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Judgment
Heard learned counsel for the parties.
This appeal has been filed by the appellant-Company aggrieved against the judgment and decree dated 30.05.2017 passed by the Additional District
Judge, Shrikaranpur, District â€" Sriganganagar, whereby the suit filed by the respondent No.1 seeking specific performance of agreement dated
24.05.2006 has been decreed and directions have been given for performance in terms of the agreement.
When the appeal came up before this Court on 16.08.2017, learned counsel for the respondent No.1 appeared on caveat and copy of the memo of
appeal was directed to be supplied to him. On 24.08.2017, after hearing the parties, the record of the trial court was called and in the meanwhile, both
the parties were directed to maintain status quo with regard to the suit property. Whereafter, the matter remained pending and was getting listed for
admission as the appeal had not been admitted by then. Whereafter, an application has been filed by the respondent No.1 seeking vacation of the
interim order.
Learned counsel for the appellant made submissions that the interim order was passed after hearing the parties and, therefore, without there being any
change of circumstance, the application seeking vacation of the interim order cannot be entertained.
Further submissions were made that strong prima facie case has been made out by the appellant for stay of the impugned decree, as it is a purchaser
for value of the suit property and, therefore, in case the execution of the decree is not stayed, the same would result in irreparable injury to the
appellant and that balance of convenience is also in favour of the appellant.
Learned counsel for the respondent supported the decree passed by the trial court and submitted that no case for grant of any interim order is made
out, inasmuch as, defendant No.1-legal representatives of Bheemsen Garg, against whom, the decree has been passed have not challenged the
decree. The appellant claims to be a bonafide purchaser of the property, which property is only a part of the agreement, cannot maintain the appeal on
the grounds, which are sought to be raised in the present appeal, inasmuch as, the property was transferred by Bheemsen Garg to the Company, of
which, he himself was a Director and in fact the sale deed was executed by Bheemsen Garg himself as transferor and he also signed the same as the
transferee also.
Further submissions have been made that though the appellant has been raising issue about the consideration of Rs.6,00,000/- being too low, the sale
deed after a gap of one year from the date of agreement has been executed for a sum of Rs.6,75,000/- and, therefore, several pleas, which are sought
to be raised in the present appeal have no basis and, therefore, the interim order deserves to be vacated.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record alongwith the record of
the trial court.
As the present is a first appeal arising from the decree, the same is admitted.
So far as the objection of learned counsel for the appellant that without there being any change of circumstance, the application filed by respondent
No.1 seeking vacation of the interim order cannot be entertained, is concerned, suffice it to notice that the interim order was granted on 24.08.2017
while calling for the record of the trial court and the stay application remained pending and, therefore, in any case the stay application is required to be
heard and decided and, therefore, the submissions made in this regard have no substance.
At the outset, it would be appropriate to notice that by the impugned decree, the trial court has held the agreement dated 24.05.2006 as proved and has
decreed the suit qua four different properties. The appellant has interest only in one property, which has been transferred to the appellant and qua rest
of the decree there is no challenge, the defendant No.1 has chosen not to challenge the said decree at all, which aspect cannot be ignored.
Two aspects were emphasized by learned counsel for the appellant that the defendant No.1-Bheemsen Garg/his legal representatives could not lead
evidence on account of the fact that Shailendra Garg s/o Bheemsen Garg was restrained from entering the State of Rajasthan in certain criminal
proceedings by Hon’ble Supreme Court and the another issue raised pertains to the consideration being too low and, therefore, there being no
possibility of any agreement having been entered into between the parties.
A perusal of the record of the trial court indicates that the plaintiff witnesses were duly cross-examined and after the matter was fixed for evidence of
the defendant, dates were taken for production of the witnesses, however, the evidence was not led and no application indicating the status and/or the
reasons for inability to lead evidence was made by defendant No.1 and, therefore, evidence was closed.
So far as the appellant-Company is concerned, no submission whatsoever in this regard was made as to what prevented Company from leading any
evidence in case it wanted to do so.
Further, so far as the consideration being too low is concerned, as already noticed the agreement indicated a sum of Rs.6,00,000/- qua the property
transferred to the appellant and the property in fact has been transferred for a sum of Rs.6,75,000/- to the appellant after the passage of one year and,
therefore, prima facie it cannot be said that the transaction as entered is under valued.
Submissions though were made pertaining to the document being deficiently stamped, a perusal of the record indicates that on an application filed by
the appellant, the same was impounded and the authorities have recovered the stamp duty and penalty and, therefore, arguments raised in this regard
also apparently have no substance.
In view thereof, no prima facie case for stay of the decree passed by the trial court is made out. In the circumstances of the case, once there is lack
of prima facie case in favour of the appellant, it cannot be said that the appellant would suffer irreparable injury and/or the balance of convenience is
in favour of the appellant.
In view of the above discussion, no case for grant of any interim order is made out, the stay application is, therefore, dismissed. It goes without saying
that the execution of the impugned decree, if any, would remain subject to the final outcome of the present appeal.
The application filed by the respondent seeking vacation of the interim order also stands disposed of.