IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.07.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.NO.68 OF 2005 M/s.Bala Kanavu Illangal, rep. by its Proprietor M.Balaguru Proprietor No.38/22, 82nd Street, Ashok Nagar, Chennai-83 .. Appellant Vs. 1.Beatrice Samuel 2.M/s.Shanmugam Engineering Construction, rep. by Power Agent A.V.Ramasamy, 249, Vellala Street, Kodambakkam, Chennai-34 .. Respondents This O.S.A. has been preferred under Order XXXVI Rule 11 of O.S. Rules against the order and decreetal order, dated 24.2.2005 in O.A.No.969 of 2004 in C.S.No.939 of 2004. For Appellant : Mr.Sundar Narayan for Mr.R.Yashod Vardhan For Respondents: Mr.G.Ethirajulu - - - - JUDGMENT
(The judgment of the Court was made by M.CHOCKALINGAM, J)
Challenge is made to an order of the learned Single Judge of this Court made in O.A.No.969 of 2004, whereby the appellant/plaintiff, who suffered an order of dismissal, sought for an order of interim injunction restraining the respondents from interfering with the peaceful possession and enjoyment of the suit property found therein.
2.The Court heard the learned counsel on either side. The affidavit filed in support of the application, counter affidavit and the plaint before the learned Single Judge and also the order under challenge are perused.
3.It was a suit for declaration that the sale deed executed by the first defendant in favour of the second defendant, dated 18.11.2004 was null and void and also seeking for a decree for specific performance, directing the first defendant to execute the sale deed in respect of the plaint mentioned property in favour of the plaintiff by accepting the balance sale consideration and for other consequential reliefs.
4.The case of the plaintiff, in short, as could be seen from the materials, was that there was an agreement entered into between the plaintiff/purchaser and the first defendant, the owner of the property on 03.02.2004, whereby the total consideration was fixed at Rs.44,00,000/-; that the plaintiff paid Rs.1,86,000/- as advance and the balance consideration was Rs.42,14,000/-; that the first defendant has also executed a General Power of attorney on 28.11.2003 in favour of the plaintiff; that accordingly, the plaintiff was given possession; that the plaintiff came to know that the first defendant has executed a sale deed in favour of the second defendant on 18.11.2004; that it stood as breach of the first agreement; that the sale deed executed by the first defendant in favour of the second defendant was thoroughly void in law and under these circumstances, a necessity arose to file a suit.
5.At the time of filing the suit for the said reliefs, the instant application for interim injunction was filed. The application was countered by the respondents. The learned Single Judge, looking into the materials available and hearing the submissions made, was of the opinion that it was not a fit case where interim injunction could be granted and hence he has dismissed the application and hence this appeal has arisen before this court.
6.The Court heard the learned counsel for the appellant and also the learned counsel for the respondents. In the considered opinion of the Court, no case is made out for granting an order of interim injunction as asked for by the plaintiff before the learned Single Judge and hence the court has to necessarily sustain the order of the learned Single Judge.
7.The case of the plaintiff was that an agreement for sale was executed in his favour and also the power of attorney, pursuant to which, possession was also given. Needless to say that an agreement for sale, which was executed in favour of the plaintiff, even assuming to be true, it will not cloth him right to maintain the possession of the owner’s property. Further, in the instant case, in the earlier notices and also publication which was made through counsel, the date of agreement was found to be 02.02.2004, but in the plaint averments, it was found to be one 03.02.2004. It is further to be pointed out that the prime defence was that the agreement was actually not executed, but it was a fraudulently created document. Under these circumstances, the learned Single Judge has pointed out that the balance of convenience would not be in favour of the plaintiff/applicant. Under these circumstances, the Court is of the considered opinion that nothing is available to disturb the order of the learned Single Judge and hence without going into the merits or otherwise of the rival contentions made, it is open to the parties to raise the contentions before the learned Single Judge. The learned Single Judge is required to dispose of the suit within a reasonable time. With that observations, this appeal is dismissed. No costs.
(M.C., J.) (R.P.S., J.)
15.07.2008
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M.CHOCKALINGAM, J.
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R.SUBBIAH, J.
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O.S.A.NO.68 OF 2005
15.07.2008