_E HIGH COURT OF CHHATTI ARH AT BILASPUR S.B. ; HOS'BLESHBIJVSTICSVlJAVKWSSAS.SHRlVA^TAVA MISCBLLANBOUS APFBAL N0. 74S/2005 APPELLANTS: Defeadaat Bo.3 M/s. Shivalik Power and Steel Pvt. Ltd; A coiapaay lucorporated under the Casapaaies Act, 1SSS, havlnjg s re^stered ofiHce at,C-33, 3rd Floar, Asltofca MlUeaium Riag Road No.l, Rajendra Nagar Chowk, Raipar. versus Respondeats PIsifltii«*- 11 M/s. Aujasya Agro Power Pvt. Ltd., Hyderafead, Tbroi^h representatlve 8hiiRajsisa&lJsia,aged 59 Years, s/o. Sbtt Tejmal Jala, r/o. Ward N®.15,CbUege Road, Mahasamund, Dist. niahasatnuad (CG1. Respondents Detendants No.1,3 & 4. 2) Smt. Ranl Jyotl Kumari, Aged56 yeaBS,W/o. SIui TIialcur Ra^iuraJ SIarii, f,'o. C-II, 1st Vloos Asho^Ea. MineniatB Rlng Road Ho.l, Rajeadra Ns®asCIiowk, Raipur, CO. 3) District Regisfcrar, Oface of the Disttict Re^starat, Raipur (CG). 41 The Stateof CStIiattisgaThroagh CoBector, Mahasamund, Dist. Saahasaaauad (CG). PRESEHT Mr. Kanak Tiwari, Sr. Advocate with Shri Prateek Shanna, Counsel for fhe appeHant. Mr. Aslusli Shrivastava, Counsel for respondent No.l. Mr. P.K.C. Tiwari, Sr. Advocate witb. Slua Shashi B'h.usha&, Counsel for respoiulent N6,2. Mr.-Jitendra Naiide, PanelLasspr &rrespondeiitsf1o.3 aad 4/'State^__———-""^ ^ s>. ^+. ORDER ( Dated 17/02/2006J This appeal is duiected against the order dated 11/05/2005 passed by the First Additidnal District Judge, Mahasamund, ia Civil Suit No. 34-A/2005 (Aujasya Agro Pvt. Ltd. Vs. Raui Jyoti Kumari aud 3 offaers) whereby aUowing the appUcation ffled by the respondent No.l/plantLff under Ori.er 39, Rule 1 and 2 read with Section 151 ofthe Code ofCivil Procedure, for graat ofteiupoiaiy uiji-inction against fhe defendant/appeUaat aad respoudents No. 2 to 4. u 2) Facts inaterial for disposal of fhis appeal, ia brief com.pass, are that plaintiff/respondent No.l - Aujasya Agro Power Pvt. Ltd., ffled a CivU Suit No.34-A./2005 on 05/02/2005 for speci&c perfonaaiice of fhe contract against the appeUant and respondents No. 2 to 4 on fhe pleading that respondent Rani Jyoti Kumari- owner of the suit laad executed agreeinent to seU the suit land on 03/12/2004 in his favour aad received an advance of Rs.2,00,000/- (Rupees two lakhs). Registered Sale deed was to be executed iu terins of fhe said agreeiuent by 31/01/2005. Plainttff/respondent No.l iavited objections agaiast fhe said sale by. i^Suing public notice in daily newspaper and in response to that Central Bank--^>f India, niain branch, Raipur raised its objection dated 19/01/ 2005 allegiiig that fhe suit laads have been inortgaged with ftie Central Bajak of India as collateral security against soine agricultuial loaa thereafter soine correspondence regarduig dispute took place ia between the planitiff/respondent •^ "'i: > No.l aad resoondent No.2. Afterwards, resoondent No.2 temiinated the said agreenient to seU and refunded ttie acaount taken in advance along wifh interest. 3) After termination of fhe agreenieat respondent No.2 on 03/02/2005 sold the siut land to appeUant. PIaiatiff/respondent No.l also ffled an appMcation linder Orier 39 Rule 1 aad 2 read with Section 151 ofthe C.P.C... for issuaace of injunctiou against fhe appeUaiit and respondents No. 2 to 4. AppeUaat denied tlie claim of plaintiff/respoudent No.l aiid pleaded fhat respondeat No.2 - Sint. Raiu Jyoti Kuinari who executed the agreenient to seU has canceUed the agreeinent and fhereafter for consideration sold the suit land ou 03/02/2005 in his favour by executuig a sale deed. Sale deed has already been produced for reeistration ia fhe office of fhe District RegistTar, Raipur, froin where after necessaiy fonnalities the registered sale deed is to be handed over to him. Respondent No.2 Siut. Rani Jyoti in his avennent has stated fhat she was not knowing the fact fhat suit land is inortgaged by her predecessor with Central Bank of India. She cancelled fhe agreeinent to sale dated 03/12/2004 aad also retuined the ainount taken in advance along with interest to plaintiff/respondent No.l and fhereafter for the saine consideratif>n she sold out the suit land on 03/02/2005 by s / • .. • executing a sale deed in favour offhe appellaiit. 4) Leanied coiirt below holding fhe pmiciple of pnina facie case, balance of convenience and UTeparable loss in favour .of.fhe 'plauitiiF/respondent No.l, allowed fhe application and , 4 V." issued directions that respondent No.2 shaU not seU or alienate tiie suit property. AppeBant aad respondent No.2 to 4 shall maintain status quo aud no new construction should be niade. Respondent No.3 shaU not register aad deliver fhe sale deed to appeUaiit. 5) Appellan^t's contention is that after canceliag the agreement to sale dated-03/12/2004 and aflter redeemiug the property froTn. Central Bank-oflndia, owner offhe property who is respondeut No.2 has vide sale deed dated 03/02/2005 for consideratiton sold out the suit land to Tiim and also delivered possession thereof. AppeUant is ia possession of the siut land uuder valid sale deed. AppeUant is exeinpted froin stamp duty. Sale deed has been subinitted in fhe office of fhe Disfaict Registear, Raipur, for registration froin where after registratioa the same wffl be hauded over to hiin. Registeation of ttie docuinents has been made by the Registrar and only it is to be haaded over to the appeUant. Agreeiaent to seU ia favour of plaintiflyrespondeiit No.l when fhe property was under inortgage that too caaceUed by the real dwner does not give any right to get it performed and to resfasm fhe appellant who is real piirchaser aad ia possession thereof. Leamed couusel for respondent No.2 also supports fhe contention of fhe appeUaat. 6) Per contra, leamed counsel for respondent No. 1 submits that the canceBadon ofagreement to sale is aot valid aad in case plaintifE/resooiident NQ.I succeeds, in absence of injunction if constructioD__is made over the suit land it will create maay problems. 5 H E^. L.. 7) Admittedly, on 03/12/2004 wheri respondent No.2 and respondent No.l entered iato contract i.e., agreeinent to sell; fhe suit laad was under luortgage with the Central Badk of India and the inortgage was done by real owner of the suit laud towards security against loau therefore, tffl fhe suit land is redeenied, it cannot be sold. Prima Tacie, it appears that on 03/ 12/2004 it was not pennissible for respondent No.2 to enter mto agreenient to seU wifh respondent No.l. Adinittedly, agreement to sale dated 03/12/2004 has been canceUed by respondent No.2 who after canceUation. retumed the amount taken bv her in advance along wifh interest to plaijatifF/respondent No. 1. It is also not m. dispute that before executHig fhe sale deed ia favour of appeUant bv real owner/respondent No.2 on 03/02/2005, the loaa taken froin flie Central Bank of India, has been cleared and fhe seUer i.e., respondent No.2 has deUvered possession of thesuit land to appeUant. It is also aot in dispute that after execution of sale deed, same was handedover to the District Registrar, Raipur. 8) Froin aU the above facts, pruna facie, it appears that appeUaut after execution of sale deed for consideration purchased fhe suit land and is ia possessiou fhereof. Therefore, the suit land which , is puix'hased by the appeUant for consideration after / executiou of sale deed iu his favour bv real owner is in his possession has to suffer irreparable Ibss, if he is deprived of froin taking ;6Tiit of it. It is evident fhat ttie balance of convenience and principal of irreparablc loss do not find . favour of T3- plaintiff/respondent No.l. Therefore, no injunction could have been oassed ia his favour. In the result, fhe appeal is allowed. The unpugned order passed by fhe lower Court is set aside._ • 1 Pardes to bear thetr own-Cflsts. Sd/- V.K. Shrivastava Judge Y .