JUGAL KISHORE GARG Vs. ANAND SRIVASTAVA

JUDGEMENT

(1.) The present appeal filed under Order XLIII Rule 1(r) of CPC arises out of the order dated 4.1.2012 passed by the Addl. District Judge, Behror, Alwar (hereinafter referred as the "trial court") in Civil Misc.(T.I) Application No.151 of 2011, whereby the trial court has dismissed the said application of the appellant-plaintiff filed under Order XXXIX Rules 1 & 2 of CPC.

(2.) The case of the appellant-plaintiff in nutshell is that the respondents-defendants executed an agreement/ Memorandum of Understanding (for short 'MoU') dated 17.8.2011 to sell the suit land situated at village Hamejapur and Dhundera Tehsil-Behror District-Alwar, admeasuring about 150 bighas, for total sale consideration of Rs.37 lac per bigha. As per the terms of the agreement, the appellant-plaintiff had to make payment of Rs.5 crores at the time of signing the MoU, Rs.16 crores on or before 30th August,2011,Rs.6.5 crores on or before the expiry of three months from the date of MoU i.e. on or before 16.11.2011 and the balance of consideration on or before the expiry of six months from the date of MoU i.e. 16.2.2012. It was further mentioned in the said MoU that registration of the sale deed in favour of the vendee or his associates shall take place on the receipt of Rs.21 crores (i.e. on the receipt of 1st and 2nd installments of Rs.5 crores and Rs.16 crores respectively) and on the receipt of the post dated cheques of Rs.6.5 crores and the balance consideration. It is further case of the appellant-plaintiff that on 4.9.2011, the appellant had served a notice to the respondents-defendants showing his readiness and willingness to perform his part of contract and requested the respondents-defendants to abide by the terms of MoU to be performed on his part. The said notice was replied to by the respondents-defendants vide the reply dated 7.9.2011 stating interalia that the appellant had failed to make payment of Rs.16 crores by 30.8.2011 and therefore had committed the breach of condition mentioned in MoU and therefore the respondents had terminated the said MoU dated 17.8.2011. Appellant- plaintiff therefore filed the suit against the respondents-defendants seeking specific performance of the agreement dated 17.8.2011 and also filed the application being no.151 of 2011 seeking temporary injunction restraining the respondents defendants from alienating, transferring or creating any third party interest in the suit land during the pendency of the suit. The said application was resisted by the respondents-defendants by filing the reply. The trial court after hearing learned counsels for the parties, dismissed the said application of the appellant-plaintiff vide the impugned order dated 4.1.2012. Being aggrieved by the said order, the present appeal has been filed.

(3.) This court initially had issued notice to the respondents and restrained them from alienating the property in question vide the order dated 1.2.2012. Thereafter, the court vide the order dated 22.5.2012 had called for the record of T.I. Application from the trial court, and further ordered to finally dispose the present appeal at the admission stage. Accordingly, the record having been sent, with the consent of the learned counsels for the parties, the appeal has been heard finally at the admission stage.