Dismissed

Smt K Gowri v. Sri K Satynarayana Setty

Karnataka HC13 Mar 2024MFA/293/2024

Case brief

AI extract

What is this about?

Defendant appealed against an interim injunction restraining alienation of suit property in a suit for specific performance of an agreement of sale. Holding a prima facie case was made out and the loan-transaction claim was triable, the High Court found no error and dismissed the appeal.

What the court decided

AI extract

Smt K Gowri Vs Sri K Satynarayana Setty — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:10362 MFA No. 293 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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MISCELLANEOUS FIRST APPEAL NO. 293 OF 2024 (CPC)

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BETWEEN:

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SMT. K. GOWRI W/O. DR. H.D. RAMAKRISHNA GOWDA, AGED ABOUT 63 YEARS, R/AT NO.1796-B, 6^TH MAIN, 9^TH CROSS, RPC LAYOUT, VIJAYNAGAR, BANGALORE-560091

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…APPELLANT (BY SRI. SHREYAS A.P., ADVOCATE FOR SRI. PREMA KUMAR A.L., ADVOCATE)

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AND:

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SRI. K. SATYNARAYANA SETTY S/O LATE N.S. KRISHNAIAH SETTY, AGED ABOUT 72 YEARS, R/AT NO 241, 3^RD MAIN, MAHALAKSHMI LAYOUT, BANGALORE-560086

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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…RESPONDENT (BY SRI. KESHAVA MURTHY B., ADVOCATE)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) READ WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED 05.12.2023 PASSED ON I.A.NO.2 IN OS.NO.2998/2023 ON THE FILE OF THE VIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH15, ALLOWING THE I.A.NO.II FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2024:KHC:10362 MFA No. 293 of 2024

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JUDGMENT

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The defendant in O.S.No.2998/2023 on the file of VIII Additional City Civil and Sessions Judge, Bengaluru has filed this appeal challenging an order dated 05.12.2023, by which, an application (I.A.No.II) filed by the plaintiff under Order XXXIX Rules 1 and 2 of Civil Procedure Code for interim injunction restraining the defendant from alienating the suit schedule property was allowed.

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The suit in O.S.No.2998/2023 was filed for specific performance of an agreement of sale dated 03.11.2020, in terms of which, the defendant had purportedly agreed to sell the suit property to the plaintiff for a total sale consideration of Rs.2,55,00,000/-. The plaintiff claimed that he had paid entire sale consideration of Rs.2,55,00,000/-. He claimed that the defendant had failed to perform his part of contract and failed to conclude the transaction, which compelled the plaintiff to file the suit for specific performance.

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The defendant contested the suit and claimed that

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though the document was titled as sale agreement, it was a commercial loan transaction between the defendant and the

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3 - NC: 2024:KHC:10362 MFA No. 293 of 2024

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plaintiff to construct an apartment. He submits that similar such agreements which were entered into in the past were squared off and therefore, the plaintiff is not entitled to the relief of specific performance. Along with the suit, the plaintiff filed an application to restrain the defendant from alienating the suit schedule property, which too was contested by the defendant.

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The Trial Court noticing the contentions of the plaintiff and the defendant held that both the parties had admitted the execution of the agreement of sale. It noticed that while the defendant claimed that it was a commercial loan transaction, the plaintiff claimed that it was an out and out sale of suit property. Therefore, the Trial Court held that the whether the transaction was a genuine sale of the suit property or was a loan transaction, was a question of fact which had to be tried and therefore, until the Court decided the said issue, the defendant cannot be permitted to alienate the suit property and consequently, restrained the defendant from alienating or encumbering the suit property in any manner or whatsoever.

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NC: 2024:KHC:10362 MFA No. 293 of 2024

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Being aggrieved by the said order, the defendant

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has filed this appeal.

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The learned counsel for the defendant reiterated the contentions as above and contended that when there is enormous material on record which indicated that the plaintiff and the defendant were involved in similar such transactions in the past, the Court ought to have considered the claim of the plaintiff with a pinch of salt and must have refused to grant any interim relief to the plaintiff.

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Per contra, the learned counsel for the plaintiff submitted that a sum of Rs.15,00,000/- was transferred to the account of the defendant on 05.09.2020 and later a sum of Rs.2,40,00,000/- was paid to the defendant through various transfers. He therefore contends that since the defendant did not dispute the execution of the agreement of sale, but claimed that it was a loan transaction, a triable case was made out by the plaintiff and therefore, the status-quo of the property had to be maintained, so as to avoid multiplicity of proceedings and to avoid creation of third party right.

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NC: 2024:KHC:10362 MFA No. 293 of 2024

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I have considered the submissions made by the learned counsel for the appellant and the learned counsel for the respondent.

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In view of the specific contention of the plaintiff that the defendant had agreed to sell suit property for a total sale consideration of Rs.2,55,00,000/- and in view of his assertion that the entire consideration was paid on the date of the agreement itself and as the same is not seriously disputed by the defendant, a prima facie case was made out by the plaintiff for grant of interim injunction to restrain the defendant from alienating the suit property.

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The question whether the transaction was a hand loan transaction or not, is a question of fact which has to be established before the Trial Court by the defendant. Besides this, there is nothing to show that the defendant has repaid the loan allegedly raised by him from the plaintiff.

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In that view of the matter, there is no error committed by the Trial Court in granting the order of injunction restraining the defendant from alienating or encumbering or transferring the suit property in any manner whatsoever.

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NC: 2024:KHC:10362 MFA No. 293 of 2024

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Hence, there is no merit in this appeal, and the

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same is dismissed.

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Sd/JUDGE

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HJ List No.: 2 Sl No.: 5

Smt K Gowri v. Sri K Satynarayana Setty

Case brief

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Smt K Gowri v. Sri K Satynarayana Setty

Case brief

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