AO/198/2008 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 198 of 2008 With CIVIL APPLICATION No. 6859 of 2008 In APPEAL FROM ORDER No. 198 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= GAURANGBHAI MAHENDRABHAI SHAH CHAIRMAN & 5 - Appellant(s) Versus DINESHKUMAR NARANDAS PATEL & 4 - Respondent(s) ========================================================= Appearance : MR CHETAN K PANDYA for Appellant(s) : 1 - 6. MR PRAKASH K JANI for Respondent(s) : 1, None for Respondent(s) : 2 - 5, 5.2.1, 5.2.2, 5.2.3, 5.2.4,5.2.5 ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 07/07/2008 ORAL JUDGMENT 1. Present Appeal from Order is arising out of the order below Exh.5 dated 05.05.2008 passed by the AO/198/2008 2/11 JUDGMENT learned 6th Additional Senior Civil Judge, Gandhinagar in Special Civil Suit No.182 of 2007 by which the learned trial Court has allowed the application Exh.5 restraining the appellants – original defendants from transferring, alienating in any manner whatsoever and putting up any construction on the land of Survey No.169/2/1, 170/1/1 and 170/2/1 situated at Village - Motera, Taluka, District – Gandhiangar till disposal of the Special Civil Suit No.182 of 2007. 2. The appellants are the original defendants Nos.1,3,6(A),6(C),6(D) and 6(I). Opponent No.1 is the original plaintiff and other opponents are original defendants Nos. 2 to 5(E). Opponent No.1 – original plaintiff filed Special Civil Suit No.182 of 2007 in the Court of learned Principal Senior Civil Judge, Gandhinagar against the defendants for specific performance of Banakath / agreement to sale dated 16.12.2006 and for permanent injunction. In the said suit, the plaintiffs submitted application below Exh.5 for interim injunction restraining the defendants and their servants from transferring, alienating and putting up any construction on the AO/198/2008 3/11 JUDGMENT disputed lands in question. The learned trial Court by order dated 05.05.2008 has allowed the application Exh.5 and granted interim injunction as prayed for. Being aggrieved and dissatisfied with the order passed below Exh.5, the appellants herein some of the defendants have preferred present Appeal from Order. 3. Mr.Chetan Pandya, learned Advocate appearing on behalf of the appellants has vehemently submitted that in the facts and circumstances of the case, the learned trial Court has committed an error in allowing the application Exh.5. It is submitted that some of the conditions of the agreement to sale were not complied with. Such as payment of fees to the advocates / solicitors etc. The agreement to sale was already terminated. It is submitted that the learned trial Court has failed to appreciate terms and conditions of agreement to sale dated 16.12.2006 more particularly, time was essence of the agreement. It is submitted that plaintiff was to make payment of 55% of sale consideration within 15 days of the title clearance certificate and also agreed that said condition would be complied with. On failure to AO/198/2008 4/11 JUDGMENT comply such condition Shalin (Motera) Co-opeartive Housing Society Limited was entitled to terminate agreement and having not complied with such condition and not depositing 55% of the sale consideration within stipulated time, agreement was terminated and therefore, the learned trial Court has committed an error in allowing the application Exh.5. Alternatively it is submitted that even the learned trial Court ought to have passed an order directing the plaintiff to deposit balance amount of sale consideration to show his bona-fide as it is the case of the plaintiff in the suit that he was always ready and willing to perform his part of contract. By making above submissions, it is requested to allow the present Appeal from Order. 4. Mr.P.K.Jani, learned Advocate appearing on behalf of respondent No.1 – original plaintiff has opposed present Appeal from Order. It is submitted that execution of agreement to sale is not disputed and therefore, whether there is breach of conditions and/or time was essence of the contract and/or who is at fault for non- fulfilling the conditions of the AO/198/2008 5/11 JUDGMENT contract, are all questions which are required to be considered and decided at the time of trial and with a view to see that suit does not become infructuous and third party rights are not created, the learned trial Court has passed a discretionary order allowing the application Exh.5, same is not required to be interfered by this Court. It is submitted that the learned trial Court has exercised discretion judiciously and the order passed by the learned trial Court cannot be termed as perverse and/or no other view is possible. It is submitted that respondent No.1 – plaintiff has already deposited Rs.11 lacs and considering subsequent development and dispute with AUDA, some lessor area of land would be possible and therefore, considering the same, sale consideration would approximately come to Rs.1 Crore, out of which the plaintiff has already paid Rs.11 lacs and to show his bona-fide the plaintiff will deposit Rs.29 lacs before the learned trial Court and for balance amount of Rs.60 lacs, the plaintiff will furnish bank guarantee within a period of two weeks. It is submitted that said guarantee would be continued during pendency of the suit and it will be renewed AO/198/2008 6/11 JUDGMENT from time to time till final disposal of the suit. It is also further submitted that an appropriate order be passed for investment of Rs.29 lacs to be deposited by the plaintiff as stated above in any Fixed Deposit so that whoever succeed can take away that amount with interest. By making above submissions, it is requested to dismiss the present Appeal from Order. 5. Heard the learned Advocates appearing on behalf of the respective parties. The appellants are some of the original defendants. Original plaintiff has filed Special Civil Suit No.182 of 2007 for specific performance of the agreement to sale dated 16.12.2006 to hand over the possession of the land as well as quashing and setting aside the notice dated 22.06.2007 determining the agreement to sale executed between the parties on 16.12.2006. 6. At the outset it is required to be noted that execution of agreement to sale between the parties is not disputed. It is the contention on behalf of the defendants who executed the agreement to sale that some of the conditions have not been AO/198/2008 7/11 JUDGMENT complied with and therefore, by notice dated 22.06.2007 agreement to sale came to be terminated. It is not in dispute that the plaintiffs have already paid Rs.11 lacs by way of earnest money. It also appears that there is some dispute with respect to measurement with AUDA. In the aforesaid suit the plaintiffs submitted application Exh.5 restraining the defendants from their agents and/or servants from transferring the land in question in any way whatsoever and putting up the construction. The learned trial Court in a well reasoned order exercising discretion judiciously has allowed the application Exh.5 and has granted interim injunction restraining the appellants – original defendants from putting up any construction and restraining them from further transferring and/or alienating the land in question. Looking to the Exh.5, reply and counter reply it appears to the Court that there are serious disputes with respect to termination of agreement to sale and who has committed breach of condition of agreement to sale. 7. It also appears that after execution of AO/198/2008 8/11 JUDGMENT agreement to sale, public advertisement was given for getting title clearance certificate and some of the persons have submitted their objections and it is the case on behalf of the plaintiffs that the defendants did not got title clearance certificate and without getting title clearance certificate, they insisted for 50% of the sale consideration. It also appears that on 19.05.2007 the plaintiffs send cheque of Rs.49,000/- towards fees for getting title clearance certificate along with notice and instead of getting title clearance certificate, the defendants unilaterally terminated agreement to sale dated 16.12.2006 on 22.06.2007 and returned the cheque. Considering above, and with a view to avoid any further multiplicity of proceedings and as third party rights are not created, the learned trial Court has allowed application Exh.5 and restrained the defendants from transferring the lands in question and putting up any construction, it cannot be said that the learned trial Court has committed any error. 8. At this stage decision of the learned Single Judge of this Court in the case of Khimjibhai Harjivanbhai Patadia v/s. Patel Govindbhai AO/198/2008 9/11 JUDGMENT Bhagvanbhai & Ors. reported in 2006(4) GLR 3058 is required to be referred to. As held by this Court in an Appeal from Order arising out of order passed by the trial Court in an application under Order 39, Rule 1 and Order 43, Rule 1, discretion exercised by the trial Court should not be interfered with unless such discretion is exercised by the learned trial Court without any basis or contrary to the settled legal position. 9. Considering above, as such, it cannot be said that the learned trial Court has committed any error in allowing the application Exh.5, however, to consider submission on behalf of the original plaintiffs that they are ready and willing to perform their part of contract by depositing sale consideration and looking to the dispute with respect to measurement due to subsequent development, Mr.Jani, learned Advocate appearing on behalf of the original plaintiff has submitted that sale consideration would approximately come to Rs.1 Crore, out of which Rs.11 lacs are already paid by way of earnest money and that they will deposit Rs.29 lacs before the learned trial Court within a period of 3(three) weeks from today and furnish bank guarantee AO/198/2008 10/11 JUDGMENT of Rs.60 lacs with the learned trial Court within a period of 3(three) weeks from today. Thus, impugned order passed by the learned trial Court passed below Exh.5 is modified to the aforesaid extent, in that case interest of both the parties will be protected and at the same time bona-fide of the original plaintiff can also be tested. 10. For the reasons stated above, impugned order dated 05.05.2008 passed by the learned 6th Additional Senior Civil Judge and JMFC passed below Exh.5 in Special Civil Suit No.182 of 2007 is confirmed with modification that the original plaintiff shall deposit further sum of Rs.29 lacs with the learned trial Court within a period of 4(four) weeks from today and furnish bank guarantee of Rs.60 lacs with the learned trial Court within a period of 4(four) weeks from today. On deposit of aforesaid amount of Rs.29 lacs, the learned trial Court shall deposit same in any Nationalized Bank initially for a period of 2(two) years with cumulative interest. With these, Appeal from Order is allowed to the aforesaid extent. In view of disposal of Appeal from Order, no order in AO/198/2008 11/11 JUDGMENT Civil Application. [M.R.Shah,J.] satish