Case Note & Summary
The dispute pertains to a property known as 'Sharda Niwas' in Goregaon, Mumbai. The plaintiff, Jagdish Harkishan Sharma, claimed to have entered into an agreement to sell with the legal heirs of the original lessee, Shyamlal Ramswaroop Sharma, and paid substantial consideration. The defendant, Kanhaiyalal Nathulal Joshi (since deceased, represented by legal heirs), allegedly executed a Deed of Assignment and Transfer in favour of a third party, which the plaintiff contended was fraudulent and in violation of his rights. The City Civil Court granted a temporary injunction restraining the defendant from dealing with the property and from acting upon the assignment deed. The defendant appealed. The High Court upheld the injunction, finding that the plaintiff had made out a prima facie case, balance of convenience was in his favour, and irreparable loss would be caused if the injunction was not granted. The court also considered contempt petitions for alleged violation of the injunction and directed the Municipal Corporation to stay development permissions. The court held that the plaintiff's possession and payment of consideration gave him a right to protect the property pending suit.
Headnote
A) Civil Procedure - Temporary Injunction - Prima Facie Case - The court must assess whether the plaintiff has a strong prima facie case based on the agreement to sell and payment of consideration, and whether the balance of convenience lies in granting injunction to protect the subject matter of the suit pending final adjudication. (Paras 1-10)
B) Property Law - Agreement to Sell - Part Performance - Section 53A Transfer of Property Act, 1882 - The plaintiff's possession pursuant to an agreement to sell coupled with payment of substantial consideration creates a right to protect possession and seek specific performance, justifying injunction against alienation by the vendor. (Paras 11-20)
C) Contempt of Court - Wilful Disobedience - The court examines whether the defendant's actions in creating third-party rights after the injunction order constitute contempt, requiring initiation of contempt proceedings. (Paras 21-30)
Issue of Consideration
Whether the City Civil Court was justified in granting temporary injunction restraining the defendant from dealing with the suit property and from acting upon the Deed of Assignment and Transfer dated 21 October 2013.
Final Decision
The High Court dismissed the appeal and upheld the order of temporary injunction granted by the City Civil Court. The court also disposed of the contempt petitions and interim applications with directions.
Law Points
- Temporary injunction
- prima facie case
- balance of convenience
- irreparable loss
- agreement to sell
- part performance
- Section 53A Transfer of Property Act
- 1882
- specific performance
- lis pendens
- contempt of court
Case Details
2023 LawText (BOM) (11) 34
Appeal from Order No.742 of 2019 with Contempt Petition No.275 of 2018 with Interim Application No.2149 of 2023 with Civil Application No.884 of 2019 with Contempt Petition No.59 of 2020
Mr. Navroz Seervai, Senior Advocate, Mr. Owen Menezes, Ms. Lizum Wangdi, a/w Ms. Meenakshi Pahuja i/by ANB Legal; Mr. Simil Purohit a/w Mr. Arshil Shah, Mr. Vishal Raman, Ms. Parisha Shah, Mr. Smita Durve, Mr. Rasesh Shah i/by Mr. Atul Singh; Mr. Vaibhav Joglekar, Senior Advocate a/w Ms. Mily Ghoshal i/by Mily Ghoshal; Mr. Vishal Kanade i/by Mr. Shashank C. Thatte, Mr. Yuvraj Takale; Mr. J.M. D’Silva a/w Ms. Jacqueline D’Silva; Ms. Smita Tondwalkar
Kanhaiyalal Nathulal Joshi (since deceased) by his legal heirs and representatives: Vijay Kanhaiyalal Joshi, Karan Kanhaiyalal Joshi, Pincky Kanhaiyalal Joshi, Damini Kanhaiyalal Joshi, Nirmala Kanhaiyalal Joshi
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Nature of Litigation
Civil appeal against order granting temporary injunction in a property dispute.
Remedy Sought
The plaintiff sought temporary injunction restraining the defendant from dealing with the suit property and from acting upon a Deed of Assignment and Transfer.
Filing Reason
The plaintiff claimed rights under an agreement to sell and alleged that the defendant was attempting to alienate the property to third parties.
Previous Decisions
The City Civil Court allowed Notice of Motion No. 3929 of 2016 and granted temporary injunction on 24 August 2017.
Issues
Whether the plaintiff has a prima facie case for grant of temporary injunction?
Whether the balance of convenience lies in favour of the plaintiff?
Whether the plaintiff would suffer irreparable loss if injunction is not granted?
Submissions/Arguments
Appellant argued that the agreement to sell was not genuine and that the plaintiff had no possessory rights.
Respondent argued that he had paid substantial consideration and was in possession, and that the defendant was attempting to defeat his rights.
Ratio Decidendi
The court held that where a plaintiff has a prima facie case based on an agreement to sell and payment of consideration, and is in possession, the balance of convenience lies in granting injunction to protect the property pending suit, as irreparable loss would be caused if the defendant is allowed to alienate the property.
Judgment Excerpts
The Appeal challenges the Order dated 24 August 2017 passed by the City Civil Court allowing Notice of Motion No. 3929 of 2016 filed by Plaintiff-Respondent for grant of temporary injunction.
The dispute between the parties is with regard to property bearing Plot No.169, Jawahar Nagar Road No.2 Goregaon (West), Mumbai 400 062 admeasuring 790.90 square meters bearing CTS No. 600, 600/1 to 16 together with building standing thereon known as ‘Sharda Niwas’.
Procedural History
The City Civil Court granted temporary injunction on 24 August 2017. The defendant appealed to the High Court. Contempt petitions were filed for alleged violation of the injunction. The High Court heard all matters together and pronounced judgment on 8 November 2023.
Acts & Sections
- Transfer of Property Act, 1882: Section 53A
- Code of Civil Procedure, 1908: Order 39 Rules 1 and 2
