High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 20.12.2007CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE M.VENUGOPALO.S.A. NOS. 127 & 133 OF 2006 N.Thangamani.. Appellant in both appeals- Vs -S.Duraivelu.. Respondent in both appealsO.S.A. Nos.127 of 2006 filed against the order dated 7thMarch, 2006, passed by learned single Judge in OriginalApplication No.5256 of 2005 in C.S. No.797 of 2005 as statedtherein.O.S.A. Nos.133 of 2006 filed against the order dated 7thMarch, 2006, passed by learned single Judge in OriginalApplication No.878 of 2005 in C.S. No.797 of 2005 as statedtherein.For Appellant: Mr.R.ThiagarajanFor Respondent: Mr. T.V.Ramanujun, SC, for Mr. T.V.KrishnamachariCOMMON JUDGMENTS.J.MUKHOPADHAYA, J.The appellant/plaintiff filed suit for specific performancein C.S. No.797/05. Pending the suit, he filed O.A. Nos. 5256 and878/05 seeking an interim injunction restraining therespondent/defendant from interfering or disturbing with thepeaceful possession and enjoyment of the suit schedule propertydescribed in the schedule by the plaintiff in any manner bytrespassing, alienating, encumbering or otherwise dealing with itor any part thereof pending disposal of the suit. By impugnedorder dated 7th March, 2006, learned single Judge passed thefollowing interim order :-i) The plaintiff has been allowed to continue in theshop, in which he is a tenant, but he has been directedto pay the rent of the shop till the disposal of thesuit;ii) Insofar as the interim injunction is concerned, https://hcservices.ecourts.gov.in/hcservices/ the Court granted interim injunction restraining thedefendant from alienating the property; andiii) The defendant has also been restrained frominterfering with the possession of plaintiff in respectof shop in which plaintiff is the tenant.So far as the other shops are concerned, the defendantcomplained that the plaintiff has locked them after passing ofthe interim order. In this background, the Court directed theplaintiff to remove the lock and to hand over possession of theother shops to the defendant immediately.2. According to plaintiff, an agreement was entered intobetween the plaintiff and defendant on 10th Oct., 2003 in respectof the building consisting of four shops. Consideration amountof Rs.22 Lakhs was fixed. On the date of agreement, theplaintiff was a tenant in respect of one shop and a sum of Rs.10lakhs was paid. Subsequently, another agreement was entered intobetween the parties on 10th March, 2005 in respect of the sameproperty and for the same consideration pursuant to whichpossession of another shop was also handed over to the plaintiffand, thus, he remained in possession of two shops. Further caseof plaintiff was that in order to purchase the defendant'sproperty, he had to sell his property apart from taking loan fromprovident fund account for making advance payment. Inspite ofthis, according to the plaintiff, he was willing to pay thebalance consideration in order to show his bona fide and hedeposited a sum of Rs.10 Lakhs as directed by the Court whileinterim injunction was granted.It was alleged that during the pendency of the suit,attempts were made by defendant to interfere with the possessionof the plaintiff and, thus, he apprehended that the defendant islikely to alienate the property. If the property is allowed tobe alienated, even after decree for specific performance ispassed, he will not get the fruit of it. This will lead tomultiplicity of proceeding and so he sought for interiminjunction.3. The case of the defendant before the trial court as alsobefore this Court is that the agreement dated 10th March, 2005,relied on by plaintiff was obtained by coercion and undueinfluence. The question relating to validity of agreement, whichwould lead for granting relief for specific performance, isrequired to be decided at the time of trial and not at theinitial stage.Learned counsel for the respondent/defendant submitted thatthe building consisting of four shops and that plaintiff is atenant in one of the shops. The plaintiff, in fact, locked theother shops after interim injunction was granted by this court.It was denied that possession was handed over to plaintiff https://hcservices.ecourts.gov.in/hcservices/ pursuant to agreement dated 10th March, 2005, which was alleged tohave been obtained by coercion and undue influence.4. Learned counsel appearing on behalf of theappellant/plaintiff referred to clause (7) of the agreement dated10th March, 2005 to suggest that vendor had permitted thepurchaser (plaintiff) to have physical possession of theremaining two shops let out on rent. Reliance was also placed onlast portion of last paragraph of the advocate's notice dated 13thAug., 2005, issued on behalf of the defendant, whereby theplaintiff was informed that the defendant is the sole owner ofthe property and cautioned the plaintiff to vacate the premisesimmediately, particularly 100 sq. ft. and 200 sq. ft., which wasoccupied by him as per sale agreement dated 10th March, 2005. Itwas submitted that the aforesaid two documents clearly suggeststhat the defendant had handed over the possession of two shops infavour of the plaintiff.5. Learned counsel appearing on behalf of the defendantreferred to Section 53 of the Transfer of Property Act to suggestthat the agreement is void having obtained by coercion and undueinfluence. Reliance was also placed on Section 17-A of theRegistration Act, 1908 to suggest that no such sale deed could beregistered. However, as the aforesaid issues are required to bedetermined by the trial court, we are not inclined to give anyfinding either in regard to the agreement or on the questionwhether it can be registered.6. So far as the one shop is concerned in which theplaintiff is the tenant of the defendant, there being no dispute,learned single Judge has passed interim injunction and defendanthas also been directed not to dispossess the plaintiff. Inrespect of the suit property is concerned, the defendant has alsobeen restrained from making alienation of the entire property,which is the subject matter of specific performance suit.Further direction has been issued on defendant restraining himfrom interfering with the plaintiff's possession in respect ofone of the shop of which he is the tenant.So far as the other shop is concerned of which the plaintiffclaims to be in possession pursuant to the agreement dated 10thmarch, 2005, and the defendant disputed the same except the factthat it has been locked by the plaintiff after the originalinterim injunction order was passed. We are of the view that thelearned single Judge could not have decided such question of factat that stage and rightly passed the impugned order. So far asthe opening of the lock of the other shops is concerned, as theplaintiff is not tenant of the said property and has put the lockafter the interim order of injunction passed by this Court, thereappears to be no error if learned single Judge directed to openthe same. https://hcservices.ecourts.gov.in/hcservices/

7. In the circumstances, no interference is called for withthe impugned order dated 7th March, 2006, passed by learned singleJudge in O.A. Nos.5256 and 878 of 2005 in C.S. No.797 of 2005.There being no merit, both the appeals are dismissed. But thereshall be no order as to costs.GLNSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Sub Asst Registrar,Original Side, High Court, Madras.+ 2 ccs to Mr. R. Thiagarajan, Advocate SR No. 75676 JUDGMENT IN O.S.A. NOS.127 & 133 OF 2006MDR(CO)SR/27.12.2007