IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 WP(C).No. 34347 of 2009(O) -------------------------- OS.334/2009 of SUB COURT, TIRUR .................... PETITIONER(S): PLAINTIFF ------------------------ SHIBU, S/O.CHATHANGATTIL CHANDRAN TAZHEKKAD VILLAGE, KUZHIKKATTUSSERY DESOM, THRISSUR DISTRICT. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): --------------- 1. AKBAR, S/O KUNNTH ABDUL KAREEM, RESIDING AT FLAT NO.106, 4TH FLOOR, WEST WINDS, SI APARTMENTS, MATTUMAL, THEVARA, ERNAKULAM. 2. MUHAMMADALI, S/O.ELLUPARAMBIL SAIDUKUNJI KODUNGALLUR TALUK, KOOLIMUTTAM VILLAGE, KATHIKODE DESOM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.34347 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 30th November, 2009 JUDGMENT The Writ Petition is filed seeking mainly the following reliefs: 1. To issue appropriate writ order or direction to number and dispose of on merits Exhibit P7 petition filed by seeking production of the Notarised copy of the agreement for sale in Crime No.998/2009 of Magistrate Court at Irinjalakuda, by way of letter of request. 2. To issue appropriate writ order or direction to hear I.A.No.3629/2009 only on receipt of the document called for as per Exhibit P7 petition. 2. Petitioner is the plaintiff in O.S.No.334 of 2009 on the file of the Sub Court, Tirur. Suit is for partition and separate possession, and the respondents are the defendants in the suit. The case of the plaintiff is that the plaint schedule property belonged to the 2nd defendant and there was an agreement of sale for a consideration of Rs.1.70 crores to sell the property to the plaintiff and the first respondent. It is the further case of the petitioner that the entire sale consideration was given to the second defendant on the date of execution of the agreement of sale. However, later, the 2nd defendant W.P.C.No.34347/09 - 2 - executed a sham sale deed in respect of the property covered by the agreement in favour of the first defendant with intend to defraud and cheating. Pursuant to mediation, two cheques, one for Rs.25 lakhs and another for Rs.1 lakh had been handed over to the petitioner by the first defendant as part of the settlement arrived, but, later, the settlement was not honoured, and the cheque, upon presentation, was dishonoured. In respect of the cheating and fraud committed by the defendants, petitioner had filed a complaint before the police and a crime case registered thereof is under investigation. A notarised copy of the agreement for sale seized by the police from the petitioner during the investigation of the crime case has been produced before the Magistrate Court, Irinjalakuda. In the above suit, petitioner has applied for an interim injunction to restrain the defendants from alienating the property. An ex parte order of injunction had been granted by the court. Defendants, on appearance, have filed objection to that application. Petitioner has moved an application for sending a letter of request to the Magistrate Court for collecting the notarised copy of the agreement for sale which after seizure in the crime case referred to above had been produced before that court by the police. P7 is copy of that application. Obtaining of that notarised copy of agreement of sale W.P.C.No.34347/09 - 3 - from the Magistrate Court, sending a letter of request, is vital for a disposal of the interlocutory application for injunction in the present suit is the case canvassed, for which petitioner seeks issue of a direction/order to the learned Sub Judge, Irinjalakuda to dispose P7 application expeditiously, and, then, to hear the interlocutory application for injunction. 3. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary and it is dispensed with. On the basis of an agreement of sale purported to have been executed by the first respondent in respect of his immovable property, allegedly, in favour of the petitioner and the first respondent, it is seen, the petitioner has moved a suit for partition and separate possession. No suit for specific performance of the contract of sale has been instituted to enforce the agreement so far as seen from the allegations raised in P1 copy of the plaint and the submissions made by the learned counsel for the petitioner. Whatever that be, though the request canvassed appear to be innocuous, it has to be pointed out that even in a suit for specific performance of agreement of sale, an injunction restraining the party who has agreed to sell the property to another is normally permissible only on deposit of the balance sale consideration W.P.C.No.34347/09 - 4 - before court or satisfaction that the entire sale price has already been paid. From the facts and circumstances presented and the submissions made, it is seen, pursuant to the settlement, the petitioner has received two cheques, one for Rs.25 lakhs and another for Rs.1 lakh from the first respondent in relation to the transaction covered by the agreement of sale. Whether such cheques had been honoured or dishonoured and what is the consequence of receiving such cheques with reference to the settlement purported to have been arrived at, are all matters to be looked into in the trial of the suit. The circumstances presented and the nature of the suit, seeking the relief of partition and separate possession on the basis of an agreement of sale, indicate that relief canvassed for issuing a direction to the court below for disposal of P7 application directing that court to consider the interlocutory application for injunction in which an ex parte order had already been obtained by the petitioner only after disposing P7, does not deserve any merit. Petitioner can invite the attention of the court below to dispose P7 application and seek appropriate relief. Writ Petition is closed. srd S.S. SATHEESACHANDRAN, JUDGE W.P.C.No.34347/09 - 5 -