The High Court
Case Details
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH MISCELLANEOUS FIRST APPEAL NO.7780/2024 (CPC) BETWEEN: 1 . SRI G. HULIYAPPA S/O LATE SRI. GANGANNA AGED ABOUT 65 YEARS, RESIDING AT NO.55/1, NEW NO.3, 4TH CROSS, 1ST STAGE, MICHAEL PALYA, NEAR CMH HOSPITAL, INDIRANAGAR, BANGALORE-560038. … APPELLANT (BY SRI P.B.RAJU, ADVOCATE) AND: 1 . MR. R. GANGADHAR S/O R. RAVINDRA NAIDU, AGED ABOUT 43 YEARS, R/AT NO.119, AKSHAYA PEDSTONE, SEEGEHALLI MAIN ROAD. OPP. SHELL PETROL PUMP. SEEGEHALLI, BENGALURU-560 067. 2 . MR. M. SOMASHEKAR S/O M. KRISHNAMURTHY AGED ABOUT 41 YEARS RESIDING AT NO.405, 2 VIKYATH SPRING APARTMENT 5TH RIGHT CROSS, ALFA GARDEN KODIGEHALLI MAIN ROAD AYYAPPA NAGAR, K.R.PURAM BANGALORE-560036. 3 . MR. GAJENDRA S/O M. KRISHNAPPA RESIDING AT NO.113/2, OXFORD SCHOOL ROAD NEW THIPPASANDRA BANGALORE-560075. 4 . MR. H.M. VIJAY KUMAR S/O MUNIYAPPA RESIDING AT NO.6 SWETHA BHAVANA 8TH CROSS ‘A’ BLOCK AECS LAYOUT, KUNDALAHALLI BANGALORE 560037. … RESPONDENTS (BY SRI T. SURYANARAYANA, SENIOR COUNSEL & SRI PRASHANTH MURTHY, ADVOCATE FOR SRI SANDEEP LAHIRI & SMT. DEEPIKA JOSHI, ADVOCATES FOR C/R1; SRI LOKESH R. & SRI ANAND K., ADVOCATES FOR C/R2 ON I.A.NOS. 1 & 2; SRI V.VISHWANATH, ADVOCATE FOR R3 & R4) THIS M.F.A. IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 23.10.2024 PASSED ON I.A.NOs.1 AND 2 IN O.S.NO.25485/2024 ON THE FILE OF THE COURT OF THE LXXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL BENGALURU CCH-73, DISMISSING THE IA.NOS.1/2024 AND 2/2024 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC. 3 THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR THE COURT THIS DAY, JUDGMENT ON 07.01.2025 PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV JUDGMENT Heard learned counsel for the appellant, learned Senior counsel for caveator-respondent No.1, learned counsel for caveator-respondent No.2 and learned counsel for respondent Nos.3 and 4. 2. This miscellaneous first appeal is filed under Order 43 Rule 1(r) read with Section 151 of CPC challenging the order passed by the Trial Court in O.S.No.25485/2024 dated 23.10.2024 rejecting I.A.Nos.1/2024 and 2/2024 filed under Order 39 Rule 1 and 2 of CPC. 3. The factual matrix of the case of the appellant/plaintiff is that the appellant filed the suit seeking the relief of declaration to declare that two agreement of sale entered into between the plaintiff and defendant No.1 dated 06.12.2023 as null and void and unenforceable against the plaintiff and the suit schedule property. The plaintiff also sought 4 the relief of declaration to declare that two General Power of Attorneys dated 06.12.2023 are duly cancelled and
Legal Reasoning
unenforceable against the plaintiff and the suit schedule property and restrain the defendants from making any claims as against the plaintiff or against the suit schedule property on the basis of two agreement of sale dated 06.12.2023 or two General Power of Attorneys dated 06.12.2023 and disturbing the plaintiff’s peaceful possession and enjoyment over the suit schedule property permanently and direct the defendants to execute a document before the jurisdictional Sub-Registrar to cancel two agreement of sale dated 06.12.2023 and two General Power of Attorneys dated 06.12.2023 and if the defendants fail to execute the cancellation of the same, the Court may pleased to execute the same through the process of the Court and pay the cost. 4. While seeking such reliefs', the plaintiff also filed two applications i.e., I.A.Nos.1/2024 and 2/2024 to restrain the defendants from interfering with peaceful possession and enjoyment of the suit schedule property and also not to create 5 any third party rights in respect of the suit schedule property against the defendant Nos.1 and 2, till the disposal of the suit. 5. In support of these applications, the plaintiff has also filed affidavits contending that plaintiff is the absolute owner in possession of the property in Sy.No.56/2 which is morefully described in the schedule to the suit. He had purchased the same from his erstwhile owner under the registered sale deed dated 09.12.2004. The revenue documents are standing in his name. It is also contended that 20 guntas of land had gone for Indian Railway Road as per the Government Order. The defendant Nos.3 and 4, instead of purchasing the property in terms of the Court compromise, they brought defendant No.1 and forced him to execute two sale agreements dated 06.12.2023 in favour of defendant Nos.1 and 2, General Power of Attorneys in favour of defendant No.2, in order to overcome the Court decree and also put an end to the earlier compromise
Legal Reasoning
and its agreed terms. The amount which was paid in the above first sale agreement, the Court compromise cannot be adjusted in the second time sale agreement, since it is a separate 6 agreement for new terms with a new purchasers, all these techniques were played by the defendant Nos.3 and 4, in order to delay the sale process and not to clear the sale price on the property to plaintiff and also to cheat the plaintiff. The total sale consideration as agreed in the Court compromise was Rs.7,35,00,000/-. The alleged cheques referred in the sale agreement dated 06.12.2023 are not handed over to the plaintiff and it is all fake story created by the defendants in order to cheat the plaintiff with collusion, the plaintiff bank statement on the alleged Cheques are not given to the plaintiff. The amount mentioned in the sale agreements are not reached to the plaintiff, hence the plaintiff has terminated the contract and sale agreement entered with the defendant No.1 and the General Power of Attorneys are also cancelled as per law and procedure. The amount paid in the sale agreement dated 06.12.2023 is forfeited by plaintiff in terms of the contract as defendant No.1 or the consenting witness have again breached the terms of the Court compromise and the sale agreements dated 06.12.2023 7 6. It is also contended that the defendant No.1 has not communicated to the plaintiff that he was ready and willing to purchase the suit schedule property and clear the sale price as per the sale agreement. From 2019 till 2024, the plaintiff is facing litigation of selling his property. Under the circumstances, on the negligence of the defendants, the plaintiff having no other way, has terminated the sale agreement and agreement of sale is unenforceable by the recitals of the same as per the conditions bound by the parties. The defendant No.2 is threatening the plaintiff saying that he will execute some deed or documents by using the General Power of Attorneys which was cancelled by him as per law and procedure. As stated above, the defendant No.2 is trying to create third party rights in respect of the suit schedule property and also trying to interfere with the possession and enjoyment of the suit property by the plaintiff and also trying to construct compound wall and digging the bore well in the suit schedule property. Hence, sought for the relief of temporary injunction. 8 7. In pursuance of the suit summons, the defendant No.2 appeared and filed the written statement and defendant Nos.2 to 4 adopted the same as objections to the applications. The defendant No.1 filed common objections to the applications and admitted that plaintiff was the absolute owner of the suit schedule property and has entered into agreement of sale dated 05.01.2019 in respect of suit property with the defendant Nos.3 and 4 and few others. The plaintiff had further entered into an agreement dated 05.01.2019 with the defendant Nos.2 and 3 to sell the Transferable Development Rights accrued in portion of the suit schedule property. However, the plaintiff failed to conclude the transaction in agreements dated 05.01.2019, constraining the defendant Nos.3 and 4 to file a suit for specific performance in O.S.No.4105/2021 and in the said suit, compromise was entered between the parties. In view of the said compromise, the plaintiff herein except to the extent mentioned above, stand extinguished and the defendant Nos.3 and 4 have got absolute rights. 9 8. It is contended by the defendant No.1 that in terms of the agreement dated 06.12.2023, he is a nominee of defendant Nos.3 and 4 and in the same agreement, the defendant Nos.3 and 4 are confirming parties and have received consideration. In pursuance to the said compromise petition, the suit is disposed off and a compromise decree is drawn and the same is not challenged in any proceedings till date. Subsequently, in furtherance to the said compromise petition, the defendant Nos.2 and 3 have nominated the defendant No.1 to purchase the suit property herein and the Transferable Development Rights by paying the sale consideration and accordingly, the subject two agreements of sale dated 06.12.2023 were entered into between the plaintiff and defendant No.1. The plaintiff having consented to the nomination is estopped from denying the same. The defendant No.1 has entered into agreement of sale to purchase the suit property for sale consideration of Rs.5,33,00,000/- payable to the plaintiff and the defendant Nos.3 and 4 are consenting witness to the said sale agreement. The sale consideration has been paid to the 10 plaintiff by way of cheques and the said cheques have been encashed by the plaintiff and others. 9. It is contended that notice is issued within the time frame of 90 days as per the said agreements of sale to complete registration, whereby the defendant No.1 has confirmed that the said funds are ready and that the plaintiff can resolve the pending disputes in O.S.No.1350/2023, pending between the plaintiff and others over the suit schedule property and can undertake his obligations and thereby encash the same. The failure on the part of the plaintiff to clear the title and failure to handover the original title deeds of the suit schedule property as well as procure confirmation deeds in favour of the defendant No.1 by the plaintiff in O.S.No.1350/2023, the execution and registration of sale deed was pending. Even the plaintiff was also required to demarcate the extent of land retained by him and erect a boundary fence after conducting a joint survey. The obligations are pending at the hands of plaintiff and as such, defendant No.1 has issued notice within the time frame of agreement to sell. The sale consideration has been paid by the 11 defendant No.1 to the plaintiff by way of DD and it has been duly encashed by the plaintiff. The defendants have developed a layout of plots and in fact, sold a few plots by way of registered sale deeds prior to the grant of interim order by this Court. When the defendant No.1 has been put in possession of the suit property and both the parties have acted upon two agreements of sale dated 06.12.2023 and when the defendant No.1 has invested huge money to improve the suit property and thereby third party rights are created, now, the plaintiff is estopped from wriggling out of his obligations. The defendant No.1 is always ready and willing to perform his obligations. 10. The defendant No.2 has filed written statement and filed a memo to adopt his written statement as objections to I.A.Nos.1/2024 and 2/2024 filed by the plaintiff. It is contended that plaintiff has not proved the fact that he is in possession and enjoyment of the suit schedule property and even otherwise, such being the factual position, on account of latches on the part of the plaintiff regarding ill-intention of the plaintiff to deprive the statute itself exchequer to suit so prayed by the plaintiff is 12 liable to be dismissed and contend that the plaintiff has not approached the Court with clean hands, when he is not in possession of the property. The plaintiff has also made false claim only to make wrongful gain. The plaintiff is not at all in possession of the defendants’ property or any portion thereof. When the plaintiff is not at all in possession of the defendants’ property or any portion thereof, he cannot seek for the relief of declaration and also for an order of temporary injunction. 11. The defendant No.4 also filed the written statement and the same has been adopted by the defendant No.3 by filing a memo and defendant Nos.3 and 4 also reiterated the claim of the plaintiff as contended by defendant Nos.1 and 2 by filing statement of objections. 12. The Trial Court having taken note of the pleadings of the parties, formulated the points with regard to cardinal principles of law in respect of grant of temporary injunction as prayed in I.A.Nos.1/2024 and 2/2024 and answered the points as ‘negative’, in coming to the conclusion that the plaintiff has not made out prima facie case and while rejecting the 13 applications, comes to the conclusion that, it appears that already the defendant No.1 has invested huge amount over the suit property and for the Transferable Development Rights. Such being the fact, at this stage, if the defendants are restrained from creating any third party rights over the suit schedule property, definitely the defendants will be put to great hardship and irreparable loss. Further, the documentary evidence as well the contents of objections and written statement filed by the defendants themselves speaks that, already a huge money has been paid by the defendants to the plaintiff and possession of the suit schedule property has been handover to the defendants and already made some developments and improvements in the schedule property. Being aggrieved by this order, present miscellaneous first appeal is filed before this Court by the plaintiff. 13. Before considering the arguments of the learned counsel for the parties, it is important to note that learned counsel for the appellant/plaintiff has filed a memo restricting his prayer only in respect of ‘A’ schedule property against defendant 14 No.1, though earlier claimed relief against defendant Nos.1 and 2 in respect of both ‘A’ and ‘B’ schedule properties. In view of the memo, this Court has to consider the grounds urged in this appeal only in respect of ‘A’ schedule property as against the defendant No.1. 14. Learned counsel for the appellant/plaintiff would vehemently contend that the plaintiff is the owner of land in Sy.No.56/2 to the extent of 1 acre 23 guntas. The counsel also contend that earlier there was an agreement with defendant Nos.3 and 4 and suit was filed and the same was compromised. In terms of the compromise, defendant No.1 came forward to purchase the property and also not dispute the agreement dated 06.12.2023. It is also contended that defendant No.1. is not a party to the earlier suit and also compromise. The counsel also submits that the appellant did not dispute the earlier compromise, but contend that fresh contract was entered into between the defendant No.1 and the plaintiff and total sale consideration was Rs.5,33,00,000/- and the defendant No.1 paid only Rs.2,33,00,000/- and an amount of Rs.3,00,00,000/- was 15 not paid though cheques are issued. The agreement is very clear that possession to be delivered only on the date of registration of the sale deed. The counsel also would vehemently contend that on the 87th day of period stipulated for execution of sale deed, notice is given to clear the suit which is pending before the Court. When the plaintiff comes to know that defendants are making an effort to avoid the contract, filed the suit for cancellation of the agreements. Learned counsel also would contend that based on the General Power of Attorneys, he had sold portion of the properties by executing two sale deeds which have been placed before the Court and brought to notice of this Court agreements dated 06.12.2023, wherein at Clause No.7 it is mentioned that delivery of possession is only on the payment of entire sale consideration. Learned counsel also would vehemently contend that possession has not been delivered and Trial Court committed an error in not granting the relief of temporary injunction and also failed to take note of the fact that based on the alleged agreements and General Power of Attorneys, two sale deeds have been executed. Hence, the Trial Court ought to have granted the relief of temporary injunction 16 restraining the defendants from creating any third party rights. Learned counsel also contend that it is also not denied by the defendants that though they have paid only an amount of Rs.3,00,00,000/-, but executed two sale deeds on 27.05.2024 and 24.05.2024 and this fact has not been considered by the Trial Court. These sale deeds are also executed before filing the suit. Learned counsel would contend that at one breath, they say that suit is pending and would clear the same and in another breath, they themselves admit that based on the agreements and General Power of Attorneys, they sold portion of the land and they cannot blow hot and cold before the Court. Hence, it requires interference of this Court. 15. Per contra, learned Senior counsel for the caveator- respondent No.1 in his argument would vehemently contend that already compromise decree has been drawn and there are two agreements of sale and two General Power of Attorneys and the very suit is not maintainable. Learned Senior counsel would contend that already the defendant No.1 has paid Rs.2,33,00,000/- and balance amount of Rs.3,00,00,000/- is 17 payable and defendant No.1 is ready to pay the balance amount of Rs.3,00,00,000/- and the Trial Court also taken note of said fact into consideration. The Senior counsel also contend that defendant Nos.3 and 4 are parties to the said compromise and they have also received the money and in view of acquisition, extent of land has been reduced. He also would contend that there are TDR agreements which are dated 06.12.2023 and two General Power of Attorneys is also executed on the same day and the same has not been questioned. The challenge is only as regards General Power of Attorney of defendant No.2 and not General Power of Attorney of defendant No.1 and the General Power of Attorneys are coupled with interest. Learned counsel also brought to notice of this Court Section 202 of Contract Act and contend that appellant had not taken any steps and even not made any demand for payment of money. Learned Senior counsel would contend that layouts are formed by forming the sites and some of the sites are also sold and inspite of being aware of the said fact, the plaintiff filed the suit and the land was also converted. It is contended that the plaintiff cannot terminate the agreements in view of Section 202 of Contract Act 18 and also brought to notice of this Court Section 31 of Specific Relief Act. Learned Senior counsel would vehemently contend that the relief cannot be granted in favour of the plaintiff and if
Decision
the relief is granted, it amounts to setting aside the compromise decree and the Trial Court has passed a well reasoned order and it does not require any interference of this Court. 16. Learned Senior Counsel for the caveator-respondent No.1, in support of his argument, relied upon the judgment in SREE SURYA DEVELOPERS AND PROMOTERS VS. N.SAILESH PRASAD AND OTHERS reported in (2022) 5 SCC 736. 17. He also relied upon the judgment in TRILOKI NATH SINGH VS. ANIRUDH SINGH (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2020) 6 SCC 629 and also the order passed by this Court in KISHORE VS. SRI BASAWARAJ AND OTHERS in W.P.NO.103856 OF 2024 dated 23.08.2024. 19 18. He also relied upon the judgment in PUSHPA DEVI BHAGAT (DEAD) THROUGH L.R. SADHNA RAI (SMT) VS. RAJINDER SINGH AND OTHERS reported in (2006) 5 SCC 566 and brought to notice of this Court paragraph No.17 that consent decree operates as an estoppel and is valid and binding unless it is set aside by the Court which passed the consent decree. 19. He also relied upon the judgment rendered in SMT. LAKSHMAMMA AND OTHERS VS. SRI T.H. RAMEGOWDA AND OTHERS reported in ILR 2015 KAR 4024 and brought to notice of this Court paragraph Nos.15 and 16, wherein discussion was made with regard to Order 23 Rule 3 of CPC. 20. He also relied upon the judgment in BASAVARAJ VS. INDIRA AND OTHERS reported in (2024) 3 SCC 705 and brought to notice of this Court paragraph Nos.8 and 9, wherein also discussion the judgment of PUSHPA DEVI BHAGAT’s case. 21. Learned Senior counsel also relied upon the judgment in R. JANAKIAMMAL VS. S.K. KUMARASAMY 20 (DECEASED) THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2021) 9 SCC 114 and brought to notice of this Court paragraph Nos.44 and 53 to 58, wherein discussion was made regarding consent is concerned and also discussed with regard to bar of suit under Order 23 Rule 3-A. However, all these judgments are with regard to compromise decree set aside in an appropriate proceedings operates as an estoppel and resjudicata. Hence, the suit dehors is not maintainable. 22. He also relied upon the Judgment in ASMA LATEEF AND ANOTHER VS. SHABBIR AHMAD AND OTHERS reported in (2024) 4 SCC 696 and brought to notice of this Court paragraph Nos.31 to 50, wherein it is discussed that prayer for injunction/interim orders ought not to be granted. Learned Senior counsel referring these judgments referred (supra) would contend that when compromise was already entered into between the parties and suit is not maintainable, question of granting an order of temporary injunction does not arise. 23. In reply to the argument of the learned Senior counsel for the caveator-respondent No.1, learned counsel for 21 the appellant would contend that the respondents/defendants not dispute the fact that entire sale consideration has not been paid and withheld payment of amount of Rs.3,00,00,000/- by causing notice to the plaintiff and even without making full payment of sale consideration, ventured to sell the property to the third parties and made an attempt to create third party rights and the same has not been taken note by the Trial Court, while rejecting the applications. Hence, it requires interference of this Court. 24. Having heard learned counsel for the appellant, learned Senior counsel for the caveator-respondent No.1, learned counsel for the caveator-respondent No.2 and learned counsel for the respondent Nos.3 and 4 and also the principles laid down in the judgments referred (supra) by the learned Senior counsel for the caveator-respondent No.1, the points that would arise for consideration of this Court are: (1) Whether the Trial Court committed an error in rejecting the applications I.A.Nos.1/2024 and 2/2024 filed under Order 39 Rule 1 and 2 of 22 CPC and whether it requires interference of this Court? (2) What order? Point No.(1) 25. Having perused the pleadings of the parties, the relief sought in the suit and the plaintiff inter alia filed I.A.Nos.1/2024 and 2/2024 seeking the relief of temporary injunction, the Court has to take note of the material available on record. The suit is filed for the relief of declaration to declare that sale agreements which are registered dated 06.12.2023 as null and void and unenforceable against the plaintiff and also sought for the relief of declaration to declare that two General Power of Attorneys registered on the very same day i.e., 06.12.2023 are duly cancelled and unenforceable against the plaintiff and further sought for other relief and so also an order of temporary injunction restraining the defendants from interfering with peaceful possession of the plaintiff and creating any third party rights. It is not in dispute that the suit schedule property belongs to the plaintiff. It is also not in dispute that 23 earlier, there was an agreement with defendant Nos.3 and 4 and suit was also filed and the same has ended in compromise. 26. It is also important to note that, in the suit, the plaintiff has not challenged the earlier compromise decree, but the contention taken is that consequent upon the compromise, fresh agreement is entered into between the parties i.e., plaintiff and defendant Nos.1 and 2. It is not in dispute that, at the instance of defendant Nos.3 and 4, defendant No.1 came forward to have the sale agreements. It is also not in dispute that fresh agreement came into existence between the plaintiff and defendant Nos.1 and 2. It is also important to note that though relief is sought against defendant Nos.1 and 2, in this appeal, appellant/plaintiff restricted his prayer only in respect of ‘A’ schedule property against defendant No.1. There is no dispute with regard to the agreements entered into between the parties on 06.12.2023. It is also important to note that in terms of the agreements produced before this Court, sale consideration is fixed at Rs.5,33,00,000/- and in the sale agreements also, details of payment is narrated and the plaintiff has also 24 acknowledged receipt of payment of amounts at Clause Nos.2.1(a) and 2.1(b), wherein made payment of Rs.25,00,000/- and Rs.1,03,67,000/- and also made payment of amount as mentioned at Clause Nos.2.1(c), 2.1(d), 2.1(e), 2.1(f), 2.1(g), 2.1(h) and no dispute with regard to the said payments are concerned. However, dispute is made with regard to payment at Clause Nos.2.1(c) and 2.1(d) to an extent of Rs.1,00,00,000/- as well as an amount of Rs.2,00,00,000/- which are paid through cheques and it is contended that the said amount has not been received by the plaintiff. 27. It is also important to note that in terms of the sale agreements, time for completion of contract as per Clause No.3.1 is that sale shall be completed within 90 days from the date of obtaining New conversion/change of land use in respect of schedule property. It is also important to note that, in terms of Clause No.7, possession and delivery of original title documents as per Clause No.7.1 is that the vendors shall deliver vacant possession of the schedule property to the purchaser at the time of registration of the Deed of Absolute Sale. It has to 25 be noted that, admittedly, there is no sale deed. However, the defendants relied upon the irrevocable General Power of Attorneys executed in favour of defendant No.1 dated 06.12.2023 that is on the same day of the agreements of sale. On perusal of the document of General Power of Attorneys also, the details of payment are mentioned. It is also important to note that at Clause No.22 of the Irrevocable General Power of Attorney, it is mentioned that in view of receipt of the entire sale consideration received from the attorney herein under agreement of sale dated 06.12.2023, this General Power of Attorney is coupled with interest. However, in case it is desired this General Power of Attorney has to be cancelled, both the parties should come forward to cancel this General Power of Attorney. Hence, on recital of this document, it is clear that General Power of Attorney is executed having made the payment of entire sale consideration of Rs.5,33,00,000/- and payment of amount of Rs.3,00,00,000/- is not acknowledged by the plaintiff and the defendants also not dispute the said fact and defendant No.1 himself has issued legal notice vide Annexure-M dated 02.03.2024, wherein at paragraph No.3 it is stated as regards 26 the payment of Rs.3,00,00,000/- by way of two Cheques. It is also made clear at paragraph No.7 that balance amount payable to him in respect of which client, his client has already issued cheque/s which can be encashed by you after clearing the disputes from the vendors and the same was also replied. Hence, it is clear that entire sale consideration has not been paid. It is also important to note that based on the said General Power of Attorneys, two sale deeds are executed by the defendant No.1 on 27.05.2024 and 24.05.2024 which have been placed before this Court. Hence, it is clear that even without concluding the contract, the defendant No.1 ventured to sell two properties in the month of May, 2024 itself, even though he himself has caused notice in the month of March itself. Hence, recital with regard to General Power of Attorneys is coupled with interest does not arise and unless entire sale consideration is paid, question of General Power of Attorneys is coupled with interest does not arise. 28. It is also important to note that the Trial Court failed to take note of Clause No.7 of the agreement, wherein specific 27 averment is made in the agreement with regard to delivery of possession of original documents is only at the time of absolute sale and admittedly, there is no absolute sale, except execution of General Power of Attorneys. It is also important to note that very General Power of Attorneys came into existence on the date of agreement itself and at Clause No.7.1 of the agreement of sale, it is made clear that vendors shall deliver vacant possession of the schedule property to the purchaser at the time of registration of the Deed of Absolute Sale and also at Clause No.3.1, it is mentioned that sale shall be completed within 90 days from the date of obtaining New Conversion/change of land use in respect of schedule property. The defendant No.1 also not placed any records before the Court with regard to new conversion or change of land, except stating that he had improved the property and in order to substantiate that he had invested huge money and improved the land by obtaining approved layout plan and converted the land, nothing is placed on record. But, the Trial Court committed an error in rejecting the applications for grant of temporary injunction making an observation that defendants had invested huge amount for the 28 development of the property and in the absence of any document, the very observation of the Trial Court at paragraph No.25 of the order is erroneous. It is also an observation that already defendant No.1 had invested huge amount in the suit schedule property and for Transferable Development Right and without any document, the Trial Court made such an observation. It is also observed that if the defendants are restrained from creating any third party rights over the suit schedule property, definitely the defendants will be put to great hardship and irreparable loss. It is rightly pointed out by the learned counsel for the appellant that the defendants cannot blow hot and cold and at one breath, they are asking to clear the dispute raised in the suit and thereafter, at the time of selling the property, immediately caused reply notice in the month of March, 2024 and sold two properties in the month of May, 2024 and those properties are also sold prior to filing of the suit and the Trial Court ought to have taken note of said fact into consideration while considering the prima facie case, balance of convenience and irreparable loss to the plaintiff. 29 29. It is also important to note that suit is filed for cancellation of agreements and General Power of Attorneys and also to declare same as null and void. When such relief is sought, the defendants have also not filed any suit for the relief of specific performance based on the same. Admittedly, entire sale consideration has not been paid and the very observation made by the Trial Court that already huge money has been invested by the defendant No.1 for development of the property is erroneous and the fact of non-payment of balance amount of Rs.3,00,00,000/- out of total sale consideration of Rs.5,33,00,000/- has not been discussed anywhere by the Trial Court in the order while considering prima facie case and the Trial Court comes to the conclusion that possession has been handed over to the defendant No.1 and failed to take note of Clause No.7 and Clause No.3.1 of the agreement of sale that possession and delivery of original title will be at the time of Deed of Absolute Sale. Merely because there are General Power of Attorneys, failed to take note of said fact into consideration and also the time stipulated in the sale agreement. The document of General Power of Attorneys came into existence on 30 the very same day and relief is sought to declare the agreements as null and void. When such relief is sought, the Trial Court failed to take note of the conduct of the defendants, since two properties are sold in the month of May, 2024 itself even without making payment of entire sale consideration and the Trial Court ought to have considered balance of convenience and prima facie case in favour of the plaintiff and instead comes to an erroneous conclusion that hardship will be caused to defendants, even though they have not paid entire sale consideration and balance payable is Rs.3,00,00,000/- and in the General Power of Attorneys also, it is specifically mentioned that sale consideration is paid, but not paid the same. Hence, even the Trial Court committed an error to take note of sale of two properties based on the General Power of Attorneys without complying the terms and conditions of the agreements and the agreement only stipulates terms and conditions of contract and it will not create any interest muchless any right in favour of the defendants. The very contention that through General Power of Attorney right is transferable and coupled with interest cannot be accepted when entire sale consideration has not been paid and 31 the Trial Court committed an error not granting an order of temporary injunction. 30. No doubt, learned Senior counsel for the caveator- respondent No.1 relied upon several judgments with regard to compromise decree is concerned, there is no dispute with regard to settled principles. In the case on hand, no such relief regarding compromise decree and both the parties agree that there was a compromise decree and it is also agreed that defendant No.1 came forward to purchase the property at the instance of defendant Nos.3 and 4, who are the parties to the compromise and when the compromise is not questioned and plaintiff also accepted the earlier compromise and defendant No.1 is not party to the compromise and when there is no dispute with regard to the compromise also, the principles laid down in the judgments referred (supra) by the learned Senior counsel for the caveator-respondent No.1 will not come to the aid of the defendants. 31. The other contention of the defendants is that suit is not maintainable and the said contention cannot be accepted, 32 when there is no dispute with regard to the fact that property belongs to plaintiff and entered into agreement and executed General Power of Attorneys. The issue in the case on hand is that at whose instance there is violation of the terms and conditions of the contract and whether the plaintiff is entitled for relief as sought cannot be decided at this stage and the Court has to take note of the prima facie case and balance of convenience and instead of considering the same in favour of the appellant/plaintiff, the Trial Court rejected the applications under the presumption and assumption that defendant No.1 has invested huge amount and the defendant No.1 has paid huge money to plaintiff. The payment made by the defendant No.1 i.e., Rs.2,33,00,000/- out of the total sale consideration of Rs.5,33,00,000/- even does not constitute 50% of the contract and the remaining amount payable is Rs.3,00,00,000/- and details of payment made is also not discussed by the Trial Court and the Trial Court failed to take note of the fact that the defendants ventured to sell portion of the property by executing two sale deeds. When such being the material available on record, the Trial Court ought to have passed an order of 33 temporary injunction restraining the defendants from alienating remaining portion of the property. The agreement and General Power of Attorney is not a concluded document which empowers the defendants to sell two properties even though entire sale consideration has not been paid. Under the circumstances, the Trial Court committed an error in rejecting the applications. Hence, it requires interference of this Court. Accordingly, I answer point No.(1) in ‘affirmative’. Point No.(2) 32. In view of the discussion made above, I pass the following: ORDER (i) The miscellaneous first appeal is allowed in part. (ii) The impugned order passed by the Trial Court is set aside partly. Consequently, I.A.Nos.1/2024 and 2/2024 are allowed in part, restraining the defendant No.1 from interfering with peaceful possession of the plaintiff and creating any third party rights in respect of ‘A’ schedule property as sought for by the learned counsel for the appellant by 34 filing a memo restricting the prayer only in respect of ‘A’ schedule property as against defendant No1. Sd/- (H.P. SANDESH) JUDGE ST