MANGABHAI JADABBHAI MAKWANA Vs. TEKCHAND CHHANGANLAL SHAH

JUDGEMENT

(1.) CHALLENGE in both these appeal from order preferred under Order 43 Rule 1(r) read with section 114 of the Code of Civil Procedure, 1908 is the order dated 24.9.2012 passed in Civil Suit Nos.79/2011 and 80/2011 respectively passed below Exh5, whereby the learned trial Judge rejected injunction application pending the suit for restraining the defendants, their servants, agents from transferring, selling, gifting, renting or creating third party right or handing over physical possession to anyone over the suit land, more particularly, described in the plaint situated at village Sarbhod, Tal: Bardoli, Dist: Surat admeasuring 7487 sq mtr and 15783 sq mtr respectively.

(2.) SINCE the dispute relates to the sale agreement dated 12.12.2009 entered into between the purchaser and seller of the suit land stipulates identical terms and conditions governing sale transaction except price of the suit land, they are hereby disposed of by this common judgment so as to avoid repetition of facts and findings. The parties to the proceedings would be referred to as per their original status in the plaint.

(3.) WHILE denying each and every averments made by the plaintiff in the suit, the owners have contended that the suit is hit by provisions of section 16(c) of the Specific Performance Act while admitting receipt of part payment as per sale agreement. It is contended by the owners that title of the suit land was clear right from the very beginning and they have agreed to sell the suit land to the plaintiff as it is where it is. It is further contended by the owners that there is no charge over the suit land. It is further contended that as per clause 15 of the sale agreement, the plaintiff purchased the suit land with open eyes, inasmuch as the plaintiff was required to obtain possession of the suit land from said Mr. Devilal. It is contended that clause 4 specifically stipulates that the plaintiff was required to pay balance consideration before obtaining possession and such payment was to be made within four months from the date of sale agreement. In sum and substance, it is contended that the plaintiff was required to pay balance consideration within four months and if at all, if the owners have committed any breach within four months of the sale agreement, then there is no explanation for the delay of around 20 months caused in filing the suit. So, on account of delay and laches, injunction application deserves to be rejected. It is further contended that the meeting took place between the plaintiff and the owners for execution of sale deed, but as the plaintiff did not have balance consideration, the plaintiff came out with a case that the owners have committed breach of agreement and therefore, urged to dismiss the injunction application.