CR No.7010 of 2010 (O&M) -1- ******* IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.7010 of 2010 (O&M) Date of decision:27.10.2010. Mange Ram ...Petitioner Versus Arvind Gulati and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Lokesh Sinhal, Advocate, for the petitioner. ***** RAKESH KUMAR JAIN, J. The plaintiff has assailed the order of the learned Additional District Judge, Gurgaon dated 26.08.2010 by which application filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 [for short “CPC”] for restraining the defendants from alienating the suit property in any manner to a third party till the decision of the suit has been allowed, but his prayer for mandatory injunction to direct defendant Nos.3 and 4 to execute the conveyance deed in favour of defendant Nos.1 and 2, has been declined. In brief, the facts of the case are that defendant Nos.1 & 2 are the allottees of residential triangular shaped Plot No.S-27/7, DLF City, Phase-III, Gurgaon, also known as DLF Qutab Enclave, having an area of 405.94 Sq. Meters. On 21.03.2003, the plaintiff entered into an agreement to sell with defendant Nos.1 and 2 to sell the aforesaid plot for a sum of `35,00,000/- and paid a sum of `7,00,000/- towards imprest. According to the terms and conditions of the agreement to sell, defendant Nos.1 and 2 were to get the conveyance deed of the plot in dispute from defendant Nos.3 and 4 in their own name and then the plaintiff was to make the balance payment of sale consideration within one month and to get the plot transferred in his own name. On CR No.7010 of 2010 (O&M) -2- ******* 30.07.2003, defendant No.2 received an additional amount of `1,00,000/- in cash from the plaintiff and acknowledged its receipt on the back of the agreement to sell. Since defendant Nos.1 and 2 were not performing their part of the contract, the plaintiff filed a suit for permanent injunction being apprehensive of transfer of the suit property, but it was dismissed on 29.09.2009 and the said order was upheld in appeal on 10.12.2009. However, in the RSA No.1477 of 2010 arising out of the said suit, notice of motion was issued and alienation was stayed. Meanwhile, the plaintiff filed the present suit for specific performance of the agreement to sell, in which two interim prayers were made about prohibitory and mandatory injunction. In the written statement filed by defendant Nos.1 and 2, besides taking the technical preliminary objection, the factum of receipt of `7,00,000/- as earnest money and the alleged agreement was admitted, but it was alleged that since the plaintiff had failed to arrange the balance sale consideration, therefore, the agreement stood abrogated. It was also averred that the plaintiff has now become greedy as the value of the property has reached up to `4,00,00,000/-, but still the defendant Nos.1 and 2 showed their readiness and willingness to return the earnest money along with interest. In the written statement filed by defendant Nos.3 and 4, the factum of defendant No.1 being the allottees was admitted, but it was alleged that the plaintiff has wrongly impleaded them as defendants, therefore, they sought dismissal of the suit qua them. While disposing of the appeal, the learned First Appellate Court found prima facie case in favour of the plaintiff in view of the stay granted by this Court on 06.04.2010 in the RSA, therefore, the injunction was granted restraining defendant Nos.1 and 2 from alienating the suit property and defendant Nos.3 and 4 were restrained from creating third party interest in the suit property, but the prayer for mandatory injunction directing the defendant Nos.3 and 4 to execute the conveyance deed in favour of defendant Nos.1 and 2 was dismissed. Learned counsel for the petitioner has submitted that the CR No.7010 of 2010 (O&M) -3- ******* learned Courts below has committed an error in declining prayer for grant of mandatory injunction, but he has failed to cite any precedent in which, as per the given facts and circumstances, temporary mandatory injunction has been ordered, rather the First Appellate Court, while taking into account the decision in the case of Metro Marins and another Vs. Bonus Watch Co. Ltd. and others, 2005(1) Apex Court Judgment, 406 (SC) has observed that the temporary mandatory injunction could be granted only in exceptional cases which have been noticed in the case of Dorab Cawasji Warden Vs. Coomi Sorab Wearden and others, 1991 Civil Court Cases 99 (SC). In view of the above discussion, I do not find any error in the impugned order and hence, the present revision petition is hereby dismissed. No costs. October 27, 2010 (RAKESH KUMAR JAIN) vinod* JUDGE