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TMI Blog1997 (12) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 26, 1995. In view of the above, counsel for the defendants made a statement at the Bar after taking instructions that the defendants are willing to deposit a sum of Rs. 19 lakhs in the court within three months. It was, therefore, directed that after the said sum is deposited, the defendants shall be at liberty to apply for vacation of the order of injunction or for modification of the order. The prothonotary and senior master was directed to invest the sum of Rs. 19 lakhs in fixed deposit with a nationalised bank for such a period as he deems fit. It was also directed that at the final hearing of the motion, the court shall decide, inter alia, as to whether the said amount shall continue to remain invested or should be paid over to the defendants or should be returned back to the plaintiff. All contentions were kept open. The order also notices that in view of the statement made by counsel for the defendants, the notice of motion was not examined on the merits of the rival contentions. The order was passed without prejudice to the rights and contentions of the parties at the final hearing of the motion. Thereafter it appears that the defendants did not make the payment as stip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants stated that there is a serious dispute about the consideration agreed between the parties in respect of the suit flat. According to him, the property is worth Rs. 1,94,00,000 as per the valuer's report and, therefore, under no circumstances, the appellants could have agreed to sell the property to the respondents at the price of Rs. 74,00,000 only. This argument was, however, rejected because the two documents which were referred to by the appellants as receipts have been executed by the appellants wherein they have admitted the receipt of the consideration of Rs. 19 lakhs. It was also held that if these two documents are carefully read, they reveal that the appellants entered into an agreement without caring to fix the price for their flat. Therefore, if the appellants have chosen to enter into such an agreement and received Rs. 19 lakhs without fixing the total consideration, they must suffer the consequences, viz., the consequences of dispute being properly raised by the respondents regarding the price. The second argument of counsel for the appellant that the consideration was at Rs. 1,94,00,000 was also rejected. It was held that the property may be worth crores of ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also directed that the court receiver would remain in symbolic possession of the property in dispute. He would not direct the appellants to pay any royalty or security. Thereafter the Appeal No. 1219 of 1996, came to be finally decided on February 26, 1997. It was agreed by counsel for the parties that in view of the order passed in the review petition, the impugned order of the learned single judge dated September 23, 1996, is liable to be set aside. Accordingly, the said order was set aside. It was also directed that the parties are at liberty to move the single judge, for any further and/or other orders, if so advised. The situation as emerges is that a sum of Rs. 19 lakhs together with interest has been deposited by the defendants with the prothonotary and senior master, which is invested in accordance with the orders of the court. The receiver who was appointed in view of the infringement of the orders of the single judge dated September 23, 1996, has been discharged. But the ad interim injunction continues for not creating third party rights. The plaintiff has taken out draft notice of motion for permission to withdraw the suit with costs. It is also prayed that the prothonot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel appearing for the plaintiff, that admittedly, the defendants have received a sum of Rs. 19 lakhs. It is also apparent, from the perusal of the orders passed by this court at various stages of the litigation that the defendants had deposited a sum of Rs. 19 lakhs in order to avoid the appointment of the receiver. Furthermore, throughout, the conduct of the defendants has been such that the plaintiff is entitled to the relief prayed for in the Notice of Motion No. 3239 of 1995. However, since it is the admitted fact that the defendants have illegally received the money from the plaintiff, they are entitled for the refund of the same together with interest. It is submitted that the defendants cannot be permitted to take advantage of their own wrong. Both counsel and the parties have submitted that in fact there is no contract in existence. If there is a contract, then it is a void contract. In view of the above, Mr. S. K. Jain submits that the plaintiff is entitled to withdraw the suit and he is also entitled to receive the refund of the money deposited by the defendants. It is reiterated that the said amount was deposited only to avoid the grant of relief as prayed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that they were unable to sell the suit property to any other interested party. As opposed to Rs. 19 lakhs deposited by the plaintiff, it is submitted by Mr. Thakkar that the defendants have suffered a loss of Rs. 76 lakhs by way of loss of interest. Since no final relief can be granted to the plaintiff, obviously, therefore, no interim relief can be granted. Even on the merits, it is submitted that in view of the conduct of the plaintiff himself this court would not order specific performance of the agreement. The plaintiff was to pay the money in a fixed time schedule, which he failed to do. It was in fact, he who sought to cancel the agreement. The defendants have no option, but to accept the cancellation of the agreement and the amount has been forfeited as provided by the agreement. It is further submitted that the conduct of the defendants in not depositing the amount in time was not dishonest. They had to make a statement about depositing the amount in order to avoid the rigours of the interim order which has been passed in favour of the plaintiff. They were finally not in a position to arrange for Rs. 19 lakhs in such a short period of time. Coming to the second notice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said property was either Rs. 1,90,00,000 or Rs. 74 lakhs. There is absolutely no dispute between the parties that the consideration was more than Rs. 10 lakhs. Thus, prima facie it has to be held that the agreement of which the specific performance is sought was void ab initio. The plaintiff cannot seek specific performance of such an agreement. This is so as the court would not order the specific performance of an agreement which would lead to an infringement of the law. On the other hand, the defendants should not be permitted to take any advantage of any consideration they may have received under such a void agreement. Mr. S. K. Jain is right in his submission that section 65 of the Indian Contract Act would not permit the defendants to continue to enjoy the fruits of the consideration received under the void contract. At the same time, the court cannot be oblivious of the fact that triable issues have been raised. These issues will have to be decided at the final hearing of the case. In the midst of arguments, it was pointed out to counsel for the parties that on the basis of their own admission, both the sides run the risk of being prosecuted under section 276 of the Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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