Mrs. Vasundara Ramaswamy vs Mrs. Kaplana Muthu

S.N. Satyanarayana, J.—The plaintiff in O.S. No.449/15 on the file of the XXX Additional City Civil fudge, Bengaluru, has come up in this appeal impugning the order dated 9.11.2015 wherein the applications in I.A. Nos.2 to 5 filed by the appellant are rejected.

Admittedly, the suit in O.S. No.449/15 is for the relief of permanent injunction restraining the defendants from dispossessing her from the suit schedule property pending disposal of the said suit. In the said suit, she had filed five applications namely I.As.I to V. The order passed on I.A. No.I filed under Order 2, Rule 2 of CPC is not under challenge in this petition. The other applications namely I.A. No.II was filed under Order 39, Rules 1 and 2 of CPC restraining the defendants from alienating or creating third party interest. I.A. No.3 was filed to restrain the defendants from interfering with possession of the suit schedule property till the disposal of the suit. I.A. No.IV was filed to restrain the defendants from forcibly vacating the plaintiff from the suit schedule property and I.A. No.V was filed to initiate contempt proceedings against the defendants 1 to 3 for disobedience of interim order of status-quo granted earlier.

It is seen that the Court below has dismissed all the four applications by a common order dated 9.11.2015 which is under challenge in this appeal. In these proceedings, first and second defendant are said to be the purchasers of the suit schedule property under a registered sale deed dated 6.5.2014. Third defendant is said to be the husband of the first defendant and is the agent for this sale transaction between the plaintiff and defendants. It is stated that defendant No. 4 is the earlier agreement holder.

The brief facts leading to this appeal are as under: -

The plaintiff who is the owner of the suit schedule property is a citizen of United States of America holding a live American passport and permanently residing there. She came to Bangalore with an intention to sell the property in question and entered into an agreement of sale with defendant No. 4 for a sum of Rs.2 Crores under agreement of sale dated 8.8.2013 which is an independent transaction. It is stated that the said transaction did not culminate into the sale-deed. In the meanwhile, the third defendant as an agent got the transaction entered into between the plaintiff and defendants 1 and 2 for a consideration of Rs.6,58,20,000/-. It is stated that subsequently the third defendant got the sale deed prepared only for a sum of Rs.4,32,20,000/-.

It is stated that at the time of executing the sale deed the cheques that were given to the plaintiff was to the tune of Rs.6,54,20,000/- however, the sale-deed was registered showing the consideration as Rs.4,32,20,000/- much less the value of the cheques. After the sale-deed was registered, they had assured that the balance amount would be paid to her separately. It is stated that subsequently the said difference amount was not paid and though the plaintiff had symbolically given possession of the property she continued to be in possession of the property on the ground that before getting her vacated from the property the balance amount was required to be paid.

When the matter stood thus, it is stated that no further payments were made and there were attempts to dispossess her from the suit schedule property which prompted her to file the suit in O.S.No.449/2016. It is also stated that even before the suit was filed a complaint was lodged with Indiranagar police and after the said complaint was filed it is stated that defendants had accepted to allow the plaintiff to be in possession of the property until the balance amount is paid and such submission was made before the police. However, subsequently, it is seen that the complaint is not registered in the form of FIR instead of that an endorsement is given to her that the dispute is civil in nature and she has to approach the Court.

In the meanwhile, it is stated that to put pressure on the plaintiff, a false case is filed against her for cheating and a false complaint is registered against her and in the meanwhile, the defendants contested all the four applications filed in the suit and after the said applications were rejected the plaintiff is forcibly thrown out of the property and possession is taken by the defendants. Hence, she has come up in this appeal seeking to set aside the order passed on I.As.2 to 4 and consequently to allow the four applications and in the meanwhile to put her back in possession of the suit property by passing appropriate orders in this appeal.

This appeal is at the stage of admission. Heard the learned counsel for the appellant as well as the contesting respondents. On going through the material available on record, it is clearly seen that there is some semblance of criminal intention on the part of the defendants 1 to 3 in issuing cheques by defendant No. 1 who is the wife of the third defendant and in not honouring the same. This Court is unable to understand as to how the Indiranagar Police could refuse to register the complaint and issue such an endorsement.

In any event, that would not taken away the right of the plaintiff herein in initiating proceedings against the culprits by approaching the jurisdictional Magistrate by filing a complaint under Section 200 of Cr.P.C. Instead of that they are unnecessarily pursing this. In any event, there is a recital in the sale-deed that possession is delivered under the sale-deed. The question of ascertaining whether such delivery of possession is under threat or otherwise cannot be decided in this petition. Therefore, the plaintiff is relegated back to the Magistrate Court to file appropriate complaint and seek appropriate direction to the jurisdictional police for investigation and registration of the complaint for the offences alleged against the defendants in the said complaint and also liberty is reserved to the plaintiff to proceed against the defendants for recovery of the amount shown in the cheque which was mentioned in the sale-deed at the time of conveying the suit schedule property by the plaintiff in favour of the defendants.

Reserving such liberty to the appellant-plaintiff, this appeal is disposed of as it does not survive for consideration. Based on which, the Court below is at liberty to dispose of the suit for permanent injunction since the plaintiff-appellant is at liberty to pursue the matter against defendants 1 and 3 so far as the alleged cheating said to have committed by them against her and also for recovery of the amount referred to in the cheque if she can demonstrate that she is rightfully entitled to the said amount.

Learned counsel for the appellant submits that liberty also should be reserved to challenge the sale-deed which is clandestinely got executed by the third defendant in favour of defendants 1 and 2. If she is entitled to such a relief, nothing prevents her from initiating and proceeding with suit for the said relief.