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1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 12th day of December, 2013
BEFORE
THE HON'BLE MR.JUSTICE B.V.PINTO
Writ Petition No.48269/2012 (GM-CPC)
BETWEEN:
BENEFIT FILM CITY (INDIA) LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT HAVING ITS BRANCH OFFICE AT ALANGAR MOODBIDIRI-574 227 REPRESENTED THROUGH ITS AUTHORIZED REPRESENTATIVE Mr. LAL GOEL, CEO
... PETITIONER
(By Sri DEEPAK DHINGRA, ADV., ALONG WITH Sri SUSHANT PAI, ADV., FOR M/s CRESTLAW PARTNERS)
AND:
Shri GOPAL S. PANDIT AGED ABOUT 58 YEARS S/O SARDAR SHIV PANDIT C/O PANDIT DEVELOPERS 3RD FLOOR, EMPORIUM COMPLEX OLD PUMP WELL ROAD, KANKANADY MANGALORE-575 002
Mrs. RAJESHWARI G. PANDIT AGED ABOUT 52 YEARS W/O GOPAL S PANDIT MURALI SADANA, KUTTAR PADAVU MUNNUR POST, MANGALORE TALUK DAKSHINA KANNADA DISTRICT-575 017 KARNATAKA
... RESPONDENTS
(By Sri K.CHANDRANATH ARIGA, ADV.,)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 16.11.2012 PASSED BY THE SENIOR CIVIL JUDGE & ACJM, KARKALA IN MA NO.5/2012 VIDE ANNEXURE- A AND RESTORE THE ORDER DATED 26.3.2012 PASSED BY
2 THE CIVIL JUDGE AND JUDICIAL MAGISTRATE, FIRST CLASS, MOODBIDRI IN I.A. NO.2 IN O.S. NO.138/2011 AND ALLOW I.A. NO.2.
THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
This writ petition is filed seeking to set aside the order dated 16.11.2012 passed by the Senior Civil Judge & ACJM, Karkala in M.A.No.5/2012 setting aside the order dated 26.3.2012 passed by the Civil Judge & JMFC., Moodabidri on I.A.No.II in O.S.No.138/2011. The petitioner has filed the suit in O.S.No.138/2011 on the file of Civil Judge & JMFC., Moodbidri, claiming that the petitioner had entered into an oral agreement with the respondents for the sale of suit schedule properties, which is about 21.93 acres of agricultural land situated in Marpady Village of Mangalore Taluk and has sought for a permanent prohibitory injunction restraining the defendants etc., from selling or alienating the said properties to third parties.
It is the contention of the petitioner/plaintiff that there was an oral agreement between the defendants and plaintiff for purchase of the suit schedule properties and in this connection he has paid a total amount of `2 crores and that the said transaction was oral because there was
3 trust and confidence between the plaintiff and the defendants since the plaintiff is a disciple of the defendant No.1, whom he considered as his Guru.
Learned Counsel for the petitioner submits that various payments were made by means of cheque in respect of purchase of the said property and since there were two other sale transactions, which have been executed between the plaintiff and the defendants, this agreement was oral in nature. However, sensing that the defendants would be alienating the suit schedule property to some other parties; he has filed a suit seeking for a relief of injunction.
The trial Court after considering the written statement filed by the defendants and after considering the documents filed by both the parties was pleased to pass an order of injunction restraining the defendants from alienating the suit schedule properties. Being aggrieved by the said order, the defendants have approached the First Appellate Court viz., Senior Civil Judge & ACJM, Karkala and the First Appellate Court after going through the materials on record and after hearing the parties in M.A.No.5/2012 passed the impugned order, setting aside the order passed by the trial Court and vacating the Interim
4 Order passed by the said Court. Being aggrieved by the said order, the plaintiff has approached this Court in this writ petition.
Heard Sri Deepak Dhingra, learned Senior Counsel appearing for the Petitioner and Sri K.Chandranath Ariga, learned Counsel appearing for the Respondents.
Sri Deepak Dhingra, learned Senior Counsel for the Petitioner vehemently submitted that, without the trust and confidence between the plaintiff and the defendants, there could not have been a payment of `2 crores and that the entire amount of `2 crores could not have been in the form of cheques issued through Nationalised Banks. He submits that having successfully executed the Sale Deeds in respect of two more properties, which were purchased by the plaintiff from the defendants, there was lot of trust and confidence between the plaintiff and defendants, which enabled the plaintiff to venture in entering into an oral agreement for sale of the suit schedule properties. He has demonstrated before the Court that at various points of time, sums of money in terms of lakhs of rupees has been transferred from the plaintiff to defendants through cheques and that the said cheques have been duly acknowledged by
5 the defendants and all those payments were prior to the Sale Deeds and hence he submits that the plaintiff is entitled for an equitable order of injunction restraining the defendants from alienating the suit schedule properties to any other parties than himself. He further submits that the entire property is subjected to mortgage to M.K.Vazhunnavar Dhanalaxmi Bank Ltd., and that the Director and his wife of the petitioner-Company are the guarantors to the said loan. It is submitted that unless the amount of mortgage loan is cleared, the property cannot be alienated.
Sri K.Chandranath Ariga, learned Counsel for the respondents on the other hand pointed out from the documents that in respect of the payments made, the TDS has been deducted under Section 194 C of Income Tax Act, 1961 and that the payments would definitely amount to payments made to the Contractors for the purpose of improvements of the concern called ‘M/s Pandit Resort’ situated in Moodabidri and that account has been kept with both the parties as well as the IT Department regarding the receipt of said payment and at no point of time, the defendants have mentioned that the amount so received from the plaintiff is towards the price of the suit schedule property. There is absolutely no material produced by the
6 plaintiff to show that an agreement was entered into between plaintiff and the defendants for the sale of suit schedule property. He has particularly pointed out to the fact that the suit schedule properties were purchased by the defendants themselves on 11.4.2008 and therefore prior to that he could not have undertaken to sell the property to the plaintiff. Under the circumstances, he submits that the First Appellate Court has rightly rejected the prayer for injunction by setting aside the order passed by the trial Court granting an order of injunction.
I do not wish to express my opinion on the rival contentions of the parties lest the same may prejudice either of the parties insofar as the merits of the suit before the trial Court is concerned. But I am satisfied that the order passed by the First Appellate Court is fully in accordance with law and there is no perversity or illegality in the order passed by the First Appellate Court and therefore, the order passed by the First Appellate Court is hereby confirmed and consequently this writ petition is dismissed.
Sri Deepak Dhingra, learned Senior Counsel appearing for the Petitioner has alternatively submitted that
7 an order for early disposal of the suit may be passed in the interest of Justice.
Under the circumstances, it is directed that the trial Court shall dispose of the suit as expeditiously as possible preferably on or before 30th September 2014. The contentions raised by the respective parties are left open to be urged before the trial Court.
Sd/-
JUDGE
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