SANJEEV NARANG Vs. PRISM BUILDCON PVT LTD

JUDGEMENT

(1.) THIS is an appeal under Order XLIII Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 against an order dated 24th April, 2008 passed by the learned Single Judge of this Court in IA no. 1475/2008 and I. A. No. 4010/2008 in CS (OS) No. 220/2008 whereby the appellant's application for restraining the defendants from selling, transferring, alienating, encumbering, executing/ registering or otherwise parting with possession of property bearing Khewat/khata/khasra No. 66, 67, 70, 71, 115, 116, 149 which is approximately 03. 02 bighas and Khewat/khata/khasra no. 113/465, 134, 135, 138, 139, 140, 141, 142/463, 257/464 total admeasuring 19. 78 bighas situated in the Revenue Estate of Village: Lamaye Meval, Patwar area: Sirohi, Tehsil: Ajmer, District: Jaipur (Rajasthan) (hereinafter referred to as the "suit property") was dismissed and Respondents application under Order xxxix Rule 4 for vacation of ad interim injunction was allowed.

(2.) IN the plaint, it was submitted by the Appellant (Plaintiff in Suit no. 220/2008) that under assurances and representations made by the Respondent regarding the suit property, the Appellant vide an agreement to sell dated 9th january, 2008 agreed to buy the suit property for a total consideration of rs. 53,40,600/- (Rupees Fifty Three Lakh Forty Thousand and Six Hundred only) at the rate of Rs. 2,70,000/- (Rupees Two Lakh Seventy Thousand only) per bigha. It was stated that in part payment of total sale consideration, Rs. 11 lacs was paid by the Appellant to the Respondent by two cheques bearing Nos. 265152 and 265153, both dated 7th January, 2008 of Rs. 50,000/- each which stood encashed and credited in the account of the Respondent and Rs. 10 lac was paid in cash. The said agreement contains the stipulation under Clause 4 and 10 that if the respondent fails to get the Deed of Conveyance/sale Deed registered within the period stipulated in the said Agreement that is valid till 30th June, 2008, then in such an event the Appellant shall be entitled to get the Deed of conveyance/sale Deed registered through the court of law by specific performance of the said agreement. When on 11th January, 2008, the Appellant went to execute the Deed of Conveyance and to pay the remaining sale consideration, the respondent refused to execute the same and informed him that he has got a higher offer. Thus the Appellant instituted a suit for specific performance of this agreement. He also filed an application under Order XXXIX Rules 1 and 2 of the code of Civil Procedure on the same facts as given in the plaint praying for an ex parte order restraining the Respondent to sell or otherwise interfere in the property which was issued on 8th February, 2008.

(3.) THE Respondent in the written statement raised a preliminary objection that the alleged agreement dated 9th January, 2008 is a forged and fabricated document. It was submitted that the Respondent company has never received any payment as alleged in the said agreement or in the suit. The Appellant mischievously deposited two cheques of Rs. 50,000/- each in the bank account of the Respondent at HDFC Bank at Delhi although the account of the Respondent with HDFC Bank was at Jaipur. The Appellant approached the Respondent on or about 31st October, 2007 for purchase of the suit land at the rate of rs. 6,50,000/- per bigha but on refusal from the Respondent to sell the same, left the agreement signed by the Appellant but not signed by Respondent and a cheque of Rs. 9 lac. It is denied that Respondent had entered into any agreement to sell dated 9th January, 2008. The signature on this agreement of Sh. Mahipal chaudhary, Director is stated to be a forged signature. It was further stated in the written statement that when the Respondent did not agree to sell the suit property at the rate of Rs. 6,50,000/- per bigha, how can it after around two months agree to sell the same property at a much lower price at the rate of rs. 2,70,000/- per bigha. The Respondent filed an application under Order XXXIX rule 4 of the Code of Civil Procedure praying for vacating the ex-parte order dated 8th February, 2008 passed in favour of the Appellant restraining the respondent from selling and alienating the suit property.