1999 PLP 1605 (CLC)

2. Briefly stated the facts are that the appellant/defendant entered into an agreement to sell, dated 13‑10‑1997 with the respondent/plaintiff, whereby the former agreed to sell land measuring 24 Acres and 4 Kanals alongwith a Kothi/ Bungalow for a sum of Rs.20 lac and received Rs.60,000 as earnest money. It was agreed that the remaining amount shall be paid at the time of execution and registration of sale‑deed. The stipulated period for the execution of sale‑deed was fixed 30th June, 1998. The respondent/plaintiff approached the appellant/defendant for the execution of sale‑deed, but he kept on postponing the execution of sale‑deed on one pretext or the other. As such he was constrained to file suit for possession of land through specific performance of agreement.

3. Alongwith this suit, the respondent/plaintiff moved an application under Order 39, Rules 1 and 2 read with section 151, C.P.C. restraining the appellant/defendant from alienating or disposing the suit property during the pendency of this suit.

4. The appellant/defendant also filed a suit for declaration challenging the agreement to sell, dated 13‑10‑1997 being false, forged and not binding upon him. As both the suits pertained to same agreement to sell, so both were consolidated.

5. The appellant/defendant contested the suit as well as the application on various grounds and prayed for the dismissal of interim injunction application.

6. Vide order, dated 21‑10‑1998 the trial Court accepted the application for interim injunction and restrained the appellant/defendant from further alienation during the pendency of suit. The appellant/defendant has felt aggrieved and assailed the same through this appeal.

7. Arguments have been heard and record perused.

8. Contention of the learned counsel for the appellant is that trial Court could not restrain him from alienating the suit property merely on the averment of the respondent that a sum of Rs.60,000 has been paid by him, that in case the respondent wanted to purchase the suit property in good faith, the trial Court should have restrained the appellant after getting the remaining amount of Rs.19,40,000 deposited from him, that even section 22 of the Specific Relief Act debars the trial Court from issuing such injunction as the non‑performance of agreement does not involve any hardship to the respondent, that the very suit is hit by section 12 of the Specific Relief Act, as pecuniary compensation for its non‑performance in the form of damages amounting to Rs.10,00,000 has been provided. He, thus, submitted that impugned order is not sustainable and the same be set aside.

9. Conversely the impugned order has been supported by the learned counsel for the respondent/plaintiff. He further, contended that as the possession of suit land is with the appellant/defendant and it is he who is reaping the benefit of the said property, so the respondent/plaintiff cannot be asked to deposit the entire remaining amount of the consideration, that had the possession of the suit land been with the plaintiff/respondent, there could be some justification in asking respondent/plaintiff to deposit the remaining amount of the agreement to sell. He, however, offered that his client was ready to deposit an additional amount of Rs.2 lac to prove his bona fides.

10. The only point which requires determination is if under the given circumstances the trial Court was justified in passing impugned order merely on the ground that a sum of Rs.60,000 is alleged to have been paid out of the alleged sale price of Rs.20 lacs, particularly when the authenticity of agreement to sell, dated 13‑10‑1997 is also subject‑matter of another suit pending between the parties. The stand of appellant/defendant that trial Court should have directed the other party to deposit the entire remaining amount of Rs.19,40,000 before passing an injunctive order, is also devoid of legal force. Had the execution of agreement been admitted and possession been with the respondent/ plaintiff, there could be some force in the stand of appellant/defendant referred above. Thus under the present circumstances, the trial Court could not be expected to pass impugned order subject to the payment of entire remaining consideration of Rs.19,40,

000. However, to testify the bona fide of the respondent/plaintiff some condition has to be imposed upon him. Under the present circumstances it will be just and proper if the respondent/plaintiff is directed to deposit at least 1/3rd of the sale consideration amounting to Rs.20,00,000 which comes to Rs.6,66,

666. The respondent/plaintiff is alleged to have paid Rs.60,000 to the defendant/appellant, so he is directed to deposit a sum of Rs.6 lacs within a period of two months from today. It is further ordered that if the amount of Rs.6 lacs is not deposited within two months from today, this order shall stand lapsed. It is also ordered that the amount so deposited shall be invested in some profit earning scheme.

11. Since the respondent/plaintiff has been directed to deposit a huge amount, so the trial Court is directed to finalize the suit before the year is out.

12. With this observation the appeal stands disposed of. Q.M.H./M.A.K./B‑53/L Order accordingly.