CHETAK CONSTRUCTIONS LIMITED INDORE Vs. OM PRAKASH

JUDGEMENT

(1.) This is an appeal under Order 43, Rule 1(r), CPC by the plaintiff-company against the order by which its application under Order 39, Rules 1 and 2, CPC for temporary injunction for restraining the defendants from interfering with the possession of the plaintiff-company on the property in dispute has been rejected.

(2.) This appeal has been transferred by the Supreme Court by order dated 20-4-1998 in Civil Appeal No. 2140 of 1998 from Indore to Jabalpur and it has been assigned to this Bench by Hon'ble the Chief Justice.

(3.) The facts which are not in dispute are that the defendant Nos. 1 to 4 with thirty other persons executed the agreement dated 13-9-1986 in favour of the plaintiff-company. By this agreement they covenanted to sell the property known as House Nos. 8 and 8-A (8/1 and 8/2) situated at Mahatma Gandhi Road, Indore to the plaintiff-company. This property consisted of 1,00,000 sq ft. of land with two houses constructed thereon. One house was on 1500 Sq. ft. in possession of defendant No. 1 Om Prakash Khandelwal and the other house was on 3500 sq. ft. in possession of defendant No. 3 Vijay Kumar Khandelwal. They are real brothers. They have been shown as first party Nos. 20 and 23 in the agreement. The consideration which was agreed upon for the sale of this property was Rs. 1,06,00,000/- Out of this an amount of Rs. 42, 00,000/- was paid by the plaintiff-company to the vendors on the date of the agreement as per Annexure 'C' to this agreement. Further an amount of Rs. 8,00,000/- was paid by the plaintiff to the defendants apart from the agreed consideration for "addition and extensions carried to the structures and immediately vacating the said property". This property was under attachment of the M.P. Sales Tax Department and Income-tax Department for the dues payable by some of the vendors. They agreed to get the property released from the attachment. The total liability for which the property was under attachment was of Rs. 3,50,000/-. It was agreed that the property "will be made free from all the sales tax and income-tax liabilities and dues before the sale-deed is executed". Clause 19 of the agreement provides :- "that the first party has put the second party in actual, physical and vacant possession of the said property in furtherance of this agreement. The second party shall henceforth be entitled to commence and carry on Survey and construction activities thereon but shall not get any title or ownership therein before final sale". Clause 20 further provided that the sale deed was to be executed and registered within one year on payment of balance amount of Rs. 64,00,000/-. But there was a provision for extension of this period by six months on payment of compound interest at the rate of 18% per annum. There was a further clause that "further extension of time for payment is totally ousted and entails termination of this agreement and forfeiture of all advances". Clause 21 again reiterated that the first party shall arrange for and obtain permission for transfer from Income-tax and Urban Land Ceiling Authorities if and when necessary. It is also stated in the agreement that "mere delay in any of these formalities shall not absolve the second party from making balance payment in time". Defendants Om Prakash Khandelwal and Vijay Kumar Khandelwal supported the agreement by their affidavits dated 13-9-1986 and in these affidavits they have also shown that they have "handed over the vacant possession of these premises to the second party on 13-9-1986 under the said agreement". The vendors executed a power of attorney also in favour of the Directors of the plaintiff-company.