JAGBIR SINGH Vs. K.H. SINGH

JUDGEMENT

(1.) THIS Misc. Appeal under Order 43 Rule 1 of CPC has been filed against the order dated 25.1.2005 passed by Addl. District Judge, No.5, Jaipur City, Jaipur in Civil Misc. Application No. 82/2004, whereby the application filed by the appellant under Order 39 Rules 1 & 2 read with section 151 of CPC has been dismissed.

(2.) THE short facts of the case are that the appellant filed a civil suit for specific performance of contract, declaration and injunction against the defendants-respondents on the contention that the defendant No.1 and 2 are the owner of the plot no.6 Hari Marg, Civil Lines. Both the parties are neighbours. The defendant no.1 had taken huge amount of loan which has been accumulated to Rs.13,87,472.95.00. In order to pay the dues, defendant no.1 and 2 agreed to sell the plot no.6 for an amount of Rs.25,00,000.00 to the appellant. First agreement was executed between the parties on 12.11.1996, thereafter by confirming the same agreement, other agreement to sell was executed on 9.3.2001 and possession of the property was also handed over to appellant. Appellant spent Rs.5,00,000.00 on repair of the house. On 19.2.2004, a notice was published in the newspaper that the property would be put to auction on 27.9.2004 by the Recovery Officer in pursuance of recovery certificate issued in case no. RC 115/96, PNB vs M/s Sierra Micro Electronics Ltd. issued by Debt Recovery Tribunal. The appellant raised objection before the Recovery Officer, Debt Recovery Tribunal which was rejected and later on the property was auctioned to defendant No.5 Shri Vijay Kumar Modi. Hence, the appellant filed the present suit along with an application for temporary injunction that defendants be restrained from dispossessing the appellant from suit property which was dismissed by the court below. Hence this appeal.

(3.) PER contra, the contention of the respondent no.5 who is auction purchaser of the suit property has stated that a loan was advanced to defendants no. 1 and 2 on 17.6.1988 and that debt recovery tribunal has passed the decree on 29.8.1996. Thereafter, just to circumvent the decree in collusion with the appellant, these two agreements have been executed which cannot be termed as agreement to sell. There was no intention to sell the property has been shown in 12.11.1996 agreement only an intention to transfer the property has been made as there was huge dues towards respondents no.1 and 2 and furthermore in another agreement dated 9.3.2001, the main intention of the respondent no.1 is to pay back entire amount and if necessity arises, it could be paid out of the sale proceeds of the disputed house. Furthermore, his contention is that auction proceedings have been started before the Debt Recovery Tribunal and property has been auctioned to present respondents on 27.9.2004 and just to frustrate that proceedings, this suit has been filed collusively. The present appellant and respondent no.2 are real brother and sister and present appellant is not the tenant in the suit premises, no averment has been pleaded about the tenancy in the main suit, the basis of the suit is alleged agreement to sell dated 29.11.1996 and 9.3.2001, the agreement dated 12.11.1996 is an unilateral declaration which is not a bio party agreement between the parties, no consideration has been agreed. These proceedings are only abuse of process. On 22.6.2001, the respondent no.1 has filed objections before the Debt Recovery Tribunal and stated that she is owner of the land and possession is also with her. She has not stated that she has entered into an agreement to sell with the present appellant. Appellant had not come with clean hands and just to frustrate recovery of proceedings, this suit has been filed. The respondent no. 5 had purchased the suit property by way of auction for the sum of Rs. 41.36 lacs, hence the balance of convenience is in favour of the respondent no.5 and the court below has rightly rejected the temporary injunction application. There is no reason to interfere in the impugned order.