Kothanayagi vs B. Anand

B.S. Patil, J—These two appeals arise out of the common order dated 11.08.2014 passed on I.A. Nos. 1 & 2 filed by the plaintiff -respondent herein seeking temporary injunction.

I.A. No. 1 was filed seeking temporary injunction against the defendant not to alienate the suit schedule property. I.A. No. 2 was filed seeking a restraint order against the defendant not to alter or change the character and nature of the suit schedule property pending disposal of the suit. Both the applications have been allowed. Aggrieved by the same, defendant has preferred these two appeals.

As common question arises for consideration, both the appeals are heard together and are disposed of by this common judgment.

Plaintiff - respondent herein has instituted the suit O.S. No. 5416/2014 seeking specific performance of the Agreement of Sale dated 27.03.2014. The subject matter of the agreement is a site measuring 40'' X 60'' bearing No. 410, situated at 4th Block, 9th Phase, J.P. Nagar, Bengaluru. The total sale consideration agreed is Rs. 67,20,000/-. A sum of Rs. 5,00,000/- has been paid as advance. Remaining amount has been agreed to be paid within 60 days from the date of the agreement. 60 days expired on 25.05.2014. Plaintiff claims to have issued notice to the defendant calling upon her to execute the Sale Deed by receiving the balance sale consideration. He claims to have enclosed a draft of the Sale Deed for approval of the defendant. This notice was replied by the defendant on 27.06.2014 contending inter alia that the plaintiff had not adhered to the time schedule prescribed for payment of balance consideration and getting the Sale Deed registered. Defendant also denied having received the draft Sale Deed. Therefore, the claim of the plaintiff was denied. Thereafter, plaintiff has instituted the suit.

Along with the plaint, two applications have been filed seeking temporary injunction. Applications were resisted by filing objections. After considering the respective pleadings and the materials on record, the Trial Court has passed the order granting temporary injunction as prayed for recording a finding that if temporary injunction was not granted and if the defendant alienated the suit property to the third party or changed the nature or character of the same, it would cause irreparable injury to the plaintiff which would not be compensated in terms of money. The Court persuaded itself to hold that if temporary injunction for a limited period was granted, no harm or prejudice would be caused to both parties. Accordingly, the Court has granted temporary injunction for a period of 1 year holding that prima facie case had been made out for granting such a relief for a limited period. Aggrieved by the said order, the present appeal is filed.

I have heard the learned counsel for the appellant and the learned counsel appearing for the respondent. It is strenuously contended by the learned counsel for the appellant that time was the essence of contract and the plaintiff has committed default in paying the balance consideration within a period of 60 days as agreed and therefore, he has forfeited his right to seek specific performance of the contract and had lost his right even over the advance amount paid. He has placed reliance on the judgment of the Apex Court in the case of Mrs. Saradamani Kandappan Vs. Mrs. S. Rajalakshmi and Others, AIR 2011 SC 3234 : (2011) 8 JT 129 : (2011) 4 RCR(Civil) 130 : (2011) 12 SCC 18 : (2011) 8 SCR 874 and in the case of A.C. Arulappan Vs. Smt. Ahalya Naik, AIR 2001 SC 2783 : (2001) 6 JT 394 : (2001) 5 SCALE 154 : (2001) 6 SCC 600 : (2001) 2 UJ 1459 : (2001) AIRSCW 3046 : (2001) 5 Supreme 730 .

Learned counsel for the respondent supports the order under challenge and submits that if the interim order is continued for a further period issuing a direction to the Court below to expeditiously dispose of the case, his client will cooperate with the Court in expeditious disposal of the suit.

On consideration of the respective contentions, pleadings and the order under challenge, I find that the learned Judge has not dealt in detail with the facts of the case and various documents produced. However, the conclusion reached by him stating that in view of the nature of the suit and the fact that admittedly an Agreement for Sale had been entered into between the plaintiff and the defendant and admittedly amount of Rs. 5,00,000/- had been received by the defendant as advance amount, question whether the plaintiff would be entitled for specific performance of the agreement being a matter of trial, the property had to be preserved in status-quo till the disposal of the suit, is right and justified. This reasoning of the Court below in the facts and circumstances of the present case cannot be termed as illegal or perverse particularly because the Court below has fixed the time frame of 1 year for the interim order to operate making it clear that the suit could be disposed of within the said period.

Unfortunately, the suit has not been disposed of within a period of 1 year as both parties have not properly co-operated with the Court below. Although learned counsel for the appellant submits on merits that the plaintiff is not entitled for specific performance because time was the essence of the contract and the balance amount has not been paid by the plaintiff within the time stipulated and reliance is placed in this regard on the judgment of the Apex Court in the case Mrs. Saradamani Kandappan Vs. Mrs. S. Rajalakshmi and Others, AIR 2011 SC 3234 : (2011) 8 JT 129 : (2011) 4 RCR(Civil) 130 : (2011) 12 SCC 18 : (2011) 8 SCR 874 , this is a matter which has to be examined after trial. At this stage, this Court cannot record a finding on the question regarding time being the essence of contract or for that matter whether the plaintiff had come up with false assertions before this Court. Therefore, reliance placed by the counsel for the appellant on the two judgments referred to above would not be of much assistance at this stage. They may however, be relevant at the stage of consideration of merits of the matter.

Hence, keeping in mind the facts of the case, I am of the view that the interim order granted by the Court below for a period of 1 year which will expire on 11.08.2015 is extended by a further period of eight months with a direction to the Court below to dispose of the suit within that period. Ordered accordingly.

In the result and for the foregoing, these appeals are disposed of. Order of temporary injunction granted by the Court below is extended only till 11.04.2016. The Court below is directed to dispose of the suit well before the said date. Both parties are directed to co-operate in expeditious disposal of the case.

In view of the disposal of the main matter, I.As. 2 & 3/14 and I.A. 1/15 filed in MFA No. 6221/2014 and I.As. 1 & 2/14 and I.A. 1/15 filed in MFA No. 5976/2014 are disposed of as having become unnecessary.