1 O.S.

4512/2021

IN THE COURT OF THE LXIII ADDL.CITY CIVIL &

SESSIONS JUDGE (CCH-64) AT BENGALURU
Dated this the Wednesday the 20th day of April 2022

P R E S E N T :- Sri B.VENKATESHA B.Sc., LL.B.,

LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY

O.S.NO.4512/2021
Mahendra Kumar Jain -V/s- Parveez Rahim
Khan and others
PARTIES TO I.A.NO.1

Applicant/ Mahendra Kumar Jain

Plaintiff: S/o Late.Gog Raj Jain
Aged about 53 years,
Residing at No.114, 7th Main,
4th Block, Jayanagar,
Bengaluru – 560 011.
(By Sri. Anupam Agarwal, Adv.,)
-V/s-
Opponent/ 1. Parveez Rahim Khan
Defendants: S/o Late.Abdul Rahim Khan, Major,

2. Mrs.Sajida Shaikh Alias Suhaa Parveez

Khan W/o Parveez Rahim Khan, Major,
Both R/at Flat No.103,
Express Apartments, No.135,
Richmond Road, Craig Park Layout,
Ashok Nagar, Bengaluru – 560 025.
Both also at
i) “Vitorseelanza” Apartment, Unit No.F-2,
1st Floor, Ulsoor Road Cross, Ulsoor,
Bengaluru – 560 042.
ii) No.40/1, Bazar Street, Neelasandra,
Viveknagar, Bengaluru – 560 047.

(By Smt.Shoba Bhavikatti, Adv.,)

 2 O.S.4512/2021

ORDER ON I.A.1 FILED U/ORDER.39 RULES 1 & 2

R/W SEC.151 OF C.P.C.
The plaintiff has filed this suit against the
defendants for recovery of Rs.20,32,500/- with interest
@ 18% p.a from 01-09-2019 to 20-08-2021 and future
interest @ 18% p.a from the date of suit till realization.
Along with this suit, the plaintiff has filed IA No.1 for
grant of temporary injunction till disposal of the suit
restraining the defendants, their agents, representatives,
servants or any one claiming through or under them from
alienating the property known as “Navelem” also known
as “Sanvorimolla”, situated in the village Curpem,
within the jurisdiction of village Panchayath of Vaddem,
Taluk and Registration Sub-District of Sanguem, District of
South Goa, State of Goa, described in the Land
Registration Office under No.6633 and not inscribed in
Taluka Revenue Office but surveyed for the purpose of
records and rights under Sy.No.3/1 and 3/2 of Curpem of
Sanguem Taluka bounded on East by: the property
Sanvorimolla of Mukund Biku Sinai Nadkarnim, West by
one third part of the same property of Manguesh Sinai
Nadkarni and Nalla, North by Nalla and South by the top
of the hill as more fully described in the plaint schedule
(here in afterwards referred to as suit schedule property
for short).
2. The plaintiff's case as set out in the affidavit filed
in support of IA.1 in brief are that defendants had availed
hand loan of Rs 15,00,000/- from him during July 2019
 3 O.S.4512/2021

and have executed undertaking letter dated 31.03.2019

agreeing to repay the said loan amount with interest at
18% p.a. On that day, they handed over documents of
the suit schedule property to him as security. The
defendants have time and again misguided and deceived
him by issuing cheques. The defendants have purposely
and with an intention to take advantage of him, sought
extension for the payment of the hand loan. However, in
reality neither of the defendants actually had any
intention of repaying the hand loan amount. He had
given abundant time to the defendants to repay the loan
amount in spite of the fraudulent acts of the defendants.
The defendants have taken undue advantage of his
kindness and defrauded him by taking the hand loan
without the intention of repaying the loan. From the acts
and deceitful behaviour of the defendants, it has become
evident that the defendants would go to any length to
avoid repayment of the loan, which is his legal right.
Therefore, he has apprehensions that the defendants
would try to alienate the schedule property given by
them to the plaintiff as security in order to evade fulfilling
their obligations against him. Therefore, to stop the
defendants from carrying out any such acts which might
result in alienation of the schedule property, the
injunction order is very much necessary. If the temporary
injunction order is not granted, he will be put to
irreparable loss and injury. He has contended that no
hardship will be caused to the defendants in case
 4 O.S.4512/2021

temporary injunction order is granted against them.

Therefore, the plaintiff has sought for grant of ad-interim
order of temporary injunction as prayed against the
defendants till disposal of this suit.
3. The defendants have opposed this application by
filing W/s & objections, wherein they have contended that
the application filed by the plaintiff is not maintainable
either in law or on facts and is liable to be dismissed in
limine. This Court has no jurisdiction to pass an order
pertaining to a property that situated beyond territorial
jurisdiction of this Court. If the plaintiff intends to seek
an order restraining the defendants from alienating the
immovable property that situated in Goa, it has to be filed
before the jurisdictional Court in the State of Goa. The
averments made in Para-4 to 7 and 9 of the affidavit in
support of the application are incorrect. The defendants
had given the title deeds of the suit schedule property for
due verification of the title as the plaintiff was keen on
purchasing it. The plaintiff has filed a false and frivolous
suit for a judgment and decree for recovery of money to a
sum of Rs.20,32,500/- along with future interest @ 18%
p.a. The plaintiff has filed this application seeking the
defendants from alienating the suit schedule property
and in the affidavit he is seeking for attachment of the
suit schedule property. Therefore, the defendants have
contended that the plaintiff has no prima facie case and
balance of convenience is not lies in favour of plaintiff. If
the temporary injunction is granted, they will be put to
 5 O.S.4512/2021

irreparable loss and injury, which cannot be compensated

in terms of damages. Therefore, the defendants have
sought for dismissal of I.A.No.1 with their cost.
4. Heard the arguments of both the sides. Perused
the plaint, written statement and documents filed by both
the sides with facts and circumstances of this case.
5. The points that survive for consideration are as
under:
1. Whether the plaintiff has made out a
prima facie case for grant of ad-
interim order of Temporary Injunction
as prayed?
2. In whose favour, the balance of
convenience is lies?

3. Whom will be put to irreparable loss

and injury in case temporary
injunction order is granted or
refused?
4. What order?

6. My answer to the above points are as under :

Point No.1 : As in the affirmative,
Point No.2 : Balance of convenience is not lies in
favour of the plaintiff,
Point No.3 : Plaintiff will not be put to irreparable
loss and injury in case temporary
injunction order is not granted,
Point No.4 : As per final order for the following,

REASONS

7. Points No.1 to 3 :- These points are interlinked

with each other. Therefore, these points are taken up
together for joint discussion to avoid repetition of facts.
 6 O.S.4512/2021

The plaintiff has contended that the defendants are the

owners in possession of the suit schedule property based
on the Sale Deed dated 20-12-2010. Sale Deed dated
20-12-2010 disclosed that the defendants have
purchased the suit schedule property from Sri.Mukund @
Prakash and others for a sum of Rs.9,50,000/- and have
taken possession of the suit schedule property on the
said day itself. Copy of the complaint filed in
C.C.14257/2020 of 16th ACMM, Bengaluru City, disclosed
that the plaintiff has filed complaint against the
defendants for trial of the offence under Sec.138 of NI Act
contending that the cheque issued by the defendants for
Rs.8,00,000/- came to be dishonored due to funds
insufficient. Copy of the complaint filed in
C.C.14256/2020 of 16th ACMM, Bengaluru City, disclosed
that the plaintiff has filed complaint against the
defendants for trial of the offence under Sec.138 of NI Act
contending that the cheque issued by the defendants for
Rs.8,00,000/- came to be dishonored due to funds
insufficient. It was contended that the said two cheques
are issued to the complainant towards repayment of
Rs.15 lakhs with interest. Legal notice also issued to the
defendants with a request to repay the said loan of Rs.15
lakhs. Undertaking letter dated 31-08-2019 disclosed
that the D.1 & 2 have availed Rs.15 lakhs from the
plaintiff as hand loan and that they have delivered Sale
Deed dated 20-12-2010 of the suit schedule property to
the plaintiff as a security without any registered
 7 O.S.4512/2021

mortgage till repayment of the loan amount.

8. The defendants have denied availment of the
said loan. They have contended that the plaintiff has
intended to purchase the suit schedule property.
Therefore, for verification of their title over the suit
schedule property, they have delivered the Sale Deed
dated 20-12-2010 to the plaintiff. They also have
contended that the suit schedule property is situated at
Goa, therefore this Court has no jurisdiction to try this
suit. The defendants have not specifically denied
execution of undertaking letter dated 31-08-2019.
Therefore and on perusal of the afore said documents,
prima-facie it is clear that the plaintiff has made out a
prima-facie case. Therefore, the balance of convenience
is lies in favour of the plaintiff. The plaintiff will be put to
irreparable loss and injury in case temporary injunction
order as sought is not granted. No hardship would be
caused to the defendants if the temporary injunction
order as sought is granted. The parties to this suit are
admittedly residing at Bengaluru City. Alleged loan was
availed at Bengaluru City. Therefore, as per Sec.16 and
20 of CPC, this Court has jurisdiction to try this suit
irrespective of the fact that suit schedule property is
situated outside the jurisdictional limits of this court.
Therefore, I answer Point No.1 as in the affirmative and I
answered Points No.2 and 3 in favour of the plaintiff.
9. POINT NO.4 :- For the forgoing reasons and
considering the facts and circumstances of the case, this
 8 O.S.4512/2021

Court proceed to pass the following:

ORDER

I.A.No.1 filed by the plaintiff under Order

39 Rules 1 & 2 r/w Sec.151 of C.P.C. is here by
allowed.
It is hereby ordered that the defendants are
hereby temporarily restrained from alienating or
creating any type of charge over the suit
schedule property till disposal of this suit.

(Typed by the Judgment Writer on my dictation, the

transcript revised and then pronounced by me in open court
on this Wednesday the 20th day of April 2022)

(B.VENKATESHA)
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-64), BENGALURU CITY.
 9 O.S.4512/2021

20.04.2022 Case called in the Open Court. Orders

on I.A.No.1 pronounced in the Open
Pltf. By : A.A., Adv., Court, as under vide separate orders
Defts. By : S.P., Adv., kept in file:-
For orders on I.A.1
ORDER
I.A.No.1 filed by the
plaintiff under Order 39 Rules 1 &
2 r/w Sec.151 of C.P.C. is here by
allowed.
It is hereby ordered that the
defendants are hereby temporarily
restrained from alienating or
creating any type of charge over
the suit schedule property till
disposal of this suit.

LXIII A.C.C.& S.J.,

Bengaluru
10 O.S.4512/2021