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.
Bombay High Court
Smt. Vidyavati W/O Rampal Shahu ... vs Smt. Sangita W/O Mahesh Talmale on 11 November, 2014
Bench: S.B. Shukre
APPEAL AGAINST ORDER NO. 128 OF 2014
Citation:2015(2) MHLJ660
1. Heard. Admit.
2. Heard finally by consent.
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.
ao128.14.odt 2/9 Aggrieved by this order, the appellant-plaintiff 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, mother-in-law 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.
ao128.14.odt 3/9
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 ao128.14.odt 4/9 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 ao128.14.odt 5/9 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 ao128.14.odt 6/9 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, requires consideration on the merits of the case, and 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 ao128.14.odt 7/9 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 ao128.14.odt 8/9 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 ao128.14.odt 9/9 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 wwl
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