KHIMJIBHAI HARJIVANBHAI PATADIA Vs. PATEL GOVIND BHAI BHAGVANBHAI

JUDGEMENT

(1.) The ingenuity of the appellant in pursuing the frivolous litigation is remarkable. After entering into so-called agreement as back as in February 1992, the plaintiff had guts to approach the Court after more than 13 years by taking out frivolous arid unsustainable proceedings by filing a suit for specific performance. The facts of the case will reveal as to how the plaintiff has tried to take advantage of the situation in order to take away the property of one of the defendants, namely, Govindbhai Bhagvanbhai Patel and how the plaintiff has made a feeble attempt to get the said property by filing a suit for specific performance of the agreement.

(2.) The appellant is the original plaintiff of Special Civil Suit No. 53/2005. The said suit is filed for getting decree for specific performance on the basis of an agreement to sale dated 23-2-1992, which according to the plaintiff is executed by the original owner of the land, namely, Patel Govindbhai Bhagvanbhai, who is defendant No.1 in the said suit. The case of the plaintiff is that on the basis of the said agreement, he has paid part consideration to defendant No.l. As the averment made in paragraph 1 of the plaint, the plaintiff is staying at Mumbai and doing the business of developers in the name of Sweet Home Developers and is involved in the business of purchasing and selling the land. It is the case of the plaintiff that the property as mentioned in paragraph 2 of the plaint is an agricultural land and defendant No.l, Govindbhai Bhagvanbhai Sakhia had agreed to sell the aforesaid land to him for which an agreement was executed by said Govindbhai in his favour on 23rd February, 1992. The sale consideration was fixed at Rs.51 Lacs and since the land was subjected to Urban Land Ceiling Act, the sale deed was to be executed after the land was released from ULC Act. Some litigations in connection with the suit land were also pending and as per the agreement defendant No.1 - original owner was required to take proceedings to see that the land is cleared from the litigations and after getting the marketable title, the sale deed is to be executed in favour of the plaintiff. According to the plaintiff, the land was thereafter released from ULC and the litigations in connection with the land were also over. However, thereafter, the plaintiff came to know from a public noticed published in daily newspaper "Akila" dated 05.03.2005, that one Rajeshkumar Jayantilal Faldu - respondent No. 24 herein wanted to purchase the said land from one Prafulbhai Govindbhai Raninga. At that time, the plaintiff realized that there is an agreement to sell in his favour and that is why he gave reply to the public notice and, ultimately, approached the Court by filing suit for specific performance in connection with his agreement dated 23-2-1992. The said suit is filed on 13-6-2005 for specific performance of the said agreement of 1991. The plaintiff has joined other defendants also, who have purchased part of the disputed land and it is prayed that decree for specific performance may be granted in connection with agreement as the plaintiff is ready and willing to perform his part of the contract in connection with the agreement dated 23-2-1992. It is also prayed that it may be held that said agreement to sell is already in existence. It is prayed that whatever sell transactions have taken place subsequently by way of sale deed may be held to be illegal. In interim injunction application, it is prayed that defendants may be restrained from transferring, alienating the suit property during the pendency of the suit.

(3.) The aforesaid suit is resisted by defendants on various grounds. It is the say of the defendants that the suit is frivolous and not maintainable. So far as original defendant No.1-Govindbhai as well as defendant No. 22 are concerned, in their written statement they have pointed out that after the aforesaid agreement dated 23-2-1992, another agreement was entered into by defendant No.1 - Govindbhai in favour of defendant No. 22 - Chhaganbhai Jivabhai Khunt and that the plaintiff is signatory to said agreement dated 18th August, 1992. As per the said agreement, original owner has decided to sell the aforesaid land to defendant No. 22 and plaintiff is also a signatory at the time when the said agreement was executed. It is pointed out by the defendants that this fact has been suppressed by the plaintiff and, therefore, he is not entitled to any equitable relief for injunction under Order 39 of C.P.C. The original defendants No.2, 21 and 23 have filed their written statement at Exh. 38 to the injunction application. It is pointed out that even on the basis of so-called agreement in favour of the plaintiff, within six months the plaintiff was required to pay remaining consideration which he has not paid. As per the said agreement 7 Acre and 9 Gunthas of land was agreed to be sold, as against that the authority under the ULC Act has only released 13,500 sq.mtr. of land and in view of that the plaintiff was not willing to perform his part of the contract and that is how he is a signatory to the agreement wherein the original owner has decided to sell the land to defendant No. 22 a Chhaganbhai Jivabhai Khunt. The defendants also stated that the amount of Rs.25 Lacs as claimed to have been paid by the plaintiff to the defendant is not correct and he had not paid any amount nor there is any evidence produced regarding such payment.