Sri Udaya Shankar Babu Vs Sri Umesha S C

SRI. UMESHA S C S/O LATE CHANNEGOWDA @ SANNEGOWDA AGED ABOUT 50 YEARS R/O SATHANURU VILLAGE AND POST, SATHANURU HOBLI, KANAKAPURA TALUK …RESPONDENT (BY SRI.PRAKASH.M.H, ADVOCATE)

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THIS MFA FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT. 28.02.2025 PASSED ON IA NO.III IN O.S.NO.437/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KANAKAPURA, REJECTING THE IA.NO. III FILED U/O.39 RULE 4 R/W SEC.151 OF CPC, 1908.

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NC: 2025:KHC:39160 MFA No. 3218 of 2025

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HC-KAR

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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Though the appeal is listed for admission, with

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consent of both the learned counsel appearing for the parties, the matter is taken up for final disposal.

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This appeal is filed by the defendant in O.S.No.437/2021 questioning the order dated 28.02.2025 passed on I.A.No.III filed under Order XXXIX Rule 4 read with Section 151 of CPC in O.S.No.437/2021 on the file of Senior Civil Judge and JMFC, Kanakapura¹ , thereby, the application filed for vacating the interim order of temporary injunction is rejected.

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.

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1hereinafter referred to as ‘the Trial Court’ for short

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HC-KAR

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The plaintiff has filed the suit for specific performance of contract by pleading that the defendant is the owner of the suit schedule property and that an unregistered agreement of sale was executed between the plaintiff and defendant dated 14.09.2020 for a total sale consideration amount of Rs.1,70,00,000/-. It is further pleaded that an advance amount of Rs.5,00,000/- was paid through a cheque to the defendant and an amount of Rs.35,00,000/- was paid through cash, but the defendant has not come forward to execute the sale deed as per the unregistered agreement of sale; therefore, the plaintiff after issuing the legal notice dated 17.08.2021 filed the suit on 08.09.2021.

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The plaintiff has filed an application I.A.No.I under Order XXXIX Rules 1 and 2 read with Section 151 of CPC, which was allowed restraining the defendant from alienating the suit schedule properties. The defendant has filed written statement and the learned Senior Counsel for the defendant/appellant has contended that the defendant

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HC-KAR

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had taken hand loan of Rs.5,00,000/- and towards security for the same, a document of unregistered agreement of sale was executed and the defendant really has not intended to sell away the suit schedule land, but the plaintiff has created this circumstance as an unregistered agreement of sale, this was not correctly considered by the Trial Court, resulting into passing of erroneous and perverse order. By which, the defendant is blocked from utilizing his own land. Hence, in this line of prayer, the learned counsel for the appellant/defendant submitted that the order passed by the Trial Court is perverse and illegal, which needs interference by this Court. Also, places reliance on the judgment of Hon’ble Supreme Court in the case of CORRESPONDENCE, RBANMS EDUCATIONAL INSTITUTION VS. B. GUNASHEKAR AND ANOTHER² (Correspondence

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case) .

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22025 SCC Online SC 793

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NC: 2025:KHC:39160 MFA No. 3218 of 2025

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HC-KAR

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On the other hand, learned counsel for the respondent/plaintiff submitted that the defendant has admitted the execution of unregistered agreement of sale and receipt of having paid an advance amount of Rs.5,00,000/- through the cheque and there is a recital in the unregistered agreement of sale that the plaintiff has paid a sum of Rs.35,00,000/- by way of cash on various dates and the defendant had acknowledged the receipt of the same and has executed the unregistered agreement of sale. Hence, the defendant consciously executed the unregistered agreement of sale and this is not a mere document towards security of loan, but is an unregistered agreement of sale.

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Further, learned counsel for the

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respondent/plaintiff submitted that the defendant has admitted the execution of unregistered agreement of sale and the receipt for having paid an advance amount of Rs.5,00,000/- and there is no perversity found in the order passed by the Trial Court. Therefore, justified the order

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HC-KAR

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passed by the Trial Court and prays to dismiss the appeal

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by placing the reliance on the judgment of Hon’ble Supreme Court in the case of RAMAKANT AMBALAL CHOKSI VS. HARISH AMBALAL CHOKSI AND OTHERS³ (Ramakant Ambalal Choksi case).

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Upon hearing the learned counsel appearing for both the parties and upon perusing the documentary evidence placed on record, the following points would arise for my consideration:

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i. Whether, under the facts and circumstances involved in the case, the defendant has demonstrated that the plaintiff has not made out a prima facie case so as to grant an order of temporary injunction?

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ii. Whether, under the facts and circumstances involved in the case, defendant makes out ground that the plaintiff fails to make out balance of convenience?

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iii. Whether, under the facts and circumstances involved in the case, the defendant makes out a case that if an order of temporary injunction is

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3Civil Appeal No.13001/2024 dated 22.11.2024

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HC-KAR

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not granted, then the plaintiff would not suffer loss and injury?

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Learned Senior Counsel for the

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appellant/defendant submitted that it is only an unregistered agreement of sale that does not convey the title as per Section 54 of the Transfer of Property Act, 1882 (for short ‘the TP Act, 1882’). Further submitted that there is no receipt or any prima facie material to show that the plaintiff has paid a sum of Rs.35,00,000/- in cash to the defendant. The total sale consideration amount of Rs.1,70,00,000/-, but the advance amount paid is Rs.5,00,000/-, which is disproportionate to believe that there was an unregistered agreement of sale. Further submitted that for raising hand loan of Rs.5,00,000/- from the plaintiff, a document of unregistered agreement of sale was executed and this is only for security purpose and the defendant has repaid the same to the plaintiff.

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10. Further submitted that the plaintiff is a money

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lender and has lent money to the defendant and created

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HC-KAR

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such an unregistered agreement of sale. Admittedly, the defendant is the owner of the suit schedule land and the agreement of sale alleged is an unregistered agreement of sale. The total sale consideration amount of Rs.1,70,00,000/- and as per the plaintiff, an amount of Rs.5,00,000/- was paid through cheque to the defendant as an advance amount.

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It is the case of the plaintiff that an amount of Rs.35,00,000/- was paid by way of cash, but for which the plaintiff has not produced any prima facie materials. When it is the case of the plaintiff that he has paid an amount of Rs.35,00,000/- by way of cash to the defendant, then the prudent approach is to ask for some receipt. Mere mentioning in agreement of sale without mentioning the dates of lending of such huge amount cannot be believed to be a valid agreement of sale. In this regard, it is worthwhile to refer the judgment of Hon’ble Supreme Court in the case of Correspondence (supra). If the plaintiff has paid such huge amount by way of cash,

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HC-KAR

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whether the plaintiff has shown any prima facie materials having declared that this huge amount was paid in cash to the concerned Income Tax authorities. But the plaintiff has not produced any materials having declared the same in his income tax returns. In this context, the Hon’ble Supreme Court issued certain guidelines in

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Correspondence case (supra).

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Further, the Hon’ble Supreme Court in the Correspondence case (supra) observed that regarding a mere unregistered agreement of sale does not have any conveyance and passing title to the vendee. It is a mere unregistered agreement of sale without conveyance; the Trial Court has assigned reasons that though the plaintiff has not placed any prima facie material on record to show that he has paid Rs.35,00,000/- in favour of the defendant, it is a matter for trial as the plaintiff has the liberty to adduce oral and documentary evidence to prove this fact. This observation of the Trial court is completely perverse in nature. When the plaintiff is claiming that he

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HC-KAR

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has paid an amount of Rs.35,00,000/- by way of cash, there ought to have been some material to support his contention that the defendant has received the said amount; otherwise, this observation would become perverse.

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Further observed that the defendant has not filed written statement and the plaintiff is examined as PW-1 and the case was posted for the cross-examination before the Trial Court; therefore, vacating the order of temporary injunction will not arise. When the plaintiff fails to make out prima facie case, the mere stage of crossexamination of PW-1 is not sufficient to sustain the order of temporary injunction. Admittedly, the defendant is the owner of the suit schedule property. Now, by virtue of interim order of temporary injunction, the defendant is blocked from utilizing his own land by mere unregistered agreement of sale. The title, right and interest over the property are not conveyed to the holder of the unregistered agreement of sale. Therefore, considering the

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NC: 2025:KHC:39160 MFA No. 3218 of 2025

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HC-KAR

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principle of law laid down by the Hon’ble Supreme Court in

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Ramakant Ambalal Choksi case (supra), the impugned order passed by the Trial Court is found to be perverse in nature. Accordingly, I answer point Nos.(i) to (iii) in the Affirmative. Hence, the impugned order is liable to be set aside. Accordingly, set aside. Thus, the appeal is liable to be allowed.

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