Annruddhavir Singh v. Singh Estate Pvt. Ltd. — 1992 DIGILAW 1375 (ALL)

JUDGMENT G. S. N. Tripathi, J. 1. This is an appeal arising out of judgment and order dated 17-8-92 passed by Civil Judge, Agra in OS. No. 578 of 92 of that court, whereby he has rejected the application of the plaintiff-appellant to grant interim injunction in his favour. 2. The plaintiff filed O.S. No. 578 of 92 in the court of the learned Civil Judge wherein he prayed the following reliefs J- (A) The defendants no. 1, 2 and 5 may be ordered to leave the property in suit and not to transfer by way of sale or otherwise the property in suit or any part thereof to any person and not to carry out further constructions on the land in suit and not to damage or destroy the boundary wall, room, temple and well in suit. (B) The defendant no. 1 may be ordered to remove the constructions raised on the property in suit within the time fixed by the court and in default, they may be ordered to be demolished in court. (C) Cost of the suit may be awarded to the plaintiff against the defendants. (D) Any other relief as the court may deem just and proper, may also be granted to the plaintiff against the defendants. Admittedly the plaintiff is the owner of the disputed property. The defendant no. 1 carries on housing colonizing business in the name of the defendant no. 1 i.e. 'Singh Estate Pvt. Ltd.' The defendant no. 1 through its Managing Director Dr. Satya Pal Singh entered into an oral agreement with the plaintiff in respect of the disputed property in October 1990. The following terms were settled :- (i) The defendant no. 1 would get prepared a sub-Division Plan and would get the same sanctioned and would bear all the expenses necessary therefor. (ii) The defendant no. 1 would, at its own cost raise on the said land dwelling units within two years by taking advance from the intending purchasers or otherwise after getting building plan sanctioned. Expenses of sanction would also be borne by the defendant no 1. (iii) The plaintiff would be paid price of the land at the rate of Rs. 800/- per sq yard. Expenses of sanction would also be borne by the defendant no 1. (iii) The plaintiff would be paid price of the land at the rate of Rs. 800/- per sq yard. (iv) The intending purchaser or any person would not be inducted into possession of the land or building unless and until the price of that part of land as aforesaid, was paid to the plaintiff. (v) On payment of the price aforesaid the plaintiff was to execute a sale deed of that part in favour of the person nominated by the defendant no. 1. (vi) That if the defendant would commit breach of the agreement aforesaid, the plaintiff will have a right to restrain the defendant no. 1 from entering upon the land, carrying out and permitting to be carried out any construction and development work on the land and also to get the constructions demolished." The plan was prepared by the defendant no 1 and the plaintiff submitted the same in the Nagar Mabapalika, Agra for approval. Plotting was accordingly done and submitted to Agra Development Authority for necessary sanction. The defendant no. 1 started raising constructions and buildings were completed on plot nos. 5, 6, 7, 8, 9, 10 and 11. Out of them possession has already been delivered by the defendant no. 1 to the defendants 2 and 5 over plot nos. 5 and 8 without getting the sale deed executed from the plaintiff The plaintiff has also learnt that plot nos. 6. 7, 9 and 11 have been allotted to defendant nos. 3, 4, 6, and 7 respectively. But possession has not been delivered to them although the same may be delivered at any time. Surreptitiously by the defendant no. 1 to these allottees. The defendant no. 1 has no right to induct any person on the said plots and buildings without the concurrence of the plaintiff. Construction over plot nos. 1, 2 and 3 have not been completed. The defendant no 1 has no right to continue these constructions unless upto-date accounts are cleared by it and money paid to the plaintiff as per the agreement supra. 3. In these circumstances the plaintiff filed the suit for the reliefs aforesaid, on 23-7-92. 4. Along with the suit an application for the interim injunction was also moved by the plaintiff in which it was prayed as follows :- (a) that the defendant no. 3. In these circumstances the plaintiff filed the suit for the reliefs aforesaid, on 23-7-92. 4. Along with the suit an application for the interim injunction was also moved by the plaintiff in which it was prayed as follows :- (a) that the defendant no. 1, 2 and 5 be ordered not to transfer by way of sale or otherwise the property in suit or any part thereof to any person. (b) Defendant bo. I be ordered not to carry out further constructions on the land in suit and (c) Not to damage or destory the boundary wall, room, temple and well in suit till the disposal of the case finally, In his counter affidavit. Sri Satya Pal Singh on behalf of defendant no 1 has admitted that he is the Managing Director of the defendant no. 1. The plaintiff delivered possession on 2118.67 sq. yards of land over which plotting has been done by the defendant; In fact, the plaintiff wanted to sell the land to the defendant for constructing small dwelling houses with the moneys to be spent by the defendant do. 1. The following terms were orally settled :- (1) The defendant no, 1 will construct one house for the plaintiff who will execute the sale deed after possession is delivered to him. (2) The price of the land settled between the parties was at the rate of Rs 200/- per sq. yards. (3) One dwelling house out of the same was to be constructed for the plaintiff the price of which will be adjusted out of the price of the land. (4) Possession shall be delivered to the intending purchasers by the defendant no. 1 of the building and the land under neath and the plaintiff will execute sals deeds in favour of the intending purchasers on the request of the defendant no. 1. (5) Price was to be paid to the plaintiff after the delivery of possession to all the purchasers and the sale deeds shall be executed by the plaintiff thereafter. The entire project was to be completed by October, 1992. 5. 1. (5) Price was to be paid to the plaintiff after the delivery of possession to all the purchasers and the sale deeds shall be executed by the plaintiff thereafter. The entire project was to be completed by October, 1992. 5. The defendant no 1 in execution of the agreement aforesaid has done plotting over the land in dispose and has started constructions and development work as the possession has already been delivered to defendant no 1 in part performance of the agreement supra The plaintiff has not raised any objection so far and the defendant no. 1 has invested huge amounts for raising constructions. The plan duly signed by the plaintiff has been submitted to the authorities. Constructions over plot nos. 5 to 11 has been completed and possession has been delivered to the purchasers Construction over plot no. 6 has been completed and ii has been allotted to Sri S. S. Chauhaa and construction over plot no. 7 has been completed and it has been allotted to Smt Urmila Singh. Possession has also been delivered to other intending purchasers by the defendant no 1 as of right. Construction over plot no 4 has reached plinth level. 6. Now the plaintiff wants to extract inflated price for the land and that is why the present suit has been filed after defendant no. 1 dumped lacs of rupees and bad delivered possession to the purchasers and agreed to deliver possession to others after taking valuable consideration from them in part. Once possession was delivered by the plaintiff, no right to take back possesion was left with him. His rights were confined to get a dwelling unit plus the price of the land at the rate of Rs. 200/- per sq. yard. Thus the plaintiff has no prima facie case. The plaintiff is not likely to suffer any irreparable damage because even if the suit of the plaintiff is decreed, he will get price of the land at the rate of Rs. 800/- per sq. yard as claimed by him and nothing more. The balance of convenience is also in favour of the defendant. After hearing the parties' learned counsel, the learned Civil Judge came to the conclusion that the plaintiff had no prima facie case in his favour. On the points of irreparable injury and balance of convenience also, he recorded findings against the plaintiff. The balance of convenience is also in favour of the defendant. After hearing the parties' learned counsel, the learned Civil Judge came to the conclusion that the plaintiff had no prima facie case in his favour. On the points of irreparable injury and balance of convenience also, he recorded findings against the plaintiff. Consequently the application for interim injunction was dismissed. Feeling aggrieved, the plaintiff has preferred this appeal. With the consent of the parties, we have heard them at considerable stretch and are going to dispose of this appeal finally at the stage of admission Itself. 7. Learned counsel for the plaintiff-appellant has urged that in case the defendant no. 1 is allowed to proceed with the constructions and charge money from the Intending purchasers and delivers possession to them, the plaintiff will suffer irreparable injury. He has already been deprived of a valuable property rights over the land in dispute Mr. Murli Dhar, learned counsel for the appellant has fairly conceded that the plaintiff is not interested in getting the dwelling unit as alleged to be transferred to him by the defendant. The plaintiff is interested in charging the amount as agreed price of the land. So the defendant should not be allowed to proceed with the constructions. Further, Sri Murli Dhar has conceded that he does not press has claim with regard to the dwelling units which are complete and possession over which has been transferred to the intending purchasers. At present, his case is confined to the units which are yet not complete and possession has not been delivered to the intending purchasers. 8. As against it, Sri S. P. Gupta, learned counsel for the respondent has urged that even the incomplete constructions are going to be completed by the end of October, 1992 and possession over the same will be delivered to the intending purchasers who have parted with part of consideration as agreed between them and defendant no 1. He has further offered to deposit the price of the land at the rate of Rs. 200/- per sq yard in the court or pay the same to the plaintiff, provided he executes sale deeds in favour of the purchasers to whom possession has either been delivered or agreed to be delivered. After hearing learned counsel for the parties, we find that there is no force in this appeal and it deserves to be dismissed. 200/- per sq yard in the court or pay the same to the plaintiff, provided he executes sale deeds in favour of the purchasers to whom possession has either been delivered or agreed to be delivered. After hearing learned counsel for the parties, we find that there is no force in this appeal and it deserves to be dismissed. 9. The case of the plaintiff is based on the contract. The terms as per the plaintiff mainly were that the defendant no. 1 would go on paying price at the rate of Rs. 800/- per sq. yard as and when he transfers possession to the would be purchasers. Once price is paid, the plaintiff will have no connection with the constructions nor will he press his claim for demolition etc as contained in the plaint. So, according so the plaintiff, as possession over some units has already been transferred and over some it is in the process of being transferred and the defendant no. 1 has not paid a Paisa as yet to the plaintiff, the defendant no 1 is making a breach or is continuing to make a breach of the agreement between the parties. So the case of the plaintiff squarely falls under Order 39, Rule 2 CPC as amended by Uttar Pradesh Legislature. 10. Under Order 39, Rule 2 CPC the court may restrain a defendant from committing breach of contract whether compensation is claimed in the suit or not and a temporary injunction to restrain the defendant from committing breach or injury complained of may be issued by the court provided that no such injunction would be granted where no perpetual injunction could be granted in view of the provisions of sections 38 and 41 of the Specific Relief Act (Act No. 47 of 1963). Therefore, this provision has to be read as being subservient to sections 38 and 41 of the Specific Relief Act. Under section 38 of the Specific Relief Act perpetual injunction can be granted to the plaintiff to prevent the breach of obligation existing in his favour in these circumstances i.e. :- 38 (3) (c) Where the invasion is such that compensation in money would not afford adequate relief. Under section 38 of the Specific Relief Act perpetual injunction can be granted to the plaintiff to prevent the breach of obligation existing in his favour in these circumstances i.e. :- 38 (3) (c) Where the invasion is such that compensation in money would not afford adequate relief. Section 41 (e), (g) and (h) provides as follows :- "(e) to prevent the breach of a contract the performance of which would not be specifically enforced ; (g) to prevent a continuing breach in which the plaintiff has acquiesced; or (h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;" Under section 38 (2) of the Specific Relief Act injunction may be granted to prevent a breach of an obligation existing in favour of the plaintiff when any such obligation arises from the contract, the court shall be guided by the rules and provisions contained in Chapter II of the Act. Under section 14 occurring in Chapter II, there is a mandatory provision that the following contracts cannot be specifically enforced, namely, (a) a contract for the non-performance of which compensation in money is an adequate relief; 11. This way it is abundantly clear that the plaintiff is interested in getting his price at. the rate of Rs. 800/- per sq. yards as he alleges in the plaint. So this is an obligation, the breach of which can be compensated in terms of money. It is a question of fact to be decided by the learned trial court on the basis of evidence as to whether the agreed price was Rs. 200/- per sq yard as alleged by the defendant or Rs. 800/- per sq yard as alleged by the plaintiff. Whatsoever may be the amount or the rate, that will be determined by the learned lower court after full-fledged trial but one thing is abundantly clear that the amount can be easily liquidated and ascertained. If the plaintiff wins, he will be entitled to get this amount from the defendant no. 1 without any difficulty So he can be satisfied by getting the money i.e. the relief, which the plaintiff, seeks can be easily given in terms of money in a very efficacious manner. If the plaintiff wins, he will be entitled to get this amount from the defendant no. 1 without any difficulty So he can be satisfied by getting the money i.e. the relief, which the plaintiff, seeks can be easily given in terms of money in a very efficacious manner. So in such a case the plaintiff is not entitled to get injunction even after full trial of the case what to talk of getting the same at this interim stage. 12. Nay, the plaintiff has allowed constructions to go on for nearly a year. After the agreement, he has not received any price of the land from the defendant. Meanwhile the latter has transferred possession over several dwelling units to the would be purchasers. Admittedly he has received prise also from them. Several other constructions are in the process of completion. The plaintiff never objected to the same. According to the plaintiff, said purchasers have been inducted against the terms of the contract finalished by the parties. According do paragraph 7 of the plaint, possession has been delivered by the defendant no. 1 to the defendants no. 2 and 5 over plot nos. 5 and 8. According to paragraph 8, plot nos. 6, 1, 9, and 11 have been allotted to the defendants 3, 4, and 7, possession over which has yet to be delivered. According to paragraph 9 of the plaint, constructions on plot nos. 1 to 3 have reached up to roof level while trenches are being dug on plot no 4. The suit was filed on or after 23rd July, 92. It means money over several lacs has already been dumped in by the defendant no. 1 over these plots. He must have recovered some money from the would be purchasers. During 8 or 9 months, the plaintiff never objected to these work going on. So this is a case in which the plaintiff can be held guilty and debarred by the principles of promissory estoppel. This conduct of the plaintiff is covered, by section 41 (g) of the Specific Relief Act which provides that an injunction cannot be granted to prevent a continuing breach in which the plaintiff has acquiesced. The plaintiff's request for injunction can be rejected under this provision as well. If the plaintiff really meant business, he should not have worked with earnest zeal. The plaintiff's request for injunction can be rejected under this provision as well. If the plaintiff really meant business, he should not have worked with earnest zeal. He should not have allowed the defendant no 1 to complete these constructions or even to start these constructions without payment of consideration as alleged by him. Even according to the plaintiff, (paragraph 3 (ii) of the plaint) the defendant no. 1 was allowed to raise dwelling units upon the said land within two years by taking advance from the intending purchasers or otherwise after getting building plan sanctioned. So according to an understanding between the parties, the defendant proceeded to raise dwelling units. The plaintiff never objected to it. His objection is only to this extent that before inducting purchasers into possession over the land or building, price of that part of land, as aforesaid, should have been paid to the plaintiff, (paragraph 3 (iv) of the plaint). 13. This way, the defendant his in compliance of the terms of the agreement raised a dwelling unit The breach if any, can be said only on this point that the amount of money has not been paid by the defendant to the plaintiff. Hence this is again a ease where damages will be adequate and efficacious relief to a plaintiff of this nature. 14. Annexure VI to the affidavit filed by the plaintiff is a copy of the Amin's report dated 4-8-92. At page 3, he has reported that the disputed land was about 2,200 sq. yard. Flats nos. 5 to 11 were totally complete on the spot. In flat no. 6, 7, 9, 10 and 11 doors have not been fitted. In flat no 7 ground had not been properly laid. In flat no. 5 Smt. Arunesh Tewari was living and in flat no 8 subhash Saxena was found in possession. Other flats were lying vacant. Flat nos. 1 to 3 were incomplete. Flat nos. 4 and 5 were lying vacant. The Commissioner had visited the spot on 29-7- 92 after institution of the suit on 23-7-92. All these things go to show that before the suit was filed a major portion of the disputed Sand was covered with constructions Again over major number of dwelling units,, possession had been delivered to the purchasers. Thus this is a case in which the plaintiff is guilty of laches. All these things go to show that before the suit was filed a major portion of the disputed Sand was covered with constructions Again over major number of dwelling units,, possession had been delivered to the purchasers. Thus this is a case in which the plaintiff is guilty of laches. He allowed the grass to grow under the feet. He did not disturb the defendant no 1 in proceeding in a manner he chose. Such a plaintiff is not entitled to an interim injunction. 15. Admittedly, the possession of the defendant no. 1 is that of a licensee. According to the plaintiff, it is a case of 'simple licence, whereas, the defendant no. 1 alleges its possession in the nature of a licensee coupled with grant and an agreement to transfer the licensed property. This type of licence is covered by section 60 Easements Act and is by its very nature irrevocable. Acting upon this licence and promise by the plaintiff that the defendant would be allowed to raise constructions, the defendant no. 1 has spent huge money. So prima facie this is a licence coupled with grant as it appears at this stage. Therefore, it cannot be easily revoked; Nay, even the plaintiff does not allege that he has revoked the licence. Therefore, a defendant of this type should not be disturbed from possession and also from proceeding with the constructions as admittedly agreed and authorised. 16. At this stage we are not expressing any opinion as to which party is trying to deviate from the payment of the agreed price or whether the price of the land has increased in between on account of Transport Nagar being established near the disputed land as all these things will be decided after trial. The only thing we want to emphasise at this stage is that from the conduct of the parties and circumstances, as evident on the record, prima facie it appears that the defence version is true. Moreover, the plaintiff does not appear to have a prima facie case at this stage. As regards the point of irreparable loss, we have already found that the plaintiff is not going to suffer any irreparable Joss even according to him as the agreed price was at the late of Rs. 800/- per sq yard. Moreover, the plaintiff does not appear to have a prima facie case at this stage. As regards the point of irreparable loss, we have already found that the plaintiff is not going to suffer any irreparable Joss even according to him as the agreed price was at the late of Rs. 800/- per sq yard. This amount cm to easily ascertained and when the suit is decreed, the amount may be paid to the plaintiff Whereas, the defendant no. i shall suffer irreparable injury in case he is prohibited from proceeding with his constructions of transferring possession over the completed units to the aspiring purchasers. 17. As regards the balance of convenience, we find that it squarely lies in favour of the defendant no. 1. The defendant no. 1 after spending huge amounts has negotiated deals with the would be purchasers He has inducted seme purchasers already over some units. He has further agreed to transfer other completed or semi-completed units to others. Naturally it would have received price, may be partly, from such persons, In case the defendant no. 1 is stopped from proceeding with his business, the court would be indirectly asking him to commit breach of contract entered into by him with his would be purchasers. The court should not do that. 18. The learned lower court has; properly appraised the evidence and circumstances on the record and has given cogent reasons for rejecting the plaintiff's application. There appears no misdirection on the part of the leaned lower court Hence there is no justification to disturb his findings arrived at by it at this stage. The appeal fails and is dismissed with costs. However, defendant no. 1 is directed to. deposit the entire price of the land i.e. 2118.67 sq. yards at the rate of Rs, 200/- per sq. yard, as admitted by it, before he delivers possession from today over any other flat, in the lower court within a period of two months from today. This amount shall remain in deposit for a period of 3 months from today, The plaintiff shall be entitled to withdraw it as and when he executes sale deeds in favour of the nominees of and purchasers from the defendant no. 1 pro rata. This amount shall remain in deposit for a period of 3 months from today, The plaintiff shall be entitled to withdraw it as and when he executes sale deeds in favour of the nominees of and purchasers from the defendant no. 1 pro rata. In case the plaintiff appellant does not withdraw the amount after executing the sale deed, as directed, the learned lower court shall deposit this amount in some Fixed Deposit Scheme in the State Bank of India, so that the amount may earn Interest. It is also made clear that this amount shall remain the property of the defendant no. 1 and hence the interest earned upon it will go in favour of the defendant no. 1. It shall abide the ultimate result of the suit. 19. It is also made clear that any observations made in the body of this judgment will not bind the learned lower court while deciding the case finally on merits.