N. JAYALAKSHMI Vs. SHABARI R. RAM

JUDGEMENT

(1.) Heard the appellant's counsel and also counsel appearing for the respondent.

(2.) This appeal is filed challenging the order of dismissal on I.A. filed under order 39 Rule 1 and 2 wherein sought an order of injunction directing the defendant not to alienate the suit schedule property. The trial Court having considered the material on record particularly no dispute with regard to the execution of sale agreement dtd. 24/12/2014 i.e. also a registered document under which sale consideration was Rs.75.00lakhs and an amount of Rs.25.00 lakhs was paid and time is the essence of contract i.e. three months and shall get executed a registered sale deed of the suit property in her favour within three months and also there is a stipulation that defendant can forfeited 25% of the advance sale consideration and repay the defendants sale consideration to the plaintiff and the defendant also not paid the 25% of the amount after forfeiting the same in terms of the agreement and trial Court while considering the prima facie case comes to the conclusion that though time is the essence of contract of three months, suit was filed in 2019 and no material is placed for having paid the balance amount and when the suit is filed for the relief of specific performance, the trial court ought not to have venture to consider the same whether amount has been paid or not and readiness and willingness to perform the part of contract, has to be considered while considering the matter on merits and only to see that whether there is an agreement of sale and in terms of the sale agreement whether plaintiff has made out a prim facie case and instead of gone into the matter on merits and the very observations made by the trial Court is not warranted while considering the application under Order 39 Rule 1 and 2 and instead of considering prima facie case, balance of convenience and also the hardship, dismissed the application with regard to the readiness and willingness and with regard to that observation it requires interference. However, having taken note of an agreement was of the year 2014 and time is stipulated for three months and suit is also filed in 2019 and counsel for the appellant would submit that even though time was the essence of the contract and three months time was stipulated and the same is extended by mutual consent between the parties and in order to substantiate the same no material is placed before the Court. When such being the case, I do not find any prima facie case made out by the plaintiff to grant an order of injunction invoking under Order 39 Rule 1 and 2. Hence no grounds are made out to allow the appeal and set aside the order and grant an order of injunction and rights of the parties is subject to the terms and conditions of the agreement and other contention has to be proved in trial.

(3.) In view of the discussions made above, I pass the following