- 1 - NC: 2025:KHC:11227 MFA No. 4075 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 4075 OF 2017 (CPC) BETWEEN: 1. MRS. K. SAROJAMMA, W/O N.T. SHIVANNA, AGED ABOUT 48 YEARS, 2. S. ROOPA, D/O N.T. SHIVANNA, AGED ABOUT 31 YEARS, 3. S. RAMYA D/O N.T. SHIVANNA, AGED ABOUT 29 YEARS, 4. MR. N.S. RAVISHANKAR, S/O N.T. SHIVANNA, AGED ABOUT 34 YEARS, ALL ARE R/AT NO.106, ASSESSMENT NO. 27, 1ST CROSS, L. RAMAKRISHNA LAYOUT B BLOCK, MALAGALU, YESHAWANTPURA HOBLI, BENGALURU - 560 091. …APPELLANTS (BY SRI. A.D. RAMANANDA, ADVOCATE) Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:11227 MFA No. 4075 of 2017 AND: MR. VENKATESHAIAH, S/O MARAGAL NARAYANAPPA, AGED ABOUT 64 YEARS, R/AT MAHAL CHODADENAHALLI, SARJAPUR HOBLI, ANEKAL TALUK, BENGALURU URBAN DISTRICT - 562 106. …RESPONDENT (BY SRI. ASHOK PATIL, ADVOCATE) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 28.03.2017 PASSED ON I.A. NO.1 IN O.S.NO. 7674/2016 ON THE FILE OF THE VII ADDITIONAL CITY CIVIL JUDGE(CCH.NO.19), BENGALURU, ALLOWING I.A. NO.1 FILED UNDER ORDER 39 RULE 1 & 2 READ WITH SECTION 151 OF CPC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT Defendant Nos.1 to 4 have filed the appeal challenging the order dated 28.03.2017 passed on I.A.No.1 filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC in O.S.No.7674/2016, by the Court of the VII Additional City Civil Judge (CCH No.19), Bengaluru, thereby an order of temporary injunction was granted restraining the defendants from alienating or encumbering the suit schedule property in any manner pending disposal of the suit. - 3 - NC: 2025:KHC:11227 MFA No. 4075 of 2017 2. The respondent/plaintiff has filed the suit for specific performance of contract. It is the case made out by the respondent/plaintiff that the first defendant had borrowed a loan from one V.Naveen and V. Praveen. In order to discharge said loan, the defendant No.1 had borrowed a sum of Rs.28,00,000/- from the plaintiff. The defendants on receiving the said amount had then executed an agreement of sale dated 25.01.2014 agreeing to sell the suit schedule property for a consideration amount of Rs.30,00,000/- in favour of the plaintiff or his nominee if the said amount is not cleared by the defendant on or before 28.02.2014. Therefore, it is the case of the plaintiff that the defendants have not repaid the said amount. Further, the plaintiff had paid a sum of Rs.1,50,000/- to the defendants then remaining amount of Rs.50,000/- was to be paid at the time of registration of sale deed. Therefore, the plaintiff by contending that he was ready and willing to perform his part of contract but the defendants have not come forward for execution of registration of sale deed. Therefore, the plaintiff has filed suit for specific performance of contract. 3. It is the case of the defendants that it was only the loan transaction between the plaintiff and the defendants and - 4 - NC: 2025:KHC:11227 MFA No. 4075 of 2017 the defendants have not executed any agreement of sale. The plaintiff has field an application under Order XXXIX Rule 1 & 2 of CPC for praying an intermediate temporary injunction restraining the defendants from alienating the suit property. The Trial Court has allowed I.A.No.1 and granted an order of temporary injunction. Now the said order is in challenge. The trial Court while allowing the application for grant of an order of temporary injunction has opined that the defendants have executed an agreement of sale upon receiving loan amount. Therefore, on this opinion only, if the defendants alienate the suit property then the plaintiff would be put to irreparable loss and injury and therefore, granted an order of temporary injunction. 4. Admittedly, the plaintiff admitted that defendant No.1 is the absolute owner of the suit property. Defendant Nos.2 to 4 are the children of defendant No.1. Upon considering the plaint averments produced along with the memorandum of appeal, basically the transaction between the plaintiff and defendant No.1 was loan transaction. Plaintiff himself stated that defendant No.1 has raised loan from two persons namely V. Naveen and V. Praveen and in order to discharge the debt - 5 - NC: 2025:KHC:11227 MFA No. 4075 of 2017 owe to them, the defendants have asked the help of the plaintiff and accordingly, the plaintiff had advanced a loan amount of Rs.28,00,000/-. It is the case made out at this stage that the defendants have executed an agreement of sale. When the plaintiff himself stated in the plaint that there is a loan transaction between the plaintiff and defendant No.1 then the question comes further that whether the defendants have intention to sell out the land for sale consideration of Rs.30,00,000/- but it is borne out from the plaint averments that the plaintiff has advanced loan amount of Rs.28,00,000/- to defendant No.1. When this being the transaction between the plaintiff and defendant No.1 then a question for triable issue is whether the defendants were having intention to sell out the land as it can be decided by the full fledged trial. 5. Therefore, considering the factors that defendant No.1 is the absolute owner of the property as admitted by the plaintiff and the plaintiff has also admitted in the plaint that he has advanced a loan amount of Rs.28,00,000/- and after having agreed to pay an amount of Rs.2,00,000/- then executed an agreement of sale, it basically prima facie towards securing the loan amount. Such an agreement might have been - 6 - NC: 2025:KHC:11227 MFA No. 4075 of 2017 executed. While considering the order of injunction passed by the trial Court upon the application, the trial Court is not correct in restraining the defendants from using the property as per their Will when the plaintiff is not the owner of the property, but by obtaining an order of injunction restraining the defendants from enjoying their property, therefore, the order passed by the trial Court requires interference by this Court. Hence, it is liable to be set-aside. 6. Hence, I proceed to pass the following: ORDER i) The Appeal is allowed. The order dated 28.03.2017 passed on I.A.No.1 filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC in O.S.No.7674/2016, by the Court of the VII Additional City Civil Judge (CCH No.19), Bengaluru, is hereby set-aside. ii) Both the plaintiff and the defendants shall be present before the trial Court on 25.04.2025 without further notice from the Court and the trial Court shall dispose of the suit within a period of two years from 25.04.2025 as the suit is of the year 2016, for which the plaintiff and the defendants shall co-operate to the Court for early disposal. - 7 - NC: 2025:KHC:11227 MFA No. 4075 of 2017 iii) The observations made by this Court are only for the purpose of considering the veracity of the order passed by the trial Court and shall not be construed as an expression on merits of this Court and the trial Court shall decide the case independently, uninfluenced by any of the observations made above. SD/- (HANCHATE SANJEEVKUMAR) JUDGE KA List No.: 1 Sl No.: 15 CT: BHK