Seema Dubey vs Jean Hookins and Others

S.K. Gangele, J—This appeal has been filed against the order dated 21st December, 2013. By the aforesaid order, the trial court dismissed the application under Order 39 Rule 1 and 2 read with Section 151 of C.P.C. filed by the appellant/plaintiff.

The plaintiff filed a suit for specific performance of the contract, declaration and also prayed for permanent injunction. Mr. George Hookins entered into an agreement with the husband of the plaintiff in regard to sale of lands comprising Khasra No. 286, 287, 269 & 270 area 8.50 acres situated at Tilhari, Jabalpur. Mr. George Hookings, was died and thereafter, she entered into another agreement on 26/01/2001 and an amount of Rs. 14,51,000/- was paid to defendant no. 1. It was further agreed that the remaining amount shall be paid at the time of execution of sale-deed.

The plaintiff further pleaded that defendant no. 1 transferred 6 acres of land vide sale deed dated 27/07/2001 in favour of Dr. Rajesh Dhirawani, Dinesh Dhirawani and Prakash Dhirawani. Plaintiff, her husband and other persons signed the sale deed as consenter. The plaintiff issued a legal notice on 12/04/2002 to the defendant no. 1 to execute the sale-deed in regard to remaining area of 2.50 acres, thereafter, another legal notice was issued on 26/06/2002. Inspite of that the defendant no. 1 transferred 2.63 acres of remaining land in favour of the defendant no. 2 vide registered sale deed dated 28/02/2002. Thereafter, the defendant no. 2 also sold some portion of the land to various persons on different dates in the year 2005. The plaintiff claimed decree of specific performance of contract, she further claimed that the sale-deeds executed by the defendant no. 1 in favour of the defendant no. 2 and by the defendant no. 2 in favour of the other persons be declared null and void. The defendant in their written statements denied the pleadings of the plaintiff/ appellant. The defendant no. 13 filed a separate written statement and pleaded that after purchase of the land he had made construction on the land and he had also received some amount as loan from the Bank, looking to the conduct of the plaintiff she is not entitled for relief of specific performance of contract. The trial court after appreciation of evidence has held that there is no prima facie case exists in favour of the plaintiff because some portion of the land was sold to other persons with the consent of the plaintiff, there is a long lapse of time. The plaintiff will not suffer irreparable loss and injury because during the pendency of the suit construction has been made and if the construction be removed or stayed then other persons would suffer irreparable loss. The trial court further held that the defendant no. 13 had given an assurance to the Court that the defendant would return the amount as claimed by the plaintiff with interest @ 12% per annum. The trial court further issued a direction to the defendant no. 13 to submit an undertaking with proper surety that he would repay the amount of Rs. 17.1 lac in case the plaintiff succeed in the suit with interest @ 12/% per annum.

Learned counsel appearing on behalf of the plaintiff has contended that the order passed by the trial court is against the law. Earlier this court passed an order of injunction, the trial court has no power and authority to refuse the application for injunction in view of the order passed by this Court. The other defendants who purchased the land during the pendency of the suit proceedings are not bona fide purchasers. The plaintiff has a prima facie case and balance of convenience in her favour. Hence, the order passed by the court below is against the law. In support of his contentions, learned counsel relied on the following judgments:-

i. M.P. Housing Board Vs. Anil Kumar Khiwani, AIR 2005 SC 1863 : (2005) 2 CTC 601 : (2005) 3 JT 225 : (2005) 10 SCC 796 : (2005) 2 SCR 765 : (2005) 1 UJ 579 : (2005) AIRSCW 1468 : (2005) 4 Supreme 380 .

ii. Pushpmala Raje alias Shamistha Devi Vs. Mahendra Singh and Others, (2011) ILR (MP) 2016 : (2011) 2 MPHT 508 : (2011) 2 MPLJ 314 .

iii. Satish Kumar Khandelwal Vs. Rajendra Jain and Others(2015) 2 CGLJ 7 : (2015) 2 MPLJ 181 .

iv. Mohd. Mehtab Khan and Others Vs. Khushnuma Ibrahim and Others, (2013) 2 ABR 862 : (2013) 2 AD 428 : AIR 2013 SC 1099 : (2013) 1 CTC 743 : (2013) 2 JT 522 : (2013) 171 PLR 1 : (2013) 2 RCR(Civil) 295 : (2013) 1 SCALE 731 : (2013) 9 SCC 221 : (2013) AIRSCW 877 .

Learned counsel appearing on behalf of defendant no. 13 the contesting party has submitted that the plaintiff has no prima facie case and balance of convenience in her favour. She would also not suffer irreparable loss. The findings recorded by the trial court are in accordance with law. It is further submitted by the learned counsel that the suit filed by the plaintiff is not maintainable on account of non-joinder of necessary parties. The plaintiff has not proved that she was willing and ready to perform her part of the contract, the equitable relief cannot be granted in her favour in regard to execution of the sale deed. The suit was filed on 08/01/2004, during the pendency of the suit, number of persons purchased the suit land and the construction has also been made upto 5th floor. The conduct of the plaintiff disentitle her to get the decree of specific performance of contract. In support of his contentions learned counsel relied upon the following judgments:-

i. Mandali Ranganna and Others etc. Vs. T. Ramachandra and Others, AIR 2008 SC 2291 : (2008) 4 CTC 360 : (2008) 8 SCALE 277 : (2008) 11 SCC 1 : (2008) AIRSCW 3817 .

ii. Mangabhai Jadavbhai Makwana Vs. Tekchand Chhaganlal Shah & others AIR 2014 Gujarat 12 .

iii. Chaturbhuj Pande and Others Vs. Collector, Raigarh, AIR 1969 SC 255 : (1968) 1 SCR 412 .

iv. Kishorsinh Ratansinh Jadeja Vs. Maruti Corp. and Others, AIR 2009 SC 2882 : (2009) 5 JT 180 : (2009) 5 SCALE 229 : (2009) 5 SCR 527 : (2009) 4 UJ 1567 : (2009) AIRSCW 5236 : (2009) 3 Supreme 337 .

v. M.P. Housing Board Vs. Anil Kumar Khiwani, AIR 2005 SC 1863 : (2005) 2 CTC 601 : (2005) 3 JT 225 : (2005) 10 SCC 796 : (2005) 2 SCR 765 : (2005) 1 UJ 579 : (2005) AIRSCW 1468 : (2005) 4 Supreme 380 .

From the facts of the case, it is clear that initially Mr. Geprge Hookins, the husband of defendant no. 1 said to be executed an agreement on 17/05/1999 in favour of husband of the plaintiff whereby he agreed to transfer 8.5 acres of land. After death of her husband, defendant no. 1 Smt. Jean Hookins executed a modified agreement on 26/01/2001 which is filed a Ex. P/3 before the trial court and the following terms and conditions of modified agreement were inserted:

"If, after modification of the previous agreement of sale, the purchaser again fails to pay the settled consideration on the stipulated dates stated in the modified agreement, then the seller will be at liberty to cancel the agreement for sale for the remaining land for which advance of Rs. 3,00,000/- (Rs. Three Lacs) has been paid by the purchaser which will be forfeited and the seller will be at liberty to sell the remaining land to another party without any further notice to the purchaser. The seller agrees to execute the sale deeds in full or part either in favour of the purchaser or his nominees."

After modification of the agreement, the defendant no. 1 Smt. Jean Hookins sold 6 acres of land in favour of Dr. Rajesh Dhirawani, Dinesh Dhirawani and Prakash Dhirawani. In the aforesaid sale deed Mr. Sanjay Bhatia, Mukesh Kumar Dubey and the present plaintiff Smt. Seema Dubey were the consenters. It is mentioned in the sale deed that Smt. Seema Dubey was not able to pay full and final consideration as required by the agreement within stipulated period of time. Thereafter, the sale deed was executed in favour of M/s. S. Square on 16/10/2007 and M/s. S. Square sold the land in favour of defendant no. 13 on 07/07/2010 and he was made party in the suit. During the pendency of the suit, construction of huge building including apartments have been made by the respondent no. 13 upto the level of forth floor. For construction, as per the defendant no. 13, he had taken loan of 4 crores from the bank.

It is well settled principle of law that while granting an interim injunction, the court has to consider existence of a prima facie case, balance of convenience and irreparable loss. The Supreme Court in the case of Mandali Ranganna and Others etc. Vs. T. Ramachandra and Others, AIR 2008 SC 2291 : (2008) 4 CTC 360 : (2008) 8 SCALE 277 : (2008) 11 SCC 1 : (2008) AIRSCW 3817 has held as under in regard to taking into consideration the conduct of parties also, besides consideration of basic elements:-

"While considering an application for grant of injunction, the Court will not only take into consideration the basic elements in relations thereto, viz, existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The Court will not interfere only because the property is a very valuable one.

Grant of refusal of injunction has serious consequence depending upon the nature thereof. The Courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the Courts is imperative."

The Supreme Court further in the case of Kishorsinh Ratansinh Jadeja Vs. Maruti Corp. and Others, AIR 2009 SC 2882 : (2009) 5 JT 180 : (2009) 5 SCALE 229 : (2009) 5 SCR 527 : (2009) 4 UJ 1567 : (2009) AIRSCW 5236 : (2009) 3 Supreme 337 in paragraphs no. 40 and 41 has held as under:-

"40. On the other hand, if the owners of the property remain restrained from developing the same, it is they, who will suffer severe prejudice, as they will be deprived of the benefit of the user of their land during the said period. The balance of convenience and inconvenience is against grant of such injunction. The success of the suit for specific performance filed by the Respondent No. 1 depends to a large extent on tenuous proof of genuineness of the agreement sought to be enforced after 19 years, despite the finding of the Trial Court that the suit was not barred by limitation.

The question of conduct of the Respondent No. 1 also becomes relevant, inasmuch as, having slept over its rights for more than 19 years, it will be inequitable on its prayer to restrain the owners of the property from dealing with the same, having particular regard to the fact that a large portion of the land has already been conveyed to as many as 280 purchasers who are in the process of erecting constructions thereupon."

The Supreme Court in the case of Seema Arshad Zaheer and Others Vs. Municipal Corpn. of Greater Mumbai and Others, (2006) 102 CLT 777 : (2006) 11 JT 1 : (2006) 5 SCALE 263 : (2006) 5 SCC 282 : (2006) 2 SCR 865 Supp has held as under:-

"The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff''s rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff''s rights is compared with or weighed against the need for protection of the defendant''s rights or likely infringement of the defendant''s rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff''s conduct is free from blame and be approaches the court with clean hands."

In the present case as pleaded by the appellant/ plaintiff herself originally the husband of plaintiff entered into an agreement in regard to sale of the land area 8.50 acres. Subsequently, after the death of her husband she again entered into another agreement on 26/01/2001 she sold 6 acres of land in favour of Dr. Rajesh Dhirawani, Dinesh Dhirawan and Prakash Dhirawani. The plaintiff and her husband had given their consent to execute the sale deed in regard to sale of the land.

It is specifically mentioned in the sale deed that the present plaintiff was not able to pay full and final consideration as required by the agreement within a stipulated period of time. It means that the plaintiff was not ready and willing to perform her part of contract. Apart from this, subsequently, a sale deed was executed in favour of M/s. S. Square and thereafter, M/s. S. Square sold the land in favour of the defendant no. 13 and he had constructed a huge building including apartments upto 4th floor. Apart from this, the appellant received certified copy of the impugned order on 09/01/2014, present appeal was filed on 10/02/2014. It was listed in default, thereafter, it was dismissed in default due to non compliance of the peremptory order. Subsequently, the appeal was restored and default was removed on 02/05/2014, thereafter, on 07/08/2014 an interim injunction order ex-parte was passed, due to the act of the appellant seven months time was lapsed. Looking to the aforesaid facts of the case, in my opinion, there is no prima- facie case exists in favour of the appellant.

The next question is balance of convenience and irreparable loss. It is clear that defendant no. 13 had made construction on the land after making substantial investment, subsequently, sale deeds were executed in favour of other persons. The grant of decree of the specific performance of contract is an equitable relief. It is well settled principle of law that a person who seeks equitable relief must come with clean hands and the court can refuse the relief of the plaintiff whose conduct in the litigation has been improper as held by the Supreme Court in the case of A.S. Motors Pvt. Ltd. Vs. Union of India (UOI) and Others, (2013) 3 AD 620 : (2013) 2 CTC 804 : (2013) 3 JT 316 : (2013) 2 RCR(Civil) 323 : (2013) 3 SCALE 15 : (2013) 10 SCC 114 . The Supreme Court in paragraph no. 22 has held as under:-

"22. We may in this connection refer to the following passage from Halsbury''s Laws of England Fourth Edition Vol.-16 pages 874-876, which sums up the legal position in England as to the right of a party who has not come to the Court with perfect propriety of conduct and with clean hands, to claim an equitable relief.

1305. He who comes into equity must come with clean hands. A court of equity refuses relief to a plaintiff whose conduct in regard to the subject matter of the litigation has been improper. This was formerly expressed by the maxim "he who has committed iniquity shall not have equity", and relief was refused where a transaction was based on the plaintiff''s fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fraudulent design.

The maxim does not, however, mean that equity strikes at depravity in a general way; the cleanliness required is to be judged in relation to the relief sought, and the conduct complained of must have an immediate and necessary relation to the equity sued for; it must be depravity in a legal as well as in a moral sense. Thus, fraud on the part of a minor deprives him of his right to equitable relief notwithstanding his disability. Where the transaction is itself unlawful it is not necessary to have recourse to this principle. In equity, just as at law, no suit lies in general in respect of an illegal transaction, but this is on the ground of its illegality, not by reason of the plaintiff''s demerits."

The Supreme Court further in the case of I.S. Sikandar (D) by L.Rs. Vs. K. Subramani and Others, (2014) 118 CLT 89 : (2014) 1 RCR(Civil) 236 : (2014) 1 SCALE 1 has held as under in regard to grant of decree of specific performance of contract at the belated stage.

"40. This position of law is well settled by this Court in the Constitution Bench judgment in Chand Rani Vs. Kamal Rani wherein this Court has held that it is well-settled principle of law, that in a case of sale of immovable property, time is not the essence of the contract. However, if the parties agreed to a specified time in the agreement to perform their part of the contract, then time is the essence of the contract and parties shall adhere to the same."

In the present case, the plaintiff filed a suit belatedly she had given her consent in regard to sale of 6 acres of land in favour of the Dr. Rajesh Dhirawani, Prakash Dhirawani and Dinesh Dhirawani. Looking to the aforesaid conduct of the plaintiff primarily it appears that she had abandoned her claim of specific performance of contract. The contract which was entered into initially has been substantially modified. Hence, it cannot be said that the plaintiff/ appellant has balance of convenience in her favour. If the suit of the plaintiff is allowed then she can be compensated sufficiently by awarding compensation against the defendants. At present it cannot be said that there may be any irreparable injury that may be caused to the appellant. Contrary to this if the injunction is granted in favour of the plaintiff, defendant no. 13 and other persons would suffered adversely.

It is a fact that earlier the High Court granted order of injunction, however, subsequently, the defendant no. 13 was made party. The plaintiff filed the application for injunction before the trial court, looking to the aforesaid fact in my opinion the earlier order was not binding on defendant no. 13, circumstances have also been changed. The trial court has already imposed a condition in regard to depositing surety.

Looking to the aforesaid facts of the case in my opinion, there is no merit in this appeal, it is hereby dismissed. No order as to costs.