PIERRE ANTONIO LOBO Vs. VIMAL SHANKAR SALGAONKAR

JUDGEMENT

(1.) This appeal is directed against the order dated 24-7-2008 passed by the Civil Judge, Senior Division, C-Court, Mapusa in Special Civil Suit No. 111/2007/C by which the application for temporary injunction filed by the appellant has been dismissed.

(2.) The appellant filed the abovereferred suit against the respondents/ defendants seeking specific performance, permanent injunction and other consequential reliefs. It is the case of the plaintiff that in March, 2007, the defendant No. 2 agreed to sell the suit property to the plaintiff. According to the plaintiff, he was given a copy of the Memorandum of Understanding entered into between him and the defendant No. 1 who was the owner of the suit property. According to the plaintiff the defendant No. 2 represented to him that besides the Memorandum of Understanding, the defendant No. 1 had empowered him to deal with the suit property as her constituted attorney with all powers including the power to sell. The plaintiff further claims that on 22-3-2007, he handed over to the defendant No. 2 a token amount of Rs. 10,000/-, after the defendant No. 2 agreed to sell his rights in the suit property and assured that the suit property could be conveyed in favour of the plaintiff or his friends for an agreed consideration of Rs. 8400/- per sq.mtr. The amount was handed over in the presence of Sadashiv Shravankar and Baptist Fernandes. Thereafter, there was orrespondence between the plaintiff and the defendant No. 2. On 28-5-2007 the defendant No. 1 executed a sale deed for Rs. 43 lakhs in favour of the defendant No. 3 in which the defendant No. 2 was shown as the confirming party. Since the defendant No. 2 did not transfer the property in favour of the plaintiff, initially the plaintiff filed a suit for specific performance against the defendants No. 1 and . After filing of the written statement, the plaintiff came to know about the execution of the sale deed in favour of the defendant No. 3 whereupon, the laintiff joined the defendant No. 3 and sought consequential reliefs by seeking amendment of the plaint, which was allowed. The plaintiff also filed an application for temporary injunction restraining the defendants from creating third party rights and from changing the nature of the suit property. Thea pplication was contested by the defendants. The defendant No. 2 denied having entered into an agreement of sale. The trial Court upon appreciation of the material on record produced by the parties, dismissed the application for interim elief and vacated the status quo order which was granted by the Court. Aggrieved, the plaintiff has filed the present appeal.

(3.) Mr. Sonak, the learned counsel appearing for the appellant submitted that the trial Court has not exercised jurisdiction by following the well settled principles governing the grant or refusal of injunction and therefore, the impugned order is liable to be set aside. According to Mr. Sonak, since a triable issue is made out in the suit on the basis of the pleadings of the parties, it is just and proper that pending disposal of the suit, the defendants are restrained from creating third party rights or from changing the nature of the suit property.According to Mr. Sonak the defendants have not made out a case of irreparable loss and therefore, it would be just and proper to maintain status quo pending disposal of the suit. He further submitted that the defendant No. 3 who has purchased the suit property is ordinarily residing at Miramar and the house in the suit property is his 'Second Home' as contended by him. Therefore, he submitted that the trial Court ought to have granted the injunction restraining the defendants more particularly the defendant No. 3 from changing the nature of the suit property and from creating third party rights in respect of the suit property. Mr. Sonak placed reliance upon the judgment of the Apex Court in Maharwal Khewaji Trust (regd.) Faridkot vs. Baldev Dass reported in 2005(1) Mh.L.J. (SC) 1043 = (2004) 8 SCC 488 and submitted that in the said judgment, the Apex Court has held that when an application for injunction restraining the defendants from alienating the suit property and putting up any construction therein is filed by the plaintiff, the same has to be granted unless the defendant is able to establish a case of irreparable loss of damage, the Court should not permit the nature of the property to change, which also includes alienation or transfer of the suit property. Mr. Sonak further submitted that the plaintiff agreed to purchase the suit property for Rs. 90 lakhs which has been purchased by the defendant No. 2 for Rs. 43 lakhs and this is also a relevant consideration for considerating of the application for interim relief.