The learned Counsel appearing for the Appellant has cited the judgment of the Apex Court in the case of Saradmani Kandappan Vs. S.
Rajalakshmi & Ors.[(2001) 12 SCC 18] and contended that the time is always the essence of such contract and therefore there was no expressed willingness and/or steps taken by the Appellant in theme, therefore the contract itself was terminated. This facets in the present case and reasons so given by the learned Judge while rejecting the interim injunction, is only one of the facets, which cannot prevail over other reasons so recorded in the above background. The time whether essence of the contract, is again a matter of trial specially the reason behind the delay and non-compliance of the obligations by the respective parties.
Merely because the submission is made that the time was not essence of the contract, that cannot be accepted as there is no admission of other side, nor the finding at the prima facie stage can be given
Bombay High Court
Subhash Dhanraj Sankla vs Kajkhushroo Alias Kaki Phiroze ... on 12 September, 2013
Bench: Anoop V. Mohta
Citation:2013(6) MHLJ 296 Bom
2 The Appellant-original Plaintiff has challenged order dated 8.8.2011 passed by the 3rd Joint Civil Judge, Senior Division, Pune, whereby his Application for temporary injunction is rejected for a performance of the contract based upon an oral agreement of the year 2007 of the property in question.
The Respondent-Defendant, based upon the registered Will dated 21.3.1989, claimed to be the owner and therefore entered into oral agreement and accordingly received the sum of Rs.1,11,000/- as recorded by the learned Judge out of the total consideration more than Rs.1,25,00,000/. The oral contract was terminated and therefore the suit.
4 Mere objection by the legal heirs to transfer the property itself not sufficient to overlook the executed registered Will, based upon which the Defendant agreed to sell it. The learned Judge, however, overlooked the same and considered the objections at the instance of the Respondent that the other legal heirs of Smt.Kersi Phiroze Noble not brought on record and unless decided exclusive ownership of the Respondent, the protection so cited cannot be granted, in my view is also incorrect approach. The Respondent-Defendant himself is at this stage, cannot be permitted to raise this objection, in view of his own case of the ownership of the property, which he agreed to transfer/sell to the Appellant, based upon which the registered will, which is admittedly intact till this date. The legal heirs' right, if any, unless adjudicated in the proceeding which they could initiate in accordance with law, for the purpose of present proceedings at this stage, the admitted facts need to be respected. The burden therefore wrongly put up on the Appellant and refused to grant the interim protection to the Appellant. Specifically when the Defendant is not denying the oral agreement between the parties.
The agreement's obligation could not be fulfilled; and who committed default is the issue when the Appellant averred that always ready and willing to perform his part of the contract. The Defendant's case is that the Appellant failed to perform the obligations within stipulated period and therefore terminated the contract. Who has committed the breach so far as their respective obligations are concerned, is again a matter of trial. But the fact of termination of the alleged oral contract itself confirms the case of the Appellant that there existed the agreement between the parties in respect of the property in question.
6 There is no dispute that such oral agreement is enforcible in law.
The conclusion of the same even subject to the permission from the competent authority and many other compliances, just cannot be overlooked though the averments revolving around the objection of the legal heirs and non-rejoinder as party raised by the Defendant/Respondent only, in the present case.
7 The learned Counsel appearing for the Appellant makes statement which is not in dispute that pending rejection of the injunction Application Exhibit-5, the Court has granted interim protection. This Court has also granted interim protection on 21.11.2011. The same protection has been in force till this date. Therefore, considering the totality of the matter, I am inclined to observe that the interim order so passed by this Court on 21.11.2011 and lastly directed to be continued on 21.6.2013 need to be continued, pending the disposal of the suit.
The impugned order therefore is accordingly quashed and set aside. The Application for temporary injunction is granted.
8 The learned Counsel appearing for the Appellant has cited the judgment of the Apex Court in the case of Saradmani Kandappan Vs. S.
Rajalakshmi & Ors.[(2001) 12 SCC 18] and contended that the time is always the essence of such contract and therefore there was no expressed willingness and/or steps taken by the Appellant in theme, therefore the contract itself was terminated. This facets in the present case and reasons so given by the learned Judge while rejecting the interim injunction, is only one of the facets, which cannot prevail over other reasons so recorded in the above background. The time whether essence of the contract, is again a matter of trial specially the reason behind the delay and non-compliance of the obligations by the respective parties.
Merely because the submission is made that the time was not essence of the contract, that cannot be accepted as there is no admission of other side, nor the finding at the prima facie stage can be given 9 The statement is made that the suit is already fixed for evidence-the learned Counsel appearing for the Respondent not accepting the said statement.
However, for the above reason the suit is expedited which would serve the ends of justice.
The suit is expedited, and it may be disposed of at the earliest and preferably within a period of six months.
11 The learned Counsel prayed to stay the order of status-quo granted by this Court in the year 2001, which is stated to be exparte. But the fact is that the same is in force and continued lastly even on 21.6.2013 making position clear that the Defendant/Respondent never took effectual steps to get the stay vacated. It means granting the stay to the order of status-quo/interim protection granted by this Court in the year 2001. Apart from the fact that has been granted even by the Trial Court till the decision of the Application-Exhibit 5. For the aforesaid reason itself, the prayer of stay of this order is not granted.
12 Appeal from Order is accordingly disposed of. The Civil Application is also disposed of. No costs.
(ANOOP V. MOHTA, J.)
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