a period of 24 months. It clearly specifies that no extension would be granted unless there is some natural calamity. Clause (p) reveals about the manner of payment. It can be seen that on the date of execution of the development agreement, the plaintiff was required to pay an amount of Rs. 2,90,000/-. However, undisputedly, only an amount of Rs. 2 Lacs was paid and not the entire amount of Rs. 2,90,000/-. Insofar as remainder of the amount is concerned, undisputedly, the same is not paid. 11.On the date of the execution of the agreement of sale, a power of attorney also came to be executed in favour of the present plaintiff. Clauses (b) and (c) of the said power of attorney would reveal that all the acts pertaining to the necessary formalities that were required to be done, in the office of 7 39. AO 1200-10 & 1178-10.doc respondent no. 9 including giving of oral and documentary evidence, affidavits, applications, undertakings, filing of the applications in the prescribed formant was required to be done by the power of attorney holder i.e the Plaintiff. Clause (e) would also reveal that all other acts, formalities in the office of the Urban Land Ceiling, District Collector, for obtaining necessary formalities were also required to be done by the power of attorney holder. 12.It can, thus, be clearly seen that on conjoint reading of the Development Agreement with Power of Attorney, it would reveal that the plaintiff was given Power of Attorney to do all the necessary acts including the formalities in the office of defendant no. 9. It is not the case of the plaintiff and at least, it has not been averred in the plaint that though the plaintiff had called upon the defendants / land owners to sign the necessary documents pertaining to the formalities to be completed in the office of defendant no. 9, the defendants / land owners have refused to do so. Apart from the vague allegations in the plaint that though the defendant nos. 1 to 8 were called upon to get the lease deed executed from respondent no. 9 and give the possession of the same to the plaintiff and that the plaintiff had given only assurances that this is being done, there is nothing in the plaint to indicate that. Upon conjoint reading of the averments in the Power of 8 39. AO 1200-10 & 1178-10.doc Attorney and the Development Agreement, I am unable to accept the contention of the plaintiff that the Development Agreement was to take effect only after the Lease Deed was executed by defendant no. 9 in favour of defendant nos. 1 to 8. At the cost of the repetition, conjoint reading of the Power of Attorney and the Development Agreement shows that the plaintiff was required to take necessary steps in the various offices including defendant no. 9. 13.It is further to be noted that though as per the Development Agreement, the total amount was to be paid within a period of 24 months and no extension was to be granted beyond the period of 24 months, except on account of natural calamities, the Plaintiff has not made payment, except the amount of Rs. Two Lacs. On the contrary, the Plaintiff himself has admitted in the plaint that since the Lease Deed was not executed, he had stopped payment of post dated cheques. From the perusal of the aforesaid two documents, it would not reveal that there is any stipulation in the said document that unless a Lease Deed was executed by defendant no. 9, payment would not be made to defendant nos. 1 to 8 by the plaintiff. 14.In the plaint, there is no mention as to what steps the plaintiff had taken for getting the Lease Deed executed by defendant no. 9 in favour of defendant nos. 1 to 8. He has not given any 9 39. AO 1200-10 & 1178-10.doc details as to whether any steps were taken by him. On the contrary, blame is sought to be put on defendant nos. 1 to 8 that since they did not get the lease deed executed from defendant no. 9, the payment could not be made. 15.Admittedly, even according to the plaintiff, market value of the land at present is Rs. 7,50,000/- per Ares. Taking that amount into consideration, the plaintiff has quantified the damages to the tune of Rs. Four Crores. By paying a meager amount of Rs. Two Lacs, the Plaintiff desires to put the rights of the land owners of the property worth Rs. Four Crores in a cold storage. The plaintiff has not averred anything as to what he was doing for five years i.e from 2003 to 2008, except making a bald averment that he was persuading the defendants / land owners to get the lease deed executed. 16.Insofar as, the judgment of the Apex Court which is relied by Shri. Kulkarni, the learned counsel for the appellant is concerned, in the said case, the appellant was running a reputed school known as 'Julien Educational Trust'. Since the land adjoining to the area where the school was situated was available, the Trust entered into negotiations with the respondents for purchase of the said land. In pursuance of the agreement between the parties regarding the sale of the property, the respondent / land owners made over certified 10 39. AO 1200-10 & 1178-10.doc copies of their title deeds to the appellant / Trust in order to establish their title. The said Trust further informed the land owners that the Trust was ready with the consideration amount. An application to the Inspector General and Commissioner of Stamp Revenue for exemption of payment of stamp duty was also made. According to the Trust, respondent no. 1 had approved the draft sale deed of conveyance sent to him by putting his signature thereon subject to some modification. However, when a final deed of conveyance was sent to respondent no. 1 in respect of his share, he refused to execute and register the same. In the meantime, when the appellant / Trust came to know that the respondents were preparing to sell the suit property to third parties, they filed an application under Section 144(2) of the Code of Civil Procedure and also filed a suit for specific performance. In the said suit, an application for injunction under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure was also filed before the Calcutta High Court. Initially, the High Court had granted ad-interim injunction. However, when it was informed that respondent nos. 1 to 8 had conveyed the property in favour of respondent nos. 9 to 11, it vacated the injunction. In this factual background, the Apex Court observed thus: 24.....This brings us to the all important question as to whether the balance of convenience and inconvenience lay in favour of the grant of an interim order of injunction in favour of the appellant Trust and 11 39. AO 1200-10 & 1178-10.doc as to whether the appellant Trust would suffer irreparable loss and injury, if no such interim order was passed. 25. Although, it has been submitted by Mr. Nariman as well as Mr. Bandopadhyaya that loss, if any, to the appellant Trust could be compensated in terms of money, the said submission does not appear to hold good in the instant case. Equally, important is the question of balance of convenience and inconvenience since the principal object of the appellant Trust in wanting to acquire the suit property was to extend its school unit at Kolkata. If the suit property is allowed to be commercially exploited by raising multi-storeyed structure thereupon, the entire object of the suit filed by the appellant Trust will be rendered meaningless and the purpose for which the suit had been filed would be completely defeated. 26. In such circumstances, we are of the view that this is one such case where an interim order is required to be passed to maintain the status quo of the suit property, during the pendency of the suit for specific performance filed by the appellant Trust, but at the same time appropriate directions should also be given so that the suit is disposed of expeditiously. At this stage, it would not be appropriate on our part to express any further opinion on the merits and demerits of the suit. (emphasis supplied) 17.It can, thus, be seen that in the peculiar facts and circumstances, particularly noticing that the object of the Trust 12 39. AO 1200-10 & 1178-10.doc was to extend its school activities in Calcutta, if the suit property was allowed to be commercially exploited by raising multi-storeyed structures thereupon, the entire object of the suit filed by the appellant Trust would be rendered meaningless. The Apex Court found that it was necessary to grant an order of injunction. 18.It can, thus, be seen that in the case before the Apex Court, the Trust which had sought an order of injunction had progressed much ahead. The entire documents of title were put in its custody by the land owners. It had applied to the Inspector General and Commissioner of Stamp Revenue for exemption of payment of stamp duty. A draft conveyance deed was approved by the parties and the final conveyance deed was prepared for registration. The Trust had informed the respondents / land owners that the entire consideration amount was available with it and it was willing to pay the same. Such is not the case here. After paying the amount of Rs. Two Lacs in 2003, the plaintiff had not taken any steps as were provided under the Power of Attorney and the Development Agreement. Not only this, the conduct of the present appellant also needs to be taken into consideration. Though the agreement is entered into between the plaintiff and defendant nos. 1 to 8, he has filed an application below Exhibit 40 for restraining defendant no. 9 from granting lease in favour of defendant nos. 13 39. AO 1200-10 & 1178-10.doc 1 to 8 during pendency of the suit. The learned trial Court, therefore, rightly observed that the plaintiff has failed to make out any prima facie case and refused to grant the injunction order and also rejected the application below Exhibit 40. 19.Even applying the principles of balance of convenience and irreparable injury, no error could be found in the order passed by the learned trial Court. The Plaintiff, on one hand, by paying the amount of Rs. Two Lacs, is trying to prevent the defendants / land owners from dealing with their property which even according to him is worth of Rs. Four Crores. In the event, injunction as sought was granted, the defendants / land owners would be prevented from using the property for which they are entitled to. As against this, even if the Plaintiff succeeds in the suit, he could always be compensated in monetary terms. Even the plaintiff himself has assessed his damages to the tune of Rs. Four Crores. By paying meager amount of Rs. Two Lacs and by not taking any further steps for a period of five years in pursuance of the Power of Attorney and the Development Agreement and thereafter coming with a specious plea that since the defendants have not got the lease deed executed, they should be restrained from dealing with the property, in my view, would not be in the interest of justice. 20.In that view of the matter, no case is made out for 14 39. AO 1200-10 & 1178-10.doc interference. Both the appeals are, therefore, dismissed. 21.However, it is made clear that the observations made herein are at the stage of prima facie consideration of the application for injunction and the learned trial Court would not be influenced by the same at the stage of the trial. 22.At this stage, Shri. Kulkarni, the learned counsel for the appellant prays for continuation of the interim order which was passed earlier for a period of eight weeks from today. Shri. Dani, the learned counsel for the respondent nos. 1 to 8 vehemently opposed this prayer. However, taking into consideration that there has been an interim order operating for a considerable length of time, I am inclined to continue the same for a period of four weeks from today. 23.Civil Application Nos. 1492 of 2010 and 1455 of 2010 do not survive and the same are disposed of accordingly. [ B.R. GAVAI, J. ] 15 39. AO 1200-10 & 1178-10.doc 16