C.R. No. 7447 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 7447 of 2009 (O&M) Date of Decision: 18.2.2010 R.D. Tagra ....Petitioner Versus Smt. Raj Mehta and another ...Respondents CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. Amit Jain, Advocate for the petitioner. Mr. Anurag Jain, Advocate for respondent No. 1. Mr. Raghujeet Madan, Advocate for respondent No. 2. RAJESH BINDAL, J Challenge in the present petition is to the order dated June 5, 2009 passed by the learned Additional District Judge, Fast Track Court, Hisar, whereby in an appeal filed by respondent No.1, the order passed by the learned Civil Judge, (Sr. Division), Hisar, restraining the respondent No. 1 from alienating the plot in question to any one else than the petitioner-plaintiff, was set aside. Briefly, the pleaded facts are that the petitioner-plaintiff filed a suit for recovery of Rs. 16.00 lacs along with interest @ 12 % per annum from the date of filing of suit till final realization with consequential relief of permanent (Prohibitory) injunction restraining the respondent No. 1/defendant from alienating the plot No. 121 (P) Sector Police Line Area, Hisar, in any manner. It was on account of the fact that on July 2, 2005, the respondent No. 1/defendant entered into an agreement to sell the plot in question with the petitioner/plaintiff. A sum of Rs. Four lacs was paid as earnest money at the time of execution of agreement. Last date for transfer of the plot was fixed as September 15, 2005. On July 12, 2005, another sum of Rs. One lac was paid by the petitioner to respondent No. 1. It had been agreed upon between the parties that in case respondent No. 1/vendor/defendant failed to transfer the plot in question in favour of petitioner/plaintiff she would be liable to pay double the amount of earnest money. As the respondent No. 1 failed to get the requisite no objection certificate from respondent No. 2 to enable her to transfer the plot in question to the plaintiff, on her request the last date for transfer of the plot in question was extended on payment of additional sum of Rs. Three lacs. The time for C.R. No. 7447 of 2009 (O&M) 2 execution of sale deed was extended to October 18, 2005. It is further alleged that though on the date fixed the petitioner appeared before the Sub Registrar, Hisar and got his affidavit sworn, but respondent No.1 did not appear. He even presented before the Sub-Registrar the Pay orders of Rs. 5,000/- and Rs. 22,50,300/-. He waited there till 5:00 p.m. On account of failure of respondent No. 1 to transfer the plot in question in favour of petitioner, the petitioner/plaintiff merely filed a suit for recovery of Rs. 16 lacs in terms of the agreement entered into between the parties. Along with the suit applications under Order 39 Rules 1 and 2 CPC and Order 38 Rule 5 CPC for attachment before judgment was also filed. Learned trial Court considered both the applications together and vide order dated November 24, 2006 restrained respondent No. 1/defendant from alienating the plot in question to any one else except the petitioner/plaintiff. Aggrieved against the order passed by the learned Civil Judge, (Sr. Division), Hisar, respondent No. 1/defendant preferred appeal before the learned Court below who vide order dated June 5, 2009, accepted the same and set aside the order passed by the learned Civil Judge (Sr. Division) Hisar. It is against this order that the petitioner/plaintiff is before this Court. Learned counsel for the petitioner submitted that the agreement in question in the present case is admitted and so the receipt of earnest money of Rs. four lacs and subsequent payment of Rs. four lacs. In total Rs. eight lacs had been paid to respondent No. 1 by the petitioner. It has been specifically averred by the petitioner/plaintiff in the suit filed that it was on account of inaction/malafide action on the part of respondent No. 1 that the plot had not been transferred and in terms of the agreement the petitioner was entitled to double the amount of advance paid by him and for that the suit had been filed. During the pendency of the suit the interest of the petitioner was required to be secured and for the purpose application under Order 38 Rule 5 CPC was filed for attachment before judgment. The prayer in the suit was also for permanent (prohibitory) injunction and as such application under Order 39 Rules 1 and 2 CPC was also filed restraining respondent No.1/defendant, as an interim measure from disposing of the plot in question to anyone else except the petitioner/plaintiff as the disposal thereof during the pendency of the suit would have prejudiced the case of the petitioner/plaintiff. On the other hand learned counsel for respondent No. 1 submitted that in the suit filed by the petitioner/plaintiff the only relief prayed for is for recovery of money. It is not a suit for possession by way of specific performance of agreement to sell. In fact the prayer made by the petitioner-plaintiff for restraining the respondent No.1/defendant from attaching the suit property was dismissed by the learned Court below and the petitioner being not aggrieved against that part of the order did not file any appeal. It was only respondent No. 1/defendant who had filed appeal before the learned Court below being C.R. No. 7447 of 2009 (O&M) 3 aggrieved against the order passed restraining her from alienating the suit property to any one else than the petitioner/plaintiff. Such a restrained order could not be passed considering the fact that the prayer of the petitioner/plaintiff was not for transfer of the property in his favour. Respondent No. 1/defendant could very well transfer the same in favour of any one else and contest the suit filed by the petitioner for recovery of money. As far as merits are concerned it was submitted that the transfer of the plot in question could not be effected in favour of petitioner on account of his own fault as he had failed to fulfill his part of the agreement on account of which respondent No. 1 was unable to proceed further. Heard learned counsel for the parties and perused the paper book. As far as contention of learned counsel for respondent No. 1 regarding non-filing of appeal by the petitioner/plaintiff against the order passed by the learned trial Court is concerned the same is totally misconceived. A perusal of order passed by the trial Court shows that the Court had taken applications filed by the petitioner/plaintiff under Order 38 Rule 5 and Order 39 Rules 1 and 2 CPC, together and disposed of by a common order. It is no where mentioned in the order passed by the trial Court that the prayer for attachment before judgment is being rejected and only the application under Order 39 Rules 1 and 2 CPC is being allowed. Ultimately, the learned trial Court restrained respondent No. 1/defendant from alienating the property in question which safe guarded the interest of petitioner/plaintiff, hence it cannot be said that he should still feel aggrieved against the order passed. The grievance was to the respondent No.1/defendant who preferred appeal and in appeal the learned Court below set aside the order of restrain opining that petitioner/plaintiff having not prayed for possession by way of specific performance of agreement to sell could not seek relief of restraining the respondent No. 1/defendant from alienating the suit property but the learned Court below fell in error in not considering the prayer for securing the amount of the petitioner/plaintiff in the prayer made in application filed under Order 38 Rule 5 CPC regarding execution of agreement and receipt of amount. The facts have not been disputed as have been noticed by learned Court below. The issue which is pending consideration before the learned Court below is as to whether the petitioner/plaintiff is entitled to double the amount on account of failure of respondent No. 1 in transferring the property in question in his favour, or not. This Court would not like to opine on the merit of controversy at this stage. However, still considering the fact that the payment of amount is there, least the interest of petitioner/plaintiff is prejudiced in case the plot in question is also transferred to some one else the same deserves to be secured and in my opinion it can very well be secured in case respondent No. 1/defendant is directed to furnish security of Rs. ten lacs to the satisfaction of C.R. No. 7447 of 2009 (O&M) 4 learned trial Court. For the reasons mentioned above, the impugned order passed by the learned Court below is set aside and the revision is disposed of in the manner indicated above. (RAJESH BINDAL) 18.2.2010 JUDGE Reema