Bombay High Court Division Bench Answers Referred Questions on Adequacy of Protection Under Section 52 of Transfer of Property Act and Grant of Interim Injunctions. The Court Examined Whether Section 52 TP Act Provides Sufficient Safeguard to Deny Injunction Pendente Lite and the Role of Notice Registration Under Section 18 of the Indian Registration Act.

Appeal from order rejecting temporary injunction in a suit for specific performance of an agreement to sell.

Appellant sought interim injunction restraining respondent No.7 from creating third-party interests in the suit property pending the appeal and suit.

The appellant's application for temporary injunction was rejected by the trial court, holding that he failed to show prima facie case, balance of convenience, or irreparable loss.

Trial Court rejected temporary injunction; Single Judge (R.C. Chavan, J.) noted conflict between Kachhi Properties and Pralhad Jawale and referred five questions of law to a Division Bench.

Does Section 52 of the Transfer of Property Act provide adequate protection to the parties from transfers pendente lite since such transferees are not required to be, or entitled as of right to be, impleaded as parties to the suit and cannot resist execution proceedings in view of provisions of Order XXI Rule 100 of the Code as amended by this Court? Would plaintiffs' registering notices of their suits under Section 18 of the Indian Registration Act (though such registration may not be compulsory) not secure for plaintiffs more than what an injunction could secure since transferees, who purchase property, pendente lite in spite of such registration would be deemed to have notice of pendency of the lis and could not claim to be transferees without notice? And, would such registration not be preferable to clamping an injunction on adversary? Since a plaintiff seeking a temporary injunction is required to show that he would suffer irreparably if temporary injunction is not issued, would it be inappropriate to expect such plaintiff to show that the provisions of Section 52 of the Transfer of Property Act do not afford adequate protection before an injunction to restrain transfer pendente lite is issued? Would it be appropriate, in cases of claims for temporary injunction to restrain transfers pendente lite, to consider imposition of conditions short of granting injunction, which should protect the plaintiff's interest, like, seeking an undertaking that no equities would be claimed on account of sale or development of properties; effecting sales only after putting transferees to notice that their rights would be subject to the pending suit, or requiring the party to inform the Court promptly of creation of every such interest? Whether the observation in para (13) of the judgment in Vasant Tatoba Hargude and others v. Dikkaya Muttaya Pujari (AIR 1980 Bombay 341) that in the event of there being conflict, the decision of later Bench would bind only lays down that judgment later in point of time as explaining the earlier judgment would bind?

Does Section 52 of the Transfer of Property Act provide adequate protection to the parties from transfers pendente lite since such transferees are not required to be, or entitled as of right to be, impleaded as parties to the suit and cannot resist execution proceedings in view of provisions of Order XXI Rule 100 of the Code as amended by this Court? the learned Single Judge felt that this necessitated a fresh look or rather a second fresh look, at the conclusions drawn in Kachhi Properties, as also the observations thereon made by another learned Single Judge in Pralhad Jaganath Jawale. since conflicting Judgments of the Courts of record tend to create confusion in the Trial Courts and result in uncertainty in law, and, since on this question, there are at-least three Hon'ble Judges, who seem to have accepted that Section 52 of the TP Act affords adequate protection, which view has not found favour with the Hon'ble Judge deciding the case of Pralhad, it would be appropriate to have the matter referred to a Larger Bench, rather than committing judicial indiscipline of taking a different view.

The appellant filed Special Civil Suit No.104 of 2012 before the IInd Joint Civil Judge, Senior Division, Kalyan, for specific performance of agreements of sale and simultaneously applied for an interim injunction restraining respondent No.7 from creating third-party interests. The Trial Court rejected the injunction application on 29 March 2012, finding no prima facie case, balance of convenience, or irreparable loss. The appellant preferred Appeal From Order No.256 of 2013 before the Bombay High Court. When the appeal came up for hearing before a Single Judge (R.C. Chavan, J.), the judge observed that in view of his earlier decision in Kachhi Properties, the appeal was liable to be dismissed since the appellant had not shown the inadequacy of protection under Section 52 TP Act. However, the appellant's counsel pointed to the contrary view in Pralhad Jaganath Jawale, leading the Single Judge to conclude that a fresh examination was needed to resolve the conflict. Accordingly, the Single Judge framed five questions of law and referred the matter to a Division Bench, which heard the appeal on 22 July 2016 and reserved judgment.

• Transfer of Property Act, 1882: Section 52
• Code of Civil Procedure, 1908: Order 39 Rule 1, Order 21 Rule 100
• Indian Registration Act: Section 18