AO/97/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 97 of 2008 With CIVIL APPLICATION No. 3524 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE DN PATEL ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= PARSOTTAMBHAI RAMJIBHAI VEKARIA & 2 - Appellant(s) Versus VALLABHBHAI NATHABHAI PATEL - Respondent(s) ========================================= Appearance : MR ANSHIN H DESAI for Appellant(s) : 1 - 3. MR PREMAL R JOSHI for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE DN PATEL Date : 09/04/2008 ORAL JUDGMENT 1. Present Appeal From Order has been preferred against the order passed by the learned Principal Senior Civil Judge, Jamnagar dated 4.2.2008 below Exhibit 26 in Special Civil Suit No.36 of 2005, whereby stay has been granted against present appellants (original defendants) and they are restrained from AO/97/2008 2/8 JUDGMENT transfer the suit property during the pendency of the suit before the trial Court. Against this order, present appellants (original defendants) have preferred this Appeal From Order. 2. Having heard the learned counsel for both the sides and looking to the facts and circumstances of the case , I see no reason to entertain this Appeal From Order mainly for the following facts and reasons : (i) It appears from the facts of the case that present appellants are the original defendants and present respondent has instituted Special Civil Suit No.36 of 2005 for specific performance on the basis of an agreement to sell. (ii) It appears from the facts of the case that the agreement to sell has been entered into between the respondent (original plaintiff) and present appellants (original defendants) on 30.11.1995. Looking to the terms of this agreement to sell, it appears that there is clause E in agreement to sell, which is produced at Mark 3/1 to 3/3. Looking to this clause E, it has been agreed by the parties that if there is delay in payment of consideration, interest is payable upon delayed payment, but in no circumstances, this agreement to sell can be cancelled by any party. In view of this agreement to sell, clause E, it appears that now by the passage of time, sizable amount has been paid on different dates by the plaintiff to the defendants. The total consideration fixed, was at Rs.19,60,000/- out of which, Rs.8,60,000/- has already been paid by the original plaintiff to the present appellants (original defendants). (iii) It also appears from the facts of the case that notice was given by the AO/97/2008 3/8 JUDGMENT original plaintiff to the defendants on 10.3.1995 showing his readiness and willingness to fulfill the terms of the agreement to sell, so that the sale deed can be entered into between the parties. This notice has been already replied by the present appellants (original defendants). (iv) It also appears from the facts of the case that ramaining amount of consideration has already been deposited before the trial Court by the original plaintiff, which also reflects his readiness and willingness to fulfill, his obligation under agreement to sell. (v) It also appears from the facts of the case that the execution of the agreement to sell dated 30.11.1995 is not in dispute. In written statement, nowhere a plea has been taken by the present appellant (original defendants) that no such agreement to sell has every been entered into. (vi) It is contended by the learned counsel for the appellants (original defendants) that the suit is time barred. The suit property is already sold away by the present appellants (original defendants) and therefore, the suit is not tenable at law and therefore, the stay which has been granted by the trial Court deserves to be quashed and set aside. It is also submitted by the learned counsel for the appellants (original defendants) that they want to cancel the agreement to sell on 6.2.1999 as the public notice was given on 7.4.1999 and therefore also, the stay granted by the trial Court deserves to be quashed and set aside. This contention is not accepted by this Court. Looking to the facts of the case, prima facie, it appears that the aforesaid consideration, which is paid by the original plaintiff to the present appellants (original defendants) is at AO/97/2008 4/8 JUDGMENT Rs.8,60,000/-, out of total consideration of Rs.19,60,0000/-. The aforesaid amount was paid on different dates, which has been prima facie accepted by the original defendants, secondly, for the reason that the public notice was also given by the original plaintiff for his readiness and willingness to make the payment of outstanding amount of consideration on 10.3.2005, thirdly, for the reason that looking to the agreement to sell entered into between the original plaintiff and original defendants, there is clause E to the effect that even if the consideration is not paid within stipulated time, the agreement to sell will not be cancelled by the parties, but interest is payable upon the outstanding amount and fourthly, for the reasons that there is no specific denial in the written statement nor in the reply of interim injunction below Exhibit 26 to the effect that there is no existence of agreement to sell and the said document is false and fabricated. Thus, once the agreement to sell is accepted, there is clause E in the agreement to sell, the amount of consideration prima facie has been received by the present appellants (original defendants) on different dates and therefore, there is prima facie case in favour of the original plaintiff. Balance of convenience is also in favour of the original plaintiff. So far the arguments regarding suit is being time barred, is concerned, looking to the cause of action stated in the suit, it depends upon the evidence, which will be led by the parties before the trial Court and therefore, at injunction application stage i.e. Exhibit 5 application stage, I see no reason to crystallize this argument of time barred suit. Learned counsel for respondent (original plaintiff) has relied upon the decision rendered in Balasaheb Manikrao Deshmukh and another V. Rama Lingoji Warthi reported in AIR 2000 Bom. AO/97/2008 5/8 JUDGMENT 337, especially, upon para 12, which reads as under: "12. The question whether the protection under the doctrine of part of performance is available to the purchaser, whose claim for specific performance of the contract has become time-barred, has been decided by the Full Bench of this Court reported in 1994 Mah LJ 1145 in the case between Mahadeo V. Surjabai. In this judgment the earlier view taken by Bombay High Court in Nanasaheb Gujaba Banker V. Appa Ganu Bankar, AIR 1957 Bom 138 is followed. In the meantime, there was another judgment of Division Bench of this Court in Adinath Limbaji Navale V. Policeman Housing Society Board, 1991 Mah LJ 256. This judgment has been overruled by the Full Bench judgment quoted supra. Though it was stated at the Bar that there is Specific Leave Petition pending in the Supreme Court against the judgment of the Full Bench quoted supra, that in my opinion, would not come in the way of this Court to decide this matter. Law as on today, is that the protection under the doctrine of part performance is available to the purchaser even if the suit for specific performance of contract has become time-barred." (Emphasis Supplied) (viii) Learned counsel for the present appellants (original defendants) has relied upon the decision in the case of Khimjibhai Harjivanbhai Patadia V. Patel Govindbhai Bhagvanbhai & Ors. reported in 2006 (4) GLR 3058. Looking to the facts of the present case and the facts of the cited case, are quite different. From the facts of the case, which has been cited by the learned counsel for the appellants (original defendants), it has been held in para 13, as under : "13. Considering the aforesaid aspect of the matter, in my view, the trial Court was perfectly justified in refusing to grant AO/97/2008 6/8 JUDGMENT discretionary order of injunction under Order 39 of C.P.C. The facts of the case would indicate that the plaintiff has filed the suit only with a view to blackmail the defendants or bona fide purchasers, as part of the land is now allotted to various purchasers by plotting the same. At this stage, Mr.Kavina submitted that, at least, for part of the land injunction may be granted, however, this is not a case in which any discretionary order under Order 39 of C.P.C., can be granted to assist such plaintiff, who has instituted the suit absolutely without any basis and only with an object to get something out of nothing." (Emphasis Supplied) (ix) Looking to the aforesaid facts of the decision rendered by this Court and looking to the facts of the present case, there is execution of agreement to sell and there is no denial of this fact by the present appellants (original defendants). Secondly, the amount of consideration has also been paid as per the terms of the agreement. Thirdly, public notice was also given by the plaintiff dated 10.3.2005, which reveals his readiness and willingness to perform his part of obligation under the agreement to sell and fourthly outstanding amount of consideration, has been deposited before the trial Court. These facts make the present case different, from the facts of the case, which has relied upon by the learned counsel appearing on behalf of the present appellants (original defendants). (x) Learned counsel on behalf of present appellants (original defendants) has submitted that they have also transferred whole suit property to several other persons. This fact has not been stated in the written statement nor in the AO/97/2008 7/8 JUDGMENT reply Exhibit 26 application. When this Court has specifically asked the learned counsel for the appellants as to whom they have sold away the property, they are not ready and willing to give the names of said persons. In reply of query, it is stated by the learned counsel for the appellants that if they will give the name of newly purchaser, they will be joined in the suit and therefore, they are not giving the names and they have also filed Special Civil Suit bearing Special Civil Suit No.30694 of 2007 before this Court and they have challenged the order passed by the trial Court. The trial Court has compelled present appellants (original defendants) to give the names of purchasers of property from the hands of the defendants. Present appellants have also filed writ petition and they have stated that they did not want to give the names to the Court and this Court has passed following order on 26.2.2008. "Interim relief in terms of paragraph-9(D)(i) is granted. Learned advocate Shri Premal Joshi waives service of rule on behalf of the respondent." (xi) Learned counsel for the present respondent (original plaintiff) has relied upon the decision of Bombay High Court in the case of Balasaheb Manikrao and other Vs. Rama Lingoji Warthi reported in AIR 2000 Bombay 337. (xii) Thus, the contention has been taken by the present appellants (original defendants) that they will not give the names of the purchasers of the property from the defendants, whereas the learned counsel on behalf of respondent (original plaintiff) has submitted that the land is AO/97/2008 8/8 JUDGMENT an open piece of land and therefore, the appellants ( original defendants) have been correctly directed by the trial Court not to further transfer nor to part with the possession of the suit property. Looking to this fact also, I see no reason to alter the order passed by the trial Court. No error has been committed by the trial Court in restraining the present appellants (original defendants) from transferring or alienating, in any manner, the suit property. No error has been committed by the trial Court in arriving at the conclusion that prima facie case and balance of convenience are in favour of the original plaintiff. 3. As a cumulative effect of the aforesaid facts and reason, there is no substance in the present Appeal From Order. Hence, this Appeal From Order as well as Civil Application are dismissed. (D.N. PATEL, J.) ynvyas