Mohammad Iqbalbhai Abdulkarim vs Chhaganbhai Shambhubhai Radadiya

Dr.A. P. Thaker, J

The appellant herein has filed this Appeal being aggrieved by the order dated 29.6.2019 passed by the Principal Senior Civil Judge, Mandvi, Surat

below Exh-5 in Special Civil Suit No. 262 of 2016, whereby Notice of Motion application preferred by the respondent herein has been partly allowed

whereby the part interim injunction application filed by the respondent, came to be partly allowed restraining the appellant from selling, transferring or

creating any kind of encumbrances on the suit land property. The appellant is a defendant and the respondent is the plaintiff before the trial Court. For

the brevity and convenience, the parties are referred in this matter as per the character assigned to them before the trial Court.

The plaintiff has filed the suit against the defendant-appellant for specific performance of contract as well as permanent injunction on the ground

that there was an agreement to sell entered into between the parties way back in the year 2008. It is alleged that the plaintiff has paid almost Rs.15

lakh out of Rs. 1,11,96,000/- and odd amount. It is alleged that the defendant had to get the title cleared within 40 days from the date of execution of

the Agreement to Sell and at that time, the plaintiff to pay the remaining amount as agreed between the parties. It is alleged by the plaintiff that he

was ready and willing to perform his part of Contract and had repeatedly call upon the respondent to execute the sale-deed but they were asking huge

amount over and above the consideration prices and not ready to perform their part of the Contract. It is alleged that it has come to the knowledge of

the plaintiff that the respondents are trying to create third party in the Suit land and, therefore, he ahs prayed the Court for relief of specific

performance as well as declaration of permanent injunction as well as for interim injunction during the pendency of the Suit. It was one of the grounds

that the possession was handed over to the plaintiff at the time of execution of agreement to sell.

2.1 It emerges from the papers that other respondents have resisted the Suit by contending that the plaintiff has filed to perform his part of Contract

though he was served with Notice way back in the year 2008 for execution of the sale-deed. Of course, defendant has admitted the fact of execution

of sale and had also accepted the part payment of Rs. 15 Lakh. But the stand of the defendant is that in the year 2008, they had issued notice for

performance of the Contract and asked the plaintiff to re-pay the consideration amount and get the registration deed executed in his favour. But the

Plaintiff did not complied with the notice. It is also contended that during the interregnum period, third party has been created on the Suit land. The

defendant has also raised the ground of delay in filing the Suit contending that though the agreement to sell was of the year 2008, the plaintiff has filed

the Suit in the year 2016 and, therefore, there was almost delay of 8 years. On this ground, the defendant has prayed to dismiss the Suit as well as the

application for interim injunction.

Heard Mr. R.S. Sanjanwala, learned Senior Counsel assisted by Mr. Tarak Damani, learned advocate for the appellant-defendant and Mr. Dhaval

Barot, learned counsel for the plaintiff- respondent through video-conferencing.

Mr. Sanjanwala, learned Senior Counsel for the appellant-defendant has vehemently submitted that the plaintiff has not performed his part

agreement to sell and though he was served with notice for execution of the sale-deed, the plaintiff did not turned up. He has submitted that the

plaintiff has paid Rs.10 Lakh only and thereafter he has not paid anything to the defendant. He has also submitted that the notice sent to the plaintiff

came to be received with an endorsement of “refusedâ€. While inviting the attention of this Court towards the observation of th trial Court that

there is no signature of the plaintiff on the receipt of the said Notice, the learned Senior Counsel Mr. Sanjanwala has vehemently submitted that when

the notice was returned back with endorsement ‘refusedâ€​ , there is no question of any signature of plaintiff on the receipt.

4.1 Mr. Sanjanwala, learned Senior Counsel has also submitted that during the period from 2008 to 2016 nothing has happened and during this period,

the plots have been sold to the third party and right of third party have been created in the Suit land whom the plaintiff has not joined. He has also

submitted that there is a delay of 8 years in instituting the suit for specific performance. He has also submitted that the plaintiff has not taken any step

to get the sale-deed executed in his favour though he was served with legal notice which he refused. Mr. Sanjanwala, learned Senior Counsel also

submitted that the relief of interim injunction being an equitable relief, the delay in filing of the suit for almost 8 years is one of the grounds for refusal

of the interim relief. He has also submitted that even if the plaintiff succeeds, he can be compensated by way of damages. He has submitted that trial

Court has not considered the Panchnama wherein the possession is with the defendant and the change of nature of the Suit land. He has also

contended that trial Court has mis-read the documentary evidence produced on record and has also not considered basic principles of law in respect to

granting or refusing of the interim relief. He has prayed to allow the appeal.

4.2 On the ground of delay, Mr. Sanjanwala, learned Senior Counsel has relied upon the decision of this Court rendered in the case of Veetrag

Holdings Co. Ltd v. Gujarat State Textile Corporation ltd., reported in 1996 (3) GLR 536, wherein in Para-8, this Court has observed that when it

comes to grant of equitable relief when the suit is filed after such a lapse of time, it cannot be said that the remedy of interim injunction was the

necessary remedy and there was no other remedy available to the party concerned in this behalf.

Per contra, Mr. Dhaval Barot, learned Counsel for the plaintiff has vehemently submitted that the order of the trial Court is proper and there is no

need of any interference at this stage. He has submitted that till today, there is no termination of the agreement to sell and the defendant side has

accepted the execution of the agreement to sell and also accepted part payment. He has also submitted that as per the condition of the agreement to

sell, title of the property was to be got cleared by the defendant within 40 days and thereafter he had to execute the sale-deed in favour of the

defendant. He has submitted that the defendant has not got cleared the title and, therefore, there was no execution of the agreement to sell. He has

submitted that as per agreement to sell, possession was handed over to the plaintiff and he is in possession of the suit land. Regarding the endorsement

of refusal on the notice, he has submitted that there is no evidence that the plaintiff has refused the same. He has submitted that since the plaintiff has

denied of having receipt of such notice, the issuance of notice by the defendant and refusal thereof by the plaintiff, is a question which needs to be

decided on the evidence led by the party. He has submitted that the trial Court has considered each and every aspect of the matter and the defence

taken by the defendant and has rightly passed the impugned order which is discretionary one, this Court, as an Appellate Court, should not interfere

with the discretionary order even if the second view of the matter is possible. He has submitted to dismiss the present appeal.

Having considered the submission made on behalf of both the sides and upon perusal of the impugned order and the material placed on record, it is

undisputed fact that there was an agreement to sell between the parties, which was entered into way back in the year 2008. It is also admitted that

part payment has been received by the defendant from the plaintiff. It also appears that agreement to sell is of the year 2008 whereas the plaintiff has

filed the Suit in the year 2016. The stand of the plaintiff is that he is in possession in view of the averment made in the agreement to sell. At this

juncture, it is worthwhile to refer to the copy of the Panchnama which has been produced during the time of argument, and it emerges that there is

some sort of construction over the suit land and on certain part of the land there are bushes and some plots are there and on one side there is a

compound wall. It also reveals from the Panchnama that there is one stop-gap office of temporary nature showing proposed residential construction to

be carried out on the land. These facts suggest that the averment made by the plaintiff that he is in possession is prima-facie not believable. Had he

been in possession of the land from 2008, then the nature of the land might not have been changed as reflected from the Panchnama.

6.1 It also reveals that there is no averment made by the plaintiff regarding the payment of more amount than the earlier amount paid to the defendant.

It also reveals from the record that during the period from 2008 to 2016, some third party interest have been created in the land. Since the plaintiff has

kept silence for almost 8 years in instituting the Suit after execution of the agreement to sell, the equitable relief of interim injunction at a belated stage

is not proper one to be granted in the facts and circumstances of the case. On perusal of the impugned order, it clearly transpires that the trial Court

has not considered all these aspects. At this juncture, it also needs to be observed that the defendant has raised point of issuance of notice to the

plaintiff way back in the year 2008, which is alleged to be refused by the plaintiff. However, the plaintiff has denied that he has received such notice

and he has refused the same. Thus, this fact needs to be agitated before the trial Court by leading evidence but the fact remains that though the

agreement to sell was of the year 2008, the plaintiff has kept silence till 2016 i.e. for almost 8 years. Under the circumstances, the exercise of

discretion by the trial Court, in the peculiar facts of this case, is not proper one and the same deserves to be interfered with. Further, even if the

plaintiff succeeds in the Suit then he can be compensated in terms of money by way of granting damages along with interest thereof.

In view of the above, the present appeal is allowed. The impugned order dated 29.6.2019 passed by the Principal Senior Civil Judge, Mandvi, Surat

below Exh-5 in Special Civil Suit No. 262 of 2016, is hereby set-aside. However, it is made clear that the observation made hereinabove are on the

basis of facts and circumstances and when it comes to hearing of the Suit, the learned Judge will certainly decide the matter on the basis of evidence

that will be placed before him and will not be influenced by these observations if the same have no bearing on the evidence produced before him.

However, considering the facts that Suit is of the year 2016, the parties will be at liberty to apply to the learned Judge for early disposal of the said

suit and the learned Judge shall try to fix up the same at the earliest and dispose it of preferably by the end of August, 2022. The parties are directed

to cooperate the trial Court for its endeavour to dispose it of in time bound manner. No order as to costs.

Civil Application, if any, stands disposed of accordingly.