Rajulben Pareshbhai Shah vs The Patidar Ginning And Pressing … on 23 July, 2026

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    Gujarat High Court

    Rajulben Pareshbhai Shah vs The Patidar Ginning And Pressing … on 23 July, 2026

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                                C/AO/97/2026                                       CAV JUDGMENT DATED: 23/07/2026
    
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                                                                             Reserved On   : 13/07/2026
                                                                             Pronounced On : 23/07/2026
    
                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    
                                            R/APPEAL FROM ORDER NO. 97 of 2026
    
                                                         With
                                      CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
                                        In R/APPEAL FROM ORDER NO. 97 of 2026
    
                           FOR APPROVAL AND SIGNATURE:
    
    
                           HONOURABLE MR. JUSTICE MAULIK J.SHELAT
    
                           =============================================
    
                                       Approved for Reporting                       Yes             No
                                                                                                    ✓
                           =============================================
                                      RAJULBEN PARESHBHAI SHAH & ANR.
                                                   Versus
                            THE PATIDAR GINNING AND PRESSING COMPANY LTD. & ORS.
                           =============================================
                           Appearance:
                           MR. PERCY KAVINA, SENIOR COUNSEL WITH
                           MR JAMSHED KAVINA(11236) for the Appellant(s) No. 1,2
                           MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,2
                           MR. RASHESH SANJANWALA, SENIOR COUNSEL WITH
                           MR. AADIT SANJANWALA, & MS SIMRAN PAHWA(12846) for the
                           Respondent(s) No. 12,13
                           =============================================
    
                             CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
    
    
                                                                CAV JUDGMENT
    

    1. The present Appeal from Order is filed under Order XLIII

    Rule 1(r) of the Civil Procedure Code, 1908 (CPC) by the

    SPONSORED

    original plaintiffs against the order dated 27.01.2026 passed

    by the Principal Senior Civil Judge and Additional Chief

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    Judicial Magistrate, Bardoli at Surat below Exhibit-5 in

    Special Civil Suit No.3 of 2024, whereby the Trial Court has

    rejected the injunction application.

    2. For the sake of convenience, the parties will be referred

    to hereinafter as per their original status in the suit. The

    appellants are the original plaintiffs, whereas the respondent

    Nos.12 & 13 (caveator) are original defendant Nos.12 and 13.

    The rest of the respondents are original defendant Nos. 1 to

    11.

    FACTS OF THE CASE:-

    3. The short facts of the case appear to be that Special

    Civil Suit No. 3 of 2024 is filed by the plaintiffs against

    defendant Nos.1 to 11 seeking specific performance of an oral

    agreement to sell executed between the parties, whereby it

    has been alleged by the plaintiffs that original defendant

    Nos.1 to 11 agreed to sell the suit property situated at

    Bardoli, District: Surat, T.P. Scheme No. 2, Sheet No.19

    having Survey No.4613, admeasuring 1697 Sq. mtrs, and

    Survey No.4588/A, admeasuring 4676.53 Sq. mtrs, out of

    which admeasuring 1091 Sq. mtrs; in all 2788 Sq. mtrs (1697

    + 1091).

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    3.1 The defendant Nos.1 to 11 appeared and contested the

    suit by filing their respective written statements. Defendant

    Nos.1, 3, 7, 8, 10, and 11 jointly filed their written statements

    at Exhibit-16, whereas defendant Nos.4 and 5 have filed their

    written statement at Exhibit-22 and defendant No.2 filed his

    written statement at Exhibit-30.

    3.2 Further, the defendant Nos.1 to 3 have executed a

    registered sale deed in favour of defendant Nos.12 & 13, thus,

    during the pendency of the suit whereby defendant Nos. 12 &

    13 were joined as party defendants in the suit. Defendant

    Nos.12 & 13 subsequently filed their written statement below

    Exhibit-66. According to the contesting defendants, there was

    neither any oral nor written agreement to sell executed with

    the plaintiff. As per the say of the defendant Nos. 12 & 13 that

    they are bonafide purchaser value without notice and after

    purchase of one parcel of the suit land, they have developed it

    and construction works almost reached the final phase.

    3.3 After hearing the parties, the Trial Court, vide its

    impugned order, has rejected the injunction application.

    Hence, this Appeal from Order.

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    SUBMISSIONS OF THE APPELLANTS (ORIGINAL
    PLAINTIFFS):-

    4. Mr. Percy Kavina, learned Senior Counsel assisted by

    Mr. Jamshed Kavina, learned advocate for the appellants-

    plaintiffs, has made the following submissions: –

    4.1 The Trial Court has committed a serious error by

    applying wrong principles of law while adjudicating the

    impugned injunction application, which ultimately resulted

    into the rejection of the injunction application.

    4.2 The Trial Court could not have applied the principle of

    res ipsa loquitur while interpreting the terms of the

    agreement. It is unknown in law that said principle can be

    applied for interpretation of terms of document. Likewise, the

    Trial Court had also wrongly applied the principle of

    approbate and reprobate, which would apply only in the case

    of pleadings of the parties.

    4.3 The Trial Court has also misdirected itself by observing

    that since defendant Nos.4 and 5 are supporting defendants

    to the plaintiffs, the principle of lis pendens, as provided

    under Section 52 of the Transfer of Property Act, 1882 (for

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    short ‘the Act, 1882’) is not applied to the case at hand.

    4.4 The Trial Court has also committed a serious error in

    law by observing that defendant Nos.12 & 13 are bona fide

    purchasers, value without notice. The burden to prove that

    they were bona fide purchasers value without notice, is upon

    defendant Nos.12 & 13. The Trial Court has completely lost

    sight of Section 19(b) of the Specific Relief Act, 1963 (for

    short ‘the Relief Act, 1963‘).

    4.5 The findings recorded by the Trial Court in the

    impugned order are not in consonance with the settled

    principles of law and had it applied correct principles of law,

    what would have been the view of the Trial Court is in realm

    of conjectures and surmises.

    4.6 The Trial Court has not properly appreciated the facts in

    their correct perspective and ignoring the fact that there were

    several exchanges offers between the parties, which

    otherwise a matter of trial as to what was agreed between the

    parties and upon wrong premise, based on conjuncture and

    surmises, the Trial Court has in fact erroneously rejected the

    impugned application.

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    4.7 The Trial Court could not have discarded the

    Memorandum of Understanding (MoU) executed by some of

    the defendants, who happen to be the Directors of the

    defendant No.1 – Company, in favour of the plaintiffs and

    considering the Board Resolutions passed by defendant No.1,

    coupled with the MoU executed by its Directors, a prima facie

    case was made out by the plaintiffs to proceed for trial and to

    avoid any multiplicity of proceedings, the Trial Court ought to

    have granted an injunction in favour of the plaintiffs by

    directing the defendants to maintain status quo, as defendant

    Nos. 12 & 13, after they purchased the one of parcel of land,

    are changing the nature of suit property-land, which would

    seriously prejudice the interest of the plaintiffs who definitely

    suffer irreparable injury.

    4.8 To buttress his arguments, Mr. Kavina, learned Senior

    Counsel would rely upon the following decisions: –

    (i) Julien Educational Trust Vs. Sourendra Kumar
    Roy
    reported in 2010 (1) SCC 379;

    (ii) Maheshbhai Chaganbhai Patel Vs. Jarin Naushir
    Dalal
    D/o Jalambahi Rustamji reported in 2011 (0)
    AIJEL-HC 226232 (Appeal From Order No.335 of
    2010 decided on 10.11.2011).

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    4.9 Making the above submissions, Mr. Kavina, learned

    Senior Counsel would request this Court to allow the present

    Appeal.

    SUBMISSIONS OF RESPONDENT NOS. 12 & 13 – ORIG.
    DEFENDANT NOS. 12 AND 13:-

    5. Mr. Rashesh Sanjanwala, learned Senior Counsel

    assisted Mr. Aadit Sanjanwala, learned advocate & Ms.

    Simran Pahwa, learned advocate for respondent Nos.12 & 13

    – Orig. Defendant Nos.12 & 13 – Caveators, vehemently

    opposed the present Appeal from Order by making the

    following submissions:-

    5.1 There is no error, much less any gross error of law,

    committed by the Trial Court while rejecting the injunction

    application filed by the plaintiffs and as such, no interference

    is required of this Court who exercise its limited power while

    adjudicating the Appeal filed under Order XLIII Rule 1(r) of

    the CPC.

    5.2 The foundation of the case of plaintiffs that they had

    entered into an oral agreement to sell itself is not established

    on record, inasmuch as there is no offer made by defendant

    No.1 – titleholder, in favour of the plaintiffs, to come forward

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    for execution of any agreement to sell or sale deed for any

    fixed amount; rather board resolution of defendant No.1, as

    referred by the Trial Court in its impugned order, would

    clearly show that subject to performing certain acts by the

    plaintiffs, defendant No.1 agreed to enter into sale agreement

    with plaintiffs.

    5.3 The Trial Court correctly observed that the MoU dated

    14.11.2022 (Mark 3/4), upon which heavy reliance placed, is

    not beyond doubt as the plaintiffs never whispered about said

    MoU when issued legal notices dated 17.01.2023 &

    10.05.2023, expressed their concern about backing out from

    the commitment to execute sale deed and thereby, called

    upon the defendants to execute the sale deed. The reference

    of MoU came for the first time in the suit. The execution of

    MoU by some of the Directors (defendant Nos.4 to 6) who

    were never authorized to execute the MoU which was in fact

    undated. The stamp paper was purchased in the name of

    advocate at Ahmedabad, its alleged execution was at Bardoli

    and notarized it at Surat. All these acts would prima facie

    prove that said MoU is nothing but a got-up document.

    5.4 There is no purchase money fixed between the parties

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    and the Trial Court has correctly observed that the plaintiffs

    have failed to prove that they have performed their part of the

    contract, as the plaintiffs were unable to show that they got a

    title-clearance of suit land at their expense and / or they

    shifted the family members of the peon staying at suit land by

    offering them an alternative place. The plaintiffs though

    referred in their aforesaid notice about guarantee agreement

    executed by defendant Nos.1 & 2 in their favour, but no such

    guarantee agreement is produced on record, even not

    produced a notice dated 02.01.2024, whereby they issued a

    notice to advocate of defendants in connection with public

    notice.

    5.5 There is neither any perversity nor any gross error

    committed by the Trial Court while disbelieving the case of

    the plaintiffs and as such, ultimate conclusion drawn by the

    Trial Court against the plaintiffs is upon appreciation of

    documentary evidence made available on record. Therefore,

    this Court should not interfere with the well-reasoned order

    passed by the Trial Court.

    5.6 There is a substantial delay in filing the suit, inasmuch

    as first notice was issued by the plaintiffs on 17.01.2023,

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    followed by another on 10.05.2023 and the suit in question

    filed on 04.07.2024, in such circumstances, the plaintiffs are

    not entitled to receive any interim injunction in their favour,

    as sought for.

    5.7 Defendant Nos.12 & 13, after purchasing the one of the

    suit lands, have developed the suit land substantially and the

    construction carried out by them reached in the final phase,

    then this Court may not disturb such development at the

    instance of the plaintiffs who failed to even show any prima

    facie case in their favour.

    5.8 To buttress his arguments, Mr. Sanjanwala, learned

    Senior Counsel would rely upon the following decisions:-

    (i) Ambalal Sarabhai Enterprise Limited Vs. KS
    Infraspace LLP Limited & Anr.
    reported in
    (2020) 5 SCC 410;

    (ii) Veetrag Holding Co Ltd Vs. Gujarat State
    Textile Corporation Ltd.
    reported in 1996 (3)
    GLR 1996; and

    (iii) Brij Mohan & Ors. v. Sugra Begum & Ors,
    reported in (1990) 4 SCC 147.

    5.9 Making the above submissions, Mr. Sanjanwala, learned

    Senior Counsel would request this Court to dismiss the

    present appeal.

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    6. No other and further submissions are being made by the

    learned Senior Counsel appearing for the respective parties.

    7. Heard Mr. Percy Kavina, learned Senior Counsel with

    Mr. Jamshed Kavina, learned advocate for the appellants-

    plaintiffs as also Mr. Rashesh Sanjanwala, learned Senior

    Counsel with Mr. Aadit Sanjanwala, learned advocate & Ms.

    Simran Pahwa, learned advocate for respondents – Orig.

    Defendant Nos.12 & 13 – Caveators, at length.

    ANALYSIS AND REASONS:-

    8. I have minutely gone through the impugned order /

    judgment passed by the Trial Court as well as documents

    submitted before the Trial Court which are placed before this

    Court in the form of paper-book.

    9. Having gone through the impugned judgment and

    documents on record, following would emerge: –

    9.1 Defendant No.1 is a Company registered under the

    Companies Act, which appears to have passed Resolution

    Nos.3 and 4 on 07.05.2022, whereby resolved that to do

    certain acts in relation to the company’s property and to offer

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    an alternate accommodation to the family of its peon namely

    Mohan, the plaintiff No.2 was assigned the work. It was also

    agreed that once plaintiff No.2 obtained clear title to the land,

    he should be called in board meeting for negotiating the price

    of the land and the entire amount shall be received through

    cheque and fulfilling such condition, the company’s land can

    be sold. It is also mentioned that the fees of plaintiff No.2 to

    carry out the aforesaid act, shall be adjusted against the sale

    consideration.

    9.2 Defendant No.1, vide its letter dated 15.10.2022,

    informed the plaintiffs about its Resolution No.7 passed on

    02.09.2022, whereby defendant No.1 resolved that to execute

    the agreement to sell with plaintiffs qua the suit land,

    plaintiffs should be called. There is a footnote in the aforesaid

    letter that as per earlier arrangement, plaintiff No.2 is

    required to ensure that that the room possessed by the family

    of Company’s peon is vacated and offer them an alternate

    place of residence. The said act was to be done by the Plaintiff

    No.2. There is nothing on record to show that it was done by

    him. Rather, the plaintiffs appear to have relied upon MoU,

    allegedly executed on 14.11.2022, which was signed by

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    defendant Nos. 4 to 6, who happen to be Directors of

    defendant No.1. However, a bare perusal of said MoU shows

    that the it is not only undated but its stamp was purchased in

    the name of one advocate Zahurkhan Latifkhan Pathan and

    appears to have been purchased from Ahmedabad, it was

    executed at Bardoli and notarized at Surat. Even, as per the

    terms of the MoU also, there is no agreed amount fixed

    between the parties. Neither plaintiffs nor defendant Nos.4 to

    6 who are supporting defendants, would bring on record any

    board resolution or any authority, whereby defendant Nos.4 to

    6 could have executed the said MoU in favour of the plaintiffs.

    Though, as per the case of the plaintiffs, there is MoU dated

    14.11.2022 executed by defendant Nos.4 to 6 (Directors of

    defendant No.1) in their favour, but surprisingly, while issuing

    legal notice to defendant No.1 on 17.01.2023 and 10.05.2023,

    called upon them to execute sale deed, there is no whisper

    about the said MoU. In view of said facts, prima facie, the

    Trial Court has correctly observed that there is a serious

    doubt about execution of said MoU on behalf of the defendant

    No.1-company-title holder.

    9.3 Furthermore, defendant No.1 appears to have issued a

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    public notice in the month of December, 2023 against which

    the plaintiffs sent their reply on 02.01.2024 but same was

    neither disclosed in the plaint nor submitted with plaint;

    rather, contesting defendants along with their written

    statements, have submitted said reply to public notice sent by

    the plaintiffs. As observed by the Trial Court’s in para 15 of

    impugned order that despite calling upon the plaintiffs to

    supply necessary documents referred in the reply, it was

    neither supplied nor submitted on record.

    9.4 Apart from aforesaid, the plaintiffs sought specific

    performance of an oral agreement to sell qua two parcels of

    land – suit lands, i.e., Survey No. 4613 and a part of Survey

    No. 4588/A, but while sending the aforesaid notices dated

    17.01.2023 and 10.05.2023, referred the agreement qua one

    of the suit lands, i.e., Survey No.4613. This parcel of land

    appears to have been purchased by the defendant No.12 & 13

    by registered sale deed on 20.02.2025.

    9.5 The plaintiffs have also not produced on record any

    material to show that how they have spent Rs.1,50,00,000/-,

    as mentioned in the aforesaid MoU; rather in their aforesaid

    notices, they have stated that they have spent around

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    Rs.39,66,500/-. The suit in question was filed on 04.07.2024,

    and lis pendens was already registered on 02.12.2024,

    whereas the sale deed qua suit land situated at survey

    No.4613 was executed by defendant No.1 – Company in

    favour of defendant Nos.12 & 13 on 20.02.2025.

    9.6 In view of the aforesaid facts and circumstances and

    also taking note of the documents exchanged between the

    parties, the Trial Court, vide its impugned order, has not

    believed the case of the plaintiffs and accordingly, refused to

    grant the injunction in favour of the plaintiffs.

    10. Even after appreciating the assiduous arguments

    advanced by Mr. Kavina, learned senior counsel, I am not able

    to agree with him that impugned order is so grossly

    erroneous, perverse and passed in contravention of settled

    principles of law, whereby interference of this Court in its

    limited jurisdiction under Order XLIII Rule 1(r) of the CPC is

    required. Rather, I am in complete agreement with ultimate

    conclusion of the Trial Court, whereby it has refused to grant

    injunction in favour of the plaintiffs. My reasons for saying so

    as follows:

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    10.1 Apart from the oral agreement to sale as alleged by the

    plaintiffs, the foundational fact upon which the suit has been

    instituted by the plaintiffs is MoU dated 14.11.2022 produced

    at Mark 3/4. As referred hereinabove, there is no reference of

    said MoU made in the previous notices issued by the plaintiffs

    prior to filing of the suit, though such notices were

    undisputedly issued subsequent to the alleged MoU. The

    reasons assigned by the Trial Court in regards to genuineness

    of MoU cannot be said to be either perverse or grossly

    erroneous, inasmuch as such MoU was neither signed by

    authorized person of defendant No.1 – Company. The

    defendant Nos.4 to 6 happen to be Directors of defendant

    No.1 in absence of holding any authority (at least not made

    available on record of the suit) to execute such MOU for and

    on behalf of defendant No.1-Company, the circumstances

    under which such MoU was executed having no dates, seal of

    defendant No.1 – Company and its stamp purchased by the

    lawyer etc., at this stage, create reasonable doubt in the mind

    of the prudent to accept the MoU.

    10.2 The suit is filed seeking specific performance of an oral

    agreement coupled with MOU. Prima facie, the plaintiffs have

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    failed to show that they have already performed their part of

    the contract, then sought for the performance of the

    defendants. The Trial Court has correctly observed that the

    plaintiffs have failed to show that they have performed their

    part of the contract, whereby cleared the title of the suit land

    and gave an alternate accommodation to company’s peon by

    vacating their possession from the suit land, then naturally

    cannot allow to seek performance of the defendants.

    10.3 The plaintiffs have also failed to show the expenses

    incurred by them, i.e., Rs. 1,50,00,000/, as claimed in said

    MoU, which is otherwise contrary to their own notices

    wherein they claimed that they have incurred expenses of

    Rs.39,66,500/-.

    10.4 Moreover, in the aforesaid notices, the plaintiffs

    referred about guarantee agreement executed by defendant

    No.1 in their favour, but no such guarantee agreement is

    produced on record.

    10.5 It is worth to note that in their aforesaid notices, the

    plaintiffs referred having an agreement to purchase only

    about one land situated at Survey No.4613, admeasuring 1697

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    Sq.mtrs, which is purchased by defendant Nos.12 & 13, but in

    the suit, they also referred that defendant Nos.1 to 10 have

    agreed to sell a land situated at survey No.4588/A,

    admeasuring 1091 Sq. mtrs, out of 4676.52 Sq.mtrs. Even the

    description of the said property, which is additionally made

    part of the suit, is also not properly defined as to which side of

    the land they have agreed to purchase.

    10.6 It is true that while adjudicating the injunction

    application, the Trial Court has referred to certain principles,

    more particularly, res ipsa loquitur, while judging the

    genuineness of the MoU. The mere reference to the aforesaid

    principles would not, by itself, render the impugned order

    perverse, inasmuch as the Trial Court has given its reason

    that how the aforesaid MoU cannot be believed and why it is

    not appeared genuine. Likewise, the principle of approbate

    and reprobate might not have been correctly applied so far as

    acts of plaintiffs are concerned, but the fact remains that the

    plaintiffs have not acted as per the above referred board

    resolution passed by defendant No.1, whereby they have

    neither cleared the title to the suit land nor removed the

    family of the defendant No.1 company’s peon. Thus, in the

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    above referred context, the Trial Court has referred those

    principles. According to me, after perusing the impugned

    order in entirety, there is no reason for this Court to either

    interfere or to disturb the impugned order by sending the

    matter back to the Trial Court for its fresh look.

    10.7 The plaintiffs have also failed to prove on record that

    they were and are ready and willing to perform their part of

    contract and in absence of any such case made out, plaintiffs

    failed to prove their prima facie case. Over and above, the

    plaintiffs are unable to prima facie prove that there was any

    oral agreement to sell executed by defendant No.1 – Company

    – (Titleholder), in their favour.

    10.8 So far as aspect of lis pendens is concerned, the

    plaintiffs have already registered such lis pendens.

    Nonetheless, the Trial Court has arrived at a conclusion that

    in view of the fact that the defendant Nos.4 to 6, some of the

    Directors of defendant No.1, executed alleged MoU in favour

    of the plaintiffs, and when there is a collusion between

    plaintiffs and some of the defendants, benefit of lis pendens

    cannot be granted in favour of the plaintiffs. According to my

    view, when the plaintiffs have failed to show prima facie case,

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    balance of convenience and irreparable loss in their favour, it

    pales into insignificance that any benefit of lis pendens can be

    granted in favour of the plaintiffs at this stage. Yet, it can be

    observed that any one consciously entered into an agreement

    with the defendants, are not in a position to say that they are

    not aware about the pending litigation qua suit lands.

    10.9 Likewise, whether defendant Nos.12 & 13 are bona-fide

    purchasers, value without notice or not, is requires to be

    decided by the Trial Court as per the evidence forthcoming on

    record of the suit. The Trial Court at end of para 15 of its

    impugned order itself clarified this position. Thus, I would not

    like to add anything more on this point.

    11. So far as decisions cited by Mr. Kavina, learned Senior

    Counsel, in support of his submissions are concerned,

    according to this Court, none would be applicable to the case

    at hand.

    11.1 In the case of Julien Educational Trust (supra), the

    Hon’ble Apex Court has prima facie believed that there was

    an agreement to sell in favour of the appellant – Trust, which

    had to go to trial and in such factual scenario, the order of

    status quo granted in favour of the appellant – Trust, which is

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    not the case here. In the case at hand, the plaintiffs are

    unable to prima facie prove that there was any agreement to

    sell by defendant No.1 in their favour, i.e., oral or written.

    Rather, it is evident from the resolutions passed by the

    defendant No.1-company, its subsequent communication

    letter dated 15.10.2022 etc., that there was as such no oral

    agreement between the plaintiffs and defendant No.1/its

    authorized person to sale the suit lands. No purchase priced

    even fixed when those resolutions and letter issued.

    11.2 In the case of Maheshbhai Chaganbhai Patel

    (supra), again the coordinate Bench of this Court has

    accepted that there is an agreement to sell between the

    parties and the plaintiffs have performed their part of contract

    and subsequently, sale deed executed is of much lower price

    than what was agreed for agreement to sell. In such factual

    scenario, order of status quo was granted to avoid further

    multiplicity of proceedings. Again, in absence of existence of

    any agreement to sell, prima facie proved on record by the

    plaintiffs, they cannot seek any relief of injunction much less

    an order of status quo. Moreover, the plaintiffs have failed to

    prove their part of the contract as per the said resolutions &

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    letter, at this stage, it can be gainsaid that plaintiffs have not

    performed their part of the contract.

    12. At this juncture, it would be apt to observe that the

    plaintiffs first issued a legal notice dated 17.01.2023

    expressing concern about cancelling the agreement of sale by

    the defendant No.1, it appears to have been responded by the

    company through its lawyer on 29.04.2023, then again

    another legal notice dated 10.05.2023 issued by the plaintiffs,

    whereby called upon the defendants to execute sale deed,

    whereas, through public notice issued in month of December,

    2023, defendant No.1 declared its intention to sale the suit

    land, yet, the suit was filed on 04.07.2024. The documents on

    record of the suit suggests that the suit land purchased by the

    defendant No. 12 & 13 is substantially developed by now and

    there are no good reasons, for this Court to stop the

    development work at this stage, especially when the plaintiffs

    unable to show their prima facie case. Thus, considering the

    series of events as recorded above and nature of dispute,

    though the suit filed within limitation but there is a

    considerable delay on the part of the plaintiffs to file suit.

    12.1 At this stage, it would be apt to refer the ratio laid down

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    by the Hon’ble Apex Court in the case of Ambalal Sarabhai

    Enterprise Limited (supra), wherein it has been held that

    conduct of the party seeking equitable relief of injunction is

    also essential to be considered and in a case of delay or

    otherwise, it will be inequitable to grant discretionary relief.

    The relevant observations made in aforesaid decision read

    thus:

    “19. In a matter concerning grant of injunction, apart from the
    existence of a prima facie case, balance of convenience,
    irreparable injury, the conduct of the party seeking the equitable
    relief of injunction is also very essential to be considered as
    observed in Motilal Jain [Motilal Jain v. Ramdasi Devi, (2000) 6
    SCC 420] holding as follows : (SCC p. 424, para 6)

    “6. The first ground which the High Court [Ramdasi
    Devi v. Motilal Jain, 1990 SCC OnLine Gau 120 :

    (1991) 2 Gau LR 195] took note of is the delay in filing
    the suit. It may be apt to bear in mind the following
    aspects of delay which are relevant in a case of specific
    performance of contract for sale of immovable property:

    (i) delay running beyond the period prescribed under the
    Limitation Act;

    (ii) delay in cases where though the suit is within the
    period of limitation, yet:

    (a) due to delay the third parties have acquired rights in
    the subject-matter of the suit;

    (b) in the facts and circumstances of the case, delay may
    give rise to plea of waiver or otherwise it will be
    inequitable to grant a discretionary relief.”

    22. In M.P. Mathur v. DTC [M.P. Mathur v. DTC, (2006) 13 SCC

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    706] , this Court observed : (SCC p. 716, para 14)

    “14. The present suit is based on equity. … In the
    present case, the plaintiffs have sought a remedy which
    is discretionary. They have instituted the suit under
    Section 34 of the 1963 Act. The discretion which the
    court has to exercise is a judicial discretion. That
    discretion has to be exercised on well-settled principles.
    Therefore, the court has to consider–the nature of
    obligation in respect of which performance is sought,
    circumstances under which the decision came to be
    made, the conduct of the parties and the effect of the
    court granting the decree. In such cases, the court has to
    look at the contract. The court has to ascertain whether
    there exists an element of mutuality in the contract. If
    there is absence of mutuality the court will not exercise
    discretion in favour of the plaintiffs. Even if, want of
    mutuality is regarded as discretionary and not as an
    absolute bar to specific performance, the court has to
    consider the entire conduct of the parties in relation to
    the subject-matter and in case of any disqualifying
    circumstances the court will not grant the relief prayed
    for (Snell’s Equity, 31st Edn., p. 366).”

    (Emphasis supplied)

    12.2 A similar ratio was laid down by a Coordinate Bench of

    this Court in the case of Veetrag Holding Co Ltd (supra),

    wherein considering the decision of the Hon’ble Apex Court in

    the case of Dalpat Kumar And Anr. vs Prahlad Singh And

    Ors reported in AIR 1993 SC 276, held that once the

    contract was terminated, it was expected from plaintiffs to

    move for specific performance at the earliest if they were

    serious about the same. Though, they may not be non-suited

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    on the ground of limitation, inasmuch as their suit is within

    time, however, when it comes to grant of equitable relief that

    the suit is filed after lapse of time, it cannot be said that the

    remedy of interim injunction was a necessary remedy and

    there was no other remedy available to the parties concerned

    in this behalf. The relevant observations made by a

    Coordinate Bench in the case of Veetrag Holding Co Ltd

    (supra), read as under:-

    “8. Even so, in any case, inasmuch as this contract was terminated
    on 6th December 1993, it was expected of the appellant to move for
    specific performance at the earliest, if they were serious about the
    same. The appellants certainly cannot be non-suited on the ground
    of limitation inasmuch as their suit is within time. However, when it
    comes to grant of equitable relief when the suit is filed after such a
    lapse of time, it cannot be said that the remedy of interim injunction
    was the necessary remedy and there was no other remedy available
    to the party concerned in this behalf. Shri Gupta relied upon the
    Apex Court judgment rendered in Dalpat Kumar and Anr. v.
    Prahlad Singh and Ors.
    thereof the Courts are cautioned and
    required to exercise sound judicial discretion.
    They are required to
    find out that no other remedy is available to the party concerned
    and then as stated by the Honourable Supreme Court (and again
    relied upon by Shri Gupta) in para 20 of the judgment of the Apex
    Court rendered in State of Maharashtra v. Digambar ; for
    approaching a Court of equity, the blameworthy conduct of a
    person approaching a Court of equity, for obtaining discretionary
    relief disentitles him for grant of such relief. Para 20 of the above
    judgment reads as under:

    Laches or undue delay, the blameworthy conduct
    of a person in approaching a Court of equity in

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    England for obtaining discretionary relief which
    disentitled him for grant of such relief was
    explained succinctly by Sir Barnes Peacock, long
    ago, in Lindsay Petroleum Co. v. Hurd, thus:

    Now the doctrine of laches in Courts of Equity is
    not an arbitrary or a technical doctrine. Where it
    would be practically unjust to give a remedy,
    either because the party has, by his conduct, done
    that which might fairly be regarded as equivalent
    to a waiver of it, or where by his conduct and
    neglect he has, though perhaps not waiving that
    remedy, yet put the other party in a situation, in
    which it would not be reasonable to place him if
    the remedy were afterwards to be asserted, in
    either of these cases, lapse of time and delay are
    most material. But in every case, if an argument
    against relief, which otherwise would be just, is
    founded upon mere delay, that delay of course not
    amounting to a bar by any statute or limitations,
    the validity of that defence must be tried upon
    principles substantially equitable. Two
    circumstances, always important in such cases,
    are, the length of the delay and the nature of the
    acts done during the interval, which might affect
    either party and cause a balance of justice or
    injustice in taking the one course or the other, so
    far as it relates to the remedy.

    9. Shri Naik submitted that the appellant was all throughout
    ready and willing to perform its part of the contract. But as
    provided in the agreement itself, the payments were to be
    made on certain specified dates starting from 28th September
    1992 until 28th November 1993. Apart from paying the initial
    earnest money, the appellant has not paid any amount
    thereafter and certainly not after raising the dispute about the
    part of the land not being available to it. Shri Gupta
    submitted that this was so inspite of Clause 2 of the agreement

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    which clearly provided as follows:

    The area of the property is approximately
    2,41,875 sq. mtrs. according to the vendor’s
    records and the same shall be taken as correct
    and accepted by the purchaser. The price of the
    said property has been agreed to between the
    parties on a lumpsum basis without any reference
    to the said area and if the said area is ultimately
    found to be more or less the same shall not be a
    ground for any increase or decrease of price or
    for rescinding this agreement.

    As stated above the respondent-Corporation is in
    financial difficulties and is in dire need of money.
    The respondent-Corporation had entered into
    long correspondence with the appellant from time
    to time and there was no positive response from
    the appellant in that behalf. In those
    circumstances, the respondent-Corporation had
    no option but to terminate the contract. The
    appellant has not moved immediately thereafter
    and was silent for nearly two years after
    termination of the contract. These facts are gross
    enough to disentitle the appellant to the remedy of
    injunction.”

    (Emphasis supplied)

    12.3 Thus, in light of the aforesaid facts and circumstances,

    the impugned injunction application was correctly rejected by

    the Trial Court. The submissions made by Mr. Sanjanwala,

    learned senior counsel is accepted that the plaintiffs is not

    entitled to any reliefs as prayed in the impugned injunction

    application filed below Exhibit 5.

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    13. It is well settled position of law that the present Appeal

    from Order is appeal on principle unlike regular First Appeal

    wherein the Appellate Court has power to re-appreciate the

    evidence. This Court, while exercising its powers under Order

    XLIII, Rule 1(r) of CPC, has a limited jurisdiction to interfere

    with the discretionary order passed by the Trial Court. Unless

    and until it has been shown to this Court that the impugned

    order passed by the Trial Court while exercising its discretion

    in a manner which is not akin to law and / or any perversity on

    the face of the order, merely because another view is possible

    in the matter, this Court should not substitute its view over

    the view taken by the Trial Court (See:- Ramakant Ambalal

    Choksi vs Harish Ambalal Choksi reported in (2024) 11

    SCC 351).

    14. Before parting with, it is made clear that any of the

    observations so made either by this Court herein above or by

    the Trial Court’s in its impugned order passed by below

    Exhibit 5 would not come in the way of the parties. The Trial

    Court is required to decide lis between the parties as per the

    evidence forthcoming on the record of the suit without being

    influenced by this order or the impugned order in this appeal.

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    15. In view of the foregoing observations, discussions, and

    reasons, I do not find any merit in this appeal. Accordingly,

    the present Appeal from Order is dismissed in limine. As a

    sequel, the connected Civil Application is also disposed of. No

    order as to costs.

    (MAULIK J.SHELAT,J)
    Lalji Desai

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