IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 F.A.O.No. 375 of 2011() ------------------------------ OS.277/2011 of PRINCIPAL SUB COURT,ATTINGAL ................... APPELLANTS/ PETITIONERS/PLAINTIFFS 1. PRASANNAKUMARAN NAIR, S/O.KRISHNAPILLAI,APARNA, MANNURBHAGOM,MEVARKKAL DESOM, ALAMCODE VILLAGE,CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM. 2. CHANDRABABU,S/O.VELAYUDHAN, SAJAN NIVAS,OORUPOIKA, EDAKODE DESOM AND VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM. 3. ANILKUMAR,S/O.RAMAKRISHNAPILLAI, SHRUTHI,VELIYAKUNNU,KIZHURILLAM VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM. BY ADV. SRI.R.GOPAN RESPONDENT/RESPONDENT/DEFENDANT 1. MANI,S/O.KRISHNAN, MANI MANDIRAM,PALACE ROAD, FROM PARVATHY MANDIRAM, THAZHAMORKONATHU,ATTINGAL DESOM AND VILLAGE, CHIRAYINKEEZHU TALUK,THIRUVANANTHAPURAM-695001. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 22/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MG P.BHAVADASAN, J. ------------------------------------------------- FAO No.375 of 2011 ------------------------------------------------- Dated this the 22nd December 2011 Judgment Aggrieved by the order dated 10.11.2011 in IA No.1883/2011 in OS No.277/11, the petitioners before the court below have come up in appeal. 2. The suit was one for specific performance of an agreement said to have been entered into by the defendant with the plaintiffs. By the said agreement dated 04.10.2010, it is alleged that the defendant agreed to sell the plaint schedule property to the plaintiffs @ Rs.7,75,000/- per cent. The agreement dated 04.10.2010 was preceded by an earlier agreement dated 22.09.2009 in favour of plaintiffs 1 and 2 for sale of the plaint schedule property and the defendant had received an amount of Rs.5 lakhs as advance sale consideration. The period of agreement was five months from the date of agreement. On 18.2.2010, the defendant accepted an additional FAO 375/11 2 amount of Rs.2 lakhs from the plaintiffs and the period was extended by three months. It is claimed that the plaintiffs were always ready and willing to perform their part of the agreement, but the defendant was not willing to execute the sale deed and that resulted in the filing of OS No.201/2010. That suit was later compromised and the defendant had agreed to execute a sale deed within six months from 4.10.2010. The defendant had also agreed to measure out the property in the presence of the plaintiffs and convince them about the actual extent of property. The defendant had also assured the plaintiffs that the property will be free from all encumbrances. It was also agreed that the defendant would produce certified copy of his document of title since the original title deed is stated to have been lost. The plaintiffs claimed that they were always ready and willing to perform their part of the contract, but the defendant was delaying the execution of the sale deed under one pretext or the other. The plaintiffs allege that the defendant was trying to alienate the property FAO 375/11 3 to strangers at a higher price and that necessitated the plaintiffs to file the present suit. 3. Along with the suit, the plaintiffs also filed IA No.1883/11, seeking a permanent prohibitory injunction restraining the defendant from alienating the property to third parties during the pendency of the suit. 4. The defendant entered appearance and filed an objection. He pointed out that OS No.201/10 was a ploy adopted by the plaintiffs for getting the agreement period extended. According to the defendant, he was always ready and willing to perform his part of the contract and it was as a result of the request made by the plaintiffs that the earlier extension was granted and a new agreement was entered into on 04.10.2010. He also pointed out that the property was measured in the presence of the plaintiffs and they were convinced about the extent of property. It is also alleged that the filing of OS No.172/11 is only to protract the matter. On the above contentions, the defendant prayed for dismissal of the I.A. FAO 375/11 4 5. The trial court, on a consideration of the available evidence, came to the conclusion that prima facie it appears that the plaintiffs were in breach and therefore, they could not take advantage of their own fault. The lower court found that the plaitniffs were not entitled to any interim relief and accordingly declined the prayer for interim relief. The said order is assailed in this appeal. 6. The learned counsel for the appellants pointed out that the court below was not justified in declining to grant interim reliefs to the plaintiffs on the ground that no irreparable injury will be caused to them by doing so. In OS No.172/11, which was a suit for injunction, the defendant had entered appearance and had promised to perform his part of the contract, which he failed to do. It is clear from the materials on record and the averments in the plaint and the counter affidavit that it was the defendant, who had committed breach of contract and so, the court below ought to have granted the interim injunction as prayed for by the plaintiffs. FAO 375/11 5 7. The court below has given cogent and convincing reasons as to why interim injunction cannot be granted in the case on hand. It is seen from the order of the court below that in the agreement dated 4.10.2010, time was made the essence of the contract. May be that the plaintiffs had instituted OS No.172/11, i.e., a suit for injunction, in which the defendant might have expressed his willingness to perform his part of the contract, but except for a mere statement that a routine request was made to the defendant to perform his part of the contract, there was nothing to show that the plaintiffs had called upon the defendant to perform his part of the contract and to receive the balance sale consideration. The lower court has found that the present suit is filed long after the expiry of the agreement period and it was pointed out that the plaintiffs were protracting the matter. The lower court has referred to the various aspects and has come to a conclusion that the plaintiffs have no prima facie case against the defendant. FAO 375/11 6 8. The learned counsel for the appellants then pointed out that the findings entered into by the court below in the impugned order have the effect of disposing of the suit itself since all the findings have been entered into regarding the readiness and willingness of the defendant to perform the contract and the question of breach of contract. 9. The court below has gone into these questions, only for the purpose of ascertaining whether the plaintiffs have made out a prima facie case. It does not stand to reason to believe that the lower court will be influenced by those observations while disposing of the suit. One has to remember that even if there is any alienation by the defendant during the pendency of the suit, the sale is covered by the principle of lis pendens and also that the purchaser has a statutory charge over the property, subject to certain conditions. Therefore, there is nothing wrong in the court below, declining to grant interim injunction, on the basis of the grounds mentioned by it. No reasons are made out to interfere with the order passed by FAO 375/11 7 the court below. However, the appeal is disposed of , making it clear that the lower court shall dispose of the suit as expeditiously as possible, untrammeled by any of the observations made by it in the impugned order or that of this court in this judgment. P.Bhavadasan, Judge sta FAO 375/11 8