Meenu Prabha v. Viswambharan and Sushama Vishwambharan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA THURSDAY, THE 7TH DAY OF AUGUST 2014/16TH SRAVANA, 1936 FAO.No. 168 of 2014 () ----------------------I.A.NO.2561/2013 IN OS NO.125/2013 OF SUB JUDGE, KOTTARAKKARA APPELLANT(S)/PETITIONER IN I.A/PLAINTIFF ---------------------------------------MEENU PRABHA AGED 21 YEARS W/O K.J.PRABHA, THENGUVILA VEEDU, AMABALAKKARA P.O. VALAKAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT BY ADVS.SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN /RESPONDENTS/RESPONDENTS IN I.A/DEFENDANTS 1 & 2: ------------------------------------------------------------- 1. VISWAMBHARAN, AGED 56 YEARS S/O KESAVAN, MURALEEMANDIRAM, YEROOR VILLAGE AND KARA PUNALUR TALUK, KOLLAM DISTRICT PRESENTLY RESIDING AT "VISWASHREE", DRA 69 NEAR KOLLAVILA BRIDGE, PATTOM P.O. THIRUVANANTHAPURAM DISTRICT - 695 004. 2. SUSHAMA VISHWAMBHARAN, AGED 50 YEARS W/O VISWAMBHARAN, MURALEEMANDIRAM YEROOR VILLAGE AND KARA, PUNALUR TALUK KOLLAM DISTRICT, PRESENTLY RESIDING AT "VISWASHREE" DRA 69, NEAR KOLLAVILA BRIDGE, PATTOM P.O. THIRUVANANTHAPURAM DISTRICT - 695 004. R. BY ADV. SRI..MANOJ RAMASWAMY (CAVEATOR) THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 31/7/2014, THE COURT ON 7.8.2014 DELIVERED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & P.V. ASHA, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **F.A.O.No.168 of 2014** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 7TH DAY OF AUGUST, 2014** ## **JUDGMENT** ## Ramachandran Nair, J. The plaintiff in a suit for specific performance of an agreement, aggrieved by the rejection of the application filed under Order XXXIX Rule 1 C.P.C., is the appellant. As per the impugned order, the court below found that the plaintiff has no prima facie case for getting the relief of specific performance of agreement. 2. We heard learned counsel for the appellant, Shri M.S. Narayanan and learned counsel for the respondents Shri Manoj Ramaswamy and Smt. Sanjana R. Nair. 3. It is highlighted by the learned counsel for the appellant Shri M.S. Narayanan that the interim injunction sought is to restrain the respondents from alienating the property claimed and not to commit waste therein. It is submitted that unless the injunction is granted as sought for, the same will defeat the rights of the plaintiff. 4. Learned counsel appearing for the respondents submitted that it is not a case where the balance of convenience is in favour of the plaintiff and FAO No.168/2014 -2- the agreement itself was cancelled and the advance amount received has been returned also. 5. In the impugned order the details of the pleadings of the parties have been narrated. The plaintiff's case in a nutshell is the following: The agreement for sale was executed between the plaintiff and defendants 1 and 2 on 18.6.2012 for sale of the plaint schedule property including the building and shop rooms and the total consideration fixed is Rs.90,00,000/and Rs.5,00,000/- was received by the defendants as advance sale consideration. The period of agreement was fixed as six months from the date of agreement. The properties were measured and the plaintiff was satisfied about the measurement and extent. 6. According to the appellant/plaintiff, she was ready with the balance amount of Rs.85 lakhs and her brother-in-law had deposited Rupees One Crore as Fixed Deposit in State Bank of Travancore, Valakom branch which he had agreed to provide to the plaintiff for the purchase of the property. When the plaintiff's brother-in-law went to the bank to withdraw the amount, it was informed that there is a restraint order in relation to the Fixed Deposit from a Government agency. This was informed to the respondents/defendants. The plaintiff also informed that she will make FAO No.168/2014 -3- arrangements for funds from other sources and she approached the third defendant for funds who is a relative of the first defendant. He agreed to provide financial assistance by releasing a loan and the rate of interest fixed was Rs.4/- per Rs.100/- every month. It was also told that the plaintiff or her brother-in-law shall execute a sale deed of some other property of theirs in favour of the third defendant as security for the loan and if the loan amount is repaid with interest, it will be re-conveyed. They were also to give signed blank stamp papers of the value of Rs.100/- each and also to give signed blank papers and the original sale agreement to the third defendant with the sale deed as security. By a registered letter dated 10.12.2012 the plaintiff informed defendants 1 and 2 about the availability of the balance amount and it was also stated that on 15.12.2012 the document can be executed. On 15.12.2012 all the parties went to State Bank of Travancore, Valakom branch and third defendant brought Rs.85 lakhs and the said amount was handed over to defendants 1 and 2 by the third defendant on behalf of the plaintiff. It is further alleged that defendants 1 and 2 handed over the key of the building and the possession of the property was also handed over. Thereafter, they proceeded to the office of the document writer and firstly the sale deed executed by the FAO No.168/2014 -4- brother-in-law of the plaintiff in favour of the third defendant as security was registered as document No.3498/2012. It was 3 p.m. already and there was no time for registration of the sale deed. The third defendant received Rs.1,10,000/- towards expenses for the purchase of stamp paper and informed the plaintiff that defendants 1 and 2 will execute the sale deed. It was assured that the sale deed will be registered on 17.12.2012, as 16.12.2002 was a Sunday. It is alleged that the possession of the property was taken over by the plaintiff on the same day. 7. The further averments show that on 16.12.2012 the mother of the plaintiff fell ill and therefore she, with her husband and mother-in-law went to Thiruvananthapuram. The mother had to be admitted in PRS Hospital in Thiruvananthapuram and therefore the plaintiff, her husband, brother-in-law and sister-in-law could not return to the native place and to get the sale deed executed. According to the plaintiff, the defendants informed the brother-in-law of the plaintiff that the sale deed was executed and registered and document will be collected by the defendants and will be kept with the third defendant as agreed, which was believed by the plaintiff. 8. It is the further case of the plaintiff that she was paying an amount of Rs.3,40,000/- as interest to the third defendant every month through her FAO No.168/2014 -5- brother-in-law. On 18.9.2013, the brother-in-law of the plaintiff along with his business partner one Shri Mohammed Haneefa went to meet the third defendant to repay the amount of Rs.85 lakhs and to get reconveyance of the 65 cents of property in favour of the brother-in-law of the plaintiff. But the third defendant informed that the sale deed is presently not with him and sought time. Then the husband and brother-in-law of the plaintiff informed that the entire amount is with them and it will be given only if the sale deed is shown. It is stated that the third defendant told that only Rs.45 lakhs need be paid at present and on receipt of the same, the reconveyance deed will be executed and the balance need be paid only when the original of the sale deed is given. Thus, Rs.45 lakhs was paid to the third defendant on 20.9.2013, who executed a reconveyance deed as document No.2239/2013 of S.R.O., Kottarakkara. On 21.9.2013 the plaintiff's husband, brother-inlaw and Shri Mohammed Haneefa went to the house of the third defendant with the balance amount of Rs.40 lakhs and demanded the document. At that time the third defendant demanded Rs.1,10,000/- and stated that he will hand over the original document only on receipt of that amount. Then, the plaintiff enquired with the Sub Registrar's office and came to know that defendants 1 and 2 have not executed any sale deed as promised by them FAO No.168/2014 -6- and then only the plaintiff realised that she has been cheated by the third defendant and thereafter she filed a complaint before the Deputy Superintendent of Police, Kottarakkara on 19.11.2013. It is stated that the plaintiff was ready and willing to pay the balance sale consideration of Rs.40 lakhs to the third defendant. Apprehending that the property is proposed to be sold to some other parties, the suit was filed and the interim injunction is sought. 9. The plea of the defendants/respondents herein is that even though an agreement was executed on 18.6.2012, and Rs.5 lakhs was accepted as advance, the plaintiff was not ready and willing as she could not raise funds for the same. Defendants 1 and 2 were always ready and willing to execute the sale deed after accepting the balance consideration. They wanted to sell the property for purchase of a flat at Thiruvananthapuram. They were not aware about any transaction between the plaintiff and the third defendant. Even though a letter was received from the plaintiff calling upon them to execute the sale deed, when they approached the plaintiff to execute the sale deed with all relevant records, the plaintiff had no money to pay the balance sale consideration. She requested for repayment of the advance amount of Rs.5 lakhs and accordingly they paid the same to the plaintiff and FAO No.168/2014 -7- thereupon a fresh agreement was executed on 15.12.2012 by which the plaintiff acknowledged the receipt of Rs.5 lakhs and released her rights on the basis of the agreement dated 18.6.2012. The original agreement dated 18.6.2012 was handed over to defendants 1 and 2 by the plaintiff. The brother-in-law of the plaintiff is one of the witnesses to the agreement dated 15.12.2012. They denied the allegation that the key of the building was handed over to the plaintiff and the possession of the property was given. No amount has been received as balance consideration by defendants 1 and 2 from the plaintiff or her brother-in-law or from the third defendant. Five rooms in one of the buildings, were leased out by defendants 1 and 2 to third parties and in another building a Veterinary Hospital is functioning. They were not aware about any sale deed executed by the brother-in-law of the plaintiff in favour of the third defendant or about the reconveyance deed alleged to have been executed. It is stated that the plaintiff had withdrawn from the agreement dated 18.6.2012. 10. The documents marked at the time of hearing of the application are Exts.A1 t o A12 series, Ext.A13 and Exts.B1 and B2. 11. In paragraph 8 of the order, the learned Judge was of the view that the relief of decree for specific performance of the agreement for sale FAO No.168/2014 -8- is sought from the defendants including the third defendant. It is also found that the plaintiff has different cause of actions against defendants 1 and 2 on the one part and the third defendant on the other. The third defendant has no right over the plaint schedule property and the claim of the plaintiff against the third defendant is one for return of money. Therefore, it was found that the suit is not properly framed and is bad for misjoinder of cause of action and parties and that the suit and the application seeking interim injunction are bad in law for that reason. It was observed in paragraph 9 that even though an objection was filed by defendants 1 and 2 and they have produced Ext.B2 to support their case that the plaintiff had withdrawn from Ext.B1 agreement, no rejoinder has been filed by the plaintiff denying Ext.B2. The contention raised by the learned counsel for the plaintiff before the court below that Ext.B2 was a forged one, was also rejected. After verifying the documents, it was observed that a comparison of the admitted signature of the plaintiff in the plaint, Ext.B1 and vakalath with her disputed signature in Ext.B2 would show that there is no difference at all between those signatures. 12. It was also found that with regard to the payment of Rs.85 lakhs by the third defendant to defendants 1 and 2, there is no documentary FAO No.168/2014 -9- evidence. It was also noted that the document Ext.A6 executed by the brother-in-law of the plaintiff in favour of the third defendant and ExtA7 reconveyance deed executed by the third defendant in favour of the brotherin-law of the plaintiff do not show that they have any connection with defendants 1 and 2 or Ext.B1 agreement. The plaintiff did not take out a commission to show that she is in possession of the plaint schedule property along with the building. It was also held that the mere production of some receipts showing the payment of building tax, etc. will not lead to the inference that the plaintiff is in possession of the property. The copy of the complaint alleged to have been filed before the Deputy Superintendent of Police, was also not produced. Thus, it was found that there is nothing before the court to find that Exts.B1 and B2 have any connection with the alleged transaction between the third defendant and the plaintiff. In view of all these aspects, it was held by the court below that there is no prima facie case for granting an order of injunction. 13. Shri M.S. Narayanan, learned counsel for the appellant relied upon the decision of the Apex Court in **Julien Educational Trust v. Sourendra Kumar Roy and others** {(2010) 1 SCC 379} to contend for the position that an interim order of injunction ought to have been granted. It is FAO No.168/2014 -10- submitted that since the suit is for specific performance of an agreement, unless interim injunction is granted, the plaintiff will be put to real hardship. Therefore, status-quo as regards the property will have to be maintained during the pendency of the suit. 14. The above argument is met by the learned counsel for the respondents, Smt. Sanjana R. Nair, by pointing out that unless a prima facie case and balance of convenience are shown, the plaintiff is not entitled for an interim order. It is submitted that the story made out by the plaintiff and the alleged transactions with the plaintiff and the third defendant have no connection with the agreement Ext.B1. The agreement itself has been cancelled by Ext.B2. Therefore, on that score itself no order is liable to be granted. Learned counsel also relied upon another decision of the Apex Court in **Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. And another** (AIR 1999 SC 3105) to support the case that an order of injunction is not automatic and so many factors should be weighed by the court including balance of convenience and prima facie case. 15. We have considered the rival submissions. This is a case where the plaintiff has projected composite transaction between different parties. According to the plaintiff, the fund has been offered by the third defendant FAO No.168/2014 -11- as loan for purchasing the property. Learned counsel for the respondents submitted that the plea of the plaintiff that she believed that the document was executed and registered on 17.12.2012, cannot at all be believed. The suit itself is filed only in September, 2013 after waiting for a long period. It is submitted that it cannot be believed that a person who claims to have spent nearly Rupees One Crore, will remain idle on the belief that the document of sale was registered. It is submitted that the said factor itself will go against the pleas of the plaintiff. 16. We are only concerned with the prima facie case pleaded by the appellant and its acceptability for considering the challenge against the order impugned. Actually, the transaction between the plaintiff and the third defendant has no connection with the transaction between the plaintiff and defendants 1 and 2. No documents have come before the court to show that Rs.85 lakhs was paid to defendants 1 and 2. Therefore, all those transactions which are routed through the brother-in-law of the plaintiff and the third defendant including the circumstances leading to the execution of Ext.A6 and the reconveyance, Ext.A7 cannot naturally advance the case of the plaintiff. Defendants 1 and 2 are no longer in the picture with regard to those aspects. The finding on that score by the court below cannot therefore FAO No.168/2014 -12- be held as unsustainable. 17. As regards the remedy of the plaintiff against the third defendant also, observations have been made by the court below, according to us, rightly. Of course, these are matters for the court ultimately, to consider during the trial of the suit. All these aspects have been considered by the court below to find out whether there is a prima facie case for the plaintiff which cannot be faulted also. 18. Therefore, it is not a case where the plaintiff was able to bring out a prima facie case for the grant of an interim injunction restraining defendants 1 and 2 from alienating the property, especially in the light of the contention of defendants 1 and 2 supported by Ext.B2 that the agreement itself was cancelled and the advance amount was returned back. These aspects also will loom large against the case of the plaintiff. 19. In **Julien Educational Trust's case** {(2010) 1 SCC 379} which is the judgment relied upon by the learned counsel for the appellant, a land adjacent to a school owned by a Trust was the subject matter of the suit. The parties had agreed for selling the property to the school. After analysing the factual aspects the Apex Court in paragraph 26 held that the said case is one in which an interim order is required to be passed to FAO No.168/2014 -13- maintain the status quo as regards the suit property. The said observation was made after finding a prima facie case in favour of the appellant Trust. Accordingly, in paragraph 27 it was held that “having found a prima facie case in favour of the appellant Trust, in the light of the principles of balance convenience and inconvenience, interim relief should be granted to the appellant Trust.” Therefore, a prima facie case was found in favour of the appellant Trust in the above case. 20. We are unable to agree with the pleas of the appellant's counsel. Herein, in the absence of a finding of prima facie case in favour of the appellant, this Court will not be justified in granting an interim injunction as sought for. The various transactions alleged by the plaintiff involving the plaintiff's brother-in-law and the third defendant whereby the balance sale consideration has been arranged, prima facie does not bind defendants 1 and 2. Even though it is alleged that the third defendant is a relative of defendants 1 and 2, that alone will not be material to advance the case of the plaintiff. 21. We, therefore, are not satisfied that the appellant has got a strong prima facie case for getting an interim order restraining respondents 1 and 2 herein from alienating the plaint schedule property. But we direct that FAO No.168/2014 -14- respondents 1 and 2 will not commit any waste in the property. Subject to the above observation, the appeal is dismissed. It is made clear that the trial court will dispose of the suit untrammelled by the findings in the impugned order and those contained in the judgment rendered by this Court. No costs. **(T.R.RAMACHANDRAN NAIR, JUDGE)** **(P.V. ASHA, JUDGE)** **kav/**