Once, it is found that at this stage prima facie evidence
exists regarding the agreement dated 07/11/2012, although this
inference is liable to be upset, if evidence in rebuttal is adduced by the
respondent, making out of existence of prima facie case by the
appellant would be a logical conclusion Therefore, I find that the
appellant has established existence of prima facie case in her favour. It
is well settled law that by the expression, “prima facie” what is meant
is that there is some reasonably good arguable case, which would
require trial on merits. I would like to draw support in this regard
from the observations of Hon'ble Apex Court made in the case of
Videsh Sanchar Nigam Ltd. Vs. M. V. Kapitan reported in 1996 (7)
SCC 127.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
APPEAL AGAINST ORDER NO. 128 OF 2014
Smt. Vidyavati Rampal Shahu, Vs Smt. Sangita Mahesh Talmale
CORAM : S. B. SHUKRE, J.
DATED : NOVEMBER 11, 2014.
Citation;2015(2) MHLJ660
3. In a suit filed for specific performance of contract and
alternatively for refund of the consideration paid, an application filed
for grant of temporary injunction against the respondent vide Exh.5
came to be rejected by the trial Court by its order dated 17/10/2014.
Aggrieved by this order, the appellantplaintiff
has preferred the
present appeal.
4. It is the case of the appellant that there was an agreement
between the appellant and the respondent to purchase agricultural
land, hereinafter referred to as 'the suit land', belonging to Indubai
Talmale, motherinlaw
of the respondent and it was agreed by both
the parties to purchase it in their joint names. It was also agreed that
in this property to be purchased jointly from Indubai, share of the
appellant would be to the extent of 1/3rd in relation to the entire
property. The agreement was agreed to be executed on 07/11/2012
for a consideration of Rs.2.5 crore. It was also agreed that the
appellant would pay in all Rs.1.4 crore to the respondent towards
purchase of her 1/3rd share in the suit land and accordingly, an amount
of Rs.1 crore was also transferred through R.T.G.S. by the appellant to
the account of the respondent. Later on, it was found by the appellant
that the respondent went back on her promise and independently
purchased the suit land from Indubai by sale deed on 23/11/2012.
Therefore, the appellant demanded her share in the suit land and since
it was denied, she filed a civil suit for specific performance of the
contract with alternate prayer of refund of the amount paid to the
respondent under the agreement dated 07/11/2012 and also filed an
application seeking temporary injunction against the respondent.
5. The application was resisted by the respondent by denying
that there was any agreement ever entered into between herself and
the appellant. According to her, the agreement dated 07/11/2012 was
forged and that she had filed not only a police complaint in that regard
but also issued a public notice informing the public at large that no
such agreement was existing between the appellant and the
respondent. She also submitted that the appellant was indulging in
illegal money lending transactions and whatever the amount was
transferred to her account was a part of money lending transaction for
which separate proceedings would be taken by her. She also
submitted that there was no privity of contract between herself and the
appellant and, therefore, there was no prima facie case nor balance of
convenience nor the factor of occurring of irreparable loss going in
favour of the appellant.
6. Upon hearing the rival parties and considering the prima
facie evidence available on record, the trial Court found that no prima
facie case was made out by the appellant and, therefore, by an order
passed on 17/10/2014, rejected the application for grant of temporary
injunction. Now, the parties are before this Court agitating the same
issue in this appeal.
7. According to the learned Counsel for the appellant, the
existence of agreement between the appellant and the respondent is
sufficiently brought on record by the mere fact that receipt of an
amount of Rs.1 crore, which was transferred to the account of the
respondent through R.T.G.S., has not been denied by the respondent
and this fact would stand as a prima facie piece of evidence of the
agreement entered into between the parties. He submits that the
respondent has committed breach of contract between herself and the
appellant by going ahead with purchasing of the suit land
independently in her own name ignoring what she had agreed on
07/11/2012. He further submits that if any third party interests are
created in the suit land, irreparable loss would be caused to the
appellant and as such, interference of this Court is very much required.
8. On the other hand, learned Counsel for the respondent
strongly opposing contentions raised before this Court, submits that
the trial Court has correctly found that the appellant has failed to
demonstrate the existence of prima facie case in her favour in as much
as there is denial of receipt of Rs.1 crore in the account of the
respondent towards the part fulfillment of the promises made in the
alleged agreement. He submits that the respondent has also filed
police complaint as well as issued public notice making her stand clear
that there was no such agreement and that the appellant had been
committing fraud upon herself as well as the public at large. He has
referred to the notice dated 28/3/2014 issued by the appellant and
also the complaint filed under Section 138 of the Negotiable of
Instruments Act by the appellant against the respondent, in support of
the contention that even in these documents, the appellant had never
alleged that there was any agreement executed between herself and
the respondent on 07/11/2012 and this fact itself would show that the
entire foundation of the case of the appellant is based upon a false
stand. He also submits that in any case the handwriting expert's
opinion, copy of which is placed on record, would show that the
agreement is a forged one. On these grounds, he urges that the appeal
be rejected summarily.
9. Upon going through the impugned order as well as the
documents placed on record, I am inclined to accept the argument
canvassed on behalf of the respondent and I find that there is no
substance in the argument of the learned Counsel for the appellant.
10. So far as concerned the Handwriting Expert's opinion,
which according to the learned Counsel for the respondent discloses at
this stage that the agreement does not bear signature of the
respondent, I am of the view that this document being not available
before the trial Court, cannot be considered in an appeal which is filed
against the order in which there is no consideration of this document
as it was also not available for consideration. Even otherwise, just for
the sake of argument, if it is presumed that this document can be
considered by way of subsequent development having a material
bearing on rights of parties, still, I find that the evidence of the
Handwriting Expert, being weak in it's nature, would have to be
considered together with all other relevant facts and circumstances, if
available. In the present case it would indeed require such
consideration because there is available on record other material prima
facie establishing case of the appellant, the reasons for which have
been stated in the foregoing paragraphs.
11. One fact that stands out significantly in this case is the
transfer of amount of Rs. 1 crore through R.T.G.S. payment mode from
the account of the appellant to the account of the respondent. Even
though it is the case of the respondent that this amount was a part of
illegal money lending transaction indulged in by the appellant, the
respondent has not explained as to why this amount was accepted by
her; was it because it was borrowed by her from the appellant or was it
on account of some other transaction between herself and the
appellant; and merely saying that it was a part of illegal money lending
transaction would not be enough. A bare perusal of the reply of the
respondent is enough to support this inference. There is no specific
denial to the receipt of such huge amount in the account of the
respondent and there is also no specific pleading taken by the
respondent in reply that it was on account of some other transaction or
by way of some borrowing made by her from the appellant. On the
other hand, agreement dated 07/11/2012 refers to payment of amount
of Rs.1 crore by the appellant to the respondent and, therefore,
transfer of this amount from the account of the appellant to the
account of the respondent would have to be taken as prima facie
evidence of the agreement dated 07/11/2012 having been entered into
between the parties. After all, none would pay such a huge amount
and nobody in his senses would accept it without there being some
deliberation, some reciprocity, and some agreement.
12. Once, it is found that at this stage prima facie evidence
exists regarding the agreement dated 07/11/2012, although this
inference is liable to be upset, if evidence in rebuttal is adduced by the
respondent, making out of existence of prima facie case by the
appellant would be a logical conclusion Therefore, I find that the
appellant has established existence of prima facie case in her favour. It
is well settled law that by the expression, “prima facie” what is meant
is that there is some reasonably good arguable case, which would
require trial on merits. I would like to draw support in this regard
from the observations of Hon'ble Apex Court made in the case of
Videsh Sanchar Nigam Ltd. Vs. M. V. Kapitan reported in 1996 (7)
SCC 127.
13. It is seen from the impugned order that the trial Court has
been swayed away by the mere fact that the appellant did not give
details of the account of the appellant to which the amount of Rs.1
crore was transferred and therefore came to a conclusion by way of
assumption that she failed to demonstrate that part of the
consideration was actually paid by her and received by the respondent.
On such an erroneous assumption, the trial Court further found that
there was no prima facie case established by the appellant and also
further found that balance of convenience as well as factor of
irreparable loss were not going in favour of the appellant. This
approach was the result of improper and arbitrary consideration of the
material aspects in this case and, therefore, I am of the view that the
impugned order needs to be quashed and set aside. Needless to
mention here that as huge amount has been prima facie received by
the respondent as a part of the consideration of an agreement dated
07/11/2012, the balance of convenience would be tilting in favour of
the appellant. Then, there is a prima facie denial by the respondent to
give 1/3rd share in the suit land to appellant, and the stakes involved
being very high, apprehension of the appellant of she suffering
irreparable loss, if injunction is refused, cannot be said to be baseless.
14. In the result, the appeal deserves to be allowed.
The appeal is allowed. Impugned order is hereby quashed
and set aside.
It is directed that the respondent shall not create any third
party interest in the suit land to the extent of 1/3rd share therein in
respect of which the appellant is claiming her right, until final disposal
of the suit.
The temporary injunction application stands allowed in the
above terms.
The parties are at liberty to seek expeditious disposal of the
trial by the trial Court.
The appeal stands disposed of in the above terms with no
order as to costs.
JUDGE
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