Remanded

Madhu Chamoli v. A.N. Bahuguna and Others

Punjab & Haryana HC17 Oct 2012CR/3314/2009

Case brief

AI extract

What is this about?

In a civil revision against an appellate order setting aside an injunction, the court declined to grant an injunction restraining alienation due to lack of strong prima facie case. However, it modified the order directing the respondent to deposit Rs. 5,41,000 to protect the petitioner against financial loss if injunction is restored. Relief is conditional on deposit.

What did the court decide?

Respondent directed to deposit Rs. 5,41,00/- within 8 weeks; injunction not granted; appellate order modified.

Madhu Chamoli Vs A.N. Bahuguna and Others — Property and Title | Punjab & Haryana HC (2012)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No.3314 of 2009 (O&M) Date of decision:17.10.2012.

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Smt. Madhu Chamoli wife of Shri A.P. Chamoli, resident of House No.598, Sector 8-B, Chandigarh.

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...Petitioner

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versus

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Shri A.N. Bahuguna son of late Shri S.N. Bahuguna, resident of House No.12, Laxmi Nagar, Dalanwala, Dehradun, Uttrakhand, and others.

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....Respondents

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CORAM: HON’BLE MR. JUSTICE K. KANNAN

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Present: Mr. S.S.Behl, Advocate, for the petitioner.

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Mr. N.D. Achint, Advocate, for respondent No.1.

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Mr. Ajay Nara, Advocate, for respondents 2 and 3.

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Whether reporters of local papers may be allowed to see the judgment ? No.

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To be referred to the reporters or not ? No.

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Whether the judgment should be reported in the digest ? No.

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----

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K.Kannan, J. (Oral)

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The petition is against the order allowing the appeal filed

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by the defendant-respondent in the application setting aside the order of injunction issued by the trial Court. The injunction was sought by the plaintiff-revision petitioner to restrain the defendant

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Civil Revision No.3314 of 2009 (O&M) - 2 -

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from alienating the property which, according to the petitioner, had been purchased in trust in the name of the respondent, but the petitioner herself was meant to be the beneficiary. It is contended that the petitioner had actually parted with consideration but got secured the allotment in favour of the respondent only on account of the fact that the respondent was an army personnel and the allotment of a plot from the public authority was in a quota reserved for army personnel and hence, could not be taken in her name. Whether such an expression of trust and an allotment could be obtained in breach of a quota reserved for a particular purpose for the benefit of some other person who did not belong to the category are still not matters for an adjudication now, for, I am at merely an interlocutory stage and they will be issues for consideration at the time of final disposal of the suit itself. Suffice it to point out that the plaintiff-petitioner was seeking for an injunction on the basis of her assertion that she had parted with ` 5,41,000/- on various dates. Drafts had been taken to the credit of the respondent by the only fact that the allotment was to be taken in terms of the policy in the name of the respondent.

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The respondent, who was the brother of the plaintiff, contended that he was himself the beneficiary of allotment and there was no form of trust. It is also contended that the transaction betrayed the untenability of the contention of violation of the

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Civil Revision No.3314 of 2009 (O&M) - 3 -

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provisions of law under the Benami Transactions Prohibition Act, 1988. The order of the trial Court granting injunction was set aside on a reasoning by the appellate Court that the plaintiff's contentions would fall foul of the Benami Transactions Prohibition Act, 1988 and found that the petitioner was not entitled to injunction.

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The learned counsel for the petitioner would contend that he has all the proof in his hand with all the original documents regarding the payment of consideration to HUDA for securing allotment. The counsel would also rely on the affidavit given by the respondent to HUDA giving his willingness to have the property allotted and transferred to the petitioner. These circumstances, according to the petitioner, provide a strong prima facie case to secure the relief of injunction. The learned counsel would also argue that if any alienation is made, third party interest would come about which will cause very serious prejudice.

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The learned counsel for the respondent would reiterate that the amounts had been sent by him at various times to his sister to purchase the property only because he was staying away in various army postings and, therefore, the receipts had been secured by the sister. The custody of the receipts themselves therefore would afford no proof to the petitioner to her actual payment of her her own account.

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Civil Revision No.3314 of 2009 (O&M) - 4 -

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Any observation relating to the source of consideration will vitally affect merits of the respective contentions of parties. The issue of whether the property which was purchased in the name of the defendant was for the benefit of the petitioner in exercise of any fiduciary capacity will also be prejudging the issue of what is required to be considered at the trial. If there are original documents which the petitioner holds for proof of making the payments, to that extent at least, I would think that the petitioner's right would require to be protected. I cannot find a good enough reason to cause a fetter against the alienation, for, the right to alienation is a necessary incident of ownership which would require to be zealously protected. Indeed the legal provision under the Transfer of Property Act making an absolute restraint of transfer itself as void is a recognition of this legal incident to property. Restraint against alienation is brought to ensure that third party interest do not cause serious prejudice, where a strong prima facie case is available. I would not find that a strong prima facie case of title is available to the plaintiff against the tenor of the document and what appears to me to be prima facie against the public policy. I would therefore decline the relief of injunction but to make the scales even, I direct the defendant to deposit ` 5,41,000/- within a period of 8 weeks from the date of receipt of copy of this order in Court deposit to the credit of the case. This is merely to ensure that the defendant does

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Civil Revision No.3314 of 2009 (O&M) - 5 -

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not get injunction granted by the trial Court vacated without any financial detriment. This becomes essential in view of the fact that the original records relating to the receipts are produced by the petitioner and the defendant himself offers no proof of transmission of any amount from his end to the petitioner. If the amount is not deposited as directed, the petitioner will have the order of injunction restored. If the 1^st defendant transfers the property during the pendency of suit, it is needless to state that it shall be affected by lis pendens and to that extent any purchaser will be affected by the ultimate decision rendered in the case. Alteration of status quo by putting up construction will also be subject to a similar treatment of such construction being subject to the right of adjudication regarding title as asserted by the plaintiff and will afford no special equities to the purchaser. The order of the appellate Court stands modified to the above extent and the civil revision is disposed of.

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(K.KANNAN) JUDGE

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17.10.2012 sanjeev

Madhu Chamoli v. A.N. Bahuguna and Others

Case brief

What is this about?

What did the court decide?

Madhu Chamoli v. A.N. Bahuguna and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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