MISHA VADERA Vs. RAVI KUMAR

JUDGEMENT

(1.) In this application under Order 39 Rule 4, read with Section 151 of the Civil Procedure Code the first defendant Ravi Kumar has prayed for setting aside/modification of the ex-parte ad interim order dated 4.5.94, whereby he was restrained from alienating or parting with possession or creating any third party interest in commercial space/show room, measuring 1106 sq. feet, on the first floor of the building known as 'Hansalaya' situated at 15, Barakhamba Road, New Delhi (hereinafter the suit property).

(2.) Brief facts are: Plaintiffs filed a suit against first defendant, owner of the suit property,second defendant property dealer and third defendant (partnership concern of the plaintiff no. 1/Builder) for specific performance of agreement to sell in relation to the suit property on terms contained in the receipt dated October 28, 1993 executed by the first defendant which reads as under:- RECEIPT Received the sum of Rs. 1,00,000.00(Rupees One lac Only) in CASH from Mr. Misha Vadhera, Hansalaya, 15, Barakhamba Road, New Delhi-110001 as an advance and part payment towards the sale proceeds of Flat No _ measuring 1106 sq.ft. on the FIRST FLOOR, HANSALAYA, 15, Barakhamba Road, New Delhi-110001. The total sale consideration has been settled for Rs. 90,00,000.00 (Rupees Ninety Lacs only). Further advance of Rs. 8,00,000.00 (Rupees Eight Lacs only) will be paid within seven days from the signing of this Receipt. THAT the SELLER shall apply for the clearance from COMPETENT AUTHORITY within 10 days from the DATE the singing of the RECEIPT. After getting the clearance, the Seller shall inform the Purchaser by REGISTERED POST, to get the said flat transferred in his Favour or in the name of his nominee within 60 days from the date of receiving the information after paying the balance consideration of Rs.81,00,000.00 (Rupees Eighty One Lacs only). The SELLER undertakes to clear all dues of House Tax upto date of transfer of the said property. This BARGAIN has been finalised by SATISH PANDIT & ASSOCIATES. They will be paid 2% of the total sale consideration by the SELLER and PURCHASER respectively as their COMMISSION. DATE: October 28,1993 (RAVI KUMAR)" Witnesses:- Satish Pandit s/o. Late Mohan Lal Arunachal, 19. B.K. Road, New Delhi.

(3.) Plaintiffs also filed an application under Order 39 Rule 1 and 2 read with 151 Civil Procedure Code, for grant of ex-parte ad interim injunction. On 20.12.93, the plaint was registered and summons were issued to defendants by ordinary process and by registered AD post for 1.2.94. No ex-parte injunction was granted. Notice on the application was issued for the same date.Plaintiffs feeling aggrieved against the order refusing to grant ex-parte ad interim injunction,filed an appeal FAO (OS) 4/94, and offered to deposit the balance of the sale consideration mentioned in the Receipt. The appellate court permitted plaintiffs to deposit Rs. 89.00 lacs. It was ordered that on deposit of Rs. 89.00 lacs the first defendant will stand restrained from alienating or parting with possession or entering into an agreement etc., in respect of the suit property. The amount was not deposited. The order was modified on 25.1.94 and instead of depositing cash, plaintiffs were permitted to furnish bank guarantee in the sum of Rs. 89.00 lacs. The appeal was disposed of holding that the ex-parte injunction granted by the appellate court, be deemed to have been passed by the Single Judge, granting liberty to the first defendant to apply for modification/ vacation of the said order, if he so chooses. The relevant portion of the orders read as under: