C.R.No.4567 of 2011 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.4567 of 2011 Date of decision: 29.7.2011 M/s Standard Brand Limited ….Petitioner Vs. Paras Ram and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. R.K. Malik, Sr. Advocate Mr. Vikas Dahiya, Advocate for the petitioner. Jaswant Singh, J Defendant No.6-petitioner has filed the instant petition under Article 227 of the Constitution praying for setting aside the impugned judgment dated 28.4.2011 (P.5) passed by learned Additional Civil Judge (Sr. Division), Faridabad vide which application filed by the petitioner for dismissal of the suit being rendered infructuous has been dismissed. Brief facts of the case are that the plaintiff-respondent No.1 filed a suit for specific performance and permanent injunction in respect of land measuring 11495 sq. yds Sector 31, Faridabad Industrial Area on the basis of an agreement dated 6.11.2003. During the pendency of the civil suit, an application (P.3) was filed by defendant No.6-petitioner for dismissal of the suit having been rendered infructuous. Upon notice, the plaintiff-respondent No.1 opposed the same by filing reply dated 15.4.2011 (P.4). After hearing both the sides, learned trial Court has dismissed the application by way of impugned order, hence the present petition. C.R.No.4567 of 2011 #2# Learned counsel for the petitioner argues that the impugned orders passed by the learned trial Court is wholly erroneous and liable to be set aside on the ground that the owner of the property namely M/s B.N.T Associates Ltd has not been impleaded as a party. He further argues that earnest money involved in the suit has already been taken back by the plaintiff, therefore, the suit has become infructuous. After hearing learned counsel for the petitioner and perusing the paper book, this court does not find any merit in the petition and the same deserves dismissal. A perusal of paper book reveals that it is the specific case of the plaintiff-respondent No.1 that defendant No.1-proforma respondent No.2 being Director after having been duly authorized vide resolution dated 3.10.2003 passed by Board/Members of M/s Bengal International Textile Limited (now known as B.N.T Associates Ltd.) entered into an agreement dated 6.11.2003 to sell the land measuring 11495 sq. yards for a sale consideration of Rs.90,00,000/- and an amount of Rs.22,00,000/- was paid as earnest money. Due to differences, the sale deed could not be materialized, which led to filing of the suit for specific performance and permanent injunction. Along with the suit, an application under Order 39 Rules 1 & 2 CPC was also filed and learned trial Court vide order dated 16.7.2004 granted ad interim injunction restraining defendant No.1 from creating any third party interest regarding the suit property and subsequently the interim order was confirmed by the learned trial vide order dated 19.5.2006 while finaly disposing of the application under Order 39 Rules 1 & 2 CPC. Although the order dated 19.5.2006 was challenged in an appeal and the same was accepted by the learned Additional District Judge, C.R.No.4567 of 2011 #3# Faridabad vide judgment/order dated 9.12.2006 but the same was assailed before this Court by the plaintiff-respondent No.1 in a revision petition and the same stands admitted and a direction was given by this Court vide order dated 9.1.2007 that any alienation or construction over the suit property shall be subject to the doctrine of lis pendense. Despite the grant of interim injunction dated 16.7.2004 by the learned trial Court, the present petitioner entered into an agreement dated 4.10.2004 with defendant No.1 by paying an earnest money of Rs.15,00,000/- and finally sale deed dated 12.12.2006 was executed in his favour and in these circumstances, present petitioner was impleaded as defendant No.6 and the learned trial Court vide order dated 5.2.2007 framed the following additional issue No.7 : “Whether the defendant No.6 is the bonafide purchaser of the suit property as alleged?OPD” It is specifically denied by the plaintiff-respondent No.2 in his reply dated 15.4.2011 (P.4) that he has received back the earnest money of Rs.22,00,000/- from defendant No.1. Moreover, this aspect has also been considered by the learned trial Court while disposing of the application under Order 39 Rules 1 & 2 CPC vide order dated 19.5.2006 and the matter is already pending before this Court in a civil revision. In these circumstances, whether the plaintiff has received back his earnest money amounting to Rs.22 lacs or not is a matter of evidence to be led by both the parties before the learned trial Court but at this stage, it is not possible to accept the plea of the petitioner that the plaintiff-respondent No.1 has received back his earnest money. It is the specific case of the plaintiff that he has impleaded defendant No.1 not in his individual or personal capacity but as a duly authorized person as a Director of the company. Therefore, both the contentions raised by learned counsel for the petitioners lack merits C.R.No.4567 of 2011 #4# and are not tenable. Learned trial Court, in my view, has rightly passed the impugned order while dismissing the application of the petitioner. Keeping in view the facts and circumstances discussed hereinabove, this Court finds no illegality or perversity in the impugned judgment dated 28.4.2011 (P.5) passed by learned Additional Civil Judge (Sr. Division), Faridabad passed by the learned courts below warranting interference under Article 227 of the Constitution. Dismissed. July 29, 2011 ( JASWANT SINGH ) manoj JUDGE