Sunday 6 August 2023

Whether the court can grant temporary injunction in suit for specific performance of contract if vendor pleads that agreement of sale was executed under coercion?

 In the instant case, the defendant has not

denied the execution of the agreement to sell dated

07.05.2022 but has contended that the agreement to sell

was entered into under coercion. However, the defendant

had kept the money received under the agreement of Rs.10

lakh in her account for more than 5 months. Thus, prima

facie agreement cannot be said to be under coercion as

there is no steps taken by the defendant to return the

amount, rather the defendant has kept money in her

account and effect thereto is to be examined before the trial

court and thus no interference is called for at this stage, in

the order passed by the trial Court. {Para 31}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

APPEAL FROM ORDER NO. 25 OF 2023

Smt. Manisha w/o. Balkrushna Kode, Vs Shri. Madanlal s/o. Uttamchand Desarda,

CORAM : ARUN R. PEDNEKER, J.

Pronounced on : 02.08.2023


1] By the present Appeal from Order, the appellant

is challenging the order dated 24.01.2023 passed by the

Civil Judge Senior Division, Aurangabad in Special Civil Suit

No.1186 of 2022 in Exh.5 application, whereby the Civil

Judge Senior Division clamped injunction against the

present appellant – original defendant, directing the

defendant not to create third party interest in the suit

property during pendency of the Special Civil Suit No.1186

of 2022.

Facts giving rise to the filing the present Appeal from Order

can be briefly summarized as under:

2] The respondent – plaintiff is an agriculturist and

deals in real estate. The appellant – defendant is the lawful

owner and possessor of the land to the extent of 1 Hector

21 R. land out of Gat No.114/1 situated at village

Nakshatrawadi, Aurangabad. The appellant – defendant

entered and executed agreement to sell in favour of the

respondent – plaintiff on 17.06.2002. As the defendant

allegedly failed to perform her part of contract, the plaintiff

filed Regular Civil Suit No.113/2014 for specific

performance of contract and the said suit came to be

dismissed. Against the said dismissal, Regular Civil Appeal

No.287 of 2016 is filed and the same is still pending before

the Ad-hoc District Judge-2, Aurangabad.

3] It is the case of the plaintiff that during the

pendency of the said Appeal, the defendant and her

husband approached to the plaintiff and offered to

compromise the matter on payment of higher consideration

amount for the suit land and to settle the matter once for

all. The plaintiff considering his own old age and that of the

defendant too and with a view to settle the old litigation

agreed for the same. The defendant thereby entered into a

new agreement with plaintiff vide notary registered

agreement dated 07.05.2022 in presence of witnesses

including her husband, her then lawyers and grand-son of

the plaintiff for sale of the suit land.

4] It is further the case of the respondent –

plaintiff that in terms of the agreement, the plaintiff has

paid the defendant Rs.10,00,000/- vide cheque No.479446

drawn on Axis Bank on the very date of the agreement out

of the agreed total consideration amount of

Rs.1,11,00,000/- [One Crore and Eleven Lakh rupees only].

The total consideration amount was agreed to be fixed at

Rs.1,11,00,000/- for the total land of 3 Acre under the

agreement and the remaining consideration amount of

Rs.1,01,00,000/- was to be paid by the plaintiff at the time

of execution of the sale deed in favour of the plaintiff by the

defendant.

5] It is further the case of the plaintiff that the

initial payment of Rs.10,00,000/- was received and

acknowledged by the defendant and that the plaintiff was

required to pay the remaining amount within the period of

four months from the date of execution of the said

agreement. Thereafter, the plaintiff got prepared demand

drafts of the remaining consideration amount. Thereafter

the plaintiff and his grand son approached and contacted

the defendant many times, but the defendant tried to avoid

talking or meeting the plaintiff but assured the plaintiff to

execute the registered sale deed in his favour, but avoided

on several grounds to execute the sale deed. It is further the

case of the plaintiff that the plaintiff called upon the

defendant by issuing legal notice through his advocate on

07.10.2022 to remain present on the given date before Sub

Registrar Office and to perform her part of contract but the

defendant failed to comply the notice duly served on the

defendant so also the defendant did not reply to the said

notice. The plaintiff had also registered lis pendence of the

suit property vide deed No.1071/2014 dated 03.03.2014.

6] It is further the case of the plaintiff that the

defendant with malafide intention and to deceive the lawful

rights and interest of the plaintiff, transferred the odd

amount of Rs.11,00,000/- in the account of the plaintiff’s

daughter in law without his permission or consent. It is

further the case of the plaintiff that the amount of

consideration paid by the plaintiff was retained by the

defendant from 07.05.2022 to 13.10.2022 and that it

falsifies the claim of the defendant that she was made to

enter into the agreement to sell by exerting coercion. Thus,

the defendant was avoiding to perform her part of the

contract although the plaintiff was ready and willing to

perform his part of the contract. It is the case of the plaintiff

that the plaintiff is in possession of the suit property prior to

the present agreement and that the defendant was trying to

take possession of the property and that if the defendant

succeeds in her illegal activity, then the plaintiff will suffer

irreparable loss, which cannot be compensated in terms of

money.

7] Due to non execution of the sale deed, the

plaintiff was constrained to file Special Civil Suit No.1186 of

2022 for specific performance of the agreement to sell,

dated 07.05.2022. Along with the suit, application below

Exh. 5 is filed for interim relief of injunction against the

defendant not to create third party rights over the suit

property.

8] In the suit, the defendant appeared and filed its

reply and the defendant denied all averments and pleadings

of the plaint. It is the case of the defendant that the suit

filed along with the application for temporary injunction by

the plaintiff against the defendant is illegal, time barred and

filed on the basis of unregistered document and by

deceiving the defendant. The defendant further submitted

that the agreement itself was cancelled by the defendant

and as such no suit for specific performance of contract was

maintainable without seeking declaration that the

cancellation of the agreement at the instance of the

defendant is unlawful and not binding on the plaintiff.

9] It is the case of the defendant that unregistered

document does not create any right or interest in the

property. It is further the case of the defendant that the

plaintiff has not paid sufficient stamp duty as per the

valuation of the suit property, therefore, the agreement to

sell filed by the plaintiff is not admissible. It is further the

case of the defendant that the suit is filed by the plaintiff

through his power of attorney in respect of the suit property

in respect of which since beginning there is dispute going

on between the plaintiff and the defendant, the power of

attorney has no knowledge about the suit property.

10] By order dated 24.01.2023, the injunction is

granted in favour of the plaintiff, which is now challenged

in the present Appeal from order.

SUBMISSIONS :

11] Heard Mr. Mahesh Deshmukh, Advocate for the

appellant – defendant. Mr. Deshmukh submits that it is the

case of the appellant – defendant that by specific legal

notice dated 10.10.2022, posted on 12.10.2022, which was

refused to accept by the plaintiff on 13.10.2022, the

defendant had cancelled agreement of sale dated

07.05.2022 and the plaintiff did not seek declaratory relief

challenging the said notice of cancellation of agreement, as

such, in the said suit there was no prayer for declaration of

legal notice dated 10.10.2022, cancelling agreement to sell

dated 07.05.2022, as void or bad in law. Consequently, the

suit is not maintainable without seeking relief of declaration

that the legal notice dated 10.10.2022 is void. The learned

counsel for the appellant – defendant has relied upon the

judgment in the case of I.S.Sikandar (Dead) By LRS. Vs.

K.Subramani and others reported in (2013) 15 SCC 27 and

in the case of Mohinder Kaur Vs. Sant Paul Singh reported

in [2019] 9 SCC 358.

12] It is the contention of the appellant – defendant

that the agreement is determinable in terms of the provision

of Section 14 of the Specific Relief Act and that due to the

contents of notice dated 10.10.2022, the agreement dated

07.05.2022 was cancelled for the reasons that the

agreement was under coercion and market value of the

property is more than 13 crores and that the agreement to

sell dated 07.05.2022 if continued, then it will entail a fine

by the Income Tax Department which would be double the

amount of consideration agreed to be paid. In view of the

contents of notice dated 10.10.2022, it is crystal clear that

the present case of the appellant falls within the ambit of

Section 14 (1) (b) (c) of the Specific Relief Act whereby

purported contract / agreement dated 07.05.2022 cannot

be specifically enforced, as such, the present appellant –

defendant is justified in cancelling / terminating the

agreement dated 07.05.2022 vide legal notice dated

10.10.2022.

13] It is the case of the appellant - defendant that

clause in the agreement to sell dated 07.05.2022 indicates

that Regular Civil Appeal No.287 of 2016 has to be

withdrawn by the appellant i.e. original defendant,

however, it is not possible for the appellant – original

defendant to withdraw the appeal as the appeal is filed by

the plaintiff and that the appellant in RCA No.287 of 2016

has not taken steps by taking recourse to Section 26 of the

Specific Relief Act to rectify the instrument and as such the

present appellant was entitled to terminate / cancel the

agreement dated 07.05.2022 as it cannot be enforced as per

Section 14 (1) (b) (c) of the Specific Relief Act.

14] It is the contention of the appellant – defendant

that during the course of arguments of the application

below Exh.5 in the suit, on 06.01.2023 the plaintiff filed an

application seeking production of document together with

list of documents, filed photocopy of purported agreement

to sell dated 13.09.2022 and the appellant – original

defendant had opposed the application for production of

documents. However, the trial Court relying on the

agreement to sell dated 13.09.2022 allowed the application

for production of documents by order dated 24.01.2023.

15] The appellant – defendant contends that the

amount of Rs.10 lac, which is transmitted in the account of

the appellant – defendant by cheque and the present

appellant defendant has returned the amount of Rs.10 lac

along with Rs.1 lac interest on the said amount in the

account of Smt. Namrata Desarada [daughter in law of the

present respondent] through RTGS on 13.10.2022. It is the

case of the appellant – defendant that the said amount was

utilized by the aforesaid person, namely, Smt.Namrata

Desarda, in whose account, the amount was transferred.

16] That, earlier purported agreement of sale dated

17.06.2002, on the basis of which, Regular Civil Suit

No.113 of 2014 seeking specific performance was filed by

the plaintiff after almost 12 years. While dismissing the said

suit, the trial Court has held that the plaintiff failed to prove

that he was ready and willing to perform his part of

contract. Against the said judgment and order, appeal is still

pending and that in the Appeal, the application seeking

production of document together with list of document,

photocopies of 3 demand draft dated 12.08.2022 as well 01

cheque were presented. It is further the case of the

appellant – defendant that the aforesaid three demand

drafts were cancelled by the plaintiff and those were raised

to make show about readiness and willingness and only

photocopies were presented and original were not produced

even before the appellate Court, as such, those demand

drafts cannot be considered for the purpose of consideration

of an application below Exh.5 in the present suit.

17] It is further contention of the appellant –

defendant that purported agreement dated 13.09.2022

between defendant and some other person regarding suit

property, purported photocopy of same was produced at the

time of hearing on application below Exh.5 on 06.01.2023.

There is no averment / pleading in plaint and / or in the

application below Exh.5, the same cannot be considered for

decision of an application below Exh.5.

18] It is the further contention of the appellant –

defendant that the suit is filed through General Power of

Attorney, who is grand-son of the plaintiff and 25 years old

is not conversant and is acquainted with the facts of the

case and there is no statement either in plaint or in

application below Exh.5 to the effect that the GPA knows

the facts of the case, as such, the suit as well as the

application below Exh.5 is not entertainable. As per section

17 (1-A) read with 17 (2) (v) of the Registration Act, 1908,

purported agreement to sell dated 07.05.2022

contemplating consideration of Rs.1,11,00,000/-, the said

purported agreement being compulsorily registerable and

the same being not registered as per the mandate, the same

cannot be read for consideration of an application under

Order 39 Rule 1 of the Civil Procedure Code, 1908, while

granting application in a suit for specific performance of

contract.

19] In terms of the Maharashtra Stamp Act under

Article 25 Schedule-1 and particularly explanation I thereto,

purported agreement dated 07.05.2022 is “Conveyance” as

such requires requisite stamp duty as leviable under the

Maharashtra Stamp Act, however, the same being not paid

as per the Schedule looking to purported agreement dated

07.05.2022, the said purported agreement dated

07.05.2022 cannot be considered even for collateral

purposes, particularly while deciding an application for

temporary injunction under order 39 Rule 1 of the CPC,

however, the same being considered and relied, the learned

trial Court has committed an error. In the case of M/s.

N.N.Global Mercantile Private Limited Vs. M/s. Indo Unique

Flame Ltd. & others reported in 2023 [6] SCALE 434

declares that an unstamped instrument cannot be taken

notice of for any purpose and it remains unenforceable. No

Public Officer nor Court nor Arbitrator, can permit any

person to ask them to act upon it or receive it as evidence.

In law such unstamped agreement is bereft of life and not

enforceable in law, cannot exist in law and would be void.

In view of the provisions of Section 2 (h) and 2 (j) of

Contract Act unstamped instrument cannot be a contract

and renders such contract ceases to be and are not

enforceable and are void.

20] Thus, the learned counsel for the appellant –

defendant submits that purported agreement to sell dated

07.05.2022 being typed on just Rs.100/- stamp paper for an

agreement for consideration of Rs.1,11,00,000/-, it is

crystal clear that the said agreement dated 07.05.2022 is

not executed on payment of sufficient and requisite stamp

duty as is required to be paid as per the Maharashtra Stamp

Act and accordingly, agreement is unenforceable and

receives no evidential value even for consideration of an

application for injunction under Order 39 Rule 1 of the CPC

in a civil suit for specific performance.

21] It is further the contention of the appellant

defendant that purported agreement dated 13.09.2022 is

for sale of the suit property and two names are mentioned

therein i.e. Nitin Ashok Pagariya and Amit Vinayakrao Borse

as vendee, however, in the bank statements produced by the

present appellant before the trial Court, there is no entry in

the name of the above referred 2 persons from whom the

present appellant has received any amount.

22] Per contra, Mr.Bhandari, the learned counsel for

the respondent – plaintiff submits as under :

The judgment in the case of I.S.Sikandar (Dead)

By LRS. Vs. K.Subramani and others reported in (2013) 15

SCC 27 is not applicable to the facts of the present case. The

notice of cancellation of agreement to sell was not served

on the respondent – plaintiff and that tracking report shows

that the envelop was sent to the address of the plaintiff and

it was returned back without being delivered / refused by

the plaintiff. The legal notice being not served upon the

plaintiff. There is no question of challenging the same. It is

further contended by the respondent – plaintiff that in

I.S.Sikandar [supra] the facts are entirely different and it

was at final stage of the suit, that the Court had come to the

conclusion that the agreement itself provided for

termination of the agreement by one of the parties in

particular contingencies. Contingency having occurred, the

party was entitled to terminate the agreement and

termination itself was undertaken by one of the parties to

the agreement. Such termination being not challenged the

Court came to the conclusion that the suit for specific

performance could not have been filed. However, in the

instant case, it is yet to be decided that whether there was

a notice of termination served upon the plaintiff and there is

no occasion to terminate the agreement of sale dated

07.05.2022. The plaintiff was ready and willing to perform

his part of the contract. The learned counsel for the

respondent – plaintiff relies upon the judgment of the

Punjab and Haryana High Court in the case of Brahm Dutt

Vs. Sarabjit Singh in RSA No.2943 of 2017 (O&M), decided

on 06.11.2017 and in the said judgment, case of

I.S.Sikandar [supra] has been explained.

23] The learned counsel for the respondent –

plaintiff contends that in view of Section 31 of the Specific

Relief Act, 1963, unilateral cancellation of instrument is not

legal and that the appellant has to seek appropriate

declaration from the Court. The learned counsel for the

respondent – plaintiff submits that in the instant case the

plaint does not admit any service of notice as was done in

the case of I.S.Sikandar [supra]. The suit is at preliminary

stage. Even the issues are not framed. The issue regarding

service of notice and effect can be considered at the stage of

trial.

24] As regards the submission of the appellantdefendant

that the agreement is not sufficiently stamped,

the respondent – plaintiff has relied upon the judgment in

the case of The State Financial Corporation and another Vs.

M/s. Jagdamba Oil Mills and another reported in AIR 2002

SC 834, and submits that stamp duty is not payable on the

instant agreement to sell.


25] The learned counsel for the respondent –

plaintiff also relies upon the judgment in the case of Wander

Ltd. and another Vs. Antox India P. Ltd. Reported in 1990

[Supp] SCC 727 submits that this Court should not interfere

with the discretionary order of the trial Court granting

injunction.

26] Having considered the rival submissions,

following points arise for consideration :

[i] Whether the suit for specific performance of

contract is maintainable in absence of the prayer to seek

declaration that legal notice dated 10.10.2022 issued by the

defendant to the plaintiff cancelling the agreement to sell

dated 07.05.2022 is illegal and bad in law, in view of the

judgment in the case of I.S.Sikandar (Dead) By LRS. Vs.

K.Subramani and others reported in (2013) 15 SCC 27.

a] In the case of I.S.Sikandar [supra], the Hon’ble

Supreme Court at para nos. 32, 32.1, 37 and 38 has held as

under :

32. After perusal of the impugned judgment of

the High Court and the questions of law framed

by Defendant 5 in this appeal, the following

points would arise for determination of this

Court:

32.1. (i) Whether the original suit filed by the

plaintiff seeking a decree for specific performance

against Defendants 1-4 in respect of the suit

schedule property without seeking the declaratory

relief with respect to termination of the

agreement of sale vide notice dated 28-3-1985,

rescinding the contract, is maintainable in law?

37. As could be seen from the prayer sought for

in the original suit, the plaintiff has not sought for

declaratory relief to declare the termination of

agreement of sale as bad in law. In the absence of

such prayer by the plaintiff the original suit filed

by him before the trial court for grant of decree

for specific performance in respect of the suit

schedule property on the basis of agreement of

sale and consequential relief of decree for

permanent injunction is not maintainable in law.

38. Therefore, we have to hold that the relief

sought for by the plaintiff for grant of decree for

specific performance of execution of sale deed in

respect of the suit schedule property in his favour

on the basis of non-existing agreement of sale is

wholly unsustainable in law. Accordingly, Point (i)

(see para 32.1) is answered in favour of

Defendant 5.

b] In the case of I.S.Sikandar [supra], the Hon’ble

Supreme Court at para nos. 40 and 41 has further held as

under :

40. This position of law is well settled by this

Court in the Constitution Bench judgment in

Chand Rani v. Kamal Rani, wherein this Court has

held that it is well-settled principle of law, that in

a case of sale of immovable property, time is not

the essence of the contract. However, if the

parties agreed to a specified time in the

agreement to perform their part of the contract,

then time is the essence of the contract and

parties shall adhere to the same.

41. To emphasise the fact that time is the

essence of the contract before the High Court, the

counsel for the fifth defendant has placed reliance

upon the judgment of this Court in Chand Rani

case, the relevant portions of which are extracted

below: (SCC pp. 525-28, paras 19-20 & 22)

"19. It is a well-accepted principle that in

the case of sale of immovable property, time is

never regarded as the essence of the contract. In

fact, there is a presumption against time being the

essence of the contract. This principle is not in

any way different from that obtainable in

England. Under the law of equity which governs

the rights of the parties in the case of specific

performance of contract to sell real estate, law

looks not at the letter but at the substance of the

agreement. It has to be ascertained whether

under the terms of the contract the parties named

a specific time within which completion was to

take place, really and in substance it was

intended that it should be completed within a

reasonable time. An intention to make time the

essence of the contract must be expressed in

unequivocal language.

20. .… 4. … Section 55 of the Contract

Act which deals with the consequences of failure

to perform an executory contract at or before the

stipulated time provides by the first paragraph:

"55. Effect of failure to perform at

fixed time, in contract in which time is

essential. - When a party to a contract

promises to do a certain thing at or before a

specified time, or certain things at or before

specified times, and fails to do any such

thing at or before the specified time, the

contract, or so much of it as has not been

performed, becomes voidable at the option

of the promisee, if the intention of the

parties was that time should be of the

essence of the contract."

It is not merely because of specification of time at

or before which the thing to be done under the

contract is promised to be done and default in

compliance therewith, that the other party may

avoid the contract. Such an option arises only if it

is intended by the parties that time is of the

essence of the contract. Intention to make time of

the essence, if expressed in writing, must be in a

language which is unmistakable: it may also be

inferred from the nature of the property agreed to

be sold. conduct of the parties and the

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surrounding circumstances at or before the

contract. Specific performance of a contract will

ordinarily be granted. notwithstanding default in

carrying out the contract within the specified

period, if having regard to the express stipulations

of the parties, nature of the property and the

surrounding circumstances, it is not inequitable to

grant the relief. If the contract relates to sale of

immovable property, it would normally be

presumed that time was not of the essence of the

contract. Mere incorporation in the written

agreement of a clause imposing penalty in case of

default does not by itself evidence an intention to

make time of the essence. In Jamshed Khodaram

Irani v Burjorji Dhunjibhai the Judicial

Committee of the Privy Council observed that the

principle underlying Section 55 of the Contract

Act did not differ from those which obtained

under the law of England as regards contracts for

sale of land."

22. In Hind Construction Contractors case'

quoting Halsbury's Laws of England, this Court

observed at pp. 1154-55 as under: (SCC pp. 76-

77, paras 7-8)

7.... In the latest 4th Edn. of Halsbury's

Laws of England in regard to building and

engineering contracts the statement of law is to

be found in Vol.4, para 1179, which runs thus:

"1179. Where time is of the essence

of the contract. - The expression time is of

the essence means that a breach of the

condition as to the time for performance

will entitle the innocent party to consider

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the breach as a repudiation of the contract.

Exceptionally, the completion of the work

by a specified date may be a condition

precedent to the contractor's right to claim

payment. The parties may expressly provide

that time is of the essence of the contract

and where there is power to determine the

contract on a failure to complete by the

specified date, the stipulation as to time

will be fundamental. Other provisions of

the contract may, on the construction of the

contract, exclude an inference that the

completion of the works by a particular

date is fundamental; time is not of the

essence where a sum is payable for each

week that the work remains incomplete

after the date fixed, nor where the parties

contemplate a postponement of

completion.

Where time has not been made of

the essence of the contract or, by reason of

waiver, the time fixed has ceased to be

applicable, the employer may by notice fix

a reasonable time for the completion of the

work and dismiss the contractor on a

failure to complete by the date so fixed."

8. It will be clear from the aforesaid statement of

law that even where the parties have expressly

provided that time is of the essence of the

contract such a stipulation will have to be read

along with other provisions of the contract and

such other provisions may, on construction of the

contract, exclude the inference that the

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completion of the work by a particular date was

intended to be fundamental; for instance, if the

contract were to include clauses providing for

extension of time in certain contingencies or for

payment of fine or penalty for every day or week

the work undertaken remains unfinished on the

expiry of the time provided in the contract such

clauses would be construed as rendering

ineffective the express provision relating to the

time being of the essence of contract."

(emphasis in original)

c] In the case of I.S.Sikandar [supra], the Hon’ble

Supreme Court has held that normally in a contract for sale

of immovable property, time is never the essence of the

contract. However, in the case of I.S.Sikandar [supra], the

Court after examination of the contract had concluded that

time was the essence of the contract for completion of the

sale transaction.

d] In the case of I.S.Sikandar [supra], the Court

had also noted that on completion of time stipulated in the

agreement to sell, the agreement came to an end on

account of non compliance of certain required formalities by

the vendee and on non-payment of balance consideration,

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time being the essence of the contract and the vendor

having validly terminated the agreement. In the same

judgment, the Court had also noticed that in spite of non

compliance of the agreement within stipulated time by the

vendee, the vendor had granted further time for payment of

balance consideration and on failure to comply with the

same, the vendor had terminated the agreement to sell after

the completion of extended period.

e] In the case of I.S.Sikandar [supra] the

agreement to sell became voidable at the instance of vendor

on non-payment of balance consideration within the period

mentioned in the agreement and although vendor had

extended the period, the agreement was terminated after

completion of the extended period. The Court had also held

in the facts situation that the agreement did not exist on

account of it being terminated after the extended period.

Thus, in the judgment in the case of I.S.Sikandar [supra]

the Hon’ble Supreme Court has held that unless the

declaration is sought to the extent that the termination of

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the agreement was bad in law, the suit for specific

performance of contract was not maintainable.

f] Thus, the action of the defendant in the case of

I.S.Sikandar [supra] was within the realm of the Contract

Act as provided under Section 55 of the Contract Act which

provides that in case of the performance which was

required of the plaintiff within a stipulated time is not

performed by her then the contract becomes voidable at the

option of the defendant if the intention of the parties was

that time should be the essence of the contract and the

defendant was not required to perform his part of the

agreement. In the case of I. S. Sinkandar [supra] the

contract had come to an end and was not enforceable under

Section 14 of the Specific Relief Act.

g] In the instant case, it is to be noticed that the

bare reading of the agreement to sell dated 07.05.2022 of

the suit land would prima facie indicate that the time is not

the essence of the contract and that the agreement to sell

does not automatically come to an end after the stipulated

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time or on account of non compliance of the conditions

mentioned in the agreement to sell at the end of the period,

mentioned in the agreement.

h] Unilateral cancellation of agreement to sell by

one party is not permissible in law except where the

agreement is in it’s nature determinable and not enforceable

in terms of Section 14 of the Specific Relief Act. As such

cancellation cannot be raised as a defence in a suit for

specific performance. The bare perusal of the provisions of

the Specific Relief Act shows that once a party claims the

right of revocation or rescission of the agreement then such

a party is required to seek a declaration from the Court

regarding the validity of revocation or rescission as the case

may be, as required under Sections 27 and 31 of the

Specific Relief Act, or the party will have to demonstrate

that it has validly terminated the agreement under the

provisions of the Contract Act, if a suit for specific

performance of agreement is brought against the party.

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25.23AO

i] Thus, in the instant case it is premature to rely

upon the judgment in the case of I.S.Sikandar [supra] as the

findings will have to be rendered in the final judgment

whether the time was essence of the contract and that the

contract was not enforceable in terms of Section 14 of the

Specific Relief Act and the defendant has validly terminated

the contract under the relevant provisions of the Contract

Act. Thus, at this stage the law laid down in the case of

I.S.Sikandar [supra] cannot be relied upon.

j] The principle laid down in the case of

I.S.Sikandar [supra] cannot be relied upon also for the

reason that the termination of the agreement will have to be

proved and prima facie notices issued of termination of

agreement were not served on the defendant. The issuance

of the notice will have to be proved by the plaintiff and the

legal effect of the notice being not accepted by the

defendant. So also effect of termination whether the

plaintiff is legally bound by the same will have to be

considered at the final stage. Thus, the judgment relied

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25.23AO

upon in the case of I.S.Sikandar [supra] is not applicable to

the facts of the present case.

[ii] Now dealing with the second submission of the

appellant that the agreement to sell dated 07.05.2022

amounts to conveyance and that it is accessible to stamp

duty under the Maharashtra Stamp Act under Article 25

Schedule-I read with Explanation No.1 thereto, and in

absence of payment of stamp duty, the document cannot be

used for any purpose unless stamp duty is paid thereon in

terms of the provisions of the Stamp Act.

a] The Constitution Bench judgment in the case of

M/s. N.N.Global Mercantile Private Limited Vs. M/s. Indo

Unique Flame Ltd. & others reported in 2023 [6] SCALE

434 has held at para 74 as under :

74. The aforesaid statement appears apposite

in the context of an instrument which is

unstamped or insufficiently stamped. This is for

the reason that on the one hand as long as it is

not stamped or is insufficiently stamped, it is

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25.23AO

both liable to be impounded under Section 33

of the Stamp Act and it cannot be used as

evidence or registered. This is apart from the

unambiguous bar against ‘acting upon’ such an

instrument. On the other hand, if after such an

instrument is impounded and duty and penalty

is paid and a certificate is endorsed upon it

within the meaning of Section 42 (2) signals

that the instrument regains life, the bar in

Section 35 of the Stamp Act is removed

permanently. Equally, under Section 36 in the

case of an instrument (not secondary evidence

of the instrument) which is allowed to be let in

evidence without objection, then it would

qualify as evidence founding a right. But this is

an exception to the rule which is found in

Section 35 of the Stamp Act. Thus, an

unstamped or insufficiently stamped instrument

represents a case of an agreement which not

being enforceable, in the sense that the

sanctions in law through a civil action is

impermissible, is in the said sense, invalid. It is

not invalid or void in the sense of it being still

born or null and void in the sense that life

cannot be poured into it. We may sum up. An

agreement which is unstamped or insufficiently

stamped is not enforceable, as long as it

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25.23AO

remains in the said condition. Such an

instrument would be void as being not

enforceable [See Section 2 (g) of the Contract

Act]. It would not in the said sense exist in law.

It can be “validated” by only the process

contemplated in Section 33 and other

provisions of the Stamp Act. We find the

expression ‘validation’ used in the decision of

this Court in Hariom Agrawal v. Prakash Chand

Malviya which we shall refer to in greater detail

later. This necessarily means that the court

would not view it as enforceable, and therefore,

existing in law. In the sense explained, it would

not be found as ‘not void’ and therefore ‘not

invalid’. Thus, in the context of the Act, the

Stamp Act and the Contract Act, we are of the

view that the opinion of this Court in SMS Tea

Estates (supra), in this regard as reiterated in

Garware (supra) and approved in Vidya Drolia

(supra) is correct.

b] In the law laid down in the above case of

M/s.N.N.Global Mercantile Private Limited [supra] is that

the document on which the stamp duty is payable is not

paid fully, the document cannot be used for any purpose

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25.23AO

unless the same is impounded and the stamp duty is paid on

it. The document would be void for any purpose unless life

is instilled into the document by paying the stamp duty as

may be payable in compliance of Stamp Act.

c] In the instant case, we have to examine whether

the stamp duty is payable on the above agreement to sell

dated 07.05.2022 in terms of Article 25 Schedule-I read

with Explanation No.1 of the Maharashtra Stamp Act which

reads as under:

Description of Instrument Proper Stamp Duty

25. CONVEYANCE (not being a

transfer charged or exempted

under Article 59) -

On the [true market value]

of the property which is the

subject matter of the

Conveyance, -

[(a) if relating to movable

property

3 per cent, of the market value of

the property;]

[(b) if relating to immovable

property situated, -

(i) within the limits of any

Municipal Corporation or any

Cantonment area annexed to it or

any urban area not mentioned in

sub-clause (ii).

5 per cent, of the market value of

the property.

(ii) within the limits of any

Municipal Council or Nagar

[5 per cent,] of the market value of

the property.

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25.23AO

Panchayat or Cantonment area

annexed to it, or any rural area

within the limits of the Mumbai

Metropolitan Region Development

Authority, or the Influence Areas as

per the annual statement of rates

published under the Bombay Stamp

[Determination of True Market

Value of Property] Rules, 1995.

(iii) within the limits of any

Grampanchayat area or any such

area not mentioned in sub-clause

(ii).

[4 per cent,] of the market value of

the property.

(c) if relating to both movable

and immovable property.

The same duty as is payable under

clauses (a) and (b).

[(d) ***]

[(da) if relating to the order of

the High Court under Section 394

of the Companies Act, 1956 or the

order of the National Company

Law Tribunal under sections 230 to

234 of the Companies Act, 2013 or

confirmation issued by the Central

Government under sub-section (3)

of section 233 of the Companies

Act, 2013 in respect of the

amalgamation, merger, demerger,

arrangement or reconstruction of

companies (including subsidiaries

of parent company) or order of the

Reserve Bank of India under

section 44A of the Banking

Regulation Act, 1949 in respect of

amalgamation or reconstruction of

Banking Companies [and every

order made by the Board for

Industrial and Financial

Reconstruction under section 18 or

19 of the Sick Industrial

Companies (Special Provisions)

Act, 1985, in respect of sanction of

Scheme specified therein or every

order made by the National

Company Law Tribunal under

section 31 of the Insolvency and

10 per cent, of the aggregate of the

market value of the shares issued or

allotted in exchange or otherwise

and the amount of consideration

paid for such amalgamation :

Provided that, the amount of

duty, chargeable under this clause

shall not exceed, -

(i) an amount equal to [5 per

cent,] of the true market value of

the immovable property located

within the State of Maharashtra of

the transferor company; or

(ii) an amount equal to 0.7 per

cent, of the aggregate of the market

value of the shares issued or

allotted in exchange or otherwise

and the amount of consideration

paid, for such amalgamation,

whichever is higher :

Provided further that, in case

of reconstruction or demerger the

duty chargeable shall not exceed, -

(i) an amount equal to [5 per

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25.23AO

Bankruptcy Code, 2016, in respect

of approval of resolution plan.]]

cent,] of the true market value of

the immovable property located

within the State of Maharashtra

transferred by the Demerging

Company to the Resulting

Company; or

(ii) an amount equal to 0.7 per

centum of the aggregate of the

market value of the shares issued or

allotted to the Resulting Company

and the amount of consideration

paid for such demerger, whichever

is higher.]

Exemption

Assignment of copyright under

the Copyright Act, 1957 (IXV of

1957).

[Explanation I.] - For the

purposes of this article, where in

the case of agreement to sell an

immovable property, the

possession of any immovable

property is transferred [or

agreed to be transferred] to the

purchaser before the execution,

or at the time of execution, or

after the execution of, such

agreement [***] then such

agreement to sell shall be deemed

to be a conveyance and stamp

duty thereon shall be leviable

accordingly:

Provided that, the provisions

of section 32A shall apply mutatis

mutandis to such agreement which

is deemed to be a conveyance as

aforesaid, as they apply to a

conveyance under that section :

Provided further that, where

subsequently a conveyance is

executed in pursuance of such

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25.23AO

agreement of sale, the stamp duty,

if any, already paid and recovered

on the agreement of sale which is

deemed to be a conveyance, shall

be adjusted towards the total duty

leviable on the conveyance.]

[Provided also that where

proper stamp duty is paid on a

registered agreement to sell an

immovable property, treating it as a

deemed conveyance and

subsequently a conveyance deed is

executed without any modification

then such a conveyance shall be

treated as other instrument under

section 4 and the duty of the one

hundred rupees shall be charged.]

d] The relevant portion of the agreement to sell

dated 07.05.2022 relating to transfer of possession of the

suit land reads as under :

असे कक, ललहून घेणार मदनलाल देसरडा यांनी संपूणर रकम

1,01,00,000 (अकरी एक कोटी एक लाख रपये)

कदलयानंतर ललहून देणार मनीषा बाळकृ षण कोदे खटला क.

आर.सी.एस. २८७/२०१६ हा खटला कोटारतून काढून

घेतील व खरदे ीखत करन देतील, तसेच सदरील

कमळकतीचा ताबा तयाच कदवशी ललहून घेणार यांना देतील.

e] The true translation of the aforesaid portion of

the agreement to sell dated 07.05.2022 reads as under:

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25.23AO

That, Manisha Balkrishna Kode, the vendor

shall withdraw the R.C.S.No. 287/2016 after

receiving the payment of the entire amount of

Rs.1,01,00,000/- [Rs.One crore and one lakh

only] from Madanlal Desarda, the vendee, and

shall execute the sale-deed so also possession of

the property will be given on the same day.

f] On the bare reading of the aforesaid agreement

to sell, in order to attract the above article 25 and more

particularly the explanation thereto and to ascertain

whether stamp duty is required to be paid on the document,

it is necessary that under the agreement to sell, the

purchaser has to be put in possession of the immovable

property before the agreement or at the time of agreement

or at a subsequent date. However, possession of the

property has to be transferred or agreed to be transferred by

the vendor to the purchaser in pursuance of the agreement

to sell. If the possession of the immovable property is

already with the purchaser, then the possession of the

immovable property should be continued to be held by the

purchaser under the agreement to sell.

g] Above relevant portion quoted from the

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25.23AO

agreement to sell dated 07.05.2022 would indicate that the

possession of suit land is not parted in pursuance of the

agreement to sell but it is stipulated in the said agreement

to sell that on payment of balance amount of

Rs.1,01,00,000/-, the sale deed would be executed and the

purchaser would be put in possession of the property on the

same date. Thus, prima facie possession of land is not given

in pursuance to the agreement to sell but would be given

under the sale deed which would be executed on payment

of balance consideration.

h] I am of the view that the above article is not

applicable to the present document and the transaction

under the agreement to sell dated 07/5/2022 is not a

‘conveyance’ as stipulated within the said article and thus

stamp duty is not payable in terms of Article 25 of the

Maharashtra Stamp Act on the above agreement to sell. As

such, the law laid down in the case of M/s. N.N.Global

Mercantile Private Limited Vs. M/s. Indo Unique Flame

Ltd. & others [supra] is not applicable to the facts of the

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25.23AO

instant case.

i] It is also held in the cases of Balasaheb

Sahebrao Jadhav Vs. Hanumant Bhaurao Deshmukh

reported in 1995 (1) Mh.L.J. 473 and Pitamber Kanhayalal

Khattar & another Vs. Sadanand Harishchandra Honawar

reported in 2007 (1) Mh.L.J. 816 that the stamp duty is

applicable under Article 25 of the Maharashtra Stamp Act

only in cases where the property is handed over to the

purchaser in pursuance of the agreement to sell.

[iii] Now coming to the next submission of the

appellant that agreement to sell dated 07.05.2022 ought to

have been compulsorily registered under the provisions of

Section 17 (1-A) and 17 (2) (v) of the Indian Registration

Act. Relevant part of Section 17 of the Indian Registration

Act reads as under :

17. Documents of which registration is

compulsory. – (1) the following documents shall

be registered, if the property to which they

relate is situate in a district in which, and if they

have been executed on or after the date on

which, Act XVI of 1864, or the Indian

Registration Act, 1866, or the Indian

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25.23AO

Registration Act, 1871, or the Indian

Registration Act, 1877, or this Act came or

comes into force, namely :-

(a) ...

(b) other non-testamentary instruments

which purport or operate to create, declare,

assign, limit or extinguish, whether in present

or in future, any right, title or interest, whether

vested or contingent, of the value of one

hundred rupees and upwards, to or in

immovable property;

(c) …

(d) …

(e) ...

[(1-A) The documents containing

contracts to transfer for consideration, any

immovable property for the purpose of section

53-A of the Transfer of Property Act, 1882, shall

be registered if they have been executed on or

after the commencement of the Registration and

Other Related Laws (Amendment) Act, 2001,

and if such documents are not registered on or

after such commencement then, they shall have

no effect for the purposes of the said section 53-

A.]

(2) Nothing in clauses (b) and (c) of subsection

(1) applies to -

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25.23AO

(v) [any document other than the documents

specified in sub-section (1-A)] not itself

creating, declaring, assigning, limiting or

extinguishing any right, title or interest of the

value of one hundred rupees and upwards to or

in immovable property, but merely creating a

right to obtain another document which will,

when executed, create, declare, assign, limit or

extinguish any such right, title or interest; or

a] The law on the subject i.e. when the document

becomes compulsorily registerable under Section 17 of the

Indian Registration Act is discussed by the Hon’ble Supreme

Court in the following case :

b] The Hon’ble Supreme Court in the case of

Tehmi P. Sidhwa and others V. Shib Bannerjee and sons Pvt.

Ltd. & another reported in AIR 1974 SC 1912 at para no.5

held as under :

5. It would be noticed that the award itself

does not purport or operate to create, declare,

assign, limit or extinguish, whether in present

or in future any right, title or interest, whether

vested or contingent, of the value of one

hundred rupees and upwards in respect of the

immoveable property, as contemplated under

Section 17 (1) (b) of the Registration Act. It

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25.23AO

merely creates a right to obtain another

document which will, when executed, create,

declare, assign, limit or extinguish any such

right, title or interest. The award directs Shib

Banerjee and Sons Private Ltd. to execute such

documents as may be necessary for declaring

the one-fourth share of the appellants in the

said property and also to execute such

documents as may be necessary for transferring

the said property and the lease from the Delhi

Improvement Trust to the Joint names of

themselves and the appellants. It, therefore,

squarely falls under Section 17 (2) (v) of the

Registration Act.

c] In the case of K. Arumuga Velaiah Vs. P. R.

Ramasamy and another reported in (2022) 3 SCC 757 at

para no.45 has held as under:

45. ………… The test in such a case is

whether the document itself creates an interest

in a specific immovable property or merely

creates a right to obtain another document of

title. If a document does not by itself create a

right or interest in immovable property, but

merely creates a right to obtain another

document, which will, when executed create a

right in the person claiming relief, the former

document does not require registration and is

accordingly admissible in evidence vide

Rajangam Ayyar v. Rajangam Ayyar.

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d] In the instant case, perusal of agreement to sell

would indicate that it only gives right in favour of the party

to get sale deed executed of the immovable property, on

payment of balance consideration and thus in terms of the

law laid down in the case of Tehmi P. Sidhwa [supra] and K.

Arumuga Velaiah [supra] the document i.e. the agreement

to sell merely creates a right to obtain another document of

title. Since the agreement to sell does not by itself create a

right or interest in immovable property, but merely creates a

right to obtain another document, which will, when

executed creates a right in the person claiming relief, the

agreement to sell does not require registration and is

accordingly admissible in evidence and will be covered with

the scope of Section 17(2)(v).

[iv] Coming to the next submission of the appellant

with respect to the amended Section 17 (1) (1-A) of the

Registration Act.

a] The amended provisions of Section 17 (1-A)

came to be inserted by Act No.48 of 2001 with effect from

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24.09.2001 by which the documents containing contracts to

transfer for consideration any immovable property for the

purpose of Section 53-A of the Transfer of Property Act shall

be registered.

b] For applicability of Section 53A of the Transfer

of Property Act, 1882, the property has to be put in

possession of the transferee in part performance of the

contract and if the transferee is already in possession of the

property, the transferee should continue to hold the

property in part performance of the contract, and should

have done some act in furtherance of the contract.

c] The Hon’ble Supreme Court in the case of

R.Hemalatha Vs. Kashthuri [Civil Appeal No.2535/2023 @

SLP © No.14884/2002, decided on April 10, 2023]

reported in 2023 LiveLaw (SC) 304 at para nos.12 and 13

held as under :

12. At this stage, it is required to be noted

that the proviso to Section 49 came to be

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25.23AO

inserted vide Act No. 21 of 1929 and thereafter,

Section 17 (1A) came to be inserted by Act No.

48 of 2001 with effect from 24.09.2001 by

which the documents containing contracts to

transfer or consideration any immovable

property for the purpose of Section 53 of the

Transfer of Properties Act is made compulsorily

to be registered if they have been executed on

or after 2001 and if such documents are not

registered on or after such commencement,

then there shall have no effect for the purposes

of said Section 53A. So, the exception to the

proviso to Section 49 is provided under Section

17 (1A) of the Registration Act. Otherwise, the

proviso to Section 49 with respect to the

documents other than referred to in Section 17

(1A) shall be applicable.

13. Under the circumstances, as per proviso

to Section 49 of the Registration Act, an

unregistered document affecting immovable

property and required by Registration Act or the

Transfer of Property Act to be registered, may

be received as evidence of a contract in a suit

for specific performance under chapter-II of the

Specific Relief Act, 1877, or as evidence of any

collateral transaction not required to be effected

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by registered instrument, however, subject to

Section 17 (1A) of the Registration Act. It is not

the case on behalf of either of the parties that

the document / Agreement to Sell in question

would fall under the category of document as

per Section 17 (1A) of the Registration Act.

Therefore, in the facts and circumstances of the

case, the High Court has rightly observed and

held relying upon proviso to Section 49 of the

Registration Act that the unregistered document

in question namely unregistered Agreement to

Sell in question shall be admissible in evidence

in a suit for specific performance and the

proviso is exception to the first part of Section

49.

d] Thus, the Hon’ble Supreme Court in the case of

R.Hemalatha Vs. Kashthuri [supra] has held that the

amended Section 17 (1A) of the Registration Act makes the

document containing a contract to transfer for consideration

any immovable property for the purpose of Section 53A of

the Transfer of Property Act compulsory to be registered. If

the document is executed on or after 2001 and if such

document is not registered then the document shall be of no

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25.23AO

effect for the purpose of said Section 53A of the Transfer of

Property Act. Thus, exception to the proviso to Section 49 is

provided under Section 17 (1A) of the Registration Act.

However, in the instant case possession of the

immovable property / suit land is not transferred to the

purchaser under the agreement to sell and thus the

agreement to sell is also not compulsorily registerable under

the amended provision of Section 17 (1) (1-A) of the Indian

Registration Act.

[v] Coming to the next submission raised by the

appellant that there is impossibility in performance of the

part of the agreement to sell and unless the agreement is

rectified by following process as available under the Specific

Relief Act, the defendant is entitled to resile from the said

agreement.

a] Clause of the agreement to sell dated

07.05.2022 indicates that on receipt of payment of

Rs.1,01,00,000/-, the appellant – defendant would

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25.23AO

withdraw the Regular Civil Suit No.287 of 2016 and

registration of the sale deed would be done on the same

date and possession will also been given on the same date.

b] Apparent error in the clause of the said

agreement is that Regular Civil Suit No.287 of 2016 is filed

by the plaintiff and that it is the plaintiff, who would be

making the payment of Rs.1,01,00,000/- to the defendant

and relevant clause in the agreement to sell would indicate

that it is the defendant, who would withdraw Regular Civil

Suit No.287 of 2016, as such, it is impossible to comply

with the above term of the agreement and it cannot be

executed.

c] Bare reading of the agreement would indicate

that on payment of balance consideration, sale deed would

be executed and possession of the suit land would be given

to the plaintiff / vendor. The concern of the plaintiff /

vendor is that there should not be any surviving litigation of

the suit land thereafter. Thus, the obvious interpretation of

the above clause would mean that the plaintiff will

withdraw the suit and the defendant would unconditionally

allow the plaintiff to withdraw the suit. However, even if

there is error in drafting the above clause, the clause is not

such that it would frustrate the contract or make the

defendant liable for action and that the agreement cannot

be frustrated on account of minor error in the agreement,

which would not fasten any liability on the defendant.

d] The aspect of withdrawing the suit cannot be

held against the defendant apparently because appeal is

filed by the plaintiff, so also the payment would be done by

the plaintiff himself towards balance consideration. Thus it

is not possible for defendant to withdraw the appeal and the

same will have to be done by the plaintiff without any

objection by the defendant. Error of such nature cannot

frustrated the entire agreement to sell. The intention of the

parties is that the person making the payment does not wish

to have Regular Civil Appeal continue and as such Regular

Civil Appeal will have to be withdrawn as on the date of

balance payment being made and defendant would not

contest the same before the appellate Court at the stage of

withdrawal in any manner.

[vi] Now dealing with the next submission of the

plaintiff that agreement to sell dated 13.09.2022 produced

during the course of hearing of Exh.5 application that the

defendant is attempting to sell the suit property to a third

person and the said fact could not have been relied upon by

the trial Court to clamp injunction on the defendant.

However, even before this Court the defendant is not

submitting that the defendant would not create third party

interest in the property.

27] Thus, the trial Court was well within its

jurisdiction to pass order of injunction as apprehension of

the plaintiff that the appellant / defendant is likely to create

third party interest is not ill-founded.

28] All other submission raised by the appellant is

not germane to the decision of Exh.5 application and has to

be considered at final stage of the suit.

29] In the case of Wander Ltd. and another Vs.

Antox India P. Ltd. reported in 1990 [Supp] SCC 727, the

Hon’ble Supreme Court has considered the jurisdiction of

the appellate court in interfering with the discretion

exercised by the trial court in granting or refusing

injunction and has held as under :

13. On a consideration of the matter, we are

afraid, the appellate bench fell into error on two

important propositions. The first is a

misdirection in regard to the very scope and

nature of the appeals before it and the

limitations on the powers of the appellate court

to substitute its own discretion in an appeal

preferred against a discretionary order. The

second pertains to the infirmities in the

ratiocination as to the quality of Antox’s alleged

user of the trademark on which the passing-off

action is founded. We shall deal with these two

separately.

14. The appeals before the Division Bench

were against the exercise of discretion by the

Single Judge. In such appeals, the appellate

court will not interfere with the exercise of

discretion of the court of first instance and

substitute its own discretion except where the

discretion has been shown to have been

exercised arbitrarily, or capriciously or

perversely or where the court had ignored the

settled principles of law regulating grant or

refusal of interlocutory injunctions. An appeal

against exercise of discretion is said to be an

appeal on principle. Appellate court will not

reassess the material and seek to reach a

conclusion different from the one reached by

the court below if the one reached by that court

was reasonably possible on the material. The

appellate court would normally not be justified

in interfering with the exercise of discretion

under appeal solely on the ground that if it had

considered the matter at the trial stage it would

have come to a contrary conclusion. If the

discretion has been exercised by the trial court

reasonably and in a judicial manner the fact

that the appellate court would have taken a

different view may not justify interference with

the trial court’s exercise of direction. After

referring to these principles Gajendragadkar, J.

in Printers (Mysore) Private Ltd. V. Pothan

Joseph :

“….These principles are well established,

but as has been observed by Viscount

Simon in Charles Osenton & Co. v.

Jhanaton. ‘….the law as to the reversal by

a court of appeal of an order made by a

judge below in the exercise of his

discretion is well established, and any

difficulty that arises is due only to the

application of well settled principles in an

individual case.”.


The appellate judgment does not seem to defer

to this principle.

30] The discretion exercised by the trial Court in

granting injunction is a discretionary remedy and the

appellate Court would not ordinarily interfere with the

discretion exercised by the trial Court. Interference in the

discretion exercised by the trial Court would be only, if it is

perverse or that discretion should not be exercised at all on

the material produced.

31] In the instant case, the defendant has not

denied the execution of the agreement to sell dated

07.05.2022 but has contended that the agreement to sell

was entered into under coercion. However, the defendant

had kept the money received under the agreement of Rs.10

lakh in her account for more than 5 months. Thus, prima

facie agreement cannot be said to be under coercion as

there is no steps taken by the defendant to return the

amount, rather the defendant has kept money in her

account and effect thereto is to be examined before the trial

court and thus no interference is called for at this stage, in

the order passed by the trial Court.

32] The plaintiff in the course of submission had

submitted that she is ready and willing to deposit the entire

amount if so directed by this Court. Since the defendant has

not responded to the same, it is open for the defendant to

move an appropriate application to seek direction to deposit

the consideration amount before the trial Court.

33] In the fact situation, the trial Court is directed

to decide the suit as expeditiously as possible and in any

event within a period of one year from the date of receipt of

the order of this Court. Parties to cooperate with Court and

not seek adjournments in the matter. The trial Court to

decide the suit on its own merits without being influenced

by any observations of this Court.

34] In view of above, the Appeal from Order is

disposed of accordingly.

35] In view of disposal of the Appeal from Order,

pending Civil Application does not survive and the same

stands disposed of.

[ARUN R. PEDNEKER]

JUDGE


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