IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34347 of 2009(O)
1. SHIBU S/O.CHATHANGATTIL CHANDRAN
... Petitioner
Vs
1. AKBAR S/O KUNNTH ABDUL KAREEM,
... Respondent
2. MUHAMMADALI, S/O.ELLUPARAMBIL SAIDUKUNJI
For Petitioner :SRI.T.N.MANOJ
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :30/11/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No.34347 of 2009
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Dated: 30th November, 2009
JUDGMENT
The Writ Petition is filed seeking mainly the following reliefs:
1. To issue appropriate writ order or direction to number and dispose
of on merits Exhibit P7 petition filed by seeking production of the
Notarised copy of the agreement for sale in Crime No.998/2009 of
Magistrate Court at Irinjalakuda, by way of letter of request.
2. To issue appropriate writ order or direction to hear
I.A.No.3629/2009 only on receipt of the document called for as per
Exhibit P7 petition.
2. Petitioner is the plaintiff in O.S.No.334 of 2009 on the file of
the Sub Court, Tirur. Suit is for partition and separate possession,
and the respondents are the defendants in the suit. The case of the
plaintiff is that the plaint schedule property belonged to the 2nd
defendant and there was an agreement of sale for a consideration of
Rs.1.70 crores to sell the property to the plaintiff and the first
respondent. It is the further case of the petitioner that the entire sale
consideration was given to the second defendant on the date of
execution of the agreement of sale. However, later, the 2nd defendant
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executed a sham sale deed in respect of the property covered by the
agreement in favour of the first defendant with intend to defraud and
cheating. Pursuant to mediation, two cheques, one for Rs.25 lakhs
and another for Rs.1 lakh had been handed over to the petitioner by
the first defendant as part of the settlement arrived, but, later, the
settlement was not honoured, and the cheque, upon presentation,
was dishonoured. In respect of the cheating and fraud committed by
the defendants, petitioner had filed a complaint before the police and
a crime case registered thereof is under investigation. A notarised
copy of the agreement for sale seized by the police from the
petitioner during the investigation of the crime case has been
produced before the Magistrate Court, Irinjalakuda. In the above suit,
petitioner has applied for an interim injunction to restrain the
defendants from alienating the property. An ex parte order of
injunction had been granted by the court. Defendants, on
appearance, have filed objection to that application. Petitioner has
moved an application for sending a letter of request to the Magistrate
Court for collecting the notarised copy of the agreement for sale
which after seizure in the crime case referred to above had been
produced before that court by the police. P7 is copy of that
application. Obtaining of that notarised copy of agreement of sale
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from the Magistrate Court, sending a letter of request, is vital for a
disposal of the interlocutory application for injunction in the present
suit is the case canvassed, for which petitioner seeks issue of a
direction/order to the learned Sub Judge, Irinjalakuda to dispose P7
application expeditiously, and, then, to hear the interlocutory
application for injunction.
3. Having regard to the submissions made and taking note of
the facts and circumstances presented, I find no notice to the
respondents is necessary and it is dispensed with. On the basis of an
agreement of sale purported to have been executed by the first
respondent in respect of his immovable property, allegedly, in favour
of the petitioner and the first respondent, it is seen, the petitioner has
moved a suit for partition and separate possession. No suit for
specific performance of the contract of sale has been instituted to
enforce the agreement so far as seen from the allegations raised in
P1 copy of the plaint and the submissions made by the learned
counsel for the petitioner. Whatever that be, though the request
canvassed appear to be innocuous, it has to be pointed out that even
in a suit for specific performance of agreement of sale, an injunction
restraining the party who has agreed to sell the property to another is
normally permissible only on deposit of the balance sale consideration
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before court or satisfaction that the entire sale price has already
been paid. From the facts and circumstances presented and the
submissions made, it is seen, pursuant to the settlement, the
petitioner has received two cheques, one for Rs.25 lakhs and another
for Rs.1 lakh from the first respondent in relation to the transaction
covered by the agreement of sale. Whether such cheques had been
honoured or dishonoured and what is the consequence of receiving
such cheques with reference to the settlement purported to have
been arrived at, are all matters to be looked into in the trial of the
suit. The circumstances presented and the nature of the suit, seeking
the relief of partition and separate possession on the basis of an
agreement of sale, indicate that relief canvassed for issuing a
direction to the court below for disposal of P7 application directing
that court to consider the interlocutory application for injunction in
which an ex parte order had already been obtained by the petitioner
only after disposing P7, does not deserve any merit. Petitioner can
invite the attention of the court below to dispose P7 application and
seek appropriate relief. Writ Petition is closed.
srd S.S. SATHEESACHANDRAN, JUDGE
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