Dismissed

Yakkali Srinivasulu, v. Shaik Khasim

Andhra Pradesh HC3 Aug 2021CMA/67/2021

Case brief

AI extract

What is this about?

Civil Miscellaneous Appeal against interim injunction in a specific performance suit. High Court dismissed the appeal, upholding the trial court order restraining alienation of property. Evidence on forfeiture and endorsement authenticity was deferred to main trial.

What did the court decide?

The Civil Miscellaneous Appeal is disposed of. Trial court order granting injunction is allowed.

Yakkali Srinivasulu, Vs Shaik Khasim — Specific Performance | Andhra Pradesh HC (2021)

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THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON’BLE SRI JUSTICE B.KRISHNA MOHAN

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CIVIL MISCELLANEOUS APPEAL No.67 OF 2021

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JUDGMENT : (per Hon’ble Sri Justice B. Krishna Mohan)

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This Civil Miscellaneous Appeal is preferred against the Order in I.A.No.2 of 2021 in O.S.No.1 of 2021 on the file of the VI Additional District Judge, Markapur dated 08.02.2021 granting interim injunction restraining the respondent therein from executing or creating any kind of documents in favour of the third parties in respect of the petition schedule property, till the disposal of the main suit.

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Heard the learned senior counsel for the appellant and the learned counsel for the respondents.

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The appellant herein is the respondent in the I.A., and defendant in the suit before the trial Court. The respondents herein are the petitioners in the I.A., and the plaintiffs in the suit before the trial Court.

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The respondents herein initiated an action in O.S.No.1 of 2021 on the file of the VI Additional District Judge, Markapur against the appellant herein seeking specific performance of agreement of sale dated 12.08.2014 with respect to the suit schedule property which is pending for consideration before the trial Court. While so, the respondents herein also filed an I.A. No.2 of 2021 in O.S.No.1 of 2021 on

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the file of the VI Additional District Judge, Markapur under Order XXXIX Rule 1 and 2 r/w section 151 of Code of Civil Procedure, seeking to grant temporary injunction restraining the appellant herein from creating any third party interest by way of executing a document with respect to the petition schedule land pending disposal of the suit which was allowed on contest vide order dated 08.02.2021. The said order is under challenge by way of this Civil Miscellaneous Appeal.

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The facts of the case are that the appellant herein is the absolute owner and possessor of the petition schedule land on the basis of two registered sale deeds dated 06.09.1997 and pattadar passbook bearing No.42152 with patta No.577. Then the respondents herein expressed their willingness to purchase the petition schedule land of Ac.4.00 for an amount of Rs.43,50,000/- per acre with a total sale price of Rs.1,74,00,000/- along with the right of way to the said land and paid an advance amount of Rs.43,50,000/- to the appellant herein on 12.08.2014 with an agreement to pay the balance sale consideration within five months. Accordingly, the appellant herein executed an agreement of sale dated 12.08.2014 on two papers of non judicial stamp worth Rs.200/-. In view of the “rastha dispute” with the neighbouring land owners, the time of the above said agreement of sale was extended up to 26.02.2015 vide endorsement dated 01.12.2014 by the appellant herein. It is the case of the respondents herein that the time of the above said agreement of sale was further extended till the “rastha dispute” is resolved vide endorsement dated 20.04.2015 of the appellant herein. However the respondents herein contend that they

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are ready and willing to perform their part of contract by paying the balance of sale consideration for execution of the regular registered sale deed by the appellant herein in respect of the petition schedule land. Since the appellant failed to execute his part of contract, the respondents were constrained to issue a legal notice dated 16.12.2020 demanding to receive the balance of sale consideration for executing a proper registered sale deed. The said notice was served on the appellant on 19.12.2020 as per the postal acknowledgment, but the respondent failed to appear in the Registrar Office on 24.12.2020. Since the respondents learnt that as the appellant was making hectic efforts to alienate the petition schedule property in favour of the third parties, they were constrained to initiate an action in the above said suit.

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On the other hand, the appellant opposed the said contentions of the respondents herein but admitted the execution of agreement of sale dated 12.08.2014 and one time extension of time up to 26.02.2015 vide endorsement dated 01.12.2014 on the agreement of sale dated 12.08.2014. Since the respondents could not pay the balance sale consideration before 26.02.2015, the appellant herein got issued a legal notice on 10.03.2015 through his advocate, cancelling the agreement of sale dated 12.08.2014 by forfeiting the advance amount of Rs.43,50,000/-. Then the respondents herein issued a reply notice on 02.04.2015. Again on 09.05.2015 another legal notice was issued by the respondents herein to the appellant herein to return the advance amount of Rs.43,50,000/- including the penalty and costs of Rs.5,000/-

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For which the appellant herein issued a reply notice dated 20.05.2015 stating that already the said agreement of sale was cancelled and as such they are not entitled for return of advance amount. The appellant further contended that the respondents herein issued another legal notice dated 16.12.2020 to avoid limitation and instituted the suit with an ulterior motive to gain wrongfully. The appellant further contended that in the notice of the respondents dated 16.12.2020 there was no mention about the second endorsement of extension of time of agreement of sale on 24.02.2015 and alleged that the said endorsement was created subsequently in a fabricated and forged manner.

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During the course of enquiry in the above said interlocutory application no oral evidence was adduced by the parties. But Exs.A1 to A6 were marked on behalf of the respondents herein and Exs.B1 to B4 were marked on behalf of the appellant herein subject to objection.

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After considering the case on merits, the trial Court observed that the Exs.B1 to B4 cannot be taken into consideration for the present and failure of performance of their part of contract by the respondents herein and forfeiture of advance amount by the appellant herein cannot be taken into consideration at this stage, which has to be decided during the course of trial in the main suit and the validity of the second endorsement dated 20.04.2015 whether it is genuine or fabricated has also to be decided in the main suit after adducing evidence by both the parties and as such allowed the I.A. by its order dated 08.02.2021. It was also observed since it is a suit for specific performance and in the

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meantime if the petition schedule land is alienated it would lead to multiplicity of proceedings and the object of institution of the suit would be defeated, if the nature of the property is changed or altered after its alienation.

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The learned Senior Counsel for the appellant contended that the agreement of sale dated 12.08.2014 was cancelled and the advance amount paid was forfeited, as the respondents herein have not paid the balance of sale consideration on or before 26.02.2015, the second endorsement for extension of time dated 20.04.2015 is a forged and fabricated one, there is no understanding between the parties to extend the time for the second time to pay the balance of sale consideration till the “rastha dispute” is resolved with the neighbours of the petition schedule property, and in that behalf he refers to the exchange of legal notices between the parties as mentioned above. He further contended that the appellant herein cannot be curtailed from alienating the petition schedule property due to the pendency of the above said suit as he suffers an irreparable financial loss and no prejudice would cause to the respondents herein as Section 52 of the Transfer of Property Act would come to their rescue. He further argues that the suit is also barred by limitation as the agreement of sale is of the year 2014 and institution of the suit is of the year 2021.

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Per contra, the learned counsel appearing for the respondents submit that the Court below rightly allowed the temporary injunction application in favour of the respondents herein restraining the appellant

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herein from creating any third party interest over the petition schedule property pending disposal of the suit. The above said agreement of sale was extended twice and the respondents have got sufficient time for payment of balance of sale consideration till the appellant reports the resolution of the dispute with the neighbours with respect to the “rastha” to the petition schedule property. Under the guise of said dispute the appellant herein deliberately evaded to receive the balance of sale consideration with an ulterior motive to sell away the said land for a higher price to the third parties. Unless the interim relief is granted the purpose of pursuing the suit would be defeated, as the respondents herein have got a good case in the suit. In the event of decreeing the suit by the Court below they would not be in a position to realize the same, in case the subject matter of the suit is not available and goes into the hands of third parties. To avoid the multiplicity of proceedings, it is just and necessary to protect the interest of the parties by maintaining the above said interim order pending disposal of the main suit. The above said suit was filed on 31.12.2020 and it is now coming up for filing written statement on 02.08.2021.

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In view of the above said submissions and contentions it is necessary to look into order XXXIX Rule 1 CPC as under :

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Rule 1 Order XXXIX of Code of Civil Procedure 1908 "Cases in which temporary injunction may be granted"._ 1[]_* Where in any suit it is proved by affidavit or otherwise_

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(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

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(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to 2[defrauding] his creditors,

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(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any properly in dispute in the suit,] the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property² [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.

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4[***]

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A reading of the above said provision clearly shows that the Court can grant temporary injunction to prevent the alienation of the suit schedule property by any party to the suit pending disposal of the suit in the interest of justice. However, the seeker of the said relief should establish prima facie case, balance of convenience and an irreparable loss in the event of non-granting of such relief as laid down by the Constitutional Courts including the Hon’ble Apex Court in catena of decisions time and again. Therefore we find some force in the arguments of the learned counsel for the respondents herein to keep the property intact pending the suit. Insofar as the arguments of the

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learned Senior Counsel and the defence taken by the appellant herein are concerned they are matters of evidence which can be gone into during the course of trial in the main suit.

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As narrated supra, the trial Court rightly allowed the above said I.A., with the cogent reasons and the same requires no interference at this stage.

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Accordingly, the Civil Miscellaneous Appeal is disposed of. No costs. However, the suit is directed to be disposed of, as expeditiously as possible, in accordance with law, for which both the parties shall cooperate.

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________________________ JUSTICE C. PRAVEEN KUMAR

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JUSTICE B. KRISHNA MOHAN

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3^rd August, 2021 Yvk

Yakkali Srinivasulu, v. Shaik Khasim

Case brief

What is this about?

What did the court decide?

Yakkali Srinivasulu, v. Shaik Khasim

Case brief

What is this about?

What did the court decide?

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