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Saturday, November 16, 2013

Or. 39, rule 1 of C.P.C = In a suit for refund of the amount, when there is no development activities , the petitioner is not entitled for any interim injunction under Or.39, rule 1 C.P.C but they may be entitled for attachment Under Or.38, rule 5 of C.P.C. = PETITIONER RESPONDENT M/S ARTIA PROPERTIES PRIVATE LIMITED & ANOTHER VS K.SUBHASH KAPUR & K.SUDHARSHAN RAJ KAPUR = published in http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CMA&mno=384&year=2013

Or. 39, rule 1 of C.P.C = In a suit for refund of the amount, when there is no development activities , the petitioner is not entitled for any interim injunction under Or.39, rule 1 C.P.C  but they may be entitled for attachment Under Or.38, rule 5 of C.P.C. =
The appellants herein filed O.S.No.176 of 2011 against the respondents in the Court of the IX Additional District & Sessions Judge (Fast Track Court), Ranga Reddy District at L.B.Nagar for recovery of Rs.3,15,00,000/-.  It was pleaded that they entered into a development agreement with the respondents in respect of about Acs.42.28 guntas of land, situated at Porandla Village, Maheshwaram Mandal, Ranga Reddy District on 08.08.2008 and substantial amount was paid towards advance and under other heads.
In the suit, the appellants filed I.A.No.818 of 2011 under Order 39 Rules 1 and 2 C.P.C. with a prayer to restrain the respondents from alienating the suit schedule property i.e. Acs.42.28 guntas.  It was pleaded that the respondents are trying to alienate the land and if that is done, the interests of the appellants will seriously jeopardize.=
It has already been mentioned that the suit is filed for recovery of money.  Howsoever strong the case of the plaintiff in the suit of such a nature can be, there does not exist any occasion for him to file an application under Order 39 Rules 1 and 2 C.P.C. in respect of an item of immovable property.  At the most, an attempt can be made to get the attachment under Order 38 Rule 5 C.P.C., in case, the relevant ingredients are established.  Further, the respondents never disputed the existence of agreement nor is it the complaint of the appellants that the respondents have prevented them from undertaking development of the land.  If the effort of the appellants is only to recover money, the same can be effectively accomplished if the respondents are permitted to accumulate funds.  We do not find any error in the order under appeal.

Hence, the appeal is dismissed.
CMA 384 / 2013

CMASR 17643 / 2013
PETITIONERRESPONDENT
M/S ARTIA PROPERTIES PRIVATE LIMITED & ANOTHER  VSK.SUBHASH KAPUR & K.SUDHARSHAN RAJ KAPUR
PET.ADV. : SESHAGIRI RAORESP.ADV. : SURESH SHIV SAGAR
SUBJECT: ORDER 43DISTRICT:  RANGA REDDY

THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY
AND
THE HON’BLE SRI JUSTICE S.V. BHATT


C.M.A. No.384 of 2013


JUDGMENT: (per the Hon’ble Sri Justice L.Narasimha Reddy)
                                                                            

          The appellants herein filed O.S.No.176 of 2011 against the respondents in the Court of the IX Additional District & Sessions Judge (Fast Track Court), Ranga Reddy District at L.B.Nagar for recovery of Rs.3,15,00,000/-.  It was pleaded that they entered into a development agreement with the respondents in respect of about Acs.42.28 guntas of land, situated at Porandla Village, Maheshwaram Mandal, Ranga Reddy District on 08.08.2008 and substantial amount was paid towards advance and under other heads. They pleaded that when the work was started, third parties interfered stating that they have claim over the land.  The appellants felt that it is not at all feasible to proceed with the development and accordingly, demanded the respondents to refund the expenditure incurred by them, together with interest and damages.  In the suit, the appellants filed I.A.No.818 of 2011 under Order 39 Rules 1 and 2 C.P.C. with a prayer to restrain the respondents from alienating the suit schedule property i.e. Acs.42.28 guntas.  It was pleaded that the respondents are trying to alienate the land and if that is done, the interests of the appellants will seriously jeopardize.

The respondents filed counter opposing the application.  They stated that there was absolutely no litigation whatever when the agreement was entered into and taking advantage of a frivolous revision filed by a third party, that too, with a delay of more than 900 days before the Joint Collector, the appellants are trying to withdraw from their commitment under the agreement.

The trial Court dismissed the I.A., through order, dated 07.11.2012.  Hence, this appeal.

Heard Sri J.Seshagiri Rao, learned counsel for the appellants and Sri Suresh Shiv Sagar, learned counsel for the respondents.

It has already been mentioned that the suit is filed for recovery of money.  Howsoever strong the case of the plaintiff in the suit of such a nature can be, there does not exist any occasion for him to file an application under Order 39 Rules 1 and 2 C.P.C. in respect of an item of immovable property.  At the most, an attempt can be made to get the attachment under Order 38 Rule 5 C.P.C., in case, the relevant ingredients are established.  Further, the respondents never disputed the existence of agreement nor is it the complaint of the appellants that the respondents have prevented them from undertaking development of the land.  If the effort of the appellants is only to recover money, the same can be effectively accomplished if the respondents are permitted to accumulate funds.  We do not find any error in the order under appeal.

Hence, the appeal is dismissed.  The trial Court shall expedite the hearing of the suit.  There shall be no order as to costs.

The miscellaneous petition filed in this appeal shall also stand disposed of.

                                                                         

______________________                                                                                            
                                                          L. NARASIMHA REDDY,J
                                                                   
                                                             

______________________                                                                                        
                                                        S.V. BHATT,J

Dt:01.08.2013


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