MISC. Appeal No. 5338 of 2022 · Madhya Pradesh High Court · 2022

SANJAY VIRMANI S/O SHRI OM PRAKASH VIRMANI, AGED ABOUT 58 YEARS, R/O A-46 ALKAPURI BHOPAL ALSO RESIDING AT NARMADA TRACTORS AND EQUIPMENT (SONALIKA TRACTORS) RASULIYA NH 69 ITARSI ROAD RASULIYA NARMADAPURAM (MADHYA PRADESH)

2. (NONE) .....RESPONDENTS This appeal coming on for admission this day, th e court passed the following: ORDER Signature Not Verified SAN This appeal is filed by the plaintiff under Order 43 Rule 1 (R) of the Code of Civil Procedure being aggrieved of order dated 15/09/2022 passed by 2 the learned II District Judge, Narmadapuram in R.C.S. No. 81-A/22 on the ground that the plaintiff was approached by the defendants representing themselves to be the owners of buildings situated at plot nos. 3, 4, 7 and 8 part of Khasra nos. 49/13 and 49/09 at village Rasulia, District Hoshangabad and had entered into an agreement to sale. The plaintiff's contention is that the plaintiff had passed on substantial sale consideration of Rs. 20,18,000/- out of agreed sale consideration of Rs. 3,18,00,000/- and had entered into an oral agreement. The suit for specific performance was filed in which the learned trial court refused to grant an injunction in favour of the petitioners. Aggrieved of which, this Miscellaneous appeal is filed. It is submitted that token money taken by the defendants was enjoyed for a period of nine months and, thereafter, they published a newspaper item saying that contract was mutually terminated and refunded the amount in the bank account. It is submitted that it was a unilateral transaction. There was no termination of the oral agreement and newspaper publication dated 9/05/2022 in Dainik Bhaskar and has no legal sanctity. Therefore, the trial court should have considered the facts of the case and should have restrained the defendants from alienating the suit property in favour of any third party. Reliance is placed on Section 8 of the Contract Act. Section 8 of the Indian Contract Act, 1872 deals with acceptance by performing conditions, or receiving consideration. It reads as under:- Signature Not Verified SAN "Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may 3 be offered with a proposal, is an acceptance of the proposal." When learned counsel for the appellant is requested to point out that even if oral agreement is deemed to have been executed, then what was the time limit to perform that agreement. It is submitted that infact, defendant tried to increase the price of the property which was agreed to be sold for a consideration of Rs. 3,18,00,000/- and demanded Rs. 3,88,00,000/-. The plaintiff was to collect all the revenue papers and take N.O.C. but that was not done. Appellant's counsel is requested to read from the notices which were served and published that he was ready and willing to perform his part of contract and point out the date up to which, the parties were required to fulfil their reciprocal promises, no such material is brought on record by Shri Duggal, learned counsel for the appellant. Reliance is placed on the judgment of the Supreme Court in Aloka Bose Vs. Parmatma Devi and others (2009)2 SCC 582 to submit that since no law applicable in the State concerned at the relevant point of time was brought to the notice of the court which required an agreement of sale to be made in writing or in the presence of witnesses or to be registered, the Supreme Court held that even an oral agreement to sale is valid. However, in the present case, the issue is what were the terms and conditions which were agreed upon and what was the date for fulfilment of reciprocal promises. None of these issues have been answered by learned counsel for the appellant/plaintiff. Signature Not Verified SAN The law in this regard is to the effect that the relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff 4 during the period of pendency of the suit before the uncertainty could be resolved as held in the case of M.P. Colliery Workers Federation, Chirimiri Vs. United Collieries Ltd., Calcutta 1972 M.P.L.J. 78 (85). It is also a settled law as laid down by the Supreme Court in Hindustan Petroleum Corporation Ltd. Vs. Sriman Narayan and another AIR 2002 SC 2598 that if the plaintiff in his dealings with the person against whom the relief is sought has acted in an unfair or unequitable manner, he would not be entitled to the injunction. For this, the petitioner is required to come with clean hands to point out that what was the period prescribed for specific performance of so called oral agreement and is also required to establish on record that in the State of Madhya Pradesh, there is no need for a written agreement on a denomination of a particular value of stamp paper for entering a transaction of sale-purchase for immovable property but this burden too has not been discharged by the plaintiff/appellant. The temporary injunction can be granted after ascertaining the position which exists on the date of the cause or on the date of filing of the suit or at the most on the date of filing of the application for grant of temporary injunction. Admittedly, no equities were existing in favour of the plaintiff on any of these three dates. There is neither any balance of convenience nor prima facie case as pleadings are ambivalent, whereas pleadings should be unequivocal so to bring out a clear case for grant of injunction but for the lack of unequivocal pleadings and also for the fact that temporary injunction cannot go to the extent of deciding the main case of the parties, I am of the opinion that the learned trial court has not committed any error in rejecting an application under Order 39 Signature Not Verified SAN Rule 1 and 2 C.P.C. for injunction. The impugned order does not call for any interference. Accordingly, the appeal fails and is dismissed. 5 (VIVEK AGARWAL) JUDGE Signature Not Verified Signature Not Verified SAN SAN