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Judgment
Madhumati Mitra, J
Plaintiff/appellant has preferred this miscellaneous appeal challenging the impugned order no.29 dated 18.11.2016, passed by the learned Civil Judge (Senior Division), Sealdah in Title Suit No.77 of 2015. By the impugned order the learned Judge has rejected the application under order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure filed by the plaintiff/appellant praying for an order of temporary injunction.
It is pertinent to note the facts giving rise to the appeal in a detailed manner for the purpose of proper appreciation.
Appellant/plaintiff started a suit praying for a declaration that the notice dated 28.06.013 issued by defendant no.1 through defendant no.2 by email was illegal and not binding on the plaintiff and other consequential reliefs before the Learned Civil Judge (Junior Division), 2nd Court, Sealdah and the said suit was registered as Title Suit No.355 of 2013. The plaint of the said suit was returned by the then learned Civil Judge (Junior Division), for filing before the appropriate Court. Thereafter, the suit was filed before the Court of Learned Civil Judge (Senior Division) and renumbered as Title Suit no.77 of 2015.
According to the plaint case, the plaintiff is engaged in the business of mines and minerals products. Defendant no.1 is a company incorporated under the provisions of the Companies Act. Defendant nos.2 and 3 are the Directors of defendant no.1 company. On 21.05.2013, the Chief Manager of defendant no.1 company approached the plaintiff to purchase one of their immovable properties i.e. one G+5 storied building situated at 217, Park Street, Kolkata-700 017 at a consideration of Rs.9 Crores. On 23.05.2013, after a preliminary discussion the following points were agreed:
a) The defendant no.2 was in need of urgent fund of Rs.15 cores immediately and as such he wished to sale his building, hotel and resort;
b) The defendant no.2 through the defendant no.4 was holding the said property free from encumbrances;
c) Defendant nos. 1,2, 3 are the major share holders of the defendant no.4;
d) In consideration of Rs.9 Crores, the defendant nos.1,2 and 3 shall transfer their entire majority share holding of the defendant no.1 and accordingly the plaintiff would get the control of the major share holding of the defendant no.4;
e) The defendant nos.2 and 3 would arrange for transfer of all the share holding of the other share-holders of the defendant no.4 including defendant no.1;
f) Plaintiff would pay the amount of Rs.9 Crores within 10th June, 2013;
g) If the plaintiff needed any extension of time for making payment, then the same would be considered by defendant no.2, but all endeavour would be completed at an early date. As per the discussion, one agreement dated 23.05.2013 was prepared regarding payment of consideration money. On 25.05.2013, plaintiff paid Rs.25,00,000/- to defendant no.2 against one money receipt. Agreement dated 25.05.2013 dearth with the modes of transfer of share by defendants nos. 1 to 3 for performing their obligation regarding transfer of share of defendant no.4. Thereafter, the plaintiff made payments of Rs.50,00,000/- on 06.06.2013 to defendant no.1; Rs.10,00,000/- on 08.06.2013 to defendant no.2; Rs.75,00,000/- on 11.06.2013 to defendant no.1, Rs.25,00,000/- on 12.06.2013 to defendant no.1 and Rs.20,00,000/- on 15.06.2013 to defendant no.2. Defendant nos.1 and 2 jointly issued money receipt except the sum of Rs.75,00,000/-.
On 25.05.2013, the defendant no.2 after accepting Rs.25 Lacs and after issuing money receipt produced one agreement prepared by them on stamp papers and obtained the signature of the plaintiff on the said agreement dated 25.05.2013. In spite of request of the plaintiff, the defendant no.2 never handed over him a copy of the agreement dated 23.05.2013. Plaintiff had no knowledge about the clauses in the said agreement. At the time of making payment of Rs.20,00,000/- on 14.06.2013, the plaintiff requested for extension of the time to make entire payment and defendant no.2 on behalf of the other defendants agreed to extend the time. On that date defendant no.2 offered the plaintiff to purchase other two immovable properties recorded in the names of the other group of companies viz. Roofer Pearl Hotel at Digha and Hirak Jayanti Resorts at Mandarmoni at a consideration of Rs.12 Crores and Rs.4.50 Crores respectively. Defendant no.2 approached the plaintiff that he would arrange all the papers and asked the plaintiff to handover to him two post dated cheques for Rs.2 Crores and Rs.1.50 Crores respectively to show their creditors. Those two post dated cheques for Rs.2 Crores and Rs.One Crore Fifty Lakhs dated 28.06.2013 duly filled up by the plaintiff without the signatures of the plaintiff were taken away from the office of the plaintiff by defendant no.2. On 25.06.2013, the defendant no.2 deposited one cheque of Rs.Two Crores for purchasing Hotel Pearl New Digha which was issued not for encashment. On 28th June, 2013 the defendant no.1 through the defendant no.2 issued notice by email at 6:30 p.m. for cancellation of the agreements dated 23.05.2013 and 25.05.2013 on the ground that the plaintiff did not pay the balance of Rs.6.70 Crores within 10th June, 2013 and forfeited the amount of Rs.2.30 Crores of the plaintiff as the time was the essence of the contract.
Thereafter, on 15.08.2013, the plaintiff came to know from the reliable source that the defendant nos. 1,2 and 3 illegally and in violation of the terms of the agreement dated 23.05.2013 and 25.05.2013 transferred the majority share holding of the defendant no.4 to the defendant nos.5,7 and 8. According to plaintiff the transfer of majority share holding nos.1,2 and 3 are illegal and null and void.
By filing the suit the plaintiff prayed for a decree for declaration that the termination/cancellation/revocation of the notice dated 28.06.2013 is illegal and not binding upon the plaintiff. Plaintiff also sought for declaration that the defendants are liable for breach of contract. Plaintiff also prayed for permanent injunction restraining the defendant nos.1 to 8 from alienating the suit property until satisfaction and refund of Rs.2.30 Crores along with a reasonable rate of interest @ 24% per annum.
During the pendency of the suit, the plaintiff filed one application under order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure praying for an order of temporary injunction restraining the defendants from dealing with suit property till the disposal of the suit.
Defendant nos.6,7 and 8 contested the application for temporary injunction by filing a written objection wherein they challenged the maintainability of the suit filed by the plaintiff on the score that previously the plaintiff had filed another title suit being no.355 of 2013 before the Court of Learned Civil Judge (Junior Division), 2nd Court, Sealdah and obtained ex parte interim order by suppressing the fact that the Learned Civil Judge (Junior Division) had no pecuniary jurisdiction to entertain that suit. Defendants claimed that in that suit they had filed an application under Section 21 read with Order 7 Rule 10A and under Section 151 of the Code of Civil Procedure and Learned Civil Judge (Junior Division), returned the plaint to the plaintiff for filing the same before the proper forum and vacated the order of injunction. Defendants also contended that the plaintiff without complying with the provisions of Order 7 Rule 10A of Code of Civil Procedure withdrew the plaint and filed the same before the Court of Learned Civil Judge, Senior Division. According to the defendants the application for injunction was not maintainable as the same was purely misconceived one. It was the specific contention of the defendants the alleged agreement for sale was not a lawful agreement and the same was not made in accordance with the provisions of Sections 16 and 19 of the Specific Relief Act and Rules 33 and 34 of the West Bengal Amendment of 1994. Defendants claimed that they became the lawful owners of the suit property by purchase at a valuable consideration.
It was stated by the defendants that the defendant no.6 had visited the registered office of the owner of the suit property before purchase and authorized Director of defendant no.4 agreed to sale the said property by transferring the entire share capital of the said company. The said authorized Director entered into an agreement with defendant no.6 for transfer entire share capital of the said company thereby retiring all the directors from the said company and handed over the entire control of the said company to the new directors. Defendant no.6 also claimed that he purchased the suit property and got his name mutated prior to filing of the Title Suit no.355 of 2013 in the Court of Learned Civil Judge (Junior Division), 2nd Court, Sealdah. He prayed for rejection of the prayer for temporary injunction.
The Learned Civil Judge has rejected the prayer of the plaintiff for temporary injunction mainly on the ground that the plaintiff has not prayed for specific performance of contract of the agreements dated 23.05.2013 and 25.05.2013 and as such Learned Judge has found that neither the defendants nos.1 to 5 nor the defendants nos.6 to 8 could be pressurized by restraining the suit property for enabling the plaintiff to get the refund of Rs.2.3 Crores from the defendants. Learned Judge has also observed that the plaintiff did not practically have any claim in respect of the suit property and the defendants nos.1 to 5 are not the present owners of the property and the defendant no.6, the present defendant was not a party to the agreement dated 23.05.2013 and 25.05.2013.
The order of rejection of the prayer for temporary injunction of the plaintiff is under challenge.
The impugned order has been assailed by the Learned Counsel appearing for the appellant on the ground that the Learned Court below has failed to appreciate the fact that the plaintiff had paid Rs.2.3 Crores in advance to the defendant nos. 1 to 3 and 5 to purchase the suit property and the said defendants by sending a email on 28.06.2013 terminated the agreement for sale and transferred the said property at a less price of Rs.4,32,25,000/- to the defendant nos.6,7 and 8 on the next date of the said email. The manner in which the transfer took place and the conduct of the defendants show that there was nexus between the defendants 1 to 3 and 5 on the one side and the defendants nos.6 to 8 on the other side. It has been contended by the Learned Advocate for the appellate that Learned Judge has failed to consider that there was nexus in between defendants nos.1,2,3 and 5 with defendant nos.6 to 8 and they committed fraud. The suit property ought to have been injuncted to protect the interest of the plaintiff otherwise there is every possibility of creation of third party interest in the suit property. He has further argued that Learned Judge has failed to appreciate that there was sale agreement between the defendant nos.1 to 3 and 5 and plaintiff. Pursuant to the said agreement plaintiff/appellant paid Rs.2.3 Crores and the plaintiff/appellant is entitled to get back that amount with interest. He has forcefully contended that it is a fit case to pass an order of temporary in injunction in favour of the plaintiff.
Learned Advocate appearing for the respondents nos.6 to 8 has submitted that the Learned Judge has rightly passed the impugned order. It has been contended on behalf of the respondent nos.6 to 8 that plaintiff has not prayed for any decree of specific performance of contract on the basis of alleged agreements dated 23.05.2013 and 25.05.2013 and moreover the said alleged agreement was terminated by email dated 28.06.2013 as reflected in the plaint. According to his contention, the plaintiff has no manner of right in respect of the suit property. Learned Counsel for the respondent nos.6 to 8 has also contended that respondent nos.6 to 8 are bonafide purchaser for value and their names have already been mutated in the record of corporation and the question of granting injunction in respect of the suit property does not arise at all. Learned Counsel has further contended that the present appeal is liable to be dismissed.
The short question arising for consideration in this appeal is whether the Learned Civil Judge was justified in rejecting the prayer for temporary injunction of the plaintiff.
It is well settled that in order to get relief in the form of temporary injunction, the party seeking the same must not only make out a prima facie case but must establish that if the opposite parties are not injuncted, he would suffer irreparable injury which cannot be compensated by costs. The balance of convenience should also be in favour of the party seeking the injunction.
In the instant case, the prayer for temporary injunction of the plaintiff/appellant has been turned down by the Learned Trial Judge. Now, the question comes whether the plaintiff seeking injunction has a prima facie case to go to trial. Plaintiff/appellant has specifically pleaded in his plaint that he paid Rs.2.3 Crores to the defendants/respondents no.1 to 3 and 5 for purchasing the suit property in pursuance to the agreements dated 23.05.2013 and 25.05.2013 and the time was not the essence of the contract. It has been alleged by the plaintiff that on 28.06.2013, the defendant/respondent nos.1 to 3 and 5 cancelled the said agreements and forfeited the amount of Rs.2.3 Crores and transferred the suit property to the respondent/defendant nos.6 to 8. Respondent/defendant nos.6 to 8 have claimed that they are bonefide purchasers for value and their names have already been mutated. Plaintiff/appellant has sought for declaration that the email notice dated 28.06.2013 is null and void. It is true plaintiff has not prayed for specific performance of contract. From the averments made in the plaint as well as from the submissions made by the Learned Counsel for the appellant it reveals that the plaintiff is interested to get back the amount of Rs.2.3 Crores along with interest. Now, the question comes whether the plaintiff can be adequately compensated in terms of money if the prayer for injunction is refused. Previously, I observed that the plaintiff himself instead of filing any suit for specific performance of contract has prayed for declaration of email notice regarding cancellation of agreements dated 23.05.2013 and 25.05.2013 was not binding as illegal. By filing the application for temporary injunction he has sought for an order to restrain the defendants to deal in the said property till the disposal of the suit. In the present case, it can be said that the plaintiff seeking injunction shall not suffer irreparable injury in case his prayer is refused as he can be adequately compensated in terms of money if he succeeds in proving his case.
Defendant nos.6 is the father of defendant nos.7 and 8. In his written objection defendant no.6 has specifically stated that the defendant nos.6,7 & 8 have control over the property and they had no knowledge about the alleged agreement between the plaintiff and defendant nos.1 to 3 and 5. In the instant case from the materials placed on record as well as from the rival submissions made by the Learned Counsel for the parties it appears that the defendant nos.6 to 8 will suffer greater inconvenience if the injunction is granted in favour of the plaintiff.
We are, thus, of the considered view that the Learned Trial Court has not committed error in rejecting the application under Order 39 Rule 1 and 2 of the Code of Civil Procedure.
The impugned order passed by the Learned Trial Court is hereby affirmed.
The appeal is devoid of merit and stands dismissed.
Before parting with the case, we would like to clarify that the observations made in this judgment should not be taken as an expression of any opinion regarding the merit of the suit pending before the Learned Civil Judge. Learned Civil Judge shall proceed with the suit and dispose of the same in accordance with law.
In view of the judgment passed in F.M.A.772 of 2017, the C.A.N. being No.1102 of 2017 becomes infructuous and stands dismissed.
Let a copy of this order be sent to the Learned Court below at once. Urgent Photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities.