CAV JUDGMENT
1. Challenge in this Appeal From Order preferred under the provisions of Order 43 Rule 1(r) read with Section 104 of the Code of the Civil Procedure (for short “Code) is the order dated 18.4.2013, whereby learned City Civil Judge, Court No. 18, Ahmedabad, dismissed the Notice of Motion application Exhibit 6/7 preferred by the appellant (original plaintiff) in Civil Suit No. 1248 of 2012.
2. Briefly stated, it is case of the plaintiff that the suit property bearing 1180 Sq. Yds. situated on the northern side of the land of Chhadavad village, near S.L.U College, Village Kagdiwad, in T.P No. 3, bearing Final Plot No. 535 paiki (for short “suit property”), the sale deed of the said property was executed and registered on 14.9.2005 after the enactment of the Bombay Non Trading Corporation (Gujarat Repeal) Act, 2005, which came to be repealed on 25.2.2005 It is the case of the appellant - plaintiff that in view of the repeal of Non Trading Corporation Act, on and after 25.2.2005, the legal existence of the NTC do not continue and therefore, the respondents - defendant Nos. 2 to 8 do not continue to be office bearers of the respondent - defendant No. 1 Association.
3. It is the case of the appellant that the suit property originally belonged to one Mehta family, who executed an agreement to sell with M/s. Parikh Enterprises on 8.4.1997 The contractual rights flowing from the said agreement to sell came to be transferred to one Mr. K.V Momin by writing dated 1.12.1997, who in turn paid an amount of Rs. 57 Lacs to M/s. Parikh Enterprises. The present appellant paid an amount of Rs. 3 Lacs by A/c. Payee cheque No. 0928132 of Bank of Baroda dated 26.7.1997 to M/s. Parikh Enterprises. It is the case of the appellant that it is the said amount which was paid by the appellant to M/s. Parikh Enterprises was treated as consideration paid by the respondent No. 1 to Mehta family. For such case, the appellant placed reliance on the stipulation made in paras 9 and 10 of the registered sale deed dated 14.9.2005
4. On this broad fact, the appellant has filed suit for declaration and permanent injunction inter alia, prayed to declare to the effect that the respondent No. 1 Non Trading Corporation is not in existence after Repeal of Non Trading Corporation Act on 25.2.2005 and further declare that the appellant has undivided share of 40 Sq. Yds. in the suit property and further prayed for perpetual injunction not to transfer or deal with the suit property and not to make any construction over it.
5. Before the fact of the case is taken on hand, it requires to be noted that on the date of the suit, in all 27 flats were constructed on the suit land and the appellant - plaintiff has not filed the suit for specific performance, but has filed the suit for declaration and perpetual injunction.
6. I have heard the submissions of both the sides at length and examined the document evidence placed on record and more particularly, stipulations made in paras 9 and 10 of the registered sale deed dated 14.9.2005 executed in favour of the respondent No. 1. It is an admitted fact that the registered sale deed in favour of the respondent No. 1 was executed after the Repeal of NTC Act and consequently, NTC will be no more legal entity. But moot question involved in the present dispute is such as to whether the appellant has derived any interest in the suit property on the basis of payment made by him on 26.7.1997 by way of cheque to M/s. Parikh Enterprises. In order to establish this fact, an amount of Rs. 3 Lacs, which is paid to M/s. Parikh Enterprises was part of consideration paid to Mehta family, while executing the sale deed in the year 2005, there is no iota of evidence placed on record so as to prove that the amount of Rs. 3 Lacs was part of the sale price paid to Mehta family was part of the amount paid from the account of M/s. Parikh Enterprises. There is no bank account of M/s. Parikh Enterprises placed on record commencing from 26.7.1997 to till 2005, so as to accept the appellant's case. Similarly, there is no iota of evidence to show that the respondent No. 1 assured and agreed to enroll the appellant as member in the scheme floated and completed by the respondent No. 1. _
7. It is also relevant to note here that the appellant has filed criminal complaint dated 20.2.2003 against one Mr. K.V Momin, wherein he has not made whisper as to the amount of Rs. 3 Lacs paid to M/s. Parikh Enterprises, formed part of consideration amount as stipulated in paras 9 and 10 of the sale deed. On plain reading of complaint para 8, it appears that said Mr. K.V Momin repaid the amount of Rs. 3 Lacs to the appellant on 15.2.2001 and it seems that the said cheque was dishonored due to insufficient funds. In nutshell, the appellant failed to prove by cogent evidence that the amount of Rs. 3 Lacs which was paid to M/s. Parikh Enterprises forms a part of consideration paid to Mehta family i.e seller of the suit property to respondent No. 1. In absence of any cogent evidence, it cannot be inferred that the respondent No. 1 has agreed and/or assured the appellant to enroll him as member when the respondent No. 1 itself came into existence on 5.8.2003, when it is registered under the provisions of Bombay Non Trading Corporation Act.
8. It is relevant to note here that said Mr. K.V Momin filed Civil Suit No. 265 of 2008 against the defendant No. 1 - respondent No. 1 with regard to the suit property. In para 4 of the plaint, said Mr. Momin in term, states that he does not know any of the member of respondent No. 1 NTC and further denied any payment made by any of the member of the said NTC. In nutshell, said Mr. Momin denied any right, title or interest of the respondent No. 1 or any of its member in the suit property. Surprisingly, said Mr. Momin filed affidavit on 21.5.2012 in the present litigation, inter alia, stating that the respondent - defendant No. 1 has not enrolled the appellant - plaintiff as a member. Though said Mr. Momin lost injunction application in the suit instituted by him, but is out to help the appellant herein to support the appellant's case that the respondent No. 1 has not allotted any unit to the appellant after receiving consideration of Rs. 3 Lacs from the appellant. On reading of plaint instituted by said Mr. Momin and affidavit filed in present litigation indicates that there is contradictory averments made by said Mr. Momin. It is also relevant to note that for the plaint proceeds on the premises that there was an agreement to sell executed by Mehta family in favour of M/s. Parikh Enterprises on 8.4.1997 If it is so, then consideration paid by the appellant on 26.7.1997 cannot form a part of the amount paid by M/s. Parikh Enterprises to Mehta family because sale agreement between Mehta family and M/s. Parikh Enterprises was executed on 8.4.1997 i.e prior to payment of Rs. 3 Lacs on 26.7.1997 to Ms. Parikh Enterprises.
9. The present appeal is filed under the provisions of Order 43 Rule 1 (r) of the Code and challenge in this appeal is the discretionary order passed by the trial Court under the provisions of Order 39 Rule 1 and 2 of the Code whereby, the learned trial Judge dismissed the notice of motion Exh.6/7 for interim relief. If this Court elaborately deal with the matter on its own merits, it is likely that same would prejudice the case of either side. Therefore, it is also well settled law that the Court is not required to go into the merits of the entire matter at this stage and what is required to be seen is whether the appellant-original plaintiff has made out a prima facie case or not for grant of interim injunction. It is well settled law that the Appellate Court may not interfere with the exercise of discretion of the Court at first instance and substitute its own discretion except when the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or when the Court has ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. So, the Appellate Court cannot reassess the material and reach a conclusion different from the one reached by the Court. Keeping in mind the limited scope of present appeal, this Court is required to see whether discretion exercised by the learned trial Judge is perverse, arbitrary, capricious or against any settled principles of law or not? Learned advocate for the appellant could not point out any infirmity or perversity in the findings recorded by the trial Court so as to interfere with in the Appeal. Therefore, no case is made out to entertain present Appeal. Hence, present Appeal stands dismissed. No costs.
10. While parting with the order, it is clarified that this Court has examined the impugned order passed by the learned trial Judge within the limited scope of provisions of Order 43 Rule 1(r) of the Code, whereas the main controversy involved in the suit is at large before the trial Court to be adjudicated through full-fledge trial. Therefore, the learned trial Judge shall not be influenced by any observations recorded in the impugned order and observations recorded by this Court herein above while deciding the suit at the end of trial. The findings recorded either by the trial Court or by this Court at interlocutory stage of the suit are tentative in its nature and the learned trial Judge shall decide the case on its merit and as per evidence that may be led during the course of trial and decide the suit in accordance with law.
CIVIL APPLICATION NO. 5107 of 2013:
In view of the dismissal of the Appeal, the Civil Application stands disposed of. Notice isdischarged.
FURTHER ORDER:
Learned advocate for the appellant makes a request to extend the interim relief for two weeks, so as to enable to approach the Hon'ble Apex Court. Request is accepted.