RAJENDRA JASHBHAI PATEL Vs. KEYUN RAMESHCHANDRA SHAH

JUDGEMENT

(1.) The present appeal under Order 43 of the Code of Civil Procedure, 1908 ('the Code' for short) is preferred by the appellant (original plaintiff) to assail the order dtd. 8/3/2021 passed by learned 23rd Additional Senior Civil Judge, Vadodara below Exhibit-5 in Special Civil Application No.163 of 2020 whereunder the injunction application preferred by the appellant under Order 39 Rule 1 and 2 of the Code came to be rejected.

(2.) The facts giving rise to the present appeal as could be gathered from the impugned order and connected material are that the appellant (plaintiff) and four others namely Ajitbhai, Kalpaben, Taniya Patel and Natasha patel were the co-owners of the land bearing final plot number 46 admeasuring about 11007 sq. Meters in Town Planning Scheme No.2 (Sana-Dona) in Vadodara City (hereinafter referred to as the 'subject land'). The appellant and the co-owners executed a registered sale deed dtd. 21/11/2016 in respect of the subject land in favour of the respondent (original defendant). The consideration mentioned in the sale deed is 6,38,40,600/- out of which the appellant share is Rs.5,10,08268.00. On the date of execution of the sale deed, the respondent had paid Rs.20,00,000.00 as per the recital in the sale deed 18 post dated cheque for unpaid consideration were given to the appellant and co-owners to be realized periodically in the period between November, 2016 to December,2018. Paralally, on the same date i.e. on 21/11/2016 an MOU was executed executed between the parties. The MOU executed for clarification of real sale consideration agreed between the party. As per the MOU although the consideration mentioned in the sale deed is Rs.6,38,04,600.00. The real sale consideration is 11,00,00,000/- ( Rupees Eleven Crore) out of whcih share of the appellant is Rs.8,66,52,556.00 as per further recital in the MOU 30 post dated cheques for unpaid sale consideration was given by the respondent to the appellant and other co-owners for unpaid sale consideration to be realized periodically and the period between November, 2016 to December, 2018. These 30 cheques include 18 cheques mentioned in the sale deed. As per one of the recitals in the MOU that in the event that the respondent (defendant) raises any dispute with respect to the sale consideration, the sale date is stand cancel. On the basis of the registered sale deed, the name of the respondent came to be mutated in the revenue records. The respondent has failed to pay remaining amount of Rs.5,42,67,573.00 to the appellant. The Special Civil Suit No.163/2020 was, therefore, instituted by the appellant in the Court of learned Principal Senior Civil Judge, Vadodara for cancellation of sale deed, declaration recovery, permanent injunction and other reliefs. An application under Exhibit-5 under Order 39 Rule 1 & 2 of the Code was also preferred for an injunction to restrain the respondent (defendant) from alleinating and transferring the subject land during the pendency of the suit.

(3.) The learned trial Judge by the impugned order has dismissed the Exhibit-5 application by the impugned order. Hence, present appeal.