Case Note & Summary
The plaintiff filed a suit for specific performance of an agreement to sell a flat dated 3rd April 2006. The total consideration was Rs.24.50 lakhs, out of which Rs.4.50 lakhs had been paid to the original defendant No.1. The balance of Rs.20 lakhs was to be paid against delivery of vacant and peaceful possession. During the pendency of the suit, the original defendant No.1 expired and his son was brought on record as defendant No.1(a). The plaintiff contended that he was ready and willing to pay the balance amount, but the defendant did not hand over possession as he had not complied with conditions in the agreement, including furnishing a No Objection Certificate. The learned Single Judge, after hearing the parties, passed an order restraining defendant No.1 from disposing of, alienating, encumbering, or parting with possession of the flat, and also directed the cooperative society (defendant No.2) not to register any transaction in relation to the property. Both parties appealed against this order. The Division Bench, after considering the submissions, found that the plaintiff had made out a prima facie case and the balance of convenience was in favor of granting the injunction. The court noted that the plaintiff had paid part consideration and was ready to pay the balance, while the defendant had not handed over possession. The court held that the interim order was just and proper to protect the subject matter of the suit pending final disposal. The appeals were dismissed, and the interim order was confirmed.
Headnote
A) Specific Performance - Interim Injunction - Prima Facie Case - The court considered whether the plaintiff had made out a prima facie case for grant of interim relief in a suit for specific performance of an agreement to sell a flat. The plaintiff had paid part consideration and was ready and willing to pay the balance. The court held that the plaintiff had a strong prima facie case and the balance of convenience was in favor of granting injunction to protect the subject matter of the suit. (Paras 3-6)
B) Civil Procedure - Interim Relief - Balance of Convenience - The court examined the balance of convenience and irreparable loss. The defendant had not handed over possession despite receipt of part payment. The court found that if the injunction was not granted, the plaintiff would suffer irreparable loss as the property could be alienated. The balance of convenience was in favor of the plaintiff. (Paras 5-6)
Issue of Consideration
Whether the learned Single Judge was justified in granting an interim injunction restraining the defendant from alienating or parting with possession of the flat pending the suit for specific performance.
Final Decision
Both appeals are dismissed. The interim order dated 4th September 2009 passed by the learned Single Judge is confirmed.
Law Points
- Specific performance
- Interim injunction
- Balance of convenience
- Prima facie case
- Irreparable loss
Case Details
2010 LawText (BOM) (03) 41
Appeal (Lodging) No. 626 of 2009 and Appeal No. 2 of 2010
Anil R. Dave, C.J., S.C. Dharmadhikari, J.
Mr. Sharan Jagtiani i/b Mr.Bharat Joshi for the Appellant in Appeal (L) No.626 of 2009 and for Respondent No.1 in Appeal (L) No.2 of 2010; Mr. C.S. Balsara a/w Ms. Usha R. Gadagkar and Ms.Anuradha Bhave i/b M/s Divya Shah Associate for Appellant in Appeal (L) No.2 of 2010.
Prakash Jagannath Shiveshwerkar (in Appeal (L) No.626 of 2009) and Prasad Gurjar (in Appeal No.2 of 2010)
Prasad Gurjar and another (in Appeal (L) No.626 of 2009) and Prakash J. Shiveshwarkar and another (in Appeal No.2 of 2010)
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Nature of Litigation
Civil suit for specific performance of an agreement to sell a flat.
Remedy Sought
The plaintiff sought specific performance of the agreement and interim injunction restraining the defendant from alienating the property.
Filing Reason
The defendant failed to hand over possession of the flat despite receipt of part consideration and the plaintiff's readiness to pay the balance.
Previous Decisions
The learned Single Judge granted an interim injunction restraining the defendant from disposing of, alienating, encumbering, or parting with possession of the flat, and directed the cooperative society not to register any transaction. Both parties appealed.
Issues
Whether the plaintiff had made out a prima facie case for grant of interim injunction.
Whether the balance of convenience was in favor of granting the injunction.
Submissions/Arguments
Plaintiff argued that he was ready and willing to pay the balance consideration of Rs.20 lakhs, but the defendant did not hand over possession as he had not complied with conditions in the agreement, including furnishing a No Objection Certificate.
Defendant argued that the interim order was not justified.
Ratio Decidendi
In a suit for specific performance, where the plaintiff has paid part consideration and is ready and willing to pay the balance, and the defendant has not handed over possession, the court may grant an interim injunction to protect the subject matter of the suit if the plaintiff has a prima facie case and the balance of convenience is in his favor.
Judgment Excerpts
After hearing the learned Advocates, the learned Single Judge came to the conclusion that it would not be just and proper to give directions to original Defendant No.1 as prayed for. However, looking to the facts of the case by virtue of the impugned order the learned Single Judge has restrained Defendant No.1 from disposing of, alienating, encumbering or parting with possession of the flat in question or from creating any third party right in the property in question.
It has been submitted on behalf of the learned Advocate appearing for the Plaintiff that the Plaintiff was ready and willing to give the balance amount of consideration of Rs.20 lakhs to Defendant No.1 as per the Agreement for Sale entered into between the Plaintiff and original Defendant No.1.
Procedural History
The plaintiff filed Suit No. 119 of 2007 for specific performance. During pendency, the original defendant No.1 expired and his son was brought on record. The learned Single Judge passed an interim order on 4th September 2009 in Notice of Motion No. 659 of 2007. Both parties filed appeals against that order. The appeals were heard together and disposed of by this judgment.
Acts & Sections
- Specific Relief Act, 1963:
