Civil Revision No.6886 of 2006 (O & M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.6886 of 2006 (O & M)
Date of decision:25.03.2009
Rajesh Chadha .....Petitioner
versus
Satish Chaudhary and another .....Respondents
Coram:- HON’BLE MR. JUSTICE L. N. MITTAL.
Present: Mr. M. L. Sarin, Sr. Advocate with
Mr. Hemant Sarin, Advocate for the petitioner.
Mr. Amit Singh, Advocate for respondents.
L. N. MITTAL, J
Plaintiff Rajesh Chadha has filed this civil revision
petition under Article 227 of the Constitution of India for setting
aside the impugned order dated 30.10.2006, Annexure P-12
passed by learned Additional Civil Judge (Senior Division),
Garhshanker, as affirmed in appeal by learned Additional District
Judge, Hoshiarpur vide judgment dated 13.12.2006, Annexure
P-13, whereby application moved by the plaintiff under Order 39
Rules 1 and 2 read with Section 151 of the Code of Civil
Procedure (C.P.C) for temporary injunction stands dismissed.
Admitted case of the parties is that defendant No.1
Satish Chaudhary, who is also proprietor of defendant No.2 M/s
Maa Bhagwati & Co., entered into agreement dated 9.02.2006
Annexure P-1 with the plaintiff for sale of the suit property known
as M/s Kartar Glass Company, Garhshanker (in village Kullewal)
Civil Revision No.6886 of 2006 (O & M) -2-
comprised of 22 ½ acres of land along with scrap for Rs.5 crores
and received Rs.1 crore as earnest money. Sale deed was
stipulated to be got registered on 9.1.2007.
The plaintiff’s case is that the plaintiff has always
been ready and willing to perform his part of the contract but the
defendants started backing out of the same. Since date
stipulated in the agreement for execution of sale deed had not
expired, the plaintiff filed suit vide plaint dated 29.09.2006,
Annexure P-7, for permanent injunction restraining the
defendants from alienating any part of the suit property and from
removing any iron, machinery, scrap, trees etc. therefrom.
Temporary injunction to the same effect till final disposal of the
suit was claimed by the plaintiff by moving application under
Order 39 Rules 1 and 2 read with Section 151 CPC.
The defendants in the reply to the application
admitted the execution of agreement, Annexure P-1, and
receipt of Rs.1 crore as earnest money. The defendants,
however, pleaded that the said agreement was cancelled and
earnest money in full was refunded to the plaintiff. A sum of
Rs.74 lacs was allegedly received by the plaintiff vide undated
receipt Annexure P-10 and another sum of Rs.36 lacs was
received by him shortly thereafter vide receipt dated 7.07.2006,
Annexure P-11 and thus the agreement stood cancelled.
Both the Courts below did not accept the plaintiff’s
version. Feeling aggrieved, the plaintiff has filed the instant
Civil Revision No.6886 of 2006 (O & M) -3-
revision petition.
I have heard learned counsel for the parties and
perused the case file.
Before proceeding further, it has to be noticed that
during pendency of the suit, the plaint has been amended and
the plaintiff has also claimed relief of specific performance of the
agreement Annexure P-1. It is also to be noticed that
documents Annexure P-10 and Annexure P-11 relied on by the
defendants referr to two agreements i.e agreement Annexure P-
1 for sale M/s Kartar Glass Company and also another
agreement between the parties for sale of assets of M/s Mangla
Cotex Ltd. situated about 20 Kms from Ludhiana on Chandigarh-
Ludhiana road. Vide said other agreement dated 1.05.2006, the
plaintiff paid Rs.60 lacs as earnest money to the defendants for
purchasing the assets of M/s Mangla Cotex Ltd. for Rs.8 crores.
Vide documents Annexure P10 and Annexure P-11, both the
agreements are said to have been cancelled.
Learned counsel for the petitioner at the outset,
relying on judgment of Hon’ble Apex Court in the case of Surya
Dev Rai versus Ram Chander Rai and others AIR 2003
Supreme Court 3044, contended that power of superintendence
of this Court under Article 227 of the Constitution of India is
much wider than the revisional power of this Court under Section
115 CPC. There is no quarrel with this proposition.
Learned counsel for the petitioner vehemently
Civil Revision No.6886 of 2006 (O & M) -4-
contended that agreement between the parties stands admitted,
but the alleged cancellation thereof, vide documents Annexure
P10 and Annexure P-11, cannot be accepted. There is
considerable force in the contention. Document Annexure P-10
purports to be receipt which is undated, but scribed on stamp
papers worth Rs.50/- plus Rs.50/- purchased on 27.03.2006.
Learned counsel for the respondents contended that
this receipt was executed shortly before receipt dated 7.07.2006
Annexure P-11 as pleaded in the reply to application for
temporary injunction. It was also pointed out by learned counsel
for respondents that six bank drafts dated 1.05.2006 for total
amount of Rs.50 lacs were paid by the respondents to the
plaintiff but the said drafts were got prepared in favour of one
Madan Bassi (for Rs.25 lacs) and in favour of Harminder Pal (for
Rs.25 lacs) on the instructions of the plaintiff and the same
stand encashed at Ludhiana on 3.05.2006. Vide receipt
Annexure P-10, a sum of Rs.74 lakhs was recited to have been
received by the plaintiff and vide receipt Annexure P-11, a sum
of Rs.36 lakhs was recited to have been received by the plaintiff.
In addition to bank drafts of Rs.50 lacs, the plaintiff has admitted
to have received bank drafts of Rs.24 lakhs (three drafts of Rs.8
lacs each), but allegedly relating to cancellation of the
agreement of M/s Mangla Cotex Ltd. and not for cancellation of
agreement Annexure P-1 of Kartar Glass Company.
As noticed above, receipt Annexure P-10 is undated
Civil Revision No.6886 of 2006 (O & M) -5-
but scribed on stamp papers purchased on 27.03.2006. The
defendants have refrained from specifying even approximate
date of the said receipt. Even learned counsel for the
respondents on pointed inquiry is unable to state the
approximate date of the said receipt. However, bank drafts for
Rs.50 lacs were allegedly got prepared by the defendants on
1.05.2006. Consequently, alleged cancellation of the agreement
Annexure P-1 must have been agreed upon on or before
1.05.2006. As per documents Annexure P-10 and Annexure P-
11, both the agreements were cancelled. However, the second
agreement was dated 1.05.2006. It is prima facie highly
improbable that the parties entered into the second agreement
on 1.05.2006 and the plaintiff paid Rs.60 lacs to the defendants
as earnest money on that date, and on the same day, the parties
agreed to cancel both the agreements. Learned counsel for the
respondents contended that only one agreement i.e Annexure
P-1 was cancelled on that date. However, documents Annexure
P-10 and Annexure P-11 refer to cancellation of both the
agreements. Even if for the sake of argument alone, it is
assumed that only one agreement i.e annexure P-1 was agreed
to be cancelled on 1.5.2006, the same also appears to be
improbable because on the same day, the plaintiff had paid
Rs.60 lacs as earnest money to the defendants under the
second agreement. Moveover, the defendants would not have
paid the bank drafts dated 1.05.2006 for Rs.50 lacs to the
Civil Revision No.6886 of 2006 (O & M) -6-
plaintiff on 1.05.2006 without any receipt, particularly because
the said bank drafts were not even in favour of plaintiff but were
in favour of some two other persons.
There is another significant aspect of the matter.
Agreement Annexure P1 stands admitted by both the parties.
Vide this agreement, earnest money of Rs.1 crore was paid in
cash. However, receipt Annexure P-11 refers to the earnest
money of Rs.1 crore paid by way of two bank drafts of Rs.50
lacs each to the Official Liquidator and not to the defendants
directly. Learned counsel for the respondents has not been able
to explain this significant contradiction.
Learned counsel for the petitioner also pointed out
that the petitioner had paid Rs.1 crore vide agreement Annexure
P-1 and Rs.60 lacs vide second agreement dated 1.05.2006, but
according to documents Annexure P-10 and Annexure P-11, a
sum of Rs.1.10 crore only was refunded to the petitioner and
there is no recital in these documents nor any pleading by the
defendants that the petitioner had foregone the remaining
amount of Rs.50 lacs. There is considerable force in the
contention. The aforesaid contention of the learned counsel for
the petitioner has not been rebutted in any manner. On the
contrary, perusal of documents Annexures P-10 and P-11
reveals that the petitioner had been paid Rs.1.10 crore as
against the earnest money of Rs.1 crore. These documents do
not at all refer to the earnest money of Rs.60 lacs paid under the
Civil Revision No.6886 of 2006 (O & M) -7-
second agreement dated 1.05.2006.
Learned counsel for the respondents emphasised that
document Annexure P-10 is in the own handwriting of the
petitioner and document Annexure P-11 has been signed by the
petitioner. However, this fact can be ascertained only after the
parties lead evidence in the Trial Court. At this stage, the
petitioner has not admitted these documents.
Learned counsel for the respondents emphasised that
concurrent finding of facts by both the Courts below even if
erroneous should not be interfered with in exercise of jurisdiction
under Article 227 of the Constitution of India. The contention
cannot be accepted as there is no concurrent finding of fact by
both the Courts below. On the other hand, final finding of fact
has to be arrived at after recording evidence in the suit. At this
stage, prima facie case has to be looked into on the basis of the
material of the record. The Courts below have failed to
appreciate documents Annexures P-10 and P-11 in proper
perspective. Moreover, when the petitioner has filed suit for
specific performance, it would be desirable to preserve the suit
property because otherwise the petitioner would suffer
irreparable loss and injury.
Learned counsel for the respondents also contended
that plea of forgery of documents Annexures P-10 and P-11 has
been raised for the first time in the revision petition. This
contention also cannot be accepted because it was also so
Civil Revision No.6886 of 2006 (O & M) -8-
taken up in the appeal and also in the replication.
For the foregoing reasons, I find that the petitioner
has made out a strong prima facie case. Balance of
convenience is also in favour of the petitioner because he has
paid huge amount of Rs.1 crore which stands admitted by the
defendants. The petitioner would obviously suffer irreparable
loss and injury, if the defendants are allowed to remove the iron,
machinery and trees from the suit property or to alienate the
same. The impugned orders of both the Courts below are not
sustainable at all.
In view of the aforesaid, the instant revision petition is
allowed and impugned orders of both the Courts below are set
aside and application filed by the petitioner for temporary
injunction is allowed and defendants are ‘restrained’ from
removing iron, machinery/scrap and trees from the suit property
till final decision of the suit. However, nothing observed herein
above shall influence the Trial Court at the time of final decision
of the suit. The trial Court shall make endeavor to decide the
suit expeditiously and preferably within one year from the date of
receipt of a copy of this order.
Both the parties shall be given only two effective
opportunities each for leading their evidence.
( L. N. MITTAL )
JUDGE
25.03.2009
A.Kaundal