Dismissed

Dnyandeo Pundlik Attarde and Ors. v. Swarupkumar Bhagchand Lunkad

Bombay HC3 Jul 2012AO/77/2012

Case brief

AI extract

What is this about?

This appeal challenged an order granting interim injunction in a specific performance suit. The High Court observed that appellants did not plead inability to obtain loans due to the injunction. Interference was denied, though the lower court was directed to decide the suit expeditiously within one year.

What did the court decide?

Declined interference; directed the lower court to decide the suit within one year; Appeal from Order and Civil Application disposed of.

Dnyandeo Pundlik Attarde and Ors. Vs Swarupkumar… — Specific Performance | Bombay HC (2012)

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ao.77.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD.

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APPEAL FROM ORDER NO.77 OF 2012 ,With CA/6652/2012 In AO/77/2012

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DNYANDEO PUNDLIK ATTARDE AND ORS.

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... APPELLANTS.

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VERSUS

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SWARUPKUMAR BHAGCHAND LUNKAD.

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... RESPONDENT.

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Advocate for Petitioners : Mr. Talhar Ajay G. Advocate for Respondent: Mr. S B Yawalkar.

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CORAM : S.S. SHINDE, J.

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Dated: July 03, 2012.

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PER COURT:

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Heard learned Counsel for the parties.

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This appeal from order is directed against the order dated 24th February, 2012 passed by the 5th Joint C.J.S.D., Jalgaon below Exh.6 in Special Civil Suit No.181 of 2011 thereby allowing the application filed by the original plaintiff restraining the defendants No.

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ao.77.12

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1 to 7 from alienating, transferring the suit property or creating third party rights therein till disposal of the suit.

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The learned Counsel for the appellants submits that, the appellants are true owners of the property and they cannot be restrained from enjoying their property including to alienate the same or create third party rights. It is submitted that due to the impugned order, the appellants are not able to obtain any loan from any financial institution though they are in dire need of such loan. The learned Counsel for the appellants pressed into service the judgment of the Supreme Court in case of Hanumanthappa vs. Muninarayanappa [1996 (11) SCC 696] and submitted that the appellants herein have purchased the suit property on 3rd June, 2011. The suit was filed on 23rd November, 2011. The appellants are already put in possession of the suit property. Therefore, the impugned order should not have been passed by the Court restraining the lawful owners i.e. the appellants

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from alienating the property or creating third party rights.

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The learned Counsel for the respondent - original plaintiff submits that the suit has been filed for specific performance. In case, the petitioners are allowed to sell or alienate the suit property or create third party rights therein, nothing would survive in the suit. It is submitted that the grounds which are orally agitated by the Counsel for the appellants that they want to obtain loan from the financial institution, was not pleaded before the Court below. Therefore, this Court may not interfere with the impugned order.

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Upon hearing the learned Counsel for the parties

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and perusal of the impugned judgment and order and in view of the suit filed for specific performance, in my opinion, the only appropriate course which was available to the civil Court was to pass the impugned order restraining the appellants from alienating, transferring or creating third party rights in the suit

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property till disposal of the suit. Though the learned Counsel for the appellants agitated the ground that the appellants wish to take loan from financial institution, on careful perusal of the pleadings and averments in the appeal from order or before the lower Court, such a ground has not been taken by the appellants. In normal course, interim order should follow unless case is made out by the defendant that by such order or injunction, irreparable loss will be caused to the defendant. In the present case, no such grounds were taken before the Civil Court. On a query to the learned Counsel for the appellants as to whether the appellants wish to alienate the suit property, there is no convincing statement that the appellants herein who are original defendants wish to sell or transfer the suit property.

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In that view of the matter, in my opinion, at this stage, no interference is warranted. However, it would be in the interest of justice if the concerned Court is directed to hear and decide the Special Civil

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ao.77.12

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Suit No.181 of 2011, as expeditiously as possible, and in any case within one year from today. It is made clear that the concerned Court shall not grant unnecessary adjournments unless there are extraordinary circumstances to grant adjournment. The learned Counsel for the parties make a statement that the parties will cooperate for early disposal of the suit. Appeal From Order as also the Civil Application stand disposed of, accordingly.

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PLK/*

Dnyandeo Pundlik Attarde and Ors. v. Swarupkumar Bhagchand Lunkad

Case brief

What is this about?

What did the court decide?

Dnyandeo Pundlik Attarde and Ors. v. Swarupkumar Bhagchand Lunkad

Case brief

What is this about?

What did the court decide?

What the court decided

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