Case Note & Summary
The appellants, Prashant Rambhau Pathare and others, filed an appeal against the order dated 16 January 2020 passed by the Civil Judge Senior Division, Pune, rejecting their application for temporary injunction in Special Civil Suit No. 875 of 2018. The suit was filed for specific performance of an Agreement for Sale dated 7 July 2017, possession of the suit property, and challenging a Deed of Assignment dated 16 May 2018 executed by Defendant Nos. 1 to 3 in favor of Defendant Nos. 4 to 6. The plaintiffs claimed that late Ashok Vasudeo Joshi, Defendant No. 1 (Aparna Ashok Joshi), and Defendant No. 2 (Amit Ashok Joshi) agreed to sell Flat Nos. 2, 4, 6 and Shop No. 7 for a consideration of Rs.1,73,00,000/-, which was fully paid in 2013. Instead of executing a sale deed, Defendant Nos. 1 to 3 sold Flat No. 6 and Shop No. 7 to Defendant Nos. 4 to 6. The plaintiffs sought an injunction to restrain Defendant Nos. 1 to 3 from creating third party rights in Flat Nos. 2 and 4, and Defendant Nos. 4 to 6 from creating third party rights in Flat No. 6 and Shop No. 7. The Trial Court rejected the application, holding that the plaintiffs failed to make out a prima facie case. The High Court, after hearing counsel for both sides, found that the Trial Court's order was perverse. The High Court noted that the agreement for sale and payment of full consideration were not seriously disputed, and the plaintiffs had a strong prima facie case. The balance of convenience was in favor of the plaintiffs, and irreparable loss would be caused if the injunction was not granted. The High Court allowed the appeal, set aside the Trial Court's order, and granted temporary injunction restraining the defendants from alienating or creating third party rights in the suit property until the disposal of the suit.
Headnote
A) Civil Procedure - Temporary Injunction - Prima Facie Case - Specific Performance of Agreement for Sale - Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 - The plaintiffs sought injunction to restrain defendants from alienating suit property pending suit for specific performance. The Trial Court rejected the application holding that plaintiffs failed to make out a prima facie case. The High Court reversed, finding that the agreement for sale dated 7 July 2017 and payment of full consideration of Rs.1,73,00,000/- in 2013 established a strong prima facie case. Held that the Trial Court's order was perverse and liable to be set aside (Paras 1-13). B) Contract Law - Specific Performance - Agreement for Sale - Payment of Consideration - Indian Contract Act, 1872 - The plaintiffs alleged that they paid the entire consideration of Rs.1,73,00,000/- in 2013, and the agreement for sale was executed in 2017. The defendants contended that the agreement was not genuine. The High Court noted that the receipt of consideration was not seriously disputed and that the plaintiffs had made out a prima facie case for grant of injunction. Held that the balance of convenience was in favor of the plaintiffs and irreparable loss would be caused if injunction was not granted (Paras 5-10).
Issue of Consideration
Whether the Trial Court erred in rejecting the application for temporary injunction filed by the plaintiffs seeking to restrain the defendants from creating third party rights in the suit property pending disposal of the suit for specific performance.
Final Decision
Appeal allowed. Impugned order dated 16 January 2020 passed by the Civil Judge Senior Division, Pune is set aside. The application for temporary injunction is allowed, restraining Defendant Nos.1 to 3 from creating third party rights in respect of Flat Nos.2 and 4, and Defendant Nos.4 to 6 from creating third party rights in respect of Flat No.6 and Shop No.7, until disposal of the suit.
Law Points
- Temporary injunction
- prima facie case
- balance of convenience
- irreparable loss
- specific performance
- agreement for sale
- deed of assignment
