MAHESHBHAI NANABHAI PARMAR Vs. VINABEN

JUDGEMENT

(1.) By way of present Appeal from Order under Order 43 Rule 1 (r) of Code of Civil Procedure, 1908, the appellants - plaintiffs (hereinafter referred as to 'plaintiffs') have challenged the order dtd. 15/9/2018 passed by learned 16 th Additional Senior Civil Judge, Vadodara below injunction application Exh.5 in Special Civil suit No.72 of 2017, whereby, the learned Trial Judge has dismissed the injunction application.

(2.) Brief facts for disposal of the present Appeal from Order can be stated thus :-

(3.) I have heard learned advocates for the parties at length, minutely examined averments made in the pleadings and case law cited at bar. It appears that upon execution and registration of sale deed, possession of suit land has been transferred to defendants and such clear averments are made in para 2 of the sale deed itself. Nothing is noticed in the sale deed so as to infer that the parties intended to transfer of property to take place only after receipt of entire consideration. On the contrary, it appears that the parties intended that their title shall stand transferred on execution and registration of sale deed and under the circumstances remedy of the plaintiffs is only to sue for balance price. Not only that the plaintiffs have also initiated proceedings under sec. 138 of the N.I.Act on account of dishonor of certain cheques of Rs.29.00 lakh. From the pleadings of the parties, it appears that it is the case of the plaintiffs that they have agreed to sale suit land for consideration of Rs.131.00 lakh and on account of jantri price being Rs.91.00 lakh, they have executed sale deed for Rs.91.00 lakh and out of said sale price, defendants have not paid Rs.29.00 lakh. In nutshell, it is the case of the plaintiffs that they have received only Rs.62.00 lakh and for balance consideration, cheque of Rs.29.00 lakh were received, which were dishonored on account of insufficient fund. As against this, it is specific case of the defendants in para 27 and para 28 of written statement and reply to the injunction application that they have paid sum of Rs.131.00 lakh by cash and cheque. The defendants have narrated in detail as to how sum of Rs.131.00 lakh was paid including some payment on behalf of the plaintiffs with regard to one previous transaction for which litigation was filed and ultimately concluded on account of intervention of defendants herein. While responding to payment in cash and certain payment made on behalf of plaintiffs, the plaintiffs in their rejoinder affidavit conveniently kept silent as to payment of cash amount made by the defendants, but only reiterated dishonour of cheques. Thus, the conduct of the plaintiffs shows that defendants have made payment in cash and cheque and same has been shown with specific detail as to how and to whom amount has been paid. There is no any specific denial as to non receipt of cash amount.