•u- ^.'^ S.B^: HOS'SLE SKR2 JUSTICE VIJAY KUM^S N0. 744^ T^/^.S'nA*^!,*-. !*. WF.tt. '?> JiJ'^jKSAACi.cutaiL vswf»w S5S<".^^*-s$a« Steel Pvt. Ltd.. A Cosmpsnies Act, 1956, itwvhas its re^stea-ea o! at,C-33, 3rd Flooz, As&o&a S^ni?i£i° 1) M/s. Aujasya A@'o Power SSisi Sajai&l Jsaisi, aged Years, s/o. Slu'i Tejmat 2'/o. Wayd Ii?o.l5, Colls^e .<| *VA»AAaihft»»^-n/l/hnua.**i^A^ Dist. Mahasamnnd (CG1. Aged 53 yeass, s/o. late SIai Thafaur Raehurai Sini r/s. C-ll, Ist Floor Ssbs^a MiUeaiuat VGaK Road Bo. Rajeadsa Hagar Chc's'k, il District Registrar, Office of the Disttict Re^sSicas, CiiuuttiSffiT ugh 1r^3 •"4* 'ffWsni'frtrfflllWTB^W^ •K'Rtf.,T;lf f^<^?.1l ,uraa>»—Afjlcuun'CTia.i.uiiwiULUL |^/^ji|i FK^^^IST ; Mr. Kanak Tiroari. Sr. Advocate with Shri Prateek Shanna, Couasel &r thc appellaiit Mr. Ashish Shrivastava, Counsel for respondent No.l. Mr. P.K.C. Tiwari, Sr. Advocate ?.ifh. Sfari Shashi Bhushaa, Counsel for respondent No.2. Mr. Jitendra Nande, PanelLaaaa'^-for icsposdeats No.3 asd 4/State,^.--—-—- ^-, ORDER ( Dated 17/02/2006} This appeal is directed against ttie order dated 11/05/2005 passed by the Pirst Additional District Judge, Mahasamund, in Civfl Suit No. 33-A/2005 (AujasyaAgro Pvt. Ltd. Vs. Thakur Ajay Singh aud 3 others) whereby allowing the appUcation fUed by the respondent No.l/plantiff under Order 39, Rule 1 aad 2 read with Section 151 of fhe Code of Civil Procedure, for grant of tempotaiy uyuiiction against fbe appeUant and rcspondents No. 2 to 4. 2) Facts inaterial for disposal of fhis appeal, in bnef coinpass, are fhat plauitiff/respondent No.l - AujasyaAgro Pvt, Ltd., ffled a Civil Suit No.33-A/2005 on 05/02/2005 for specific perfomiance of ttie contract agaiast the appeBaat and respondents No. 2 to 4 on the pleadiag tbat Thakur Ajay Singh/respondent No.2 - owner of the suit land executed agreenieut to seU fhe suit laad on 03/12/2004 ia his favour and received aa advance of Rs.3,00,000/- (Rupees fhree lakhs). Registered sale deed was to be executed ui terias of fhe said agreement by 31/01/2005. Plauitiff/respondent No.l / invited objections against fhe said sale by issuing pubUc notice jn daily aeWspaper aad ia response to that Central Baak of India, niain branch, Raipur raissd its objection dated 19/01/2005 allegiagthat tfae suit lands have been inortgaged wifh the Central Bank oflndia by owner of fhe land as coUateral securily against agricultural loan. - Soine correspondence regardiag ^ispute tools place in ;:!".-! .i.i.;,! between fhe pIaiQtiff/respondeiit No.l aad respondent No.2. Thereafter respondent No.2 terminated fhe said agreenient to sell and refunded fhe amount taken ni advaace along with interest 3) After termination of the agreeiaent respondent No.2 sold fhe suit land to appellaat PlaintifF/respomlent No. 1 also fited an appUcation under Older 39 Rule 1 aad 2 read wifh Section 151 oftheC.P.C... for issuauce ofinjunction agamst the appeUant aad respondents No. 2 to 4. Appellant denied fhe claitn of plaiutifF/respondent No.l and pleaded ftiat respoudent No.2 - Thakur Ajay Singh who executed fhe agreement to seU bas caaceUed fhe agreeiaent and fhereafter for consideration sold fhe suit laad on 03/02/2005 in his favour by executing a sale deed. Sale deed has already been produced in fhe office of fhe District Registrar, Raipur, frova. where after registratioa it is to be handed over to hiru. RespondentNo.2 Thakur Ajay Siagh has pleaded that he was not knowiug fhe fact fhat fhe land has been Baortgaged by his predecessor wifh Ceuteal Ba&k of India. He cancelled fhe agreeinent to sale dated 03/12/2004 and also retumed fhe aniount taken in advance along wifh interest to plauitiff/respondent No.l aad thereafter for the saine consideratioa he sold out fhe suit land on 03/02/2005 bv executtug a sale deed in favour ofthe appeUant. 4) Althou^i leamed court below considered fhe fact fhat possession of fhe suit land has been hauded over to the appellaat on 03/02/2005 and sate deed has been executed, but in spite of ftiat - holding the principle of prnna facie case, balance of ii"^'- la!: 4 .^ ^-.-- ^ convenience aad irreparable loss in favoiir of the plauitiff/respondeut No.l, atlowed ttie injunction application and issued du-ections fhat respondent No.2 shaU not seU or aUenate the suit property. AppeUant and respondent No.2 to 4 shall inaiatain status quo aud no new construction should be inade. Respondent No.3 shaU not register and deliver the sale deed to appeUaat. 5) AppeIIaat's contention is that after cancelrug fhe agreeiaent to sale dated 03/12/2004 and after redeeiiumg fhe property fiTOia Central Bank of India, owner of fhe property who is respondent No.2 has vide sale deed dated 03/02/2005 for consideration sold out fhe suit laad to Iiiia and also deUvered possession fhereof to him. Appellaut is in possession of fhe suit land under valid sale deed. Sale deed has already been subinitted in the oflGce of the District Registrar, Raipur for registration. Registration of fhe dociunents has been inade by fhe Registrar and only it is to be hauded over to ttie appeUant. Agreexaent to seU ia favour of plauutifT/respondent No.l ah-eady caaceUed by reat owner does not give aay right to get it perfonned aad to restrain the appeUant who is real purchaser ia possessiou fhereofto take fruit of it. Learaed counsel for respondent No.2 also supports the contention ofthe appellaat. / 6) Per contra, leamed coiinsel for respondent No. 1 submits that fhe canceUation of agreeiaent to sale is not valid and in case plaintiff/respondent No.l succeeds, in absence of injunction if coiistTuction M inade overjlie suit land it wffl. create niatiy problems. | , 'l-i! 'fi-J;^- 7) Admittedly, on 03/12/2004 when rcspoadent No.2 aud iiespondent No.l entered into coatract i.e., agreement to seU, the suit land was under uiortgage with the Central Bank of India and fhe mortgage was done by real own.er of the suit land towards security' against loen, tfaerefore, tiU the suit land is redeeined, it canuot be sold. Priuia facie, it appears that on 03/12/2004 it was not pemussibfe for rcspondent No.2 to enter iuto agreenient to seU witfa i-espondent No.l. AdraLittedly, agreeiaent to sale dated 03/12/2004 has been canceUed by respondent No.2 who after cauceUation, retumed fhe amount taken by him in advance alon^ wifh interest to plaiatiff/respondent No.i. It is also not ia dispute that before executing ttie sale deed in favour of appeUant by real owner/respondent No.2 on 03/02/200S, fhe loan taken fiTOiu the Central Bank of India. has been cleared .and fhe seBer i.e., respondeat No.2 has delivered possession of the suit land to appeUant. It is also not ia dispute that after execution of sale deed, same was handed over to the District Registrar, Raipur. 8) From. aU the above facts, priina facie, it appears fhat appeUaat after execution ofsale deed for eonsideration purcbased fhe suit land and is in possession of fhe suit laad. Therefore, the suit land wbich is purchased bv the appellant for consideration 'aftei execution of sale deed in his favour bv re.ai owner, has to sufFer icreparable'tess, if he is deprived of froin taking fi-uit of it. It is evident fhat the balance of convenience and principal of UTeparable loss do not find favour ofplaiatiff/respondent-No.l. Therefore, no injunction could have been passed ia Uis favour. II^BIWuaa.. 1 ^s 10) In the result, the appeal is aUowed. The unpygaed order passed by fhe lower Court is setaside. Parties to bear fheir own costs. ~~- __../ __ Sd/- V.K. Shrivastava Judge Raju wy. •i' ^ •ti&il MIM sss. ^^gt^