IN THE COURT OF THE XXVIII ADDL. CITY CIVIL JUDGE, MAYOHALL, BANGALORE

Plaintiff:         D.N. Sriikanth

Vs.

Defendants      Subramaniam Shankar Chitoor & Another

ORDERS ON I.A. No.2 & 3

1.        I.A. No.2 is an application filed by the Plaintiff under O.39 R-1 and 2 R/w. Sec.151 of CPC seeking an order of temporary injunction restraining the defendants from interfering with plaintiff’s peaceful possession and occupation of the schedule ‘A’ and ‘B’ properties pending disposal of the suit.

2.        I.A. 3 is application filed by the defendants under order-39 Rule-4 of CPC to vacate the interim order passed on 30.09.2006.

3.        In the affidavit accompanying the application under order-39 Rule-1 & 2 CPC, the Plaintiff swears to the fact that he is an advocate by profession. The defendants are the joint owners of the Apartment bearing No.406, 4th Floor, Commerce House, Cunningham Road, Bangalore, having purchased the same from M/s. Unique Enterprises in 1993. The defendants were acquainted with the plaintiff, while he was in a law firm Bhuvan & Co.  The plaintiff submitted that one Bhuvanendra, advocate was a tenant under the defendants in respect of the schedule property. The plaintiff left, the office of Bhuvan & Co. to practice, as an independent professional. In the month of January 2003, the defendants approached him, to purchase the schedule property and he having agreed, to purchase entered into an agreement of sale on 02.07.2003, for a valuable consideration of Rs.6,25,000/-. The plaintiff has paid a sum of Rs. 1,12,500/- to each of the defendants on the date of the agreement and balance of Rs.4,00.000/-, was to be paid. The defendants also handed over the complete peaceful and vacant possession of the schedule property, to the plaintiff and promised to execute the sale deed within 90 days. During September 2003 the defendants disclosed that the title deeds in respect of schedule property were deposited as collateral security for the loan availed by them from M/s. Canara Bank and assured to execute the sale deed after obtaining the title deeds from the bank. In spite of extension of time the defendants failed to perform their obligations under the agreement. The plaintiff to his shock and dismay received a legal notice from the defendants on 18.08.2006 alleging non-performance of the obligations under the agreement for which the plaintiff has replied on 01.09.2006 stating that he had always been ready and willing to perform his obligations and called upon the defendants to execute the sale deed, but the defendants failed to do so. Hence, the plaintiff filed the present suit and notice was issued to the defendants for which the defendants have removed the plaintiff’s name plate from its stand, at the entrance of Commerce House building and also in the 4th floor where the schedule property is situated. The plaintiff submitted that, he apprehends that, the defendants would illegally and forcibly dispossesses him from the schedule property and hence prayed for allowing the application.
4.        The defendants have filed objection to the I.A. contending that, the plaintiff has no prima facie case and has not approached the court with clean hands. The defendants are the joint and absolute owners in possession of the suit property. They contend that in 1993 defendants leased the premises to Bhuvanendra, Advocate and Proprietor of M/s. Bhuvan & Co. The plaintiff being a junior advocate in the said Bhuvan & Co. and defendants consulted and availed legal services from them. The plaintiff became a regular lawyer, for defendants and hence had developed, into a long term client relationship. The defendants have an industrial unit at Doddabalapur under the name and style of M/s. Giri Textile Private Limited and to secure loan, they have furnished the original title deeds of the schedule property as collateral security with Canara Bank. In the year 2003 when defendants were not doing well, in their business the plaintiff advised them to obtain second loan against the suit property and convinced the defendants to arrange, for release of the property from Canara Bank. As defendants could not find buyers the plaintiff as per his preplan, came forward to purchase the property and offered an advance of Rs.2,25,000/- and made them to sign a sale agreement on 02.07.2003 though, he was fully aware that the performance of the contract was not possible. The plaintiff’s sole intention was to fraudulently manipulate and assure the schedule premises for a paltry sum of Rs.2.25 lacs. The plaintiff with ulterior motive paid the maintenance of the premises on behalf M/s. Bhuvan & Co., and obtained receipt, in his name from the building association. The plaintiff taking advantage and with ulterior motive induced the defendants to enter into a sale contract, to knock off the property with the help of defendant’s tenant. Thus, the plaintiff has deceived that defendants by undue influence and obtained the sale contract and hence the sale agreement dated 02.07.2003 is void and not enforceable in law. Under the alleged sale agreement there was no delivery of possession and therefore plaintiff has no right to possession. The plaintiff refused to cooperate with the defendants to obtain discharge of the mortgage and was not willing to perform the contract and kept on dodging and hence the defendants cancelled, the sale agreement by legal notice dated 18.08.2006 for which the plaintiff has given untenable reply. After termination of the sale agreement, the plaintiff has started demanding, for delivery of possession unlawfully for the advance paid by him. The plaintiff has also started interfering with defendants’ possession for which they have filed a suit in O.S. No.8682/2006 against the plaintiff. The defendants are in possession of the property after the same was vacated by their tenant. The plaintiff is not in possession of the property and the alleged agreement is unregistered and therefore no protection can be granted under section 53A of the T.P. Act. With these allegations prayed for dismissal of the I.A.
5.        The I.A. filed by the defendants under order-39 rule-4 CPC for vacating the interim order of injunction passed in favor of the plaintiff and the objections filed by the defendants to the plaintiff’s application under order-39 rule-1 and 2 of CPC are on the same grounds and have taken up one and the same contention. They have further contended that the plaintiff has no legal right over the schedule property and is trying to dispossess the defendants from the schedule property by means of interim relief granted by this court on 30.09.2006. The balance of convenience is in their favor and if the interim order granted is not vacated, great hardship will be caused to the defendants. Hence, prayed for vacating the interim order.
6.        The plaintiff has filed objections contending that, he has a prima facie case and balance of convenience is in his favor and if the interim order granted are not made absolute until, the final disposal of the suit, he will suffer irreparable loss and injury and hence prayed for rejection of the application.
7.        In view of the above allegations the points that arises for my consideration are:-

(i)        Whether the plaintiff has made out a prima facie case?
(ii)        Whether the balance of convenience is in favor of the plaintiff? If so, whether the plaintiff would suffer irreparable loss and injury if ad-interim injunction is refused?
(iii)        Whether the defendants application for vacating the TI order to be allowed or not?
(iv)        What order?

8.        Heard the learned advocates.
9.        My answer to the above points are as follows:-

(i)        Negative
(ii)        Accordingly
(iii)        Affirmative
(iv)        As per final order for the following

R E A S O N S
10.        The plaintiff in support of his case has produced documents like copy of the sale deed dated 20.09.1993 true copy of the agreement dated 02.07.2003, true copy of notice dated 18.08.2006, true copy of reply notice dated 01.09.2006, acknowledgement card, copy of demand drafts bearing No.709266 and 709267 dated 13.09.2006 respectively, original sale deed to be executed by the defendants, original endorsement issued by sub-registrar, true copy of D.D. No. 984981 and 984980 dated 14.09.2006 drawn by the plaintiff in favor of sub-registrar, Shivajinagar, receipts issued by Commerce House Owners Association on payment of maintenance fee, copies of income tax returns filed by the plaintiff, bank statement of plaintiff, electricity bills, telephone bills, receipts for delivery of news maker ‘The Week’,  mobile bills, complaint dated 25.09.2006 against defendants to the Owners Association, photographs etc. The defendants have produced documents like memo of fees dated 16.03.2000, balance sheet of Giri Textile Private Limited for the year 2002-03, 2003-04, 2004-05, letter from Canara Bank dated 18.07.2003 and 03.12.2003 respectively, letter written by defendants to Canara Bank dated 03.12.2003,copy of the sale deed dated 19.10.2004, letter from Canara Bank dated 01.03.2006 and 13.09.2006 respectively.
11.        Point No.1:  After carefully going through the rival contentions and materials on record it is clear that (1) the plaintiff is the agreement of sale holder of suit property ( C )  bearing apartment No.406 (henceforth called as suit property) dated 02.07.2003 for having agreed to purchase the same for Rs.6,25,000/- and paid an advance of Rs.1,12,500/- through cheque and balance Rs.4,00,000/- to be paid. (2) As per the suit agreement the sale deed has to be executed within 90 days but the same was extended from time to time till June 2006 by concerned parties (3) A dispute arose between the parties, as such the defendants first issued notice canceling the suit agreement dated 18.08.2006 (4) The plaintiff has replied to the said notice dated 01.09.2006. (5) The defendant filed O.S. No.8682/2006 against Plaintiff for permanent injunction not to interfere with his possession and the cause of action mentioned is 27.09.2006 and same is pending (6) The plaintiff filed this suit on 22.09.2006. (7) The plaintiff along with suit filed I.A. No.1 restraining the defendants from alienating the suit property. (8) The defendants appeared as per their caveat. Then on 29.09.2006 the plaintiff filed this application (I.A.2) restraining the defendants from dispossessing from the suit property. Then case was posted on 30.09.2006 and on that day the defendants without filing objections filed written arguments on I.A. No. 1 & 2. Then on the same day the court vacation was coming so passed an order restraining the defendants from alienating the suit property and from dispossessing the plaintiff from the suit property till next date of hearing. Then the same was extended till the disposal of the application. (9) In this case by consent of both the parties advocates only the plaintiffs application not to dispossess him from the suit property is considered. (10) Therefore, if the same is considered it is clear that (i) in the suit agreement there is no any mention about the handing over of the actual possession of the suit property to the plaintiff. But on the contrary in para-6 it is mentioned that the vendors shall deliver the vacant possession of the said property to the purchaser at the time of registration of the sale deed. Further it is mentioned that the defendant is the owner in actual possession of the suit property on the date of suit agreement. (ii) The plaintiff has specifically made out a case that the defendants handed over vacant possession of the suit property to the plaintiff during the second week of July 2003 and the plaintiff is not required to pay any rents for enjoying the possession and occupation of the suit property. The defendants have denied the same and contended that they have not handed over the possession of the same and contended that they are in possession. (iii) Regarding hading over of the actual possession there is no document nor there is any endorsement on the suit agreement nor there is any specific date of handing over of the actual possession nor there is any detail pleadings regarding the reasons or ground why against the recital of sale agreement which took place few days back only, the possession handed over or in whose presence the actual possession being given and etc. (11) In this case admittedly since 1993 one Mr. K.V. Bhuvanendra is a tenant of the suit property and the plaintiff was also working with the said advocate in the office itself. (12) The defendants are the clients and the said advocate Bhuvanendra and the plaintiff used to attend the defendants legal work. As such they came in contact with each other. During the said contact between plaintiff and defendants, the suit agreement came into existence. In this case no doubt the defendants contended that the said agreement is obtained by exercise of fraud and under influence by the plaintiff etc., but the same can only be considered in the time of trial. But it is sufficient at this stage that the defendants admitted the execution of the suit agreement and receipt of the consideration amount as contended by the plaintiff. (13) A dispute between the parties first started by the defendants notice and plaintiff reply to it as detailed above in August 2006. If the said notice and reply are considered carefully, there is nothing about the actual possession of the suit property by either parties nor the possession of the tenant said Bhuvanendra, Advocate. But the dispute regarding the actual possession of the suit property arose in September 2006 and in the said month only this suit and defendants said suit are filed as detailed above. (14) In this regard there is no any specific pleading by either parties as to when actually the said tenant vacated the suit property. But the defendants advocate’s arguments stated on 01.07.2006. The plaintiff has not made out any contra date in this regard. (15) Since September 2006 a lot of correspondence took place between plaintiff, defendants and the President of the said apartment building regarding removing of the name board interfering with the actual possession of the suit property etc. The plaintiff even filed police complaint against the defendants, (16) In view of the above facts and circumstances at this stage, there is a serious dispute regarding the actual possession of the suit property. In this regard as already held above in detail there is no document nor there are any affidavits of the neighbors. But there is only self serving testimony of plaintiff and defendants and number of documents pertaining to the suit property as detailed above. (17) The plaintiff in order to show the actual possession only produced the documents like the apartment owners receipt for collecting monthly maintenance charges, electricity bills, telephone bills, journal bills, etc. Likewise the defendants also produced some similar documents. Therefore, at this stage the said document appears to be not acceptable unless the concerned persons depose at the time of the trial in support of the same. (18)  In this case on the date of the suit agreement, the defendants were admittedly in actual possession of the suit property. Therefore, it is for the plaintiff to prima-facie case show the actual handing over of the possession as contended. But in this case as already held above in detail there are no fixed date nor documents or affidavits except the self serving statement of plaintiff and the said documents. (19) In this case if the said documents are considered with the admitted fact that the suit property was in occupation of the tenant in which the plaintiff was working as an advocate. In this regard the defendants have specifically alleged tat the plaintiff used to look after the said tenancy of the defendants with the said tenant Bhuvanendra. As such he has got the said records in his name in this regard. The plaintiff has specifically not made out any case that the said documents comes into existence only after his occupation of the suit property after the suit agreement nor produced any document in the name of his Senior advocate in the defendants said tenant nor explained on any ground at this stage.(20) Further in this regard the said senior advocate or tenant being the best person, but he has not come forward to support the plaintiff or defendants in this case nor the plaintiff has chosen to file his affidavit to the effect that the said documents pertain to plaintiff only and not of his office. (21) In this regard it is important to note that as already held above in detail in September 2006 a dispute arose for the first time between the parties regarding the actual possession of the suit property. The defendants have filed the said original suit restraining the plaintiff not to interfere and given his address as apartment No.105 in the same building of the suit apartment nor produced any materials as to who is in occupation of apartment No.105 nor got filed his affidavit in this regard. (22) In this regard the plaintiff has not specifically made out any case as to the said apartment No.105 given by the defendants in the said suit nor explained the same on any grounds at this stage. (23) As per the plaintiff the defendants exchange of notice in August 2006 there is no dispute regarding the actual possession of the suit property nor there is ay averments in this regard. Therefore, for the above reasons and under these circumstances and looking from any angle both the parties case and materials on record, the plaintiff prima-facie failed to prove the actual handing over of the possession as contended in this case. Therefore, the plaintiff’s case that he is in actual possession as contended cannot be accepted merely on the basis of the said documents for the reasons stated above in detail. (24) Apart from it has submitted by the defendants advocate the suit agreement came into existence in 2003, after amendment to section 17 of the Indian Registration Act (1A) in 2001 by inserting (1-A) so as per the same the documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the TP Act shall be registered if they have been executed on or after the commencement of the Registration and other related laws (amendment) Act 2001 and if such documents are not registered on or before such commencement then they shall have no effect for the purpose of the said section 53A of the TP Act. (25) If the said requirement is considered and applied to the facts and circumstances of this case, it is clear that the suit agreement admittedly not being registered as required. Therefore, on this ground alone the plaintiff cannot take the benefit of section 53A of the TP Act. (26) In this regard plaintiff’s advocate submitted at length and stated that as plaintiff has not taken the actual possession of the suit property under the suit agreement but has taken the actual possession after the suit agreement (i.e., after thirteen days of the suit agreement). Therefore, the said requirement will not affect the plaintiff’s case on merits in this regard. Further submitted that under law the plaintiff being in settled possession of the suit property, therefore the same has to be projected and the plaintiff cannot be dispossessed without due process of the law by the defendants. In support of his agreement relied upon a ruling reported in 2005 INDLAWDEL 31. Therefore submitted that the plaintiff is not seeking the benefits or protection of section 53A of TP Act. But if the said submission is considered with the defendants advocate submission that the plaintiff is claiming possession of the suit property only on the basis of the suit agreement and not in any other capacity. Therefore as the suit agreement is not registered the plaintiff cannot take the benefit of section 53A of the TP Act. Therefore the plaintiff cannot claim or protect actual possession of the suit property on the basis of the suit agreement in this case. (27) If both the parties submissions are considered with the legal principles involved in this regard, it is clear that (i) The plaintiffs alleged possession of the suit property is only after the suit agreement and not earlier on any grounds. (ii) Therefore the plaintiff said possession is only on the basis of the suit agreement holder and not in any other capacity. In this regard it is important to note that as per the plaintiff’s letter dated 25.09.2006 addressed to the President of the suit apartment owners association it is mentioned that sellers in terms of the said sale agreement they inducted me in possession of the schedule property as and by way of part performance of the contract”. So as far the plaintiff itself his possession of the suit property is part performance of the contract only i.e., section 53A of TP Act. (iii) Therefore as required by section 17 (1-A) of Registration Act, the suit agreement is not registered. Therefore the plaintiff cannot take the benefit of section 53 A of TP Act under law. Therefore on this ground also even if the plaintiff is in actual possession till then, the plaintiff possession cannot be protected under law in this case for the above reason. (iv) Therefore for the above reasons and under these circumstances, looking from any angle the plaintiff cannot take the benefit of his possession of the suit property on the basis of the suit agreement as part performance of the contract by the defendants. In this regard the plaintiff’s advocate submitted that the plaintiff is in settled possession cannot be accepted for the reasons stated above in detail because the plaintiff’s possession is only as an agreement of sale holder and not in any other capacity and that too after suit agreement only. Therefore the plaintiff case and his advocate’s submission in this regard cannot be accepted. (28) Therefore the above reasons and under these circumstances and without going into plaintiff’s case and materials in this regard the plaintiff failed to prima-facie prove his actual possession of the suit property as required by law nor any triable case in this regard, at the time of the trial. But if the plaintiff is entitled to the suit relief automatically on that basis entitled to possession of the suit property also under law. Therefore I hold that plaintiff has not made out any case regarding the application relief in this case. Therefore the plaintiff’s case and advocates submission in this regard cannot be accepted. Therefore, I answer with this point in the negative.
12.        Point NO.2:  Now coming to the balance of convenience and hardship. In view of my findings and point No.1 in the negative, this point does not survive, for consideration. Hence, I answer it accordingly.
13.        Point No.2: If the same is considered with the above findings it is clear that the plaintiff has failed to prove his actual possession of the suit property nor any protection to his possession as held above in detail. On the other hand if the defendants case and materials on record is considered, with the fact that they admittedly being the owners and in actual possession of the suit property, on the date of the suit agreement. Therefore the defendants’ case that they are in possession of the suit property appears to the prima-facie acceptable. Therefore for the detail reason at the time of considering point no.1, the defendants’ application and advocate’s submission has to be accepted in this case. Therefore I hold that, the exparte TI granted in this case has to be vacated as prayed for. Hence I answer this point in the affirmative.
14.        Point No.4: In view of my findings on the above points, the plaintiff is not entitled to the TI as prayed for in the application. The exparte TI granted against the defendants has to be vacated. Hence, I proceed to pass the following:

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O R D E R
1.        The I.A.No.2 filed by the plaintiff under order-39 rule-1 and 2 CPC is hereby rejected.

2.        The I.A. No.3 filed by the defendants under order-39 rule-4 CPC is hereby allowed. The exparte injunction granted in favor of the plaintiff on 30.09.2006 is hereby vacated.

3.        Under the circumstances, no order as to costs.

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