CR No. 3284 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3284 of 2008 (O&M) Date of decision: May 28, 2009 Bhupinder Singh and another .. Petitioners v. JMD Promoters Ltd. and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. M. L. Sarin, Senior Advocate with Mr. Vijay Sharma, Advocate for the petitioners. Rajesh Bindal J. Defendants No. 1 and 2 are before this Court challenging the order dated 3.3.2008, passed by the learned court below, whereby that of the trial court was reversed and interim injunction was granted only against them and not respondents No. 2 to 14/defendants No. 3 to 15. Briefly, the facts are that respondent No. 1-plaintiff filed a suit for possession by way of specific performance of agreement to sell executed by the petitioners for sale of land, which was owned by respondents No. 2 to 14/ defendants No. 3 to 15. The agreement was entered into on 14.4.2005 for a total sale consideration of Rs. 10,70,00,000/-. An earnest money of Rs. 1,10,00,000/- was paid to the petitioners. In terms of the agreement, two instalments of 10% each were to be paid on 14.6.2005 and 14.7.2005. Respondent No. 1 did not pay the instalments. The petitioners did not get the sale deed executed. As a result thereof, on 25.5.2006, suit for specific performance came to be filed by respondent No. 1- plaintiff along with application for interim relief. The same was considered by the learned court below and vide order dated 26.4.2007, noticing the fact that the petitioners were neither the owners of the property nor they had any right to sell the same on behalf of respondents No. 2 to 14/ defendants No. 3 to 15, the prayer for interim stay was rejected. However, in appeal before the learned court below, the order of the trial court was modified to the extent that the petitioners were restrained from alienating the suit property to any other person except respondent No. 1-plaintiff, in case they acquire the same in future. The petitioners are aggrieved against the aforesaid direction of the learned court below. Learned counsel for the petitioners submitted that respondent No. 1- plaintiff having failed to comply with the terms of the agreement regarding CR No. 3284 of 2008 [2] payment of two instalments of 10% each of the total sale consideration, the petitioners had exercised their right to forfeit the earnest money given to them and once respondent No. 1-plaintiff himself was the defaulter, there was no question of any interim stay against them, as even the suit itself was not maintainable. He further submitted that nothing was produced on record by respondent No. 1- plaintiff to prove that the petitioners had any authority to enter into an agreement to sell on behalf of respondents No. 2 to 14-defendants No. 3 to 15 and in the absence thereof, no relief possibly could be claimed against the petitioners. He further submitted that without reversing the findings, recorded by the learned trial court, no injunction could possibly be granted by the learned lower appellate court. Once no injunction had been granted against the true owners, there was no reason to have restrained the petitioners only on assumption that in case they acquire the same in future, they will be restrained to alienate the same to any one else except respondent No. 1- plaintiff. Finally, the submission was that the findings of the court on interim stay could be reversed only if the same were found to be perverse and it is not so in the case in hand. Reliance was placed upon Guru Nanak Education Trust v. Balbir Singh and others, (1995-2) PLR 625; Santosh Hazari v. Purushottam Tiwari (Dead) by LRs, JT 2001(2) SC 407; Laxmikant V. Patel, v. Chetanbhat Shah and another, AIR 2002 SC 275; Charan Dass v. Harbans Lal, 2005 (3) All India Land Laws Reporter 676 and Union of India and another v. Kaushalaya Devi, JT 2007 (4) SC 250. Having heard learned counsel for the petitioners, I do not find any merit in any of the submissions made. There is an old saying “pot is calling the kettle black”. The case in hand is a fit example of that. The petition is pending in this Court since May, 2008, impugning the order passed by the learned lower appellate Court dated 3.3.2008 and it is being adjourned only on the request of the petitioners. On 2.9.2008, when it was argued, this Court passed the following order: “ Learned counsel for the petitioners prays for an adjournment to seek instructions as to whether the petitioner would be willing to furnish security for refund of amount of earnest money in the event of the success of the suit. Adjourned to 27.11.2008.” Thereafter, again the case is being adjourned and today also initially a request was made for adjournment on the ground that the parties to the dispute are in the process of compromising the same. However, considering the fact that the petition was pending for the last one year, the request was declined. CR No. 3284 of 2008 [3] During the course of arguments, a question was put to the counsel for the petitioners as to whether they are ready and willing to deposit the amount of earnest money received by them from respondent No. 1-plaintiff in Court, the answer was in the negative. It was submitted that the petitioners were not even ready to furnish security, as was noticed in the order passed by this Court on 2.9.2008. The admitted facts on record are that the petitioners entered into an agreement to sell the suit property with respondent No. 1-plaintiff and got Rs. 1,10,00,000/- as earnest money. Both the courts below had categorically found that the petitioners had not produced before the Court any material to show that they had any authority to enter into an agreement to sell on behalf of respondents No. 2 to 14/ defendants No. 3 to 15, who are admittedly the owners of the suit land and the petitioners do not own any part of that. Not only this, even the stand of respondents No. 2 to 14 before the learned court below was that they never authorised the petitioners to enter into an agreement to sell on their behalf regarding the suit property. Meaning thereby that from the very beginning, the intention of the petitioners was not clear, as they had entered into an agreement to sell the property, which was neither owned by them nor they were authorised to sell the same. The contention of the counsel that “let the buyer beware” is totally misconceived as the petitioners very well knew the fact that they had no right to enter into an agreement to sell the property which they were dealing with respondent No. 1-plaintiff. There may be some bonafide error on the part of respondent No. 1- plaintiff (vendee), however, that does not go to the benefit of the petitioners. The contention that respondent No. 1- plaintiff having failed to comply with clauses 2 and 3 of the agreement to sell regarding payment of further instalments, the petitioners had absolute right to forfeit the earnest money is totally misconceived, once it is found that they were not even owners of the property. It was for the petitioners to have produced material on record to show that they in fact had the right to enter into agreement to sell the property with respondent No.1- plaintiff to show their bonafide. The bonafide of the petitioners from the very beginning is suspicious and even now, as has been noticed above, neither they are ready and willing to deposit the amount of earnest money received by them in Court nor even furnish the security therefor to secure the interest of respondent No. 1- plaintiff. They made respondent No. 1-plaintiff to part with huge amount of Rs. 1,10,00,000/- for sale of the property, which was neither owned by them nor they were authorised to CR No. 3284 of 2008 [4] sell. When admittedly the petitioners were neither owners of the property nor their bonafide was clear, the order passed by the learned court below was totally innocuous, as it had restrained the petitioners from alienating the suit property to any one than respondent No. 1-plaintiff, if they acquire the same in future. Once they were neither owners of the property as on date nor they had any intention to acquire the same in future, the order was not going to effect them in any way, but challenge to even this order shows that they may be in line for other mischief. The judgments cited by the learned counsel, in my opinion, will not apply in the facts and circumstances of the present case, as legal proposition is not applied in vacuum, as the same is always to be considered in the facts and circumstances of the case and also the conduct of the party. For the reasons mentioned above, I do not find any merit in the present petition and the same is dismissed. (Rajesh Bindal) Judge 28.5.2009 mk