HAMARA REALITY PVT. LTD. Vs. RENU SHARMA

JUDGEMENT

(1.) DEFENDANT no. 2 -Builder is before this Court, aggrieved against the order dated 20.03.2013 (P -14) passed by the learned Additional District Judge, Gurgaon whereby the miscellaneous appeal filed by respondent/plaintiff Renu Sharma against the order dated 11.02.2013 (P -13), passed by the learned Additional Civil Judge (Sr. Divn.), Gurgaon dismissing the temporary injunction application under order 39 Rules 1 & 2 CPC, was allowed and consequently the defendants were restrained from alienating the suit property and from changing the nature of the suit property till further orders.

(2.) IN brief, facts of the case are that the plaintiff/respondent Renu Sharma has filed a suit for specific performance of an agreement to sell dated 16.10.2008 against defendant no. 1/respondent Satish Nagar for a land measuring 6 Kanal 12 Marlas. As per the terms of the agreement to sell, the sale consideration was fixed at Rs. 1,01,70,000/ - out of which it was stated that Rs. 45,70,000/ - was paid as earnest money at the time of entering into agreement to sell. The last date for execution of the sale deed was fixed as 15.12.2008. However, prior to the said date i.e. on 30.11.2008 the plaintiff made a further payment of Rs. 5,00,000/ - as earnest money. It was further alleged that on the target date, although plaintiff remained present in the office of Sub Registrar but defendant no. 1 did not turn up to execute the sale deed. In her plaint plaintiff/respondent has given instances to show that she was ready and willing at each and every stage. It was also alleged that now the defendant no. 1 has sold the property to defendant no. 2/petitioner herein vide sale deed dated 28.10.2010 and, therefore, the present suit.

(3.) AFTER considering the argument of learned Counsel for the parties on application under Order 39 Rules 1 & 2 CPC the learned trial Court dismissed the application by holding that no prima facie case is made out in her favour. It was held that the plaintiff had obtained permission to file a fresh suit on the same cause of action on 9.2.2011 while withdrawing her suit for injunction without disclosing that the present suit for specific performance stood already filed on 23.12.2010 and thus, this fact disentitled the plaintiff from seeking discretionary relief of injunction having come to court with unclean hands. Aggrieved against the same, respondent/plaintiff filed an appeal and the learned Additional District Judge, Gurgaon vide the impugned order allowed the appeal, by inter alia holding that since a huge amount of earnest money has been given by the plaintiff to defendant no. 1, therefore, she has equity in her favour and a prima facie case is made out. Further, by relying upon numerous authorities of the Hon'ble Supreme Court as well as this Court, the Court held that it would be in interest of justice that the nature of the property is preserved till the final decision of the suit. However, it was directed by the learned lower Appellate Court that the trial Court shall dispose of the suit expeditiously.