IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA OMP No. 84 of 2025 in Civil Suit No. 12 of 2025 Reserved on 13.3.2025. Date of decision: 28.3.2025. Kailashpati Shiv Dev Pvt. Ltd. ...Applicant/Plaintiff Versus Raman Kumar & others ...Respondents/Defendants Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 For the applicant : Mr. S.D. Gill, Advocate. For the respondents : Mr. Romesh Verma, Sr. Advocate with Mr. Ram Lal, Advocate. Satyen Vaidya, Judge: Plaintiff-applicant has filed Civil Suit No. 12 of 2025 against the respondents-defendants, seeking decree of specific performance of agreement dated 16.12.2022 and in alternative for a decree for recovery of Rs. 60,00,000/-. A prayer for decree of permanent prohibitory injunction has also been sought. 2. The case of the applicant-plaintiff is that the respondents-defendants are owner in possession of the 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- land, comprised in Khata No. 33 min, KhatauniNo. 73, Khasra Nos. 465/37, 467/37, 474/384/350/38 and 479/385/351/38 kita-4, measuring 00-19-22 hectares situated at Mohal Parsail, Patwar Circle Prei, Tehsil Shahpur, District Kangra, H.P. The respondents- defendants entered into an agreement to sell the suit land with plaintiff on 16.12.2022 for a total consideration of Rs. 1,75,00,000/-. The applicant-plaintiff has made a payment of Rs. 30,00,000/- to the respondents-defendants as an advance. As per agreement dated 16.12.2022, the sale deed was to be executed on or before 15.3.2023. 3. It is further alleged by the applicant-plaintiff that on 15.3.2023, the plaintiff visited the office of Sub- Registrar for registration of the sale deed and at that juncture, the plaintiff came to know that there was a ban on registration of sale deed of the suit land, as the same was within 100 meters from the edge of controlled width of National Highway-154 (Pathankot-Mandi NH). Thereafter, an inquiry was made from the respondents-defendants and it was disclosed by them that though they were aware about the notification barring registration of sale deed but -3- the same could not be conveyed to the applicant-plaintiff at the time of execution of agreement. The respondents- defendants issued legal notice dated 14.5.2023, wherein they falsely blamed the applicant-plaintiff for non- execution of sale deed till the stipulated date and called upon the applicant-plaintiff to execute the sale deed within fifteen days. The applicant-plaintiff again inquired about the ban operating for the registration of the sale deed, which was still continuing. 4. Thereafter, the applicant-plaintiff also issued a legal notice to the respondents-defendants, complaining against the acts of cheating and breach of trust etc. 5. As per applicant-plaintiff, though the ban on registration of sale deed with respect to the suit land has been removed in the year 2024 but the respondents- defendants have not come forward to register the sale deed, whereas, the applicant-plaintiff has been ready and willing to perform its part of the contract. It is further alleged that the applicant-plaintiff acquired the knowledge that the respondents-defendants were going to create third party -4- interest in the suit land and, in such circumstances, the suit was filed. 6. The respondents-defendants have filed the written statement and have admitted the execution of agreement dated 16.12.2022. The counter allegation leveled by the respondents-defendants is that they have always been ready and willing to perform their part of the contract but it was the applicant-plaintiff itself, who did not come forward and as such, the sale deed could not be executed and registered. As per the respondents- defendants, the applicant-plaintiff had paid a meager amount of 30,00,000/- out of the total sale consideration, which as per Clause-5 of the agreement stood forfeited on default of the applicant-plaintiff to pay the balance sale consideration till the stipulated date. 7. The exchange of notices and replies between the parties has not been denied. The respondents-defendants tried to explain its conduct being bonafide. 8. Noticeably, the respondents-defendants have also not denied the fact regarding the ban on the registration of the sale deed in respect of certain lands -5- including the suit land having remained in operation from 2021 to 2024. Their explanation is that the applicant- plaintiff was fully aware about such ban at the time of execution of agreement. In nut-shell, the respondents- defendants have pleaded that by the alleged default committed by the applicant-plaintiff, the agreement stands determined and hence is not capable of being specifically enforced. The respondents-defendants have also raised various preliminary objections as to maintainability of the suit, non-joinder of necessary parties, estoppel, delay and laches, the agreement being hit by Section 23 of the Contract Act, non-eligibility of the plaintiff to purchase the suit land, on account of his being non-agriculturist etc. 9. Another objection raised by the respondents- defendants is that the suit filed by the applicant-plaintiff is a commercial dispute as per Section 2 (c)(vii) of Commercial Courts Act, 2015 and as the applicant-plaintiff has failed to comply with the provisions of Section 12 (A) of the Act ibida prayerhas been made to reject the plaint. -6- 10. Along with the plaint, the applicant-plaintiff has also filed the instant application seeking the following reliefs. “It is, therefore, prayed that the application may kindly be allowed and the respondents be restrained, till final disposal of the suit, from executing any kind of conveyance deeds in favour of any third person and from creating any third party interest in the suit land by executing Lease Deed, Mortgage Deed and Agreement to Sell etc, with respect to the suit land denoted by Khata No. 33 min, KhatauniNo. 73, Khasra Nos. 465/37, 467/37, 474/384/350/38 and 479/385/351/38 kita-4, measuring 00-19-22 hectares and 5 kanals, situated at Mohal Parsail, Patwar Circle Prei, Tehsil Shahpur, District Kangra, H.P.” 11. The application contains the reiteration of facts, as averred in the plaint. In addition, the applicant-plaintiff has alleged that it is under threat from the respondents- defendants that they may dispose of the suit land in favour of third person(s) to frustrate the agreement to sell dated 16.12.2022. In this manner, the applicant-plaintiff has averred that prima-facie case exists in its favour. The balance of convenience and irreparable loss is also claimed by the applicant-plaintiff to be at its side. -7- 12. Per contra, the reply to application though has separately been filed but again the facts detailed in the written statement have been reiterated. The liability to execute the sale deed in favour of the applicant-plaintiff in terms of agreement dated 16.12.2022 has been denied, alleging default on part of the applicant-plaintiff. 13. I have heard learned counsel for the parties and have also gone through the record carefully. 14. The execution of agreement dated 16.12.2022 has not been denied by the respondents-defendants. There also does not appear to be any dispute inter-se the parties with respect to the contents of the agreement, the original of which has been filed by the applicant-plaintiff. 15. Both the parties have alleged that they were ready and willing to perform the agreement and have blamed the other for non-performance. The notices have also been exchanged between the parties. 16. The parties are yet to establish their respective stands. What is required to be seen at this stage is whether the applicant-plaintiff has been able to make out a prima-facie case i.e. whether prima-facie the claim of the -8- applicant-plaintiff appears to have merit and there is likelihood of applicant-plaintiff succeeding in the suit. As noticed above, the execution of agreement dated 16.12.2022 is not disputed. The time fixed by the parties for execution and registration of sale deed in the agreement was 15.3.2023. Both sides have alleged that on the said date, they had visited the office of Sub Registrar for the purpose of registration of sale deed. 17. One thing which has emerged from the respective stands of the parties is that there was a ban imposed by the State Government on registration of sale deed on certain lands in the vicinity of controlled width of NH-154, which remained in operation from the year 2021 to 2024. That being so, it is not explained by the respondents-defendants as to how could the sale deed be registered on 15.3.2023 i.e. the date stipulated in the agreement. It is specifically alleged by the applicant- plaintiff that the respondents-defendants were aware about such ban but the same was not disclosed to the applicant- plaintiff at the time of execution of agreement, which fact has been denied by the defendants. The stand of the -9- applicant-plaintiff that he was not aware about the ban imposed for registration of the sale deed at the time of execution of agreement prima-facie appears to have substance, because if the applicant-plaintiff had such knowledge, it would not have normally agreed for a particular date to be fixed for execution of the sale deed. Further, the respondents-defendants have impliedly admitted that they had the knowledge of imposition of ban on the date of execution of agreement. In such circumstances the conduct and intent of respondents- defendants prima facie appears to be doubtful. 18. Learned counsel for the respondents-defendants has drawn my attention to the contents of notices exchanged between the parties to assert that the notices were exchanged in the year 2023 but the applicant-plaintiff had not made any utterance about the ban on the registration of sale deed being an impediment for performance of the contract. Though, the applicant- plaintiff had not made any utterance regarding such ban in his correspondence with the respondents-defendants, yet such conduct is subject to adjudication and cannot be -10- taken to be a factor against the applicant-plaintiff at this stage for the reason that even the averments made in the correspondence of respondents-defendants that the applicant-plaintiff going to file the suit is not in strict consonance with the stand taken by them now. 19. Noticeably, the respondents-defendants had unilaterally extended the time for execution of agreement on more than one occasion and still they are harping upon that the applicant-plaintiff had not performed its part of the contract till 15.3.2023. In view of existence of impediment in registration of sale deed till 2024 it is difficult to hold at this stage that the applicant-plaintiff has faulted in performance of its part of contract. 20. Thus, in my considered view, the applicant- plaintiff has been able to make out a prima-facie case. The respondents-defendants have also not dispelled the apprehension of the applicant-plaintiff that they are going to create third party interest or to alienate the suit land. That being so, the balance of convenience and irreparable loss also lies in favour of the applicant-plaintiff, as it has already paid substantial amount of Rs. 30,00,000/- to the -11- respondents-defendants and has shown its readiness and willingness to perform the agreement. 21. As regards the objection that the suit is a commercial dispute within the meaning of Section 2 (c) of the Commercial Courts Act, it can be seen that Section 2 (c)(vii) of the Act deals only with agreement relating to immoveable properties used exclusively for trade or commercial. That being not the case here, the objection prima-facie is not sustainable. 22. In result, the application is allowed. The respondents-defendants are restrained from alienating the suit land i.e. land, comprised in Khata No. 33 min, Khatauni No. 73, Khasra Nos. 465/37, 467/37, 474/384/ 350/38 and 479/385/351/38 kita-4, measuring 00-19-22 hectares situated at Mohal Parsail, Patwar Circle Prei, Tehsil Shahpur, District Kangra, H.P in favour of any third party and from creating any charge or third-party interest thereon till the final disposal of the civil suit. The application stands disposed. (Satyen Vaidya) 28th March, 2025 Judge (kck) -12-