DIANA BUILDWELL PVT. LTD.,versusM/S STERLING HOLIDAY RESORTS (INDIA) LIMITED, REP. BY ITS AUTH. SIGN.S. RAMESH AND 4 ORS.,

2026:BHC-GOA:1795
                                      AO 31 of 2024


            Sonam

                    IN THE HIGH COURT OF BOMBAY AT GOA
                           APPEAL FROM ORDER NO.31 OF 2024
                                         WITH
                              CIVIL APPLICATION NO. 96 OF 2024
                                         WITH
                       MISC. CIVIL APPLICATION NO. 475 OF 2024
                                         WITH
                        MISC. CIVIL APPLICATION NO. 92 OF 2025
                                          IN
                          APPEAL FROM ORDER NO. 31 OF 2024

       Diana Buildwell Private Limited,
       A Company incorporated under the
       Indian Companies Act, 1956,
       Having registered office at F-60,
       Malhotra Building, Second Floor,
       Connaught Place, New Delhi, 110001
       Represented herein by
       Its Authorized Representative
       Mr. Ajit Luthra, duly authorized
       Vide Board Resolution dated 3rd September 2024
       Having address at 262, Bund Garden Road,
                                                           … Appellant
       Pune-411001.
                           Versus

       1. M/s Sterling Holidays Resorts (India) Limited,
          A Public Limited Company
          Incorporated under the Companies Act, 1956
          Having its registered office at No.7,
          3rd Cross Street, Kasturibai Nagar,
          Adyar, Chennai-20,
          Duly represented by its authorized signatory,
          Shri s. Ramesh, aged 50 years,
          Indian National,
          R/o No. 3, II Avenue,
                                        Page 1 of 36
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                                AO 31 of 2024


  Sastri Nagar, Adyar, Chennai-20.

2. Yes Bank Limited,
   Having its office at India Bulls Finance Centre,
   Tower II, 26th floor, Senapati Bapat Marg,
   Elpinstone Road,
   Mumbai 4000013.

3. The Saraswat Co-op. Bank Limited,
   Having its office Atc-2,
   Kohinoor Estate Co-op. Housing Society,
   Plot No. 12, Mula Road, Sangamwadi,
   Pune-411003.

4. Vijaya Bank Limited,
   Having its office at Corporate Banking branch,
   Vinayak Bonde Sankul,
   1st floor, 1206/a-32, Shirol Road,
   Opp. Shambaji Park,
   Pune-411004.

5. Starwood Hotels & Resorts India Private Ltd.,
   4th Floor, Tower “A”, Vatika Business Park,
   Sector 49, Sohna Road, Gurgaon,
   Haryana-122 001.
                                                       … Respondents


    Mr. J. E. Coelho Pereira, Senior Advocate with Mr. Vilas
    Pavitran, Mr. Jeet Volvoikar and Mr. Pancham Phadte, Advocates
    for the Appellant.

    Mr. Shivan Dessai with Ms. Riya Amonkar, Advocates for
    Respondent No. 1.



                                 Page 2 of 36
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                             AO 31 of 2024


Mr. U. R. Timble with Ms. Yadika Mandrekar, Advocates for
Respondent No. 3.

Mr. Vinod Korgaonkar, Advocate for Respondent No. 5

                CORAM: VALMIKI MENEZES, J.
                RESERVED ON: 23rd APRIL, 2026
                PRONOUNCED ON: 4TH SEPTEMBER, 2026

JUDGMENT:

1.    This Appeal from Order under Order 43 CPC has been filed
to challenge order dated 09.08.2024 passed by the Civil Judge
Senior Division at Mapusa on Exhibit 3, a temporary injunction
application in Special Civil Suit No. 11/2015/A; the Appellant is
the original Defendant No. 1 in the suit whilst the Respondent
No.1 is the Plaintiff therein. Respondent Nos. 2, 3, 4 and 5 are
the Defendant Nos. 2, 3, 4 and 5 respectively. For convenience,
the parties shall be referred to by the nomenclature used before
the Trial Court. The impugned order has partly granted the
application in terms of prayers (a), (b) and (d) thereof, whilst
rejecting the reliefs sought in prayers (c), (e) and (f). The Plaintiff
have not challenged the impugned order so far as it rejects prayer
clause (c) (e) and (f) of the application.

      The impugned order restrains the Defendant No. 1, during
the pending disposal of the suit, from in any manner dealing with
the suit property, changing its nature or parting with its
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possession or creating third party rights in respect of the same; it
further restrains Defendant no.1 from creating further mortgage,
charge, lien or any encumbrance on the suit property. It also
restrains Defendant No. 2, a Bank in whose favour the suit
property has been mortgaged, from parting with the custody and
possession of the title documents/Deeds of the suit property
deposited with it to secure a loan advanced to Defendant No.1,
without prior permission of the Court.

2.   The impugned order has been assailed by the Defendant
No.1, mainly on the following grounds which were elaborately
argued by Sr. Advocate Mr C. Pereira:

3. SUBMISSIONS

(a) It was submitted that the entire suit is premised upon a Deed
of Sale dated 11.05.2007 by which the Plaintiff has transferred
the suit property to the Defendant No. 1; the transfer was of four
parcels of land which were described in Schedule I, a separate
parcel of agricultural property under Schedule II and yet another
parcel of land under Schedule III for consideration, which was
specified for each of these parcels of land in the deed itself.
According to the Defendants, from the reading of the recitals and
the specific covenants in one of the Deed, the transfer was
absolute and without any reservations and, there was no contract
to the contrary, by which any part of the Deed could be
                              Page 4 of 36
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interpreted as reserving unto to seller any right of lien or charge
over the property. According to the learned Counsel, the
language deployed in the Deed unequivocally records the
intention of the vendor to transfer the suit property without any
reservation and consideration was received in full for the
property, which had passed under the Deed on the date of the
transaction.

(b) It was then contended, that on the basis of the Deed of Sale,
and on the reading of the Sections 54 and 55 of the Transfer of
Property Act, there was total absence of the contract to the
contrary to be read to the Deed; it was contended that for the
provisions of Section 55(4) (b) of the Transfer of Property Act to
apply, there must be a specific clause to create a charge, and such
charge cannot be read into the Deed, unless specifically provided
for.

(c)    It was further submitted that the suit was filed by the
Plaintiffs with gross, unexplained delay and on this count alone
the application for temporary injunction ought to have been
dismissed. The findings of the trial Court are perverse and
entirely based on the judgment dated 02.06.2020 of this Court
passed in a Revision Application No. 39 of 2015 against an order
of the trial Court dated 14.10.2015 in this very suit, on an
application for rejection of plaint filed by Defendant No.1; it
was submitted that this judgment was in the context of an
                             Page 5 of 36
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                            AO 31 of 2024


application under order 7 Rule 11, the considerations of which
being different from an application for temporary injunction,
findings given in the said judgment could not be considered as
findings to operate against and bind the parties whilst deciding
an application for interim relief. It was further submitted that the
considerations for deciding an application for temporary
injunction have been well settled, and in the present case have
not been followed by the trial Court since the trial Court has
given a finding of prima facie case which is not based upon
settled principles of law. It was further submitted that since
prima facie case is a substantial question and includes the
questions of conduct of the Plaintiff, the trial Court not having
addressed itself to the issue of delay and laches has passed an
order that suffers from perversity and is in violation of three
settled principles for grant of injunction. Reliance is placed to
buttress these submissions on Mandali Ranganna and others
versus T. Ramachandra and Others1, and UTO Nederland B.V
& Anr versus Tilaknagar Industries Ltd2 and Bloomberg
Television Production Services India Private Limited and
others versus Zee Entertainment Enterprises Limited3.

4.    Mr. Shivan Dessai, learned Counsel appearing for
Respondent No.1 has advanced the following submissions:


1
         SCC
2
     SCC O Li e Bo
3
       SCC
                              Page 6 of 36
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(a)   It was submitted that the impugned order has been passed
after considering the provisions of Section 55 of the Transfer of
Property Act, the covenants in the Deed of Sale, correspondence
between the parties, and its conclusions on the “prima facie” case
being a view taken based on the record, cannot be termed as
perverse or without considering the material before it. The prima
facie conclusions of the Trial Court do not call for interference
on the principles laid down by the Supreme Court and the scope
of an Appeal from Order, which is very limited; it was contended
that the discretion having been exercised by the Trial Court on
the basis of material before it did not call for any interference.

(b)   It was then submitted that a reading of Clause 1 of Deed of
Sale dated 11.05.2007 read with Clause 8 and Clause 9 of the
same clearly make out a case of a specific lien set out in favour
of the Plaintiff over the suit property, till the payment of Rs.
6,00,00,000/- was paid additionally towards consideration by
the purchaser of the property i.e. Defendant No. 1; according to
the learned Counsel, a conjoint reading of Clause 8 and 9 clearly
makes out a contract to the contrary under Section 55 of the
Transfer of Property Act, creating a seller’s lien over the suit
property. It was submitted that the Trial Court’s reliance on the
observations made by this Court in paras 19 and 20 of its
Judgment dated 02.06.2020 in Civil Revision Application No.
39/2015 to hold that the Deed of Sale does create a seller’s lien,

                              Page 7 of 36
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cannot be held to be perverse, and as such the impugned order
does not call for any interference.

(c)       It was then submitted that from the correspondence
between the parties, between 11.05.2007, when the Deed of Sale
was executed and 03.10.2012, when Legal Notice was sent by
the Plaintiff, there was no delay or any laches on the part of the
Plaintiff as these facts were considered by the Trial Court at para
23; it was submitted that the Trial Court, after considering that
the High Court has passed its Judgment on the Revision
Application against the rejection of the application of the
Defendant No. 1 under Order 7 Rule 11 CPC, accepted on facts,
delay in arguing that application cannot be attributed to the
Plaintiff, due to pendency of the proceeding before the High
Court.

          Reliance was placed on Delhi Development Authority
versus Skipper Construction Co.(p) Ltd and others 4, Rajasthan
State Industrial Development and Investment Corporation and
another versus Diamond & Gem Development Corporation
Limited and Another5, V.T.S. Thyagasundaradoss Thevar and
others versus V.T.S. Sevuga Pandia Thevar and another6.




4
           SCC
5
          SCC
6
    AIR    SC
                              Page 8 of 36
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5.    Mr. U. R. Timble, learned Counsel appearing for
Respondent No.3, supporting the Defendant No. 1 has advanced
the following submissions:

(a)   Mr. Timble has contended that after execution of the Deed
of Sale dated 11.05.2007, a Mortgaged Deed dated 23.12.2013
was executed by the Defendant No. 1 in favour of a Consortium
of Banks i.e. Defendant Nos. 2, 4 and Defendant No. 3, under
which the Defendant No. 1 deposited the title Deed of Sale with
the Defendant No. 2, YES Bank; the particulars of the money
advanced as loan by each of this Bank to the Defendant No. 1
was stated in the first schedule of the Deed. It was contended that
the Deed of Mortgage was executed after issuing a public notice
and conduct of due diligence into the title of Defendant No. 1,
including examination of Deed of Sale. According to the learned
Counsel, once Mortgage was created over the suit property in
favour of Defendant Nos. 2 to 4, and they had the first charge
over the property, there was no question of the Trial Court
granting an order of Temporary Injunction to restrain the
Defendants from dealing with the property or creating further
mortgaged thereon or parting with its possession and creating
third party rights.

(b)   It was then contented by the learned Counsel for Defendant
No. 3 that the perusal of the recitals in the Deed, and the
covenants contained in Clauses 1, 4, 5(a to h) of the Deed would
                             Page 9 of 36
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                             AO 31 of 2024


reveal that the property had been transferred without any
reservation, and declaring that the seller has no right or lien over
the property and the purchaser was free to sell, mortgage or deal
with the same; it was then submitted that in effect, the Deed does
not create any reservation of a right, including a seller’s lien over
the suit property under Section 55of the Transfer of Property Act,
as there is no contract to the contrary that can be read into these
Clauses. Reliance is placed on the Judgments of the Counsel to
support these contentions.

(c)   It was then submitted that the sale consideration is
expressed, in a Sale Deed i.e. Rs. 49,11,00,000/-, which is for
different parcels of land; each parcel had a specific consideration
and the Deed itself was registered and Stamp Duty paid on this
consideration. It was submitted that the amount of Rs.
6,00,00,000/- stated in Clause 9 cannot be towards the
consideration, as the consideration in a Deed of Transfer of
Property cannot be waived. It was further submitted that the
Deed of Sale was for full consideration and was not on a part
payment, and in fact the Clause 5(q) of the Deed, does not
constitute a contract to the contrary under Section 55 of the
Transfer of Property Act, since it specifically empowers the
purchaser and grants it the right to mortgage the purchased
property. The interpretation given to these Clauses by the Trial
Court is therefore perverse.

                             Page 10 of 36
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(d)    The learned Counsel has taken me through the Judgment of
this Court, delivered by Justice Bhadang on 02.06.2020, where
the observations made therein as to the Clauses made therein and
whether they constitute a clause covenant to the contrary, were
in the context of an application under Order 7 Rule 11 CPC.
These observations do not bind the parties in an application for
temporary injunction as they must be read in context.

CONSIDERATIONS

6.     At the outset, it must be emphasized that this, being an
Appeal from an Order granting a temporary injunction, the
Appellate Court would not interfere with the exercise of
discretion of the Court of the first instance, and substitute its own
discretion. The Appellate Court will not reassess the material and
seek to reach a conclusion different from the one reached by the
Trial Court, if the Trial Court has reached this conclusion in a
manner that was reasonably possible, based on the material
before it. This has been held by the Supreme Court in Wander
Ltd. V/s Antox India P. Ltd.7.

       The same Judgment, however, holds that the exception to
this Rule is where the Trial Court has exercised discretion, whilst
granting a temporary injunction in a manner which is arbitrary,
or capricious or when the order suffers from perversity due to the


7
      Supp SCC
                              Page 11 of 36
                          4th September, 2026
                               AO 31 of 2024


Court having ignored the settled principles of law, regulating
grant or refusal of interlocutory injunctions. Such Appeals being
on principle, the Appellate Court can interfere with the exercise
of such discretion, if it has been exercised contrary to the
aforementioned principles.

7.        The cardinal principles of grant of interlocutory orders of
injunctions are also well settled. The Plaintiff has to make out a
prima facie case, demonstrate that balance of convenience lies in
its favour and that it would suffer irreparable injuries if the
interlocutory injunction is refused. What constitutes a strong
prima facie case may vary, based on the facts of each case, but
the Court must be satisfied that the claim is not frivolous,
vexatious and there is a serious question to be tried. In Martin
Burn Limited V/s R. N. Banerjee8, the Supreme Court has
explained what constitutes a “prima facie case” and held that a
prima facie case does not need a case proved to the hilt, but a
case which can be said to be established, if evidence led in
support of the same were believed.

          In a later Judgment of the Supreme Court in Dalpat Kumar
V/s Pralhad Singh & Ors.9, it has been held that prima facie case
is a substantial question raised bonafide, which needs
investigation and a decision on merits. It was further held therein

8
             SCC
9
    (1992) 1 SSC 719
                                Page 12 of 36
                             4th September, 2026
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that at the stage of consideration of an application for temporary
injunction, the Plaintiff, in order to establish prima facie case,
has to prove that there is serious question to be tried in the suit.
Such question, should lead to a probability that the Plaintiff
obtaining the relief at the conclusion of the trial, is likely to
succeed.

8.   A full Bench of this Court in UTO Nederland B. V & anr.
(supra) has considered two questions referred to in view of
conflicting decisions taken in two Judgments. The questions
considered by the full Bench were the following:
           “1. ………(i) Whether order passed on an
           application for temporary injunction is prima facie
           adjudication and not an exercise of discretion (ii)
           Scope of appeal from an order of the trial court on
           an application of injunction.”

     After considering the application of the trinity test in
matters for grant of interlocutory reliefs, it has considered the
scope of an Appeal against an order granting such reliefs and
examined what constitutes “perversity” in such an order, which
would be one of the grounds for setting it aside. It also examines
what constitutes arbitrariness after considering what is held in
Wander Ltd. (supra).

9.   In Mandali Rangana and Ors (supra), the Supreme Court
held that besides considering basic elements for prima facie case
to exist the conduct of the parties should be also looked in and
has held as under:
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“21. While considering an application for grant of
injunction, the court e will not only take into
consideration the basic elements in relation
thereto viz, existence of a prima façie case,
balance of convenience and irreparable injury it
must also take into consideration the conduct of
the parties.
22. Grant of injunction is an equitable relief. A
person who had kept quiet for a long time and
allowed another to deal with the properties
exclusively, ordinarily would not be entitled to an
order of injunction. The f court will not interfere
only because the property is a very valuable one.
We are not, however, oblivious of the fact that
grant or refusal of injunction has serious
consequence depending upon the nature thereof.
The courts dealing with such matters must make
all endeavors to protect the interest of the parties.
For the said purpose, application of mind on the
part of the courts is imperative. Contentions raised
by the parties must be determined objectively.
23. This Court in M. Gurudas v. Rasaranjan¹
noticed: (SCC p. 374, para 19)

"19. A finding on 'prima facie case' would be a
finding of fact. However, while arriving at such a
finding of fact, the court not only must arrive at a
conclusion that a case for trial has been made out
but also other factors requisite for grant of
injunction exist. There may be a debate as has been
sought to be raised by Dr. Rajeev Dhavan that the
decision of the House of Lords in American
Cyanamid Co. v. Ethicon Ltd.2 would have no
application in a case of this nature as was opined
by this Court in Colgate Palmolive (India) Ltd. v.
Hindustan Lever Ltd.3 and S.M. Dyechem Ltd. v.
Cadbury (India) Ltd. 4 but we are not persuaded
to delve thereinto."
25. In Seema Arshad Zaheer v. Municipal Corpn.
of Greater Mumbais this Court held: (SCC p. 294,
para 30)
"30. The discretion of the court is exercised to
grant a temporary injunction only when the
following requirements are made out by the
plaintiff: (i) existence of a prima facie case as
pleaded, necessitating protection of the plaintiff's
rights by issue of a temporary injunction; (4) when
                      Page 14 of 36
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                                 AO 31 of 2024


           the need for protection of the plaintiff's rights is
           compared with or weighed against the need for
           protection of the defendant's rights or likely
           infringement of the defendant's rights, the balance
           of convenience tilting in favour of the plaintiff; and
           (iii) clear possibility of irreparable injury being
           caused to the plaintiff if the temporary injunction
           is not granted. In addition, temporary injunction
           being an equitable relief, the discretion to grant
           such relief will be exercised only when the
           plaintiff's conduct is free from blame and he
           approaches the court with clean hands."
           [See also Transmission Corpn. of A.P. Ltd. v.
           Lanco Kondapalli Power (P) Lid.]”

10. Summing up the principles laid down in the Judgments
referred above, if the Trial Court, whilst considering whether the
Plaintiff had made out a prima facie case, has failed to consider
the Plaintiff’s conduct, which if considered would have
disentitled the Plaintiff to a discretionary relief of temporary
injunction, such an order, can be interfered with in an Appeal
under Order 43, as it suffers from the perversity of “non
consideration”.

11. I would therefore examine the conduct of the Plaintiff, prior
to approaching the Court with its suit, which is based upon a plea
that he has a seller’s lien over the suit property. The Deed of Sale
was executed on 11.05.2007. The suit was filed on 22.02.2015.
According to Clause 9 of the Deed of Sale, if the Plaintiff
obtained renewal of the construction license, which was to expire
on 13.09.2007, before that date, it could receive an additional
amount of Rs. 6,00,000,00/-. According to the pleadings in

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paragraph Nos. 8 and 9, the Plaintiff complied with this Clause
by obtaining renewal of the license on 17.07.2007, which made
it entitled to receive the additional amount. According to the
Plaintiff, it is Clause 9 that operates as the seller’s lien over the
suit property, based on which the Trial Court was asked to grant
a temporary injunction. It was therefore incumbent upon the
Plaintiff to plead and produce material before the Trial Court to
demonstrate its conduct between 07.07.2007, when the license
was obtained and 22.02.2015 (7 ½ years) in diligently pursuing
its claim for recovery of this amount and in enforcing what it
considered as a seller’s lien over the suit property.

12. Perusal of the plaint reveals that between 17.07.2007 and
03.10.2012 (5 years), there appears to be no correspondence
from the Plaintiff to the Defendant No. 1 seeking enforcement of
its claim. The first piece of correspondence is a Legal Notice
dated 03.10.2012, in which it claims an amount of Rs.
6,00,000,00/- with interest at 18% per annum. Further perusal of
the Legal Notice shows that it is totally devoid of reference to
any earlier correspondence or demand of the Plaintiff on the
Defendant No. 1 to enforce, what it claims was seller’s lien under
Clause 9 of the Deed of Sale. This unjustified period of delay to
enforce its right for five straight years, clearly amounts to laches
which would by itself disentitle the Plaintiff to any equitable
relief of injunction.

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13. The above fact notwithstanding, the Legal Notice dated
03.10.2012 was replied to by the Defendant No. 1 on 20.10.2012,
in which the Defendant denied the Plaintiff’s claim of lien over
the property or that it owed any amounts to the Plaintiff; on the
contrary, the reply specifically records in para 5 thereof that the
Plaintiff has not addressed a single piece of correspondence
making such a demand prior to the such notice. In answer to this
reply, the Plaintiff spent another seven months to send a rejoinder
on 10.05.2013, which is mainly restricted to denials. It took the
Plaintiff almost another two years, until 20.02.2015, to file the
suit, and even then the Plaintiff has not produced any further
communications between itself and the Defendant No.1 during
this period. This conduct further confirms the fact that the
Plaintiff has slept over its rights or its claims for a period of
almost eight years, after it had completed renewal of construction
license on 17.07.2007.

14. There is yet another dimension to these facts that needs to
be considered on the question of delay and laches, disentitling
the Plaintiff to discretionary relief of injunction. After issuing the
Legal    Notice    on   03.10.2012,      and    after   the   Plaintiff
communicated a rejoinder to the Reply of Defendant No.1, on
10.05.2013, the suit property was mortgaged in favour of a
Consortium of lenders comprising Defendant Nos. 2, 3 and 4 on



                             Page 17 of 36
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23.12.2013. There is no dispute on this fact and the Deed of
Mortgaged is part of the record of the Trial Court.

      According to the plaint, in para 29 thereof, it is pleaded that
the Defendant No.1 approached Defendant No. 2 to 4 for availing
of financial help, and the suit property was mortgaged as security
against the finance obtained by the Defendant No. 1, which is in
excess of Rs. 1,00,00,00,000/-. It is also averred that the Plaintiff
has obtained documents of Memorandum of Entry from the
Registrar of Companies which confirmed this fact. Para 30 and
31 reiterated this fact and claim that the Plaintiff under Clause 9
of the Deed of Sale, would have first charge over the suit
property and charge of Defendant Nos. 2 to 4 would be
subsequent thereto. What is surprising is that there is absolutely
no pleading as to the date of knowledge of the Plaintiff of the
execution of the mortgage and when the cause of action arose to
seek relief of declaration in prayer Clause (c) that the charge and
mortgage of the suit property in favour of Defendant No. 4 is
subject to prior charge created in favour of the Plaintiff. It is on
the basis of the final relief sought in prayer Clause (c) that the
order of temporary restrain has been pressed for and granted by
the Trial Court against Defendant No. 1 from handing over
possession of the suit property or from creating further mortgage,
charge or lien; the Trial Court, has on this basis also restrained
Defendant No. 2 from parting with the custody/possession of the

                             Page 18 of 36
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suit property without prior permission of the Court on the basis
of the claim contained in prayer Clause (c) of the suit. The plaint
is devoid of any pleadings and material particulars of when the
Plaintiff   gained      knowledge           from       the     documents   i.e.
Memorandum of Entry obtained from the records of the
Registrar of the Companies, or when and how they became aware
of the execution of the Mortgage Deed. None of these crucial
facts been examined by the Trial Court or taken note of, whilst
examining the question of prima facie case and conduct of the
Plaintiff, prior to filing of the suit.

15. On perusal of the impugned order, the reasoning on the
question of prima facie case starts at para 23 and culminates at
para 29. In none of these paragraphs has the Trial Court
considered the question of delay, laches and conduct of the
Plaintiff prior to the filing of the suit, i.e. from the year 2007,
when the Deed of Sale was executed till 2015, when the suit was
filed.

16. In Bloomberg (supra), the Supreme Court has considered
the scope of interference in Appeal under Order 43 Rule 1(r)
CPC and has made the following observations:

            “11. Undoubtedly, the grant of an interim
            injunction is an exercise of discretionary power
            and the appellate court (in this case, the High
            Court) will usually not interfere with the grant of
            interim relief. However, in a line of precedent, this
            Court has held that appellate courts must interfere
                                  Page 19 of 36
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           with the grant of interim relief if the discretion has
           been exercised "arbitrarily, capriciously.
           perversely, or where the court has ignored settled
           principles of law regulating the grant or refusal of
           interlocutory injunctions". The grant of an ex
           parte interim injunction by way of an unreasoned
           order, definitely falls within the above formulation,
           necessitating interference by the High Court. This
           being a case of an injunction granted in
           defamation proceedings against a media platform,
           the impact of the injunction on the constitutionally
           protected right of free speech further warranted
           intervention.
           12. In view of the above, the High Court ought to
           have, in our view, also at least prima facie
           assessed whether the test for the grant of an
           injunction was duly established after an evaluation
           of facts. The same error which has been committed
           by the trial Judge has been perpetuated by the
           Single Judge of the High Court. Merely recording
           that a prima facie case exists, that the balance of
           convenience is in favour of the grant of injunction
           and that an irreparable injury would be caused,
           would not amount to an application of mind to the
           facts of the case. The threefold test cannot merely
           be recorded as a mantra without looking into the
           facts on the basis of which an injunction has been
           sought. In the absence of such a consideration
           either by the trial Judge or by the High Court, we
           have no option but to set aside both the orders of
           the trial Judge dated 1-3-2024 and of the Single
           Judge of the High Court dated 14-3-20244. We do
           so accordingly.”

17. Applying what is held in Bloomberg (supra), it would be
the duty of the Appellate Court to examine whether the Trial
Court has exercised its discretion whilst granting an injunction
by following settled principles of law regulating grant or refusal
of interlocutory injunctions and whether it has applied these
principles in its final conclusions on whether a prima facie case
exists. In fact, this Judgment records that the three-fold test must
be demonstrated from the Judgment and in the absence of such
                                 Page 20 of 36
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considerations by the Trial Court, interference in Appellate
jurisdiction would be justified.

18. Applying what is held by the Supreme Court in Mandali
(supra) and M. Gurudas v/s Rasaranjan and others10, had the
Trial Court considered that there was no justification offered by
the Plaintiff for the delay of almost eight years before the suit
was filed, it would have dismissed the application for temporary
injunction. To this extent, and in the light of there being
absolutely no finding given on the absence of facts pleaded in the
plaint for the delay, the considerations of the Trial Court on the
question of whether a prima facie case was made out by the
Plaintiff are rendered perverse and must be set aside. I hold, that
the conduct of the Plaintiff referred above does not entitle the
Plaintiff to a discretionary relief or a temporary injunction and
on this count alone the impugned order must be set aside in
exercise of appellate jurisdiction under Order 43 CPC of this
Court.

19. The Trial Court appears to have based its entire Judgment
on the question of prima facie case having being made out by the
Plaintiff, on the Judgment dated 02.06.2020, passed by this Court
in Civil Revision Application bearing No. 39 of 2015 which was
filed by Defendant No. 1 on the Trial Court having rejected an


10
         SCC
                            Page 21 of 36
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                            AO 31 of 2024


application under Order 7 Rule 11(a) (d) CPC. The application
for rejection of plaint came to be dismissed on two grounds
pressed therein, one being that there was no cause of action
disclosed and the second that the suit was filed beyond
limitation. In deciding the Revision Application, which was
restricted to examining the plaint and the Deed of Sale for the
sole purpose of deciding whether the plaint should be rejected,
this Court, in its Judgment, formulated two questions which are
recorded in para 19 of the Judgment; the first was whether the
amount of Rs. 6,00,00,000/- referred to in Clause 9 of the
Agreement forms part of the consideration, so that it represents
unpaid purchase price, giving the Plaintiff a cause of action to
file a suit; the second question was whether the cause of action
for filing the suit arose in the year 2007, when the renewal of
license was obtained or latest by 2011, as claimed by the
Plaintiff, bringing the suit within Article 18 of the Limitation Act,
and therefore it was not barred by limitation.

20. In answering these two questions, this Court examined the
Clauses of the Agreement and came to a prima facie conclusion
that the amount of Rs. 6,00,00,000/- was towards additional
consideration agreed by the parties and not towards services
rendered for obtaining renewal of license. It also concluded on
the second point that from the averments in the plaint, prima
facie the suit was within limitation and these questions would

                             Page 22 of 36
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require to be decided by trial. The Judgment also specifically
records at para 30 that the observations made in the Judgment are
for the limited purpose for examining the issue of rejection of
plaint, and further recorded that the Trial Court shall not be
influenced by the same at the trial. Considering this last
observation therefore, the Trial Court ought to have been rather
careful in bodily lifting the observations of this Court on Clauses
8 and 9 of the Sale Deed, which it did in para Nos. 26 and 27 of
the impugned order; the Trial Court ought to have been mindful
of the legal difference in the requirements for rejecting a plaint
under Order 7 Rule 11 and the legal requirements and
considerations for grant of a temporary injunction, which is an
equitable and discretionary relief under Order 39 CPC.

21. A reading of the impugned order would show that the Trial
Court has been totally oblivious to the difference in the two
jurisdiction, the first under Oder 7 Rule 11 and second under
Order 39, where the first one requires consideration of only the
plaint and documents referred to or relief upon therein, whilst the
second, requires a full consideration of pleadings in the plaint,
written statement, affidavits and all other materials, which had to
be considered before granting a discretionary relief. This was
even more so in the light of the specific observations of this
Court in para Nos. 19 and 30 where this Court was cautious to



                            Page 23 of 36
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record that its observations were only prima facie and for the
purpose of examining whether the plaint required to be rejected.

22. In M. Gurudas (Supra), Supreme Court was considering
the difference between considerations by Court for deciding an
application under Order 7 Rule 11 CPC and those for deciding
an application under Order 39 CPC for a grant or refusal of a
temporary injunction. The difference in the approach of a Court
to decide the prima facie case for the aforementioned two
situations has been discussed in the following paragraphs:

           “18. While considering an application for
           injunction, it is well settled, the courts would pass
           an order thereupon having regard to:
           (i) Prima facie case
           (ii) Balance of convenience
           (iii) Irreparable injury.
           19. A finding on "prima facie case" would be a
           finding of fact. However, while arriving at such a
           finding of fact, the court not only must arrive at a
           conclusion that a case for trial has been made out
           but also other factors requisite for grant of
           injunction exist. There may be a debate as has been
           sought to be raised by Dr. Rajeev Dhavan that the
           decision of the House of Lords in American
           Cyanamid Co. v. Ethicon Ltd (1975) 1 All ER 504.
           would have no application in a case of this nature
           as was opined by this Court in Colgate Palmolive
           (India) Ltd. v. Hindustan Lever Ltd. (1999) 7 SCC
           1 and S.M. Dyechem Ltd. v. Cadbury (India) Ltd.
           (2000) 5 SCC 573 but we are not persuaded to
           delve thereinto.
           21. While considering the question of granting an
           order of injunction one way or the other, evidently,
           the court, apart from finding out a prima facie
           case, would consider the question in regard to the
           balance of convenience of the parties as also

                                 Page 24 of 36
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           irreparable injury which might be suffered by the
           plaintiffs if the prayer for injunction is to be
           refused. The contention of the plaintiffs must be
           bona fide. The question sought to be tried must be
           a serious question and not only a mere triable
           issue. (See Dorab Cawasji Warden v. Coomi Sorab
           Warden (1990) 2 SCC 117, Dalpat Kumar v.
           Prahlad Singh(1992) 1 SCC 719, United
           Commercial Bank v. Bank of India(1981) 2 SCC
           766, Gujarat Bottling Co. Ltd. v. Coca Cola
           Co(1995) 5 SCC 545, Bina Murlidhar Hemdev v.
           Kanhaiyalal Lokram Hemdev(1999) 5 SCC 222
           and Transmission Corpn. of A.P. Ltd. (2006) 1
           SCC 540.”
           30. At the stage of grant of injunction, however, the
           effect of dismissal of an application under Order 7
           Rule 11 of the Code of Civil Procedure would not
           be of much significance. The plaint in question
           could not have been rejected under Order 7 Rule
           11 of the Code of Civil Procedure. The court at that
           stage could not have gone into any disputed
           question of fact but while passing an order on
           grant of injunction indisputably it can. In other
           words, while making endeavours to find out a
           prima facie case, the court could take into
           consideration the extent of plaintiffs' shares in the
           property, if any.”


23. The Madhya Pradesh High Court, referring to M. Gurudas
(supra), whilst deciding an Appeal against an order of Temporary
injunction, where observations in a previous order rejecting an
application under Order 7 Rule 11 was dismissed has observed
thus:
           “23. There is vast difference of considerations
           while adjudicating the applications filed under
           Order 7 Rule 11 of CPC and application under
           Order 39 Rule 1 & 2 of CPC. It is well settled by
           catena of judgments of the Apex Court that while
           considering application under Order 7 Rule 11
           CPC only plaint allegations and documents filed
           therewith are to be looked into. Neither any

                                 Page 25 of 36
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                      AO 31 of 2024


pleading in written statement nor any other
document which is not related to W.S. can be
looked into while adjudicating application filed
under Order 7 Rule 11 CPC. Recently, this view
has been reiterated by the Apex Court in case of
Mukund Bhawan Trust & Ors. Vs. Shrimant
Chhatrapati Udayan Raje Pratapsinh Maharaj
Bhonsle & Anr, (2024) 15 SCC 675. Relevant
para-13 runs as under:-
"13. As settled in law, when an application to
reject the plaint is filed, the averments in the plaint
and the documents annexed therewith alone are
germane. The averments in the application can be
taken into account only to consider whether the
case falls within any of the sub-rules of Order. VII
Rule 11 by considering the averments in the plaint.
The Court cannot look into the written statement
or the documents filed by the defendants. The Civil
Courts including this Court cannot go into the
rival contentions at That stage.”
Hon'ble the Apex Court in para-30 case of M.
Gurudas & Ors. Vs. Rasaranjan & Ors. (2006) 8
SCC 367 has taken cognizance of difference of
considerations while adjudicating application
under Order 7 Rule 11 of CPC and application for
grant of injunction. Relevant paragraph 30 is
aptly reproduced as under:-
"30. At the stage of grant of injunction, however,
the effect of dismissal of an application under
Order 7 Rule 11 of the Code of Civil Procedure
would not be of much significance. The plaint in
question could not have been rejected under Order
7 Rule 11 of the Code of Civil Procedure. The court
at that stage could not have gone into any disputed
question of fact but while passing an order on
grant of injunction indisputably it can. In other
words, while making endeavours to find out a
prima facie case, the court could take into
consideration the extent of plaintiffs' share in the
property, if any."
25 In the light of aforesaid view of the Apex Court,
contentions raised on behalf of plaintiff by learned
Sr. Counsel Shri Chhabra cannot be accepted. All
legal and factual arguments are permissible while
arguing these Miscellaneous Appeals and order
dated 06/04/2023 in Civil Revision No. 391/2021
(Shrimant Gayatriraje Puar & Ors. Vs. Shrimati
                      Page 26 of 36
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                               AO 31 of 2024


           Shailajaraje Puar & Ors) cannot be considered as
           prohibition to raise points already raised by
           defendants whiłe arguing there application under
           O 7 R 11 CPC.”

24. Applying       the    observations         in   the   aforementioned
Judgments to the facts of the present case, and on examining the
impugned Judgment in relation to the basis on which it records
“prima facie case” having being made out by the Plaintiff, I note
the following; the entire basis of the Trial Court’s conclusion of
prima facie case are founded upon the observations of this Court
in its Judgment dated 02.06.2020 in Civil Revision Application
No. 39 of 2015 and the Trial Court has not considered prima facie
case on examination of the pleadings in the plaint and the written
statement or the documents annexed therein. Instead of
examining first, whether the Plaintiff’s conduct justify the grant
of the injunction and applying the principles underlined grant of
equitable temporary relief i.e. the triple test, the Trial Court has
entirely based its conclusion of prima facie case and the findings
rendered by this Court in its Judgment dated 02.06.2020 which
records “prima facie case” only for the purpose of Order 7 Rule
11 CPC. To that extent, the Trial Court has completely ignored
the principles embodied in the triple test whilst granting the
impugned order and therefore the same must be quashed and set
aside.

25. Further, the mere fact that this Court in its Judgement dated
02.06.2020, on examination of the Clauses of the Agreement for
                               Page 27 of 36
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                                 AO 31 of 2024


the purpose of deciding whether the plaint was to be rejected,
concluded “prima facie”, for that purpose, the Clauses 8 and 9
operated as entitling the Plaintiff to additional consideration, this
finding would not preclude the Trial Court from examining all
Clauses in the Deed of Sale to conclude whether a prima facie
case of entitlement under Section 55 of the Transfer of Property
Act of creation of the seller’s lien had been made out.

26. Section 55 of the Transfer of Property Act reads as under:

           “55. Rights and liabilities of buyer and seller.—
           In the absence of a contract to the contrary, the
           buyer and the seller of immoveable property
           respectively are subject to the liabilities, and have
           the rights, mentioned in the rules next following,
           or such of them as are applicable to the property
           sold:
            (1) The seller is bound—
           (a) to disclose to the buyer any material defect in
           the property 3 [or in the seller’s title thereto] of
           which the seller is, and the buyer is not, aware, and
           which the buyer could not with ordinary care
           discover;
           (b) to produce to the buyer on his request for
           examination all documents of title relating to the
           property which are in the seller's possession or
           power;
           (c) to answer to the best of his information all
           relevant questions put to him by the buyer in
           respect to the property or the title thereto;
           (d) on payment or tender of the amount due in
           respect of the price, to execute a proper
           conveyance of the property when the buyer tenders
           it to him for execution at a proper time and place;
            (e) between the date of the contract of sale and the
           delivery of the property, to take as much care of the
           property and all documents of title relating thereto

                                 Page 28 of 36
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                      AO 31 of 2024


which are in his possession as an owner of
ordinary prudence would take of such property
and documents;
(f) to give, on being so required, the buyer, or such
person as he directs, such possession of the
property as its nature admits;
 (g) to pay all public charges and rent accrued due
in respect of the property up to the date of the sale,
the interest on all incumbrances on such property
due on such date, and, except where the property
is sold subject to incumbrances, to discharge all
incumbrances on the property then existing.
(2) The seller shall be deemed to contract with the
buyer that the interest which the seller professes to
transfer to the buyer subsists and that he has
power to transfer the same:
Provided that, where the sale is made by a person
in a fiduciary character, he shall be deemed to
contract with the buyer that the seller has done no
act whereby the property is incumbered or
whereby he is hindered from transferring it.
The benefit of the contract mentioned in this rule
shall be annexed to, and shall go with, the interest
of the transferee as such, and may be enforced by
every person in whom that interest is for the whole
or any part thereof from time to time vested.
 (3) Where the whole of the purchase-money has
been paid to the seller, he is also bound to deliver
to the buyer all documents of title relating to the
property which are in the seller’s possession or
power:
Provided that, (a) where the seller retains any part
of the property comprised in such documents, he is
entitled to retain them all, and, (b) where the whole
of such property is sold to different buyers the
buyers, of the lot of greatest value is entitled to
such documents. But in case (a) the seller, and in
case (b) the buyer, of the lot of greatest value, is
bound, upon every reasonable request by the
buyer, or by any of the other buyers, as the case
may be, and at the cost of the person making the
request, to produce the said documents and furnish
such true copies thereof or extracts therefrom as
he may require; and in the meantime, the seller, or
the buyer of the lot of greatest value, as the case
                        Page 29 of 36
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                       AO 31 of 2024


may be, shall keep the said documents safe,
uncancelled and undefaced, unless prevented from
so doing by fire or other inevitable accident.
(4) The seller is entitled—
 (a) to the rents and profits of the property till the
ownership thereof passes to the buyer;
(b) where the ownership of the property has passed
to the buyer before payment of the whole of the
purchase-money, to a charge upon the property in
the hands of the buyer, [any transferee without
consideration or any transferee with notice of the
non-payment,] for the amount of the purchase-
money, or any part thereof remaining unpaid, and
for interest on such amount or part [from the date
on which possession has been delivered].
(5) The buyer is bound—
(a) to disclose to the seller any fact as to the nature
or extent of the seller’s interest in the property of
which the buyer is aware, but of which he has
reason to believe that the seller is not aware, and
which materially increases the value of such
interest;
(b) to pay or tender, at the time and place of
completing the sale, the purchase-money to the
seller or such person, as he directs: provided that,
where the property is sold free from incumbrances,
the buyer may retain out of the purchase-money
the amount of any incumbrances on the property
existing at the date of the sale, and shall pay the
amount so retained to the persons entitled thereto;
(c) where the ownership of the property has passed
to the buyer, to bear any loss arising from the
destruction, injury or decrease in value of the
property not caused by the seller;
(d) where the ownership of the property has passed
to the buyer, as between himself and the seller, to
pay all public charges and rent which may become
payable in respect of the property, the principal
moneys due on any incumbrances subject to which
the property is sold, and the interest thereon
afterwards accruing due.
(6) The buyer is entitled—


                      Page 30 of 36
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                                 AO 31 of 2024


           (a) where the ownership of the property has passed
           to him, to the benefit of any improvement in, or
           increase in value of, the property, and to the rents
           and profits thereof;
            (b) unless he has improperly declined to accept
           delivery of the property, to a charge on the
           property, as against the seller and all persons
           claiming under him to the extent of the seller's
           interest in the property, for the amount of any
           purchase-money properly paid by the buyer in
           anticipation of the delivery and for interest on such
           amount; and, when he properly declines to accept
           the delivery, also for the earnest (if any) and for
           the costs (if any) awarded to him of a suit to compel
           specific performance of the contract or to obtain a
           decree for its rescission.
           An omission to make such disclosures as are
           mentioned in this section, paragraph (1), clause
           (a), and paragraph (5), clause (a), is fraudulent.”

     This provision essentially sets out the rights and liabilities
of a buyer and seller and the entitlement of the seller to unpaid
moneys.

27. In contrast Section 100 of the Transfer of Property Act
provides for the manner in which a charge is created over an
immovable property, by the Act of parties or by operation of law,
to secure payment of money. The provision reads as under:

           “100. Charges.—Where immoveable property of
           one person is by act of parties or operation of law
           made security for the payment of money to another,
           and the transaction does not amount to a
           mortgage, the latter person is said to have a
           charge on the property; and all the provisions
           hereinbefore contained [which apply to a simple
           mortgage shall, so far as may be, apply to such
           charge].



                                 Page 31 of 36
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             Nothing in this section applies to the charge of a
             trustee on the trust property for expenses properly
             incurred in the execution of his trust, [and, save as
             otherwise expressly provided by any law for the
             time being in force, no charge shall be enforced
             against any property in the hands of a person to
             whom such property has been transferred for
             consideration and without notice of the charge]”

28. In the present case, it is not in doubt that the mortgage
created over the suit property by Defendant No. 1 in favour of
Defendant Nos. 2 to 4 is in terms of Section 100 and Defendant.
Nos. 2 to 4 would have a charge of the suit property. As opposed
to this, the Plaintiff have set out a case that Clauses 8 and 9 of
the Deed of Sale operates, both as a charge over the property
under Section 100 and as a seller’s lien under Clause (b) of Sub
Section 4 of Section 55 of the Transfer of Property Act. The
provisions of Section 55 are clear, in that, unless a specific
contract creating a vendor’s lien towards unpaid consideration in
a Deed of Sale is recorded in the Deed, and such right is
specifically reserved, the vendor would not be entitled to claim a
seller’s lien. In this context, it would be worthwhile reproducing
an observation of the Privy Council in Webb V/s Macpherson11:
             “With reference to the conveyance a number of
             English cases were cited. No doubt English cases
             might be useful for the purpose of illustration, but
             it must be pointed out that the charge which the
             vendor obtains under the Transfer of Property Act
             is different in its origin and nature from the
             vendor's lien given by the Courts of Equity to an
             unpaid vendor. That lien was a creation of the
             Court of Equity, and could be modified to the
             circumstances of the case by the Court of Equity.
             But in the present case there is a statutory charge.
11
     SCC OnLine PC
                                   Page 32 of 36
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             The law of India, speaking broadly, knows nothing
             of the distinction between legal and equitable
             property in the sense in which that was understood
             when equity was administered by the Court of
             Chancery in England, and the Transfer of Property
             Act gives a statutory charge upon the estate to an
             unpaid vendor unless it be excluded by contract.
             Such a charge, therefore, stands in quite a different
             position from a vendor's lien. You have to find
             something, either express contract, or at least
             something from which it is a necessary implication
             that such a contract exists, in order to exclude the
             charge given by the Statute. In their Lordships'
             opinion there is no ground whatever for saying
             that charge is excluded by a mere personal
             contract to defer payment of a portion of the
             purchase-money, or to take the purchase-money by
             instalments, nor is it, in their Lordships' opinion,
             excluded by any contract, covenant, or agreement
             with respect to the purchase-money which is not
             inconsistent with the continuance of the charge. It
             is quite clear that the agreement by Mr. Tucker, the
             purchaser, to pay the balance of the purchase-
             money (Rs. 51,210) in three annual instalments
             with interest was in no way inconsistent with the
             existence of a Charge to the vendor for the amount
             of the instalments with interest to become due from
             time to time.”

29. Examination of the Deed of Sale would reveal the
following:

     The schedule of the Deed specifies different parcels of
land, their areas and survey nos., transferred under the Deed; the
covenants contained in Clause 1 specify this. Clause 2 of the
Deed specifies the total consideration for all the properties and
the break-up of consideration for each of the parcels referred to
in the schedule. Neither of these Clauses contained any
reservations of rights unto the seller. Clause 3                     of the Deed
records vacant possession of the suit property being handed over
                                   Page 33 of 36
                                4th September, 2026
                              AO 31 of 2024


to the Defendant No. 1 whilst Clause 4 specifically records that
the seller seizes to have any right, tittle or interest in the suit
property; Clause 5 specifically records the declarations of the
seller that the property is not subject to any previous
encumbrance or subsisting rights; sub Clause (c) of Clause 5
specifically records that the transfer by the seller includes the
assignment of all its rights, title, clear from all mortgages,
encumbrances, liens, charges or claims. Sub Clause (f) (g) and
(h) of Clause 5 record that the seller has received full
consideration of the sale price and that the seller is now left with
no right, title, interest, claim or lien of any nature over the
property and has agreed that the purchaser shall have possession,
enjoyment and the right to sell, gift, mortgage, lease and transfer
the property. Clause (h) thereof records that the rights created in
favour of the purchaser are without impediment to prevent
transfer of the property.

30. Reading these Clauses would clearly establish no contract
to the contrary in terms of Section 55 of the Transfer of Property
Act, creating a seller’s lien or charge over the property has been
agreed by the parties; the property is recorded to be totally clear,
and the purchaser is given a free hand to even mortgage the
property.

     The only question remains then is whether the statement in
Clause 8 where the seller records that the construction license
                               Page 34 of 36
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was valid up to 13.09.2007 and the seller would undertake
obtaining renewal of this license, read with Clause 9 where an
amount of Rs. 6,00,00,000/- would be paid additionally towards
consideration, would operate as a contract to the contrary. The
fact remains that Clause 9 nowhere records that the amount of
Rs. 6,00,00,000/- is paid as part of the sale consideration.

31. In fact, the sale consideration as recorded in Clause 5(f)
read with Clause (1) records payment of full sale consideration;
the stamp duty and registration charge were calculated on the full
consideration and not on an additional amount of Rs.
6,00,00,000/-. The document was registered and transferred for
full consideration of Rs. 49,11,00,000/-. Clauses 8 and 9
therefore cannot be construed to operate as a contract to the
contrary and reservation of a seller’s lien under Section 55,
where all other clauses in the Deed of Sale point to the clear
declaration by the seller that there was no reservation of any right
to the seller.

      In my opinion, therefore, prima facie, the seller, i.e. the
Plaintiff, would have no case, at the stage of temporary
injunction, to enforce a lien claimed over the suit property. This
is more so in the light of the fact that an equitable mortgage has
been created over the suit property as far back as the year 2013,
with no explanation as to why the Plaintiff has approached the
Court, on these facts only in the year 2015.
                             Page 35 of 36
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32. In conclusion therefore, and in the light of all the
observations made above, the Appellant/Defendant No. 1 has
made out a clear case for interference with the impugned order
under Order 43 Rule 1(r) CPC in Appellate jurisdiction of this
Court. For all the reasons stated above, the impugned order dated
09.08.2024 passed on Exhibit 5 by the Civil Judge Senior
Division at Mapusa in Special Civil Suit No. 11/2015/A is
quashed and set aside and the application stands dismissed. In
the circumstances, there shall be no order as to costs. In view of
the above, Miscellaneous Civil Application No. 92/2025,
Miscellaneous Civil Application No. 457/2024 and Civil
Application No. 96/2024 stand disposed of.




                                         VALMIKI MENEZES, J.

                  JUDGMENT CONTINUED

33. At this stage, the learned Advocate for the Respondent No.
1 seeks a stay of the impugned order. For the reasons stated in
the impugned order, stay of this order cannot be granted; the
request is therefore rejected.




                                         VALMIKI MENEZES, J.

                             Page 36 of 36
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