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Judgment
A.R. Lakshmanan, J.—The applicants are the plaintiffs in the suit. They filed the suit for a decree and judgment directing the respondent to
transfer the property by executing a sale deed and registering the same in the Office of the Sub Registrar, Adyar, Madras-600 020, and for
granting a permanent injunction restraining the respondent, his agents, servants, or men from interfering with the possession of the plaintiff of the suit
property and for costs. Along with the suit, they filed O.A. Nos. 53 to 55 of 1994 for interim injunction. In O.A. No. 55 of 1994, interim
injunction was granted on 18-1-1994 restraining the respondent from interfering with the possession of the applicants of the suit property. The
respondent has filed Application No. 3332 of 1994 to vacate the interim injunction granted in O.A. No. 55 of 1994. A common counter affidavit
has been filed in O.A. Nos. 53 to 55 of 1994. The short facts of the case are as follows: -The applicants had filed the above suit for specific
performance of an oral agreement entered into between the 1st applicant and the respondent and for consequential injunction. Both parties are
very closely related. The respondent is related to the 1st applicant as the latter had married the sister of the former by name Mansha. According to
the applicants, they identified a large extent of land measuring an extent of 7.37 acres comprised in R.S. No. l/2A, Injambakkam village and
decided to buy the large extent of land. The land owners were requested to divide the entire extent of land into six convenient plots. The entire
extent was divided into two halves leaving a 24'' private pathway in the middle of the land. It was decided to acquire the three plots situate on the
northern side of the pathway by the 1st applicant and his wife and the three plots situate on the southern side of the pathway should be bought by
the respondent and his wife. The parties purchased the respective plots. The property bought by the respondent is the subject matter of the present
suit.
According to the applicants, the respondent expressed his desire to sell the property owned by him and his wife. The 1st applicant and his wife
offered to purchase the same. The parties agreed that the price would be Rs. 9.75 lakhs for each plot and that the entire sale consideration should
be paid at the time of execution of the sale deed. It is the further contention of the applicants, that pursuant to the aforesaid agreement, the
respondent delivered the original title deed relating to the suit property and put the applicants in possession of the property. The 1st applicant
prepared a draft sale deed and the same was handed over to the respondent and hence, the agreement of sale was acted upon. The respondent
signed the necessary application form to obtain income tax Clearance Certificate and the draft sale deed was also enclosed along with the said
application. The income tax Clearance Certificate was issued by the authorities on 30-8-1991.
According to the applicants, immediately after the Income- tax Clearance Certificate was issued, the 1st applicant tendered the sale
consideration to the respondent and requested him to execute the sale deed, and the respondent, though agreed to execute the sale deed, was
postponing the same without any reasonable cause. The 1st applicant has also constructed a compound wall encircling the total area of 7.37 acres
and provided for a gate on the northern side of the entire extent of land. The 1st applicant has also employed his own security to protect the entire
extent of land and that all these things were done by the 1st applicant and his wife as the owners of the lands and also agreement holders of the
lands belonging to the respondent and his wife. It is also the case of the applicants that a very big temple for Shiridi Sai Baba was also built. Even
though the 1st applicant tendered the sale consideration on several times, the respondent did not receive the same but represented that the 1st
applicant could always pay the sale consideration as he had the necessary source. According to the applicants, the discussions were held in the
presence of Mr. Sudhir Patel, their common auditor. The 1st applicant has always been ready and willing to perform the contract by paying the
consideration and get the conveyance in his favour at his expense. Because of the misunderstanding between the parties, complaints were made to
the police authorities, who visited the lands.
According to the applicants, the area agreed to be sold by the respondent is marked with the letters E, F and G and a sketch is annexed to the
plaint. The plot with the mark ''F'' is the subject matter of the present suit. The applicants agreed to purchase the land with the sole intention of
building a temple with other facilities like prayer hall, Nandavanam, etc. The 1st applicant would not have ventured into such action but for the
agreement and delivery of possession of land as well as the original title deeds. The suit property is absolutely required to accomplish the object.
The location of the temple and the suit land, the proximity of each other, are relevant factors.
The 1st applicant called upon the respondent to specifically perform the agreement on his part and also tendered the amount to the respondent.
The respondent failed to comply with the demand. The 1st applicant insisted the specific performance of the agreement on several occasions. The
respondent, however, without executing the sale deed, has acted inconsistent with the terms of the agreement. It is also the case of the 1st
applicant that he did not correspond in writing with the respondent in view of the personal relationship and long association. The 1st applicant is in
possession of the property. The respondent is engaging a number of unsocial elements and attempting to trespass into the property and put up a
compound wall in the suit property. The applicants would be irreparably injured if their possession is not protected. The respondent will no way be
affected by the grant of injunction as he had already delivered possession. With these averments, the applicants have filed O.A. Nos. 53 to 55 of
1994.
The respondent filed a common counter affidavit admitting the oral agreement between the 1st applicant and the respondent in 1991 and his
obtaining the income tax Clearance Certificate on 30-8-1991. However, in view of the misunderstanding between the parties, the respondent
expressed his disinclination to transfer the suit property to the 1st applicant and conveyed his disinclination to act on the oral agreement to the 1st
applicant towards the end of 1991. It is the specific case of the respondent that on the date of initiation of the suit proceedings, there is no
subsisting contract or agreement. The suit is belated without cause of action and therefore, is liable to be dismissed. The respondent denies the
delivery of possession of the property to the 1st applicant herein. According to the respondent, the possession of the property has always been
with him. However, he states that a draft deed of agreement was prepared and except for obtaining the income tax Clearance Certificate, the said
draft agreement was never acted upon till date. This apart, the income tax Clearance Certificate expired in the year 1992 and that the same has not
been renewed for almost two years, which is a clear evidence to show that the respondent has repudiated the agreement between them. The
respondent has denied and repudiated all other averments. It is also the admitted case of both parties that no money is given to the respondent
pursuant to the oral agreement.
I have carefully gone through the affidavit filed in support of the above applications and the common counter affidavit filed by the respondent. I
have also gone through the plaint and the documents filed along with the plaint. Further, I have heard the arguments of Mr. M.A. Sadanand,
Learned Counsel for the applicants and Mr. P. Chidambaram, learned Senior Counsel for the respondent.
Mr. M.A. Sadanand, Learned Counsel for the applicants would submit that the 1st applicant is entitled for an injunction since he has got a prima
facie case and that the balance of convenience is also in favour of the applicants. The following factors according to Mr. M.A. Sadanand, will
prove the genuineness of the claim of the applicants:
a) The respondent delivered the original title deed relating to the suit property to the 1st applicant. In fact, the Learned Counsel has produced the
original sale deed before Court at the time of hearing, which was returned to the Learned Counsel after perusal.
b) The respondent signed the necessary application form to obtain income tax Clearance Certificate and also submitted along with the said
application, a draft sale deed.
c) The income tax Clearance Certificate was issued by the authorities on 30-8-1991.
d) The 1st applicant immediately thereafter tendered the sale consideration to the respondent and requested him to execute the sale deed, whereas
the respondent was evading.
e) The 1st applicant was put into possession of the suit property pursuant to the agreement in part performance.
f) The. 1st applicant constructed a compound wall encircling the total area of 737 acres and provided a gate on the northern side of the land and
that he has employed one security to protect the entire extent of land.
g) The 1st applicant has always been ready and willing to perform the contract by paying the sale consideration and get the conveyance in his
favour.
h) Even though the original title deed has been delivered by the 1st applicant by the respondent, the respondent caused an advertisement to be
effected in one issue of the Tamil Daily ""Dhinamalar"" containing false allegations, which advertisement alleges that the original title deeds in respect
of the suit property had been lost.
i) The 1st applicant did not correspond in writing with the respondent in view of the personal relationship and long association.
j) The respondent will in no way be affected by the grant of injunction as he had already delivered possession.
Thus, it is contended by Mr. M.A. Sadanand, Learned Counsel for the applicants, that the oral agreement of sale was acted upon.
Mr. P. Chidambaram, learned Senior Counsel appearing for the respondent, in reply to the various submissions made by Mr. M.A. Sadanand
would submit that the applicants are not at all entitled for any injunction and no prima facie case has been made out by them. The learned Senior
Counsel would further submit that even though there was an oral agreement between the parties with reference to the suit property in the year
1991 and that the respondent had applied for the income tax Clearance Certificate during August, 1991, on the basis of the said oral agreement,
the respondent is always entitled to express his disinclination to transfer the suit property to the 1st applicant and conveyed his disinclination to act
on the oral agreement to the 1st applicant towards the end of 1991. It is admitted by the respondent that a draft deed of agreement was prepared
and except for obtaining income tax Clearance Certificate, the said draft agreement was never acted upon till date and that the income tax
Clearance Certificate also has expired as early as 1992 and that the same was not renewed thereafter.
As rightly contended by Mr. P. Chidambaram no money was given admittedly by the 1st applicant to the respondent though it is contended on
behalf of the applicants that the money was tendered to the respondent on many occasions, which, in my prima facie view, is a matter for evidence.
Mr. P. Chidambaram would further argue that even though a draft deed of agreement was prepared, the said draft agreement is not forthcoming.
According to the respondent, no written agreement was ever signed by the parties. Even though the 1st applicant says that there is a written
agreement, the same is also not produced before Court.
Mr. P. Chidambaram, in support of his contention placed heavy reliance on the two Bench decisions of this Court reported in Krishnamurthi
Kounder v Paramasivam Kounder (A.I.R. 1981, Mad 310) and T. Parameswari v. S.S. Investments Pvt. Ltd. (O.S.A. Nos. 122 and 123 of
1991 dated 24-10-1991) in support of his contention that in a suit for specific performance of an agreement of sale by a prospective vendee, such
vendee should not be granted temporary injunction to enable him to protect his possession only on the basis of the terms of the agreement that he
was given possession of the property on the date of the agreement of sale unless the truth of delivery of possession is established at trial.
I have carefully considered the rival contentions of the Learned Counsel and I am unable to accept the contentions raised by Mr. M.A.
Sadanand for the following reasons. According to Mr. M.A. Sadanand, the 1st applicant was put into possession pursuant to an oral agreement in
part performance of the said agreement. Section 53-A of the Transfer of Property Act runs thus:-
53-A. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the
terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract
taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of
the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract,
then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that
the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming
under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the
transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part
performance there of.
The above Section, in my view, applies only to a case where there is a written agreement and an oral agreement, in my opinion, will not be
sufficient. The said Section provides that the contract to transfer any immovable property must be in writing and signed by the party or on his
behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. Though the oral agreement, as well
as, the application for income tax Clearance Certificate were accepted by the respondent, the respondent, in my opinion, is always entitled to
repudiate the said oral contract and express his disinclination to transfer the suit property to the 1st applicant and convey his disinclination to act on
the oral agreement. Even according to the 1st applicant, the oral agreement was during August, 1991, and the 1st applicant has not taken any steps
in this regard to enforce the said oral agreement. Further, the income tax Clearance Certificate issued during 1991 expired during 1992, and no
step has admittedly been taken to renew the same. As rightly pointed out by Mr. P. Chidambaram, as on the date of initiation of the suit
proceedings in 1994, there is no subsisting contract or agreement between the parties, and that the 1st applicant is aware that the respondent has
repudiated the agreement between them and there is no subsisting agreement between the 1st applicant and the respondent.
Further, the respondent has denied that he put the 1st applicant into possession of the suit property at any point of time. According to the
respondent, he has agreed for a common compound. wall and a common gate for the entire property because of the family relationship between
the members of the 1st applicant and the respondent. A common security agency was also agreed upon. The reason given by the respondent for
appointment of security agency is also believable since the Kartha of the respondent is temporarily residing in New York, America, and hence the
1st applicant appointed a security agency. In any event, merely raising a compound wall and a common gate or appointment of a security agency
for the protection and preservation of the property purchased by very close relations belonging to the same family does not, in my view, create an
interest in favour of one party of the family in the absence of any concluded contract for sale, which is yet to be proved by the other arty viz., the
applicants.
This apart, the construction of a temple is apparently on the land belonging to the 1st applicant and the temple is admittedly now in the land
belonging to the 1st applicant. Hence, there was no need nor any occasion for the respondent to dispute the possession regarding the land where
the temple is built.
The 1st applicant has also filed Application No. 337 of 1994 to appoint an Advocate Commissioner to inspect the suit property and note the
physical features therefore .Mr. M. Maharaja was appointed as Commissioner, who filed his report dated 29-3-1994. The Commissioner has
clearly stated in his report that all the buildings are lying on the northern side, which admittedly owned by the 1st applicant and on the southern
side, there are no buildings other than two huts, and that building materials are lying on the southern side of the suit property, which admittedly
belongs to the respondent. The Commissioner has taken some photographs and produced the same before Court. The Commissioner''s report
clearly spells out that admittedly there are no buildings on the southern side, which admittedly belongs to the respondent, except two huts, which
would have been put up for the purpose of providing shelter to the labourers to take rest, cook food, etc.
When admittedly the oral agreement between the 1st applicant and the respondent was repudiated even towards the end of 1991, what
prevented the 1st applicant from approaching this Court for reliefs, if any, immediately thereafter, is not known. The filing of the suit at this stage
and when there is no subsisting contract or agreement between the parties on the date of initiation of the proceedings itself will go to show the 1st
applicant''s oblique motive of approaching this Court at this belated hour. Almost three years have elapsed after obtaining income tax Clearance
Certificate and no steps have been taken by the 1st applicant to perform his part of the contract nor has a notice been issued calling upon the
respondent to perform his part of the contract. No proof has been filed for payment of any monetary consideration to the respondent in pursuance
of the oral agreement except the ipse dixit of the 1st applicant that he offered to pay the sale consideration on many occasions. In my opinion, the
said statement of the 1st applicant is only a self serving statement and will not be of any assistance to establish the case of the 1st applicant of his
readiness and willingness to perform his part of the contract. Under these circumstances, I have no other option except to hold that the oral
agreement between the 1st applicant and the respondent has no legal force and that the 1st applicant is now trying to revive a dead contract by
preferring the present suit. The oral agreement between the parties is no longer in force and has not been acted upon from the inception. The 1st
applicant has also not taken any steps to insist on the respondent to take steps to revive the income tax Clearance Certificate. Above all, the draft
deed of agreement said to have been executed and signed by the parties, has not been filed at all in this Court to ask for the relief as prayed for in
the Suit.
The 1st applicant has filed only the following xerox copies of the documents: Sale deed dated 28-2-1990 executed in favour of the
respondent; income tax Clearance Certificate dated 30-8-1991; Advertisement effected in the Tamil Daily ""Dhinamalar"" dated 20- 7-1993; News
item in the paper ''The Hindu'' dated 10-12-1993; News item in ""Dhinamani"" and ""Dhinamalar"" dated 14-12-1993; complaint by Manoj Lulla
dated 10-1-1994, certificate given by Notary dated 13-1-1994; and the complaint by the plaintiff to police dated 14-1-1994. The 1st applicant
not filed any written agreement in this Court signed by the parties.
According to the respondent, the original document had been lost and hence he released an advertisement and even after the said paper
publication, the 1st applicant has not even called upon the respondent to perform his part of the contract. This conduct of the 1st applicant would
go to show and make it abundantly clear that the 1st applicant had no intention to act upon the oral agreement, which, to his knowledge, has
already been repudiated. Even otherwise, no contract existed at the time of the issue of the advertisement in the Tamil Daily Dhinamalar. The
respondent, admittedly, is the owner of the suit land and he is in possession of the same. Hence, the question of trespass alleged by the 1st
applicant does not at all arise. The respondent is entitled to put up a compound wall, under law, to protect his right over the suit property.
The Learned Counsel for the applicants has not cited any decision whereas the learned Senior Counsel for the respondent cited two decisions
in support of his contention. The first decision is reported in Krishnamoorthy Koundar Vs. Paramasiva Koundar, . That was an appeal filed by the
1st defendant in the suit questioning the order of injunction granted by the trial court pending the suit. The said suit was one for specific
performance of an alleged agreement of sale said to have been executed by the 1st defendant in favour of the plaintiff agreeing to sell his property.
The plaint proceeds on the basis that even on the date of the agreement the 1st defendant received a sum of Rs. 14,000/- as advance agreeing to
execute the sale deed within thirty days after getting the balance of the sale consideration. The agreement also recited that the possession of the
property has been given by the 1st defendant to the plaintiff in pursuance of the agreement of sale. The plaintiffs case is that in spite of the
agreement of sale, the 1st defendant has not executed the sale deed on receipt of the balance of consideration and therefore he is constrained to
file the suit for specific performance.
Along with the suit the plaintiff filed an application for interim injunction restraining the 1st defendant from interfering with his possession on the
basis that he was in possession of the suit property on the date of the agreement and such possession has to be protected till the disposal of the
suit. In the written statement filed, the execution of the agreement and the receipt of part consideration were denied, apart from denying the handing
over possession on the date of agreement. The trial court held that the truth and genuineness of the alleged agreement of sale is to be established in
the suit at the stage of trial. However, it granted an injunction in favour of the plaintiff pending disposal of the suit. The said order has been
questioned by the 1st defendant in the appeal before the Division Bench. The Bench, while allowing the appeal, and setting aside the order of the
trial court, held that they are of the view that unless the plaintiff established the actual delivery of possession of the properties on the date of the
agreement of sale, he cannot merely rely on the terms of the agreement, which is denied by the 1st defendant the truth of which the plaintiff has to
establish at the stage of trial. Therefore, the Division Bench held that the plaintiff is not entitled to an injunction merely basing on the terms of the
agreement, truth of which is yet to be established at the trial.
While answering the contention whether the plaintiff could claim the relief of injunction based on S. 53-A of the Transfer of Property Act, even
assuming that the plaintiff was given possession of the property on the date of the agreement of sale by the 1st defendant, the Bench has held that
an agreement of sale docs not create any interest in the property, which is subject matter of the agreement, and therefore, the plaintiff, if at all, can
claim only an equitable right based on S. 53-A of the Transfer of Property Act, as mere possession of the suit property by the plaintiff on the date
of the suit cannot be taken to enable him to obtain injunction from the Court. The Bench has also expressed its opinion that if. that will be the case,
even a trespasser in possession can approach the Court and ask for injunction to protect his possession. The Bench has further observed that the
plaintiff cannot seek his relief of injunction in a Court of Law based on S. 53-A of the Transfer of Property Act though he can use that Section to
debar the transferor who has agreed to sell the property, from claiming any right conferred by S.53-A of the Transfer of Properly Act is a right
available to the defendant to protect his interest and on the basis of that Section, the defendant cannot claim any title and it merely operates as a
bar to the plaintiff to ascertain his title. The Bench has also observed that the plaintiff in that case used his right under S. 53-A of the Transfer or
Property Act not as a shield but as a sword and hence the plaintiff is not entitled to injunction sought for by him.
In ray opinion, the judgment of the Division Bench of this Court in Krishnamoorthy Koundar Vs. Paramasiva Koundar, squarely applies to the
facts and circumstances of the case on hand. The principles laid down therein can be applied to the case on hand. The Bench has allowed the
appeal thereby vacating the injunction granted by the lower court, even though there was a written agreement and also payment of advance of
some money. In the said case also it was claimed by the plaintiff that possession was handed over to him on the date of the agreement and such
possession has to be protected till the disposal of the suit. In the instant case, admittedly, there is no written agreement between the parties and that
the agreement is oral, which is subsequently repudiated by the respondent. Admittedly, no consideration has been paid to the respondent by the
1st applicant. In this case also, the 1st applicant alleges that he was put in possession of the property on the date of the agreement and such
possession has to be protected till the disposal of the suit. I am unable to agree with the contention of Mr. M. A. Sadanand since, as rightly
observed by the Division Bench of this Court in the above cited case, unless the plaintiffs/applicants establish the actual delivery of possession of
the property on the date of agreement of sale, they cannot merely rely on the oral agreement, though it was admitted, which was repudiated later
the truth of which the plain- plaintiffs/applicants establish prima facie that possession was given to the 1st applicant by the respondent on the date
of the oral agreement, the 1st applicant is not entitled to an injunction merely basing on the oral agreement the truth of which is yet to be established
at the trial. In this view of the matter, I find that the ex parte order of injunction granted by this Court is not justified and therefore is liable to be
vacated.
Mr. P. Chidambaram, then relied on the decision of a Division Bench of this Court in O.S.A. Nos. 122 and 123 of 1991, which in turn, has
followed and accepted the judgment of the Division Bench in Krishnamoorthy Koundar Vs. Paramasiva Koundar, . In my opinion, grant of
injunction always depend on the facts of the case and Courts must consider the question of irreparable loss or serious injury and balance of
convenience. 1 do not think there is any such irreparable loss or serious injury from which the 1st applicant is required to be saved by an order of
injunction. It is also not possible for me to hold that the balance of convenience lies in favour of the applicants and unless the injunction is granted, it
is likely to suffer irreparable or serious injury. There are no such facts disclosed in the plaint or in the applications for temporary injunction, upon
which I should depart from the ordinary rule that unless specific performance decree is granted, no interest of the applicants should be recognised
in the suit property.
Balance of convenience is only in favour of the respondent. I am, therefore, of the prima facie view that the applicants have not made out a
case for the grant of injunction. I, therefore, hold that the interim injunction already granted is liable to be set aside. I make it clear that the
observations made me in this order will not prejudice the rights of the parties at the state of trial. I have only expressed my opinion on a prima facie
consideration of the facts and circumstances of the case while deciding the applications for injunction. For the fore-going reasons, all the injunction
applications are dismissed and the vacate injunction application is ordered and the interim injunction already granted in OA. No. 55 of 1994 is
vacated. There will be no order as to costs.