IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.752 of 2009 DR. FAIYAZ AHMAD, S/O LATE MD. SALAHUDDIN, R/O NEW KARIMGANJ, P.S. CIVIL LINES, TOWN & DISTRICT GAYA .. PLAINTIFF-APPELLANT Versus 1. RAJ KUMAR RAGHAVENDRA PRASAD NARAYAN SINGH, S/O LATE RAJA HARIHAR PRASAD NARAYAN SINGH, R/O AMAWAN HOUSE, FRASER ROAD, P.S. KOTWALI, TOWN AND DISTRICT PATNA 2. RAJ KUMAR AVADHENDRA PRASAD NARAYAN SINGH, S/O LATE RAJA HARIHAR PRASAD NARAYAN SINGH, R/O AMAWAN HOUSE, FRASER ROAD, P.S. KOTWALI, TOWN AND DISTRICT PATNA 3. RAJ KUMAR KAUSHLENDRA PRASAD NARAYAN SINGH, S/O LATE RAJA HARIHAR PRASAD NARAYAN SINGH, R/O 15 JAMUNA APARTMENT, BORING ROAD, P.S. SRIKRISHNAPURI, TOWN AND DISTRIT PATNA 4. RAJ KUMAR AWADHESHWARI PRASAD NARAYAN SINGH, S/O LATE RAJA HARIHAR PRASAD NARAYAN SINGH, R/OVISHWASH AMAWAN HOUSE JAMUNA APARTMENT COMPLEX, BORING ROAD, P.S. SRIKRISHNAPURI, TOWN AND DISTRICT PATNA 5. RANI UMESHWARI KUER, W/O LATE RAJ KUMAR RAGUBANSHMANI PRSAD NARAYAN SINGH, R/O AWAWAN HOUSE, DAK BUNGLOW ROAD, P.S. KOTWALI, TOWN AND DISTICT PATNA 6. DR. KUMAR SITA RAMA PRASAD NARAYAN SINGH, S/O LATE RAJ KUMA RAGHUBANSHMANI PRASAD NARAYAN SINGH, R/O AMAWAN HOUSE, DAK BUNGLOW ROAD, P.S. KOTWALI, TOWN AN DISTRICT PATNA 7. KUMAR BHARAT PRASAD NARAYAN SINGH, S/O LATE RAJ KUMAR RAGHUBANSHMANI PRASAD NARAYAN SINGH, R/O AMAWAN HOUSE, DAK BUNGLOW ROAD, P.S. KOTWALI, TOWN AND DISTRICT PATNA 8. SMT. RAJ LAXMI KUER, D/O LATE RAJ KUMAR RAGHUBANSHMANI PRASAD NARAYAN SINGH, R/O MANJHA HOUSE, ANANDPURI, WEST BORING CANAL OAD, P.S. SRIKRISHNAPURI, TOWN AND DISTRICT PATNA .. DEFENDANTS-RESPONDENTS **** 2 /7/ 24 August 2010 Heard the learned counsel for the parties. 2. This Miscellaneous Appeal is directed against the order, dated 09.10.2009, passed by the Sub Judge, VII, Gaya, in Title Suit No. 267 of 2009/557 of 2008 by which the petition for injunction under Order XXIX Rules 1 and 2 of the Civil Procedure Code of the plaintiff-appellant having been rejected holding that the plaintiff has neither prima facie case nor balance of convenience in his favour, hence, question of irreparable loss does not arise. 3. The plaintiff is the appellant and the plaintiff has filed a suit for specific performance of contract for executing a sale deed with respect of 93 kathas of land agreed upon to be sold at the rate of Rs.2.25 lacs per katha with the total consideration money to the tune of Rs.2.10 crores and thefurther case is that out of this agreed amount of Rs.2.10 crores, Rs. 1.58 crores and odd has been paid on different dates for which the defendants have acknowledged the receipt in writing, however, on the said payment the defendants have executed twenty five sale deeds, nine in the year 2005 and sixteen in the year 2006 to the various 3 nominees of the plaintiff and asserted that two sale deeds though they have executed in the year 2007, but, the same has not been registered and, hence, contended that the defendants are determined to sell the land for which the contract of sale has been made on a plea that the agreement of contract to be completed within a period of six months and six months expired in December, 2005, and since the time was essence of contract, the amount paid stands forfeited and they are not liable to pay or restrain or to execute sale deed. 4. However, in the suit a petition under Order XXIX Rules 1 and 2 of the Civil Procedure Code was filed because the defendants accepted the payment to the tune of rupees two lacs, however, they have executed only nine sale deeds at the instance of the plaintiff, but, the rest sixteen sale deeds were independently dealt with and denied that 16 sale deed executed in the favour of nominee and asserts that they sold the land to different persons independently since the time was the essence of the contract and since the contract was not fulfilled within six months so the contract for sales stands terminated and the plaintiff forfeited his 4 right to recover the amount. After considering the case of the parties the trial Court rejected the petition under Order XXIX Rules 1 and 2 of the Civil Procedure Code on the ground that the time has been elapsed as there is no cheat of papers to show that the time was extended by the defendants though the plaintiff has asserted that in 2006-2007 different sale deeds were executed to the nominee of the plaintiff, but, the same has been denied by the defendants and assertion that they sold the land independently to independent persons. 5. The learned counsel for the appellant, however, contends that in pursuance of contract for sale the plaintiff has paid a substantial amount to the extent of Rs.1.58 crores and odd and so to the extent of the payment the defendants be restrained from executing the sale deed and asserts that in case of immovable property the time is not the essence of contract and placed reliance upon decision reported in (2008)4 S.C.C., 464 (Bala Saheb Dayandeo Naik (dead) through LRS & Ors Vrs. Appasaheb Dattatraya Pawar) and, further, submits that the sale deed was executed by the defendants to the nominee of the plaintiff and, hence, they 5 have carried the agreement beyond the stipulated period and executed sale deed and, hence, it shall be deemed that the time was not the essence of the contract and submitted that if the plaintiff is not restrained from executing sale deed or disposing of the property they may have the inconvenience if they get a decree. 6. The learned counsel for the respondents, however, contends that Section 54 of the Transfer of Property Act a contract for sale does not give a right in the property and has placed reliance upon decision reported in 1998 (2) P.L.J.R., 120 (Lallan Prasad Vrs. Parmeshwar Singh) and 1998 (1) P.L.J.R., 260 [UCO Bank (formerly known as United Commercial Bank) Vrs. Government of India, Ministry of Industrial Development Department, New Delhi & Ors.] and, hence, contends that since no right having been created over the property and the plaintiff has remedy in view of Section 19(b) of the Specific Relief Act to get a decree from the subsequent purchaser by impleading him as a party in suit to get a decree and appellant can have only a right of property after getting a sale deed executed in pursuance of a decree for Specific 6 Performance of Contract and till he gets a decree and the sale deed executed he has no right over the property and, hence, neither the prima facie case nor the balance of convenience or irreparable loss and, hence, the question for consideration on the respective submissions whether an injunction can be granted in favour of the plaintiff against the defendants in a suit for Specific Performance of Contract and the defendants can be restrained from exercising his right over the suit land or disposing the suit land. 6. However, the suit is for Specific Performance of Contract and the case made out by the plaintiff that there is a contract for sale with regard to 93 katha of land and for which a substantial amount of Rs.1.58 crores and odd have been paid, however, a contract for sale does not give any right in the property. The plaintiff even not claim that he come in possession by virtue of the said contract and hence admitted position is that plaintiff is not in possession of the land and, hence, plaintiff did not get any right over the suit property by the contract for sales. However, under Section 53A of the Transfer of Property Act the plaintiff gets a right by a contract for sale to file a said for Specific Performance 7 of Contract and to get a decree for direction to execute a sale deed and after execution of the sale deed he gets a right over the property and moreover, if the defendants sell the land to any other person then the plaintiff still have the remedy to add the subsequent purchaser a party and to get a decree against them in view of Section 19 of the Specific Relief Act with an assertion that the person has purchased even with knowledge about the contract for sale and even the plaintiff can get a decree or remedy for non-performance of the Specific Performance of Contract in terms of rule. However, if the litigation continued for years and the plaintiff is restrained in dealing with the property then for the suffer of the plaintiff there is no remedy or no compensation and, hence, in that view of the matter though remedy is available to the plaintiff to get the suit land after getting a decree and even to be compensated for damage in terms of money, but, if the injunction is granted plaintiff has no remedy for his suffering for not exercising his right over property and he is not to be compensated for the loss he sustained and, hence, having regard of the fact that since by the contract to sell no right accrue to the plaintiff for the 8 property and, further, the balance of convenience also does not lie in favour of the plaintiff and, hence, the plaintiff has got neither prima facie case nor balance of convenience, if another person purchased the land. However, even for the inconvenience the plaintiff got power to implead the subsequent purchase and get a decree, but, the defendants have no remedy for restraining to get for such a long time and, hence, the balance of convenience not in favour of the plaintiff, but, in favour of the defendants and, hence, I do not find any merit in this appeal as the plaintiff-appellant has neither established the prima facie case nor balance of convenience in his favour nor irreparable loss. 7. The Miscellaneous Appeal is dismissed. Cp:2/S.A. ( Gopal Prasad, J. )