NANDI HOUSING PVT LTD Vs. INDRANI CHANDRASEKHAR

JUDGEMENT

(1.) This miscellaneous First Appeal is presented by the defendant (appellant herein) aggrieved by the order dated 27-9l989 made by the VIII Additional City Civil Judge, Bangalore City on I.A. Nos. 1 and 3. I.A. No. 1 was an application filed by the plaintiff (respondent herein) in a suit instituted by her for partition of her 25% share and separate possession of the plaint schedule land. In the said suit, the respondent made an application numbered as I.A. No. 1 seeking an ex parte order of injunction restraining the appellant from proceeding with the construction on any portion of the suit land. The Court granted the ex parte order of injunction sought, by order dated 19-6-1989. Subsequently, the respondent entered appearance and made an application numbered as I.A. No. 3 for vacating the said order of injunction, which has been dismissed by the trial Court while affirming the order on I.A. No. 1 previously made granting injunction.

(2.) The facts necessary, for appreciating the rival contentions, in brief, are as follows : Lands bearing Sy. Nos. 11 and 12 of Chikkalasandra village, Uttarahalli Hobli, Bangalore South Taluk, originally belonged to five persons. It appears, the said lands which were agricultural lands, are converted for non-agricultural purposes. The total extent of lands in question is 12,752 sq. mtrs. It is not in dispute that these lands which originally belonged to five persons, namely, K. R. Balaram, K. R. Krishnappa, Ramakka and Gouramma, were jointly purchased under five sale deeds in the month of February 1988 by the appellant, respondent and one Radha D. Kashyap. These lands were held jointly by the appellant, respondent and the said Radha D. Kashyap in the following ratio- 50% held by the appellant; 25% held by the respondent; and 25% held by Radha D. Kashyap.

(3.) Subsequently, Radha D. Kashyap sold her 25% share in the property to the appellant and consequently the appellant is having 75% share in the plaint schedule property. From the documents produced by the parties, it appears that under an agreement to sell dated 21-9-1988 between the respondent and the appellant herein, the respondent agreed to sell her 25% of the share in the plaint schedule property to the appellant. The main terms as could be gathered from the agreement between the appellant and the respondent are the following - (i) That the appellant has formulated a project for a group housing scheme on the plaint schedule lands and has requested the respondent, who owned 25% share in the property, to sell her share to the appellant for a consideration of Rs. 8,00,000 / - free from all encumbrances; (ii) That the appellant has paid the respondent on the day of execution of the agreement a sum of Rs. 20,000 /- by cheque dated 21-9-1988 drawn on Amarnath Co-operative Bank Ltd., Bangalore as advance towards the sale-price; (iii) The balance of the sale price, namely Rs. 7,80,000 / - to be paid in five instalments by the appellant to the respondent on the following dates : (a) On or before 31/12/1988 Rs. 1,25,000/-; (b) On or before 31/01/1989 Rs. 1,25,000/-; (c) On or before 28/02/1989 Rs. 1,25,000/-; (d) On or before 31/03/1989 Rs. 1,25,000/-; (e) On or before 31/04/1989 Rs. 3,00,000/-. (iv) That the sale deed shall be executed by the respondent in favour of the appellant or their nominee/s; (v) That the appellant shall not be entitled for vacant possession of the property which is the subject matter of the agreement unless and until the appellant has paid the respondent the full consideration as stated above; (vi) That if the appellant fails to pay any instalment towards sale consideration as provided in clause (iii) above or commits any breach of the agreement, then for such delayed payment, the appellant shall be liable to pay to the respondent interest calculated at the rate of 3% per annum till the date of payment, provided that in the event of default on the part of the appellant "to pay any two instalments at a time", then the respondent shall be entitled to terminate the agreement without any notice to the appellant and shall be entitled to forfeit a sum of Rs. 2,00,000/-.