9911796707
TMI Blog2008 (8) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... dent also agreed to execute a separate sale deed in respect of the property described in B schedule which exclusively belongs to the fourth respondent. Two draft sale deeds were prepared. One for 2 acre and 14 cents described in A schedule to be executed by respondents 1 to 10 and another for 14 cents of land described in B schedule to be executed by respondents 4 to 6, for approval. Though the applicant was ready and willing to perform his part of the contract as agreed in the agreement, there was no positive response from the respondents. As the respondents were making attempt to create documents resiling from the agreement, the applicant requested the respondents to honour the commitment. Telegrams were sent followed by notice by the counsel to the respondents asking them to execute the sale deeds, but, the respondents did not turn up to the Registrar's Office for registration on 04.04.2008. Alleging that the respondents are attempting to create encumbrance to defeat the claim of the applicant, the applicant has sought for an order of injunction. 4. Separate Applications were filed by Respondents 1 to 4 and respondents 5 to 10 seeking to vacate the order of interim injunc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties. The very fact that the applicant could pay a sum of ₹ 20,00,000/- at the time of execution of the agreement and the Pay Order obtained for ₹ 42,80,000/-would go to show that he had wherewithal to clinch the sale transaction. The caveat was also lodged by the respondents only after the applicant had filed the suit for specific performance of the agreement of sale. It is his further submission that though the property is situated outside the jurisdiction of the Court, as the material part of the cause of action had arisen within the jurisdiction of this Court and no relief for recovery of possession was sought in the Suit for specific performance of the agreement of sale, the leave has been rightly granted by this Court. Therefore, he would submit that the order of injunction granted by this Court will have to be made absolute. 6. Learned Counsel appearing for respondents 1 to 4 would submit that in a Suit for specific performance of agreement of sale, the Suit will have to be laid only within the jurisdiction where the property relating to the specific performance is located. Therefore, this Court has no territorial jurisdiction to deal with the Suit. It is his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served on the applicant, he shall forthwith furnish the caveator, at the caveator's expense, with a copy of the Application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the Application. (5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the Application referred to in sub-section (1) has been made before the expiry of the said period. 9. A person may apprehend that his adversary who has no case may come to the Court and obtain an order of interim injunction without any foundation for his claim outwitting him. A person who expects that such an eventuality may occasion behind his back, approaches the Court invoking the provisions under Section 148-A of the Code of Civil Procedure and lodge a caveat putting the Court on notice that before ever any order is passed in an Application that is going to be filed or was already filed in a Us which was already instituted or about to be instituted, he shall be heard. Such a caveat will have to be entered in the relevant register maintained by the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 08.04.2008 and not on 30.04.2008 when the application was moved before this Court seeking interim relief. A separate register called caveat register is maintained by the registry. If the applicant makes an endorsement on the Judge's summons on the date when the Application is presented, I find that it may mislead the Court as to what actually transpired as on the date of moving the Application for interim orders. 13. The purpose of insisting for such an endorsement by the applicant is to screen the fraud that is played upon the Court by moving an Application surreptitiously suppressing the factum of pendency of the caveat. The purpose will not be served if such an endorsement is made by the applicant on the Judge's summons on the date when the Application was presented long prior to moving the Application seeking interim order. Therefore, it is made clear that the applicant, who moves for interim relief, shall verify the caveat register maintained by the registry on the date when he moves the Application seeking such a relief as to whether a caveat has been lodged by the adversary and make relevant endorsement. He shall also state as to whether notice of caveat was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inates in non-issuance of any notice as contemplated under Section 148A of the Code of Civil Procedure is brought to the notice of the Court, the Court has to necessarily vacate the order and hear the Application on merit and pass necessary orders. 16. The Kamataka High Court in G.C. Siddalingappa v. G.C. Veeranna, AIR 1981 Kar. 242, was pleased to observe that once a caveat is filed, it is a condition precedent for passing an interim order to serve a notice of the Application on the caveator who is going to be affected by the interim order. Unless that condition precedent is satisfied, it is impossible for the Court to pass the interim order affecting the caveator. 17. In the instant case, the lodgment of the caveat subsequent to the filing of the Application was not noticed by the applicant who made an endorsement honestly at the first instance itself to the effect that no caveat was filed as per the caveat register maintained by the register and the Court also was persuaded by such an endorsement made innocuously by the applicant. There is no dispute to the proposition that once the lodgment of the caveat is brought to the notice of the Court, the Court is bound to serve a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service. That was a case where no notice was given to the counsel despite the fact that his address was found in the caveat register, but, notice was ordered only to the party. In such circumstances, this Court held that, in all fairness, no order should have been passed without hearing the counsel who has already left his address to the registry. 20. The respondents also have not produced any document to show that they served notice of the caveat on the applicant. Therefore, the respondent also have not discharged their obligation as contemplated under Section 148A of the Code of Civil Procedure. Though there is no mistake on the part of the applicant in informing the Court about the lodgment of the caveat by the respondents, the Court has no other option except vacating the order of ad interim injunction already granted as it is brought to the notice of this Court that caveat was lodged subsequent to the filing of the Application by the applicant. But, the Court is bound to consider afresh the entire Application on merit and pass necessary orders. The lodgment of the caveat does not deprive the applicant of his right to canvass his prayer for interim relief on the strength ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erits of the Application and the counter filed before this Court. 24. As rightly pointed out by the Learned Counsel appearing for the applicant, the very fact that the applicant had paid a sum of ₹ 20,00,000/- at the time of entering into an agreement with the respondents and had taken a Pay Order for a sum of ₹ 42,80,000/ - even before expiry of the time frame fixed under the agreement would show prima-facie that the applicant had the capacity to pay the balance of the sale consideration. At this stage, the version of the applicant that he came with the balance of sale consideration with cash cannot be ignored in the background of the facts and circumstances of the case. Two months has been stipulated in the agreement. Even before the expiry of the agreement, the applicant had shown that he, having prepared a draft sale deed, was ready to perform his part of the contract. The Court also had to take note of the Pay Order obtained by him for a sum of ₹ 42,80,000/- and kept ready for payment to the respondents. Having been frustrated with the attitude of the respondents, he had sent a telegram and thereafter Advocate notice highlighting the indifference shown by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
