Agriculture Produce Market Committee and Another vs Mathurbhai Karshanbhai Shekhat and Others

D.A. Mehta, J.—This appeal has been preferred challenging order dated 16/12/2008 rejecting application Exh.5 seeking interim injunction during pendency of Special Civil Suit No. 58 of 2008 filed by the appellants (original plaintiffs) in the Court of learned Senior Civil Judge, Junagadh. The appellants herein are the original plaintiffs while the respondents are the defendants. For the sake convenience, herein after the parties shall be referred to as per their respective description in the suit.

Plaintiff No. 1 was in need of land for creating a sub-yard by way of expansion plans and therefore entered into an agreement of sale with the defendants in respect of lands bearing Survey Nos. 55/P/2 ad-measuring 4-Acres 26-Gunthas and 53/P/1 ad-measuring 0-Acres and 10-Gunthas as well as Survey No. 401 ad-measuring 0-Acre and 12-Gunthas. The agreement for sale was registered under No. 1749 on 03/03/2008. Defendant No. 1 was paid a sum of Rs. 15 Lacs on 03/03/2008 by way of cheque with two more cheques, each of Rs. 1,50,000/-, paid to defendants No. 2 and 3. Thus in all a sum of Rs. 18 Lacs was paid by plaintiff No. 1.

As per terms of agreement, more particularly Clause No. 8 final sale-deed had to be executed by the parties after necessary permission was received from the competent authority for sale of land, which was agricultural in nature. Plaintiffs therefore moved the competent authority but on 24/04/2008 permission was refused as the said land was falling within industrial zone. Plaintiffs therefore, on finding that it was not possible to purchase the lands in question, requested the defendants to return the sum of Rs. 18 Lacs. According to plaintiffs despite various correspondences and also legal notice through Advocate on 04/06/2008 as the amount was not returned by the defendants the suit was filed by the plaintiffs alongwith application Exh.5 seeking interim injunction. The application specifically made a prayer that till the point of time amount of Rs. 18 Lacs paid towards earnest money is not returned to the plaintiffs defendants be restrained from selling or transferring or alienating the lands in question in favour of any other persons, with further prayer seeking direction to the defendants to deposit the sum of Rs. 18 Lacs with interest in the Court.

The trial Court has rejected the application vide impugned order dated 16/12/2008 by coming to the conclusion that the suit in principle is for recovery of the amount and the defendants are in possession of various other properties and lands, viz., other than the land in question, and hence in absence of any prima-facie case application Exh.5 is not required to be granted.

The trial Court has also referred to the defence taken by the defendants to the effect that a sum of Rs. 15 Lacs has been spent by the defendants as per directions of the plaintiffs and observed that in absence of any evidence in this regard it is not possible to determine at the stage of determination of application Exh.5 as to whether the amount has been spent, and if so, as per directions of the plaintiffs. The trial Court has further recorded that as per the plaintiffs themselves the agreement has been rendered infructuous and cannot be satisfied and therefore also no case was made out for granting any injunction as prayed for.

Learned Advocate for the plaintiffs-appellants submitted that trial Court committed an error in treating the suit as a simple suit for recovery without appreciating that plaintiff No. 1 was a market committee, viz., a Body constituted in accordance with statute, and the fund of market committee was required to be protected. That property in the form of the amount paid by the plaintiffs to the defendants was to be converted into property in the form of lands, agreed to be purchased, but till the point of time the amount was returned to the plaintiffs, interest of the plaintiffs was required to be protected by ensuring that the lands in question were not alienated by the defendants as otherwise the plaintiffs would be left remediless even after succeeding in the suit. It was further stated that defendants themselves were claiming that the property in the form of amount of Rs. 15 Lacs had been spent away and therefore also, plaintiffs were required to be protected.

On behalf of defendants learned Advocate pointed out that case was not covered by provisions of Order XXXIX Rule 1 or Rule 2 of the Code of Civil Procedure, 1908 (CPC) and therefore there was no question of holding that the trial Court had committed any error in refusing interim injunction. That under Rule 1 of Order XXXIX of CPC the trial Court was empowered to grant temporary injunction only if any of the conditions stipulated by the said provision are shown to be satisfied. Similarly Rule 2 of Order XXXIX of CPC also could not be applied to the facts of the case. That trial Court had rightly come to the conclusion that this was a suit for recovery of money simplicitor and in absence of any prima-facie case or balance of convenience in favour of plaintiffs temporary injunction could not be granted.

A plain reading of provisions of Order XXXIX Rule 1 of CPC makes it clear that the trial Court may grant temporary injunction, if any of the three conditions stand satisfied, to restrain any act by which any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit etc. Admittedly in the facts of the case neither Clause (b) nor Clause (c) of Rule 1 of Order XXXIX of CPC can be applied. The only question that survives therefore is whether the property in dispute in the suit is danger of being wasted, etc. Even if one accepts the contention raised on behalf of plaintiffs that the amount which was given by the plaintiffs to the defendants can be termed to be property of the market committee yet there is nothing on record to indicate in the first instance, that the property, viz., the amount, is the property in dispute in the suit; and secondly, even if the amount in question is the property that was not the property in suit per se. In-fact, the facts recorded herein before unequivocally show that the parties had agreed to transact in relation to the lands in question and because of certain statutory restrictions the transaction could not go through. Therefore there is no property as such which is in dispute in the suit. The amount which was paid by way of deposit at the time of execution of the agreement is sought to be recovered. There is nothing on record to indicate that either the defendants are going to become insolvent or that the defendants are not going to be traceable, as and when the plaintiffs may succeed in the suit. To the contrary, as recorded by the trial Court, even if the lands in question which were agreed to be transacted, are alienated by the defendants, the defendants are in possession of sufficient other properties as well as other lands to satisfy the decree, if any, which may be obtained by the plaintiffs ultimately.

In the aforesaid set of facts and circumstances of the case it is apparent that in absence of any legal infirmity in the impugned order dated 16/12/2008 rejecting application Exh.5 moved by the plaintiffs the impugned order made by the trial court does not warrant interference.

Accordingly appeal is dismissed with no order as to costs. Notice discharged.