[2025:RJ-JP:1894] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Appeal No. 5272/2024 Sundeep Khandalwal Son Of Shri Rajesh Gupta, Aged About 58 Years, Resident Of B-22, Shiv Marg, Banipark, Jaipur. ----Appellant Versus 1. M/s Trimurti Associates, A Partnership Firm Through Partners Shri Rajesh P. Shah, Shri Pravin P. Shah And Shri Rameel P. Shah Sons Of Late Shri P.h. Shah, Office No. 203, Second Floor, Batavia Chambers, Kumara Karupa Road, Kumara Park East, Bengaluru-560001. 2. Shri Rajesh P. Shah Son Of Late Shri P.h. Shah, Through Partner M/s Trimurti Associates, Office No. 203, Second Floor, Batavia Chambers, Kumara Karupa Road, Kumara Park East Bengaluru-560001. 3. Shri Pravin P. Shah Son Of Late Shri P.h. Shah, Through Partner M/s Trimurti Associates, Office No. 203, Second Floor, Batavia Chambers, Kumara Karupa Road, Kumara Park East, Bengaluru-560001. 4. Shri Rameel P. Shah Son Of Late Shri P.h. Shah, Through Partner M/s Trimurti Associates, Office No. 203, Second Floor, Batavia Chambers Kumhara Karupa Road, Kumara Park East, Bengaluru-560001. ----Respondents For Appellant(s) : Mr. Anil Mehta, Sr. Advocate with Mr. Yashodhar Pandey. For Respondent(s) : Mr. R.K. Agarwal, Sr. Advocate with Mr. Manish Pareek, Mr. Anurag Sharma, Mr. Adhiraj Modi, Mr. Shubham Sharma. [2025:RJ-JP:1894] (2 of 8) [CMA-5272/2024] HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 06/01/2025 1. Instant Civil Misc. Appeal is preferred by the appellant- applicant (plaintiff) aggrieved from dismissal of T.I. application No. 21/2023 on 19.11.2024 by learned Additional District Judge No.9, Jaipur Metro-II. 2. Learned Senior Advocate appearing for appellant-plaintiff submits that the appellant-plaintiff has entered into an agreement to sale in order to purchase a property from respondents-defendants and the respondents-defendants have failed to execute a sale-deed in favour of appellant- plaintiff and ultimately the plaintiff has to file a Civil Suit for specific performance. He further referred the agreement to sale alongwith his accounts and submitted that ₹.1 Crore was advanced to the defendants at the time of execution of agreement to sale and remaining sale consideration was available with appellant-plaintiff to perform his part of the contract. He also referred the list of dates and submitted that the defendants were required to submit NOC from RIICO, so that the appellant-plaintiff may pay the remaining sale consideration. He specifically submitted that the defendants have not informed about NOC and further amended lease-deed to the plaintiff, therefore, the appellant- plaintiff has not committed any default in performing his part of the contract. At last, he submitted that the appellant- plaintiff is ready and willing to perform his part of the [2025:RJ-JP:1894] (3 of 8) [CMA-5272/2024] contract, therefore, his is entitled for performance of contract and for that purpose, he filed a Civil Suit before the Trial Court and sought protection of the property during pendency of the Civil Suit. 3. He further relied upon upon the Supreme Court judgment in the case of Ramakant Ambalal Choksi v. Harish Ambalal Choksi & Ors.: 2024 INSC 913 and submitted that mere provision under Section 52 of the Transfer of property Act is not enough to counter his apprehension. 4. Aforesaid contentions were opposed by learned Senior Advocate appearing for the respondents-defendants and he submitted that the defendants have entered into an agreement to sale for a piece of land mentioned in the agreement, but the performance under the agreement is required to be completed within a period of 30 days from the date of obtaining NOC from RIICO. He specifically referred to Clause-2 of the agreement and submitted that time is essence of the contract. He further submitted that after obtaining NOC, the defendants have informed the appellant- plaintiff, but the appellant-plaintiff has not paid remaining sale consideration to the defendants. He specifically submitted that when this agreement to sale was cancelled then after some time the appellant-plaintiff has acted to file a Civil Suit. He candidly offered to return the advance amount received from appellant-plaintiff. He also submitted that the appellant has consumed time and did not offer to pay remaining sale consideration within time, therefore, the [2025:RJ-JP:1894] (4 of 8) [CMA-5272/2024] Trial Court has rightly dismissed the T.I. application. He also offered for mediation with certain proposal before the Court and submitted that the appellant-plaintiff is not agreeable to his proposal. He also submitted that after paying only a part amount under the agreement, the defendants cannot be restrained from transferring the property. He also referred the dates and submitted that NOC was obtained on time and same was submitted to appellant-plaintiff. He also submitted that after obtaining NOC, the appellant has neither offered remaining sale consideration nor paid the same to the defendants. At last, he submitted that after paying part of the money, the appellant-plaintiff wants to put unnecessary pressure upon defendants, therefore, there is no case for interference in the order passed by the Trial Court. 5. Heard learned Senior Advocates appearing for the parties. Perused the material on record placed before this Court. 6. Admitted facts are that the appellant-plaintiff and respondent-defendants have entered into an agreement to sale on dated 10.07.2021 for sale of property for a total sale consideration of ₹.5.80 Crores and out of sale consideration, ₹.1 Crore was paid at the time of execution of agreement to sale and for remaining amount, following condition is mentioned in the agreement to sale:- "2. Time of Completion: The sale shall be completed within 30 days from the date of obtaining NOC from RIICO and the time is essence of this contract. The Purchaser has already verified the documents in respect of Schedule Properties and satisfied with the marketable title of the Vendor to the Schedule Property." [2025:RJ-JP:1894] (5 of 8) [CMA-5272/2024] This condition indicates that after the defendants or sellers obtained NOC from RIICO, then sale shall be complete within 30 days. The Purchaser has already verified the documents in respect of Schedule Properties and satisfied with the marketable title of property of the Vendor. This also indicates that time is essence of contract. 7. The brief description of list of dates submitted by the appellant-plaintiffs indicates that on 28.09.2021, a conditional NOC was issued by RIICO, wherein condition No.6 was as under:- "6- ;g fd Hkw[k.M foØ; ls iwoZ foØsrk dks lk>snkjksa esa gq, ifjorZu ftldh Lohd`fr bl dk;kZy; }kjk tkjh dh xbZ gS] ds laca/k esa la'kksf/kr yhtMhM dk fu"iknu ds i'pkr~ iath;u djok;k tkdj bl dk;kZy; esa ewy la'kksf/kr yhtMhM tek djkuh gksxhA " 8. Admittedly, on 05.10.2021, the respondents-defendants have informed the appellant-plaintiff through e-mail about the conditional NOC. According to the appellant-plaintiff, he has sent e-mail on 25.10.2021 and 03.12.2021 to the defendants to get amended lease-deed issued as per condition of RIICO. Thereafter, on 20.12.2021, the respondents-defendants informed about withdrawal from the agreement to sell with readiness to return advance money. 9. As per appellant-plaintiff, on 29.12.2021, the respondents- defendants have issued a letter to execute sale-deed within a period of 7 days and on 17.01.2022, the appellant has sent a notice to respondents-defendants. According to appellant, on 29.12.2021, the defendants have not informed [2025:RJ-JP:1894] (6 of 8) [CMA-5272/2024] whether they have applied for amended lease-deed as per condition No.6 of NOC. 10. On 25.02.2022, amended lease-deed was executed between respondents-defendants and RIICO. According to appellant- plaintiff, this lease-deed was not brought to his notice till filing of Civil Suit. 11. On 05.05.2022, the respondents-defendants have unilaterally cancelled the agreement and forfeiting ₹.10 Lacs out of advance amount of ₹.1 Crore. The appellant-plaintiff has replied on 07.06.2022 and final notice was sent by him on 10.03.2023, thereafter, the suit was filed on 15.04.2023. 12. A list of dates submitted by the appellant-plaintiff itself indicate that the appellant-plaintiff has failed to take steps as per condition No.2 of agreement to sale. In case, the appellant-plaintiff was informed about NOC on 05.10.2021, then his duty was to offer to pay remaining sale consideration for execution of sale-deed. After e-mail dated 20.12.2021 and 29.12.2021, the plaintiff has not acted in time and rather replied on 17.01.2022. Similarly, after notice dated 05.05.2022, the suit was filed on 15.04.2023 without offering to pay remaining sale consideration. 13. We are facing a serious problem with regard to filing and pendency of suits for specific performance as one of the party with an ulterior motive and taking advantage of rising prices of land, wants to control the transaction of the other party, who is in possession of the land. An agreement to sale is not a transferable title rather it indicates only an intention [2025:RJ-JP:1894] (7 of 8) [CMA-5272/2024] to transfer a property from one hand to another, but if a party, who is willing to purchase a property does not act in time and wants to take advantage of agreement and part payment, is not entitled to any equitable relief unless his readiness and willingness is shown on face of record by facts and circumstances of the case. 14. In the case of Ramakant Ambalal Choksi v. Harish Ambalal Choksi & Ors. (Supra), Hon'ble Supreme Court has considered principle of lis pendens as provided under Section 52 of the Transfer of Property Act and considering the principle, we can certainly say that if a party (defendant) is defaulter in performing part of the contract, then the suit property can be preserved for final outcome, but herein, when NOC was issued on 21.09.2021 by RIICO though with certain conditions, but no offer was made till filing of suit on 15.04.2023 by appellant-plaintiff for payment of money. There is no transaction whatsoever for transfer of money, after agreement and before filing of Civil Suit. 15. Learned Senior Advocate has referred demat account and submitted that total value of mutual fund folios of plaintiff is approximately ₹.5.65 Crores as on 31.07.2023. He further referred the folio and submitted that even on 31.07.2021, his total value was was ₹.14.91 Crore. 16. The statement submitted by learned Senior Advocate on behalf of plaintiff shows that the appellant is earning from investments in stock market directly or indirectly including mutual funds, but after NOC on 28.09.2021, the amount [2025:RJ-JP:1894] (8 of 8) [CMA-5272/2024] becomes due on 30th day and no offer was made by the appellant-plaintiff to compensate loss occasioned by not making payment to defendants. The appellant is earning money after investing same in Stock Market, but he is not ready to respond positively on an offer made by learned Senior Advocate for respondents. 17. Considering the entirety of facts and circumstances of the case, particularly considering that time was the essence of the contract, the Trial Court has rightly decided the prima facie case against the appellant-plaintiff, therefore, the plaintiff is not entitled to any injunction during pendency of the Civil Suit to restrain defendants in any manner. 18. Therefore, the Trial Court has not committed any error while deciding prima facie case, balance of convenience and irreparable loss against the appellant-plaintiff, thus there is no ground to allow the present Civil Misc. Appeal. 19. In view of the above, instant Civil Misc. Appeal, is hereby dismissed. 20. Misc. application, if any, stands disposed of. (ASHOK KUMAR JAIN),J PKS/371