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2002 DIGILAW 376 (CAL)

Baisakhi Bhattacharjee v. Shayamal Bose

2002-06-13

Dilip Kumar Seth, Joytosh Banerjee

body2002
FACTS: D. K. Seth, J.: This appeal arises out of an order refusing grant of injunction by an Order No.8 dt. 17th January, 1997 passed in Title Suit No. 135 of 1996 by the learned Assistant District Judge, 10th Court, Alipore. 1.2. The facts of the case, briefly put, are that the plaintiff had sought for specific performance of an agreement dated 22nd May, 1995, entered into between the plaintiff and the defendants, for construction of a 3-storeyed building by the plaintiff on a piece of land belonging to the defendants. Pursuant to the said agreement, the plaintiff obtained sanction of the plan from the Calcutta Municipal Corporation on 16th February, 1996. On 18th March, 1996, the plaintiff had applied for registration as Promoter under the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993, which came into force on 8th August, 1995. On 10th April, 1996, the plaintiff undertook to file the registered agreement for grant of registration under section 3 of the said Act. Subsequently, on 2nd May, 1996, the plaintiff sought to withdraw her application for registration. Thereafter, on 9th September, 1996, the plaintiff sought to cancel her letter dated 2nd May, 1996 and revive the application dated 18th March, 1996 for registration as Promoter. The defendants had cancelled the agreement on 14th September, 1996, through a letter addressed by the defendants' lawyer on the allegation that the plaintiff had failed to perform its part of the contract and that they were ready and willing to perform their part. The plaintiff filed a suit being Title Suit No. 136 of 1996 on 3rd December, 1996, before the learned Trial Court, for specific performance of the unregistered agreement and for injunction. On 6th December, 1996, the plaintiff filed an application for temporary injunction restraining the defendants from making any construction. By an order dated 27th January, 1997, after hearing the objection raised by the defendants, the learned Trial Court had rejected the prayer for injunction. It is this order out of which the present appeal arises. Submission on behalf of the appellant: 2. The learned Counsel for the plaintiff/appellant submits that the agreement is a valid agreement between the parties. By an order dated 27th January, 1997, after hearing the objection raised by the defendants, the learned Trial Court had rejected the prayer for injunction. It is this order out of which the present appeal arises. Submission on behalf of the appellant: 2. The learned Counsel for the plaintiff/appellant submits that the agreement is a valid agreement between the parties. He had led us through different clauses of the said agreement and points out that it contains a negative covenant restraining the defendants from terminating and/or cancelling the agreement, apart from covenants permitting the plaintiff to make a construction in terms of the agreements. According to him, the agreement was entered into on a date prior to coming into force of the 1993 Act. However, the learned Counsel, in his usual fairness, did not contend that the 1993 Act has no manner of application in the present case. On the other hand, he points out that prior to entering into the agreement, it was not necessary to get herself registered as a Promoter, since the 1993 Act was then not in force. As soon it become effective, she had applied for registration. According to her, on a misconception created on her enquiry from the department of the authorized officer to the extent that the present case was outside the scope of the 1993 Act, she had purported to withdraw her application for registration. But as soon she realized that the 1993 Act is applicable, she had sought to cancel the letter by which the application for registration was sought to be withdrawn by her and sought to revive her application for registration viz. on 9th September, 1996. The Counsel points out that the purported cancellation of the agreement was attempted to be made by the defendants through their lawyer by a letter dated 14th September 1996. Therefore, at the point of time when the agreement was sought to be cancelled, the application for registration was pending. As such in terms of the covenant contained in the agreement, the agreement could not be cancelled when the plaintiff had already performed her part by obtaining the sanctioned plan and was ready and willing to perform her part of the contract. He points out further that in terms of the agreement, the possession of the land was handed over to the plaintiff for the purpose of construction. He points out further that in terms of the agreement, the possession of the land was handed over to the plaintiff for the purpose of construction. From the said agreement, he points out that the plaintiff was entitled to retain the ground floor and garage and other portions of the building to be constructed, which, according to him, is an agreement for sale in respect of that part of the building in favour of the plaintiff. 2.1. Therefore, such an agreement though not registered, the transfer is effected accompanied by delivery of possession within the scope and ambit of section 53A of the Transfer of Property Act, 1882 (TP Act), preventing the defendants from claiming any title adverse to that of the plaintiff. This, according to him, makes out a prima facie case in favour of the plaintiff, which has since been overlooked by the learned Trial Court while refusing injunction. 2.2. According to him, this amounts to perversity in the judgment. He further contends that this is a case which comes under the purview of section 14 sub-section (3) clause (c) of the Specific Relief Act, 1963 (SR Act) under which a suit for enforcement of the contract for construction of a building or the execution of any other work on the land is capable of being specifically enforced through a suit. He relied on section 42 SR Act. He points out that since the agreement contained a negative covenant along with affirmative covenant, the case falls within the scope and ambit of section 42 of SR Act and section 41 thereof has no manner of application in the present case. 2.3. He further points out that non-registration of the agreement will not stand in the way of making out a prima facie case for the purpose of grant of interim order. He contends further that if a prima facie case has been made out and balance of convenience appears to be in favour of the plaintiff, in that event, the Court has no alternative but to grant injunction, even if it appears that ultimately the plaintiff may be unsuccessful in obtaining the relief in the suit. 2.4. He contends further that if a prima facie case has been made out and balance of convenience appears to be in favour of the plaintiff, in that event, the Court has no alternative but to grant injunction, even if it appears that ultimately the plaintiff may be unsuccessful in obtaining the relief in the suit. 2.4. He has also argued on the question of the implication of SR Act to the extent that it is not mandatory to register the agreement at the time when the application for registration is made, particularly, when he had undertaken to submit the registered agreement. In any event, his contention is that it is question of prima facie case at this stage, which is to be looked into. The merit of the case cannot be looked into from a point of view as to whether the plaintiff would succeed or not. Pointing out from the order appealed against, he contends that the learned Trial Court has misdirected itself by proceeding on a misconceived view that it was not an agreement for sale but an agreement for promotion or construction. It is a question of interpretation of the agreement. Whether it was an agreement for sale or promotion can be decided only after the matter is heard. At the moment an inference has to be drawn for the purpose of finding out a prima facie case. He led us through different covenants and had pointed out that it was virtually an agreement for sale in favour of the plaintiff, as would be apparent from the terms, through not happily worded. If properly constructed, such a covenant can be interpreted to be an agreement for sale and not a development agreement. Therefore, the order appealed against should be set aside and the relief in the form of injunction granted by way of interim order be confirmed. Submission on behalf of the respondents: 3. The learned Counsel for the defendants/respondents, on the other hand, points out that there is nothing to show that the plaintiff is in possession of the property and that the possession of the property was ever delivered to the plaintiff by the defendants. From the materials placed before the learned Trial Court, he points out that the possession was with the defendants. From the materials placed before the learned Trial Court, he points out that the possession was with the defendants. According to him, the very prayer seeking injunction restraining the defendants from making construction, itself pre-supposes that the defendants are in possession. Else the prayer would have been restraining the defendants from interfering and/or disturbing the possession of the plaintiff. He then contends that prima facie on the face of the material, there is nothing to conclude that the plaintiff was in possession. Inasmuch as, the covenant of the agreement made it incumbent on the defendants to demolish the existing building, which they have demolished, and removal of the building materials at their sole responsibilities, with which the plaintiff had nothing to do. 3.1. He points out that the plaintiff has shown her disinterest by withdrawing her application for registration made under section 3 of the 1993 Act, the fact of which was learnt by them from a communication dated 21st August, 1996 made by the authorized officer informing them that the plaintiff had withdrawn herself from the proposed venture for construction. There is nothing to show that the letter dated 9th September, 1996 was ever communicated by the plaintiff to the defendant. According to him, the date of cancellation would be immaterial with the very withdrawal of the registration itself on 2nd May, 1996 can be construed to mean that the plaintiff was not ready and willing to perform her part of the construction, in view of the mandatory provisions contained in the 1993 Act. Inasmuch as the definition of promoter, as defined in section 2 clause (g) of the 1993 Act, includes the plaintiff. Therefore, the provisions of 1993 Act is very much applicable in the present case, though the agreement might have been entered into before the 1993 Act had commenced. The provision of the Act is applicable to all constructions to be made by a promoter. Section 3 requires registration of each promoter under sub-section (1) of the 1993 Act. Accordingly, the plaintiff had applied for registration but withdrawn subsequently and as such he could not be eligible. 3.2. He further points out that under section 14 sub-section (3) clause (c) of SR Act, the plaintiff cannot claim to enforce specific performance of the contract for construction for a building unless the conditions contained in sub clauses (i), (ii) and (iii) are fulfilled. 3.2. He further points out that under section 14 sub-section (3) clause (c) of SR Act, the plaintiff cannot claim to enforce specific performance of the contract for construction for a building unless the conditions contained in sub clauses (i), (ii) and (iii) are fulfilled. According to him, all these three conditions are required to be fulfilled in order to bring the case within the scope of clause (c). He points out that though sub-clause (i) can be said to have satisfied but sub-clauses (ii) and (iii) does not appear to have been satisfied in the present case, since the covenant itself contends that the clause for payment of damages is quantified in terms of money and that the non-performance of the contract can be compensated adequately in monetary terms according to the terms of the covenant provided in the agreement. Therefore, the case does not come under sub-clause (ii) above. He contends that sub-clause (iii) has no manner of application in the present case where the defendants have been in possession of that land as owner thereof and the plaintiff had never been in possession of the land or the building. Inasmuch as, unless the plaintiff is in possession of the land, he cannot carry out the construction. Therefore, the defendants' possession cannot entitle the plaintiff to file a suit for specific performance unless he obtains delivery of possession of the land. 3.3. He further contends that this question is related to an agreement for construction of a building, such agreement is incapable of enforcement when it is, otherwise, hit by the provisions of 1993 Act. Inasmuch as, unless the plaintiff can show that he is eligible to carry out construction, he cannot claim any relief under clause (c) above. He pleads that in respect of part performance or readiness and willingness, the 1993 Act would stand in her way to perform her part of the contract. Thus, according to him, the plaintiff cannot take benefit of section 14 sub-section (3) clause (c). He further contended that this very material goes to show, prima facie, against the case sought to be made out by the plaintiff for an order to enable her to obtain the relief of injunction. 3.4. He then contends that section 53A of TP Act has no manner of application in the present case. He further contended that this very material goes to show, prima facie, against the case sought to be made out by the plaintiff for an order to enable her to obtain the relief of injunction. 3.4. He then contends that section 53A of TP Act has no manner of application in the present case. Inasmuch as, it is not art agreement for transfer but an agreement for development in respect of which section 53A TP Act has no manner of application. That apart, the possession had never been delivered to the plaintiff. So, even if, for argument's sake, it is presumed that the agreement is one for transfer, still then the ingredients of section 53A of TP Act having not been satisfied, the plaintiff cannot seek aid of the said section. On the other hand, he contends that an agreement for sale in terms of section 54 of TP Act does not confer any title to the property agreed to be sold. As such it goes against the prima facie case sought to be made out by the plaintiff on the basis of the agreement. 3.5. According to him the entire relief and the case that is sought to be made out from the pleading, is that the agreement was an agreement for sale. He can succeed if it can be shown prima facie that the agreement was an agreement for sale. He had led us through different clauses of the agreement and pointed out that the agreement is out and out an agreement for development, which is ex facie apparent from the expressions used therein. The interpretation, which is sought to be given by the learned Counsel for the plaintiff/appellant, seems to be wholly misplaced, since even on strenuous interpretation, it is very difficult to interpret the said agreement to be an agreement for sale. Thus, the finding of the learned Judge is well supported by reasons and cannot be said to be perverse. He had also distinguished the decisions cited by the learned Counsel for the plaintiff. Therefore, according to him, the appeal should be dismissed. Reply on behalf of the appellant: 4. Thus, the finding of the learned Judge is well supported by reasons and cannot be said to be perverse. He had also distinguished the decisions cited by the learned Counsel for the plaintiff. Therefore, according to him, the appeal should be dismissed. Reply on behalf of the appellant: 4. The learned Counsel for the plaintiff/appellant, in reply, points out that so long the application for registration is pending, the plaintiff has a prima facie case in her favour on the basis of a development agreement even if it is not interpreted to mean an agreement for sale. Relying on the decision in Punit Beriwala vs. Suua Sanyal, AIR 1998 Calcutta 44, the plaintiff points out that he is entitled to injunction. Having regard to the facts and circumstances of the case, which sufficiently makes out a prima facie case that there was a valid agreement between the parties of which the plaintiff has performed her part and is still ready and willing to perform her part and that the defendants are failing to perform their part. 4.1. Relying on Vijaya Minerals Put. Ltd. vs. Bikash Chandra Deb, AIR 1996 Calcutta 67, he wants to support his contention to the extent that a contract for sale containing negative covenants can be specifically enforced even if the affirmative covenants fail and become incapable of being specifically performed. Inasmuch as, in the present case, there was a negative covenant restraining the defendants from cancelling the agreement. The plaintiff has been able to make out a prima facie case to the extent of existence of negative covenant, which can be specifically enforced. As such the injunction ought to have been granted pending disposal of the suit, in view of the balance of convenience and inconvenience, which is in favour of the plaintiff, to the extent that the damage would not be an adequate compensation. Inasmuch as the plaintiff is to retain a portion of such building, which she intended to retain for her own use and benefit. Points for consideration: 5. We have heard the submission of the Counsel for respective parties at length. Inasmuch as the plaintiff is to retain a portion of such building, which she intended to retain for her own use and benefit. Points for consideration: 5. We have heard the submission of the Counsel for respective parties at length. The principal question that has to be determined in the present case is as to whether the plaintiff has been to make out a prima facie case in her favour and show that the balance of convenience and inconvenience is in her favour and that and she cannot be adequately compensated in terms of money and that the damage is incapable of quantified. Implication of section 53A of TP Act: 6. Let us take up the implication of section 53A of TP Act in order to make out a prima facie case in favour of the plaintiff/appellant. 6.1. In the present case, it has not been shown nor has a finding been recorded by the learned Trial Court that plaintiff is in possession of the property, which is the first ingredient for application of section 53A of TP Act. As rightly pointed out by the learned Counsel for the defendants/respondents, the plaintiff had prayed for an injunction restraining the defendants from making any construction on the land. This itself shows that the defendants were capable of raising construction on the land, which pre-supposes possession of the defendants. Even on the terms contained in the agreement, the defendants were supposed to demolish the building and remove the building materials, which they have done. It also shows that the defendants are in possession of the land, at least prima facie. Therefore, it is difficult on the part of the Court at this stage to come to a prima facie finding on the materials produced that the plaintiff is in possession of the property. 6.2. That apart in order to attract the application of section 53A TP Act, the agreement has to be an agreement for transfer of the land coupled with delivery of possession. The covenant contained in the agreement may be interpreted as was sought to be interpreted by the learned Counsel for the appellant as an agreement for sale, but that would definitely by a strenuous interpretation, as rightly contended by the learned Counsel for the respondents. 6.3. Inasmuch as the covenant, to which our attention was drawn, shows that it is primarily a development agreement. 6.3. Inasmuch as the covenant, to which our attention was drawn, shows that it is primarily a development agreement. At page 97 of the P. B. containing the agreement, the plaintiff has been described as 'developer'. The 2nd paragraph at page 3 of the agreement (page 98 of the P. B.) describes the plaintiff as 'developer'. Whereas the 3rd clause in the same page makes the owner/defendants liable to demolish the building in respect of which the 'developer' has no liability or claim. The next clause provides for compensation @ Rs. 200/- per day after expiry of 6 months from the date of obtaining the sanctioned plan, if vacant possession is not delivered by the defendant to the plaintiff. The 2nd clause at page 4 of the agreement (page 99 of the P. B.) makes it clear that the developer had approached and proposed to the owners for developing the property by raising a 3-storeyed ownership apartment and selling different flats and/or commercial space and/or garage spaces to different builders and to hand over the agreed share to the owners of the said building. At page 8 of the said agreement (page 103 of the P. B.) in Article III clause I again it recites commercial exploration of the said property by developing through construction of a 3-storeyed building for residential ownership flat/commercial space. At page 10 of the said agreement (page 105 of the P. B.) at the last paragraph, Article V clause I again refers to developer and developer's allocation. Similarly, clause II at page 11 of the said agreement (page 106 of the P. B.) entitles the developer to book and/or to take advance or earnest money from intending buyers for sale to any party of her (developer's) choice. Article 7 at page 12 of the agreement (page 107 of the P. B.) again refers to intending purchasers, while Article VIII clause I entitles the developer to be the sole and absolute owner of the developer's share after the owner's share is handed over. At page 17 (page 112 of the P. B.) clause X provides that the developer shall be entitled to receive the developer's allocation without formal deed of transfer. 6.4. All these covenants prima facie go to show that the agreement is predominantly an agreement for development and not agreement for transfer. At page 17 (page 112 of the P. B.) clause X provides that the developer shall be entitled to receive the developer's allocation without formal deed of transfer. 6.4. All these covenants prima facie go to show that the agreement is predominantly an agreement for development and not agreement for transfer. That apart, since the plaintiff had already applied for registration under the 1993 Act, she cannot resile from the same that it was not an agreement for development. If it was an agreement for sale, in that event, it would not have come within the purview of the 1993 Act. As soon as the plaintiff submits to the provision of 1993 Act and applies for permission under section 3 of the 1993 Act, she accepts herself to be a promoter within the meaning of section 2(g) of the 1993 Act. 6.5. As soon it is not an agreement for transfer and is an agreement for development, the case comes out of the scope and ambit of section 53A of TP Act. Therefore, section 53A of TP Act has no manner of application in the present case. Whether the plaintiff has been able to make out a prima facie case: 7. The entire pleadings in the plaint was made on the ground that the agreement was an agreement for sale. But, as was rightly pointed out by the Counsel for the respondents and held by the learned Trial Court, in view of the discussion made above, the agreement, prima facie, cannot be treated to be an agreement for sale. It is contrary to the pleadings, being an agreement, prima facie, for development. Therefore, in this case, the provision of 1993 Act would be material for the purpose of showing a prima facie case in favour of the plaintiff. Until the provisions of 1993 Act are complied with, the plaintiff would not be entitled to undertake the construction in terms of the agreement. Unless it is whom that the plaintiff is entitled to perform her part of the contract, it cannot be said that she has been able to make out a prima facie case in her favour. 7.1. As disclosed from the materials, the plaintiff had applied for registration initially. But, subsequently, on 2nd May, 1996, she had withdrawn herself from the registration. This itself shows that she was not ready to perform her part of the contract. 7.1. As disclosed from the materials, the plaintiff had applied for registration initially. But, subsequently, on 2nd May, 1996, she had withdrawn herself from the registration. This itself shows that she was not ready to perform her part of the contract. However, subsequently on 9th September, 1996, she had sought to revive the application for registration cancelling her withdrawal, which might make out some prima facie case in her favour. But that has to be looked into on the basis of the facts available in the present case provided the plaintiff has been able to make out a case of specific performance, which will be dealt with at a later stage. Whether the plaintiff is a promoter: 8. From the facts, it would appear that the plaintiff was a promoter within the definition of section 2(g) of the 1993 Act. The agreement is for construction of building by the plaintiff on the land belonging to the owner. They are two different persons. As such, the plaintiff is a promoter within the meaning of sub-clause (ii) of clause (g) of section 2. Relying on the expression "to construct a building" defined in clause (j) of section 2, it is contended that the present construction does not come within the same definition. But such a submission appears to be wholly misplaced. Inasmuch as, the expression defined in clause (j) of section 2 "to construct a building" means to construct a new building or reconstruct a building or convert a building or any part of a building not being a flat or block into a flat or block with its grammatical variation. 8.1. In the present case, either it would be a construction of a new building after demolishing the older one. It may also be a reconstruction of a building. Therefore, for any reason whatsoever, the construction work proposed cannot be taken out by the definition defined in clause (j) of section 2 of the 1993 Act with regard to the expression "to construct a building". Negative covenant: When can be enforced: 9. The agreement at page 18 (page 113 of the P. B.) in clause XIII provides negative covenants restraining the owner/defendants from terminating the agreement. Negative covenant: When can be enforced: 9. The agreement at page 18 (page 113 of the P. B.) in clause XIII provides negative covenants restraining the owner/defendants from terminating the agreement. But this is qualified by a condition that so long the developer acts in terms of these presents and her acts and deeds are not pre-judicial and contrary thereto, the owners shall not be entitled to terminate this agreement in any manner and shall not prevent or be a party to any act or deed, which may prevent the developer from constructing the said building or performing this contract. 9.1. From the said clause, it appears that the negative covenant in the agreement was subject to certain conditions. Whether those conditions were fulfilled or not cannot be gone into at this stage. It is a subject-matter of proof by adequate materials, which might come at the time of hearing. But, at the same time, it appears that there were certain situations on which, at least, prima facie, the defendants could say that there was certain breach of contract or the covenant on the part of the plaintiff on the basis of which the agreement could be terminated. The agreement, however, has since been terminated. Thus, it appears that the alleged termination could not be ignored altogether, which is also a fact to be taken into consideration and should be weighed in mind so as to arrive at the consideration as to whether prima facie case, in favour of the plaintiff, could be made out or not. 9.2 Failure to get the registration or withdrawal of registration under the provisions of 1993 Act has to be construed in the light of the conditions under which the negative covenant is qualified. In the present case, it appears that on 2nd May, 1996, the plaintiff had withdrawn her registration. She never informed the fact of withdrawal to the defendants. The Authorised Officer had intimated the defendants that the plaintiff had withdrawn her registration. This very withdrawal, in view of the provision contained in 1993 Act, which governs the situation, as is admitted by the plaintiff in her attempt to revive the application for registration, itself, prima facie, can be construed to be an act prejudicial or contrary to the presents, which eclipsed the negative covenant and might entitle the defendants to resort to the said clause. This also goes against the plaintiff and erodes her attempt to make out a prima facie case on this score. 9.3. An agreement is a contract. Contract is void if it is contrary to law. Therefore, all agreements or contracts are subject to the provisions of law for the time being in force. Admittedly, though the agreement was entered into before the commencement of the 1993 Act, yet the provisions of the said Act are applicable to the agreement. Inasmuch as, as soon the 1993 Act came into force, all contracts by a promoter/developer are to be governed by the provisions of the said Act, except in those cases where the construction has already commenced. Admittedly, in the present case, the construction has not been commenced. Even in those cases where construction has been commenced, the Authorised Officer is empowered to inspect and issue direction, which the developer/promoter is liable to comply with. Non-compliance of such constructions entails certain consequences provided in the Act. We, however, are not concerned with the same, since construction in this case, has not be commenced. The provision of 1993 Act squarely applies to all development and promotion agreements in respect of which construction has not commenced on the date and commencement of the 1993 Act. In such cases, all the provisions contained in 1993 Act become applicable. Inasmuch as, from the date of commencement of the 1993 Act, no construction can be undertaken by a promoter/developer unless such promoter or developer get itself registered under the provisions of the 1993 Act. After such registration before commencement of the work, the promoter/developer has to apply for permission for construction. So long permission for construction is not obtained, the promoter/developer is not eligible/entitle to make the construction or perform its part of such development agreement. Unless the developer gets itself registered, it cannot apply for permission. The registration of the developer is the primary condition that makes developer eligible to apply for permission and then undertake construction. Until registered, a developer cannot apply for permission. Until permission is granted, a developer cannot undertake construction. 9.4. Though the negative covenant contained in this agreement, becomes subject to the provisions of the 1993 Act. In case it can be shown that the developer has not undertaken compliance of the 1993 Act, he would sure be acting contrary to or prejudicial to the terms of the development agreement. Until permission is granted, a developer cannot undertake construction. 9.4. Though the negative covenant contained in this agreement, becomes subject to the provisions of the 1993 Act. In case it can be shown that the developer has not undertaken compliance of the 1993 Act, he would sure be acting contrary to or prejudicial to the terms of the development agreement. 9.5 The decision in Vijaya Minerals Pvt. Ltd. vs. Bikash Chandra Das, AIR 1996 Calcutta 67, does not help the plaintiff to the extent of the provisions of negative covenant, having regard to the facts and circumstances of this case. Inasmuch as, in the present case, the plaintiff can seek performance of contract provided it is shown that she is otherwise eligible to perform her part of the contract. As would be seen in this case even till today under the 1993 Act, she cannot claim to perform her part of the contract in the absence of any registration, as contemplated under section 3(1) read with section 3(3) of the 1993 Act. Section 16(c) SR Act: Readiness & Willingness: Scope and extent: 10. In B. N. Agarwal vs. Kishan Chand, AIR 1990 All. 65 , payment made by the plaintiff in a manner different, than the manner specified in the agreement was held against the plaintiff that he was ready and willing to perform his part of the contract. Readiness and willingness imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so as they depend upon the plaintiffs performance. 'Ready' means a prepared or having all preparations made to do something; 'willingness' means a ready will (Anant Prasad vs. Jagannath Sharan Sahai, 1986 BLJ 164). In other words, the expression implies that he abides by the contract and does not anticipate a breach by the other party (Sundaramayyar vs. Jagadeesan, AIR 1965 Mad. 85 ). The burden of proving readiness and willingness upto the date of trial is upon the plaintiff and is not discharged simply because the defendant has repudiated the contract (Saral Kumar Chatterjee vs. Madhusudan Auddy, AIR 1964 Cal. 556 ). 10.1. 85 ). The burden of proving readiness and willingness upto the date of trial is upon the plaintiff and is not discharged simply because the defendant has repudiated the contract (Saral Kumar Chatterjee vs. Madhusudan Auddy, AIR 1964 Cal. 556 ). 10.1. Readiness and willingness to perform the contract must be readiness and willingness to perform, but not as the plaintiff evinced it, nor in the way the plaintiff evinced it before the suit, nor in the way the plaintiff wanted to fashion it at the trial, but according to the real agreement between the parties, that is to say, according to the true agreement between the parties or what the court finds. If at the trial, it transpires that the real agreement is not what the plaintiff alleges and readiness and willingness, which the plaintiff displayed, related to a different agreement, the plaintiff would be within the mischief of the doctrine. For instance, if there is no agreement regarding warranty of title, insistence on the same indicates lack of readiness and willingness to perform the contract (Mohammad Ziaul Haque vs. Calcutta Vyapar Pratisthan, AIR 1966 Cal. 605 ). 10.2. The terms of contract performable by the plaintiff may be of two kinds: (1) those to be performed before the other side can be called upon to fulfil his promise and (2) others that may have to be subsequently performed. The actual performance of or readiness to perform, the former must be shown and an offer to perform the latter must be made (Ramakrishnayya vs. Sreeramulu, AIR 1939 Mad. 547 ; Simon Jacob Silas vs. Kohlhof, ILR 1954 TC 440). If the plaintiffs' obligations have been disregarded or are incapable of being simultaneously carried out, the court will not interfere in this behalf. The defendant may, therefore, plead and prove that the plaintiff has forfeited his rights under the contract by his conduct. For instance, it can be shown that he had violated any essential terms that on his part remains to be performed or he may have done acts in contravention of or at variance with the contract and tending to subvert the relation established by it [Srish Chandra vs. Banomalli, 8 CWN 594 : ILR 31 Cal. For instance, it can be shown that he had violated any essential terms that on his part remains to be performed or he may have done acts in contravention of or at variance with the contract and tending to subvert the relation established by it [Srish Chandra vs. Banomalli, 8 CWN 594 : ILR 31 Cal. 584 (PC)], or he may have refused to fulfil some stipulation on his part, which adds to the contract, but which was a part of the inducement to it, as contemplated under section 18 SR Act. The word "ready" implies that the plaintiff has taken steps to make himself eligible to undertake the performance of the contract, which are the primary ingredients that makes a person eligible and entitle to make the construction. The word "willing" implies that he is inclined to do what is required. Unless it is shown that these ingredients are satisfied, no case for specific performance can be said to have made out. The averment of readiness and willingness in the pleading is not an empty formality (Prabhakaran vs. Bhawani, AIR 1974 Ker 153 ), nor the court has power to relax the same (Badruddin vs. Tufail Ahmed, AIR 1963 MP 31 ). 10.3. The requirement of law is simple. The continuous readiness and willingness on the part of the plaintiff to perform his part of the contract throughout from the commencement of the agreement till the hearing of the suit. But that does not mean the plaintiff has to move around, showing his readiness at every stage as was held in Sant Lal vs. Shayam Dhawan, AIR 1986 Del 275 ; Syed Sultan Pai vs. Syed Bikhu Saheb, AIR 1986 A.P. 342 . It is a finding of fact whether such readiness and willingness is established or not. The readiness and willingness cannot be determined through a straightjacket formula. It has to be determined from the totality of facts and circumstances relevant to the case and also to the conduct of the party concerned and in order to be ready has to be backed by capacity to do so [Sant Lal (supra) and Syed Sultan Pai (supra)]. 10.4. The ratio in Nandlal Sah vs. Pawan Devi, 1979 BBCJ 599 ; Ram Singhasan vs. Sudama, AIR 1982 Pat. 200 ; Mahmood Khan vs. Ayub Khan, AIR 1978 All. 463 ; Anwarul Haq vs. Nizam Uddin, AIR 1984 All. 10.4. The ratio in Nandlal Sah vs. Pawan Devi, 1979 BBCJ 599 ; Ram Singhasan vs. Sudama, AIR 1982 Pat. 200 ; Mahmood Khan vs. Ayub Khan, AIR 1978 All. 463 ; Anwarul Haq vs. Nizam Uddin, AIR 1984 All. 136 ; Dhian Singh vs. Tara Chand, AIR 1984 All. 37; Bijai Bahadur vs. Shri Shiv Kumar, AIR 1985 All. 223 ; Ravinder Singh vs. Sham Lat, AIR 1984 P & H 145 and Ramesh Chandra vs. Chunni Lal, AIR 1971 SC 1238 , lay down that the substance of the averment of the plaintiffs readiness and willingness to perform his part of the contract must be present in substance. 10.5. The surrounding circumstances must also indicate the readiness and willingness continued from the date of the contract till the hearing of the suit. The plaint cannot be construed in a pedantic manner. It is not only to be shown in a suit for specific performance that the plaintiff has performed some part of the contract, but it has also to clearly show that he was still ready and willing to abide by the essential terms of the contract. Where the plaintiff opted to sue on equity for specific performance instead of a suing for damages, he must comply with the second. Unless the averment regarding readiness and willingness continues up to the date of decree, there is no cause of action for specific performance. Compliance with section 16(c) need only be subsequential to the satisfaction of the court, whose duty it is to find out the truth and do justice between the parties. Compliance has only to be in spirit and not to form. It is enough if the averment indicates in substance a continuous readiness and willingness (Kesawan vs. Karunakaran, 1987 KLJ 1085). 10.6. Assuming that the necessary averment about readiness etc. is contained in the plaint, the discretion whether specific performance should be decreed or not is not arbitrary but is guided by judicial principles and can be corrected by the Appellate Court. Clause (c) does not insist upon a particular set of words being used in the averment in the plaint, but must in substance indicate the continuous readiness and willingness on the part of the person suing (Dhian Singh vs. Tara Chand, AIR 1984 All. 37; Anwarul Haq vs. Nizamuddin, AIR 1984 All. 136 ). Clause (c) does not insist upon a particular set of words being used in the averment in the plaint, but must in substance indicate the continuous readiness and willingness on the part of the person suing (Dhian Singh vs. Tara Chand, AIR 1984 All. 37; Anwarul Haq vs. Nizamuddin, AIR 1984 All. 136 ). The plaintiff has to prove that he relies on the contract and that he demanded on the basis of the same from the defendant (Manik Lal Seal vs. K.P. Chowdhury, AIR 1976 Cal. 115 ). The plaintiff has to treat the contract as still subsisting (Bhaurao vs. Mahadeo, AIR 1979 Bom. 208 ). Readiness and willingness can be inferred from averment in plaint and surrounding circumstances. 10.7. Section 16(c) provides that the plaintiff has to aver that he had always been ready and willing to perform the essential terms of the contract, which are to be performed by him. Thus, it is a mandatory requirement to show that the plaintiff was always ready and willing. The averment itself will not clinch the issue. The conduct and surrounding circumstances are also material for the purpose of deciding whether the plaintiff was always ready and willing. If from the conduct, it appears that the plaintiff has otherwise failed to take such steps, which would entitle them to perform their part of the contract, in that event, it cannot be said that the plaintiff was always ready and willing. In Govindan vs. Ulhaman, 1987 (2) KLT 513 , it was held that the requirement of section 16(c) is mandatory and requires to be strictly complied with. 10.8. The averment, in the present case, appears to have been made on the basis that the agreement was an agreement for sale. Therefore, the question of readiness and willingness is to be ascertained, in the light of the manner in which the agreement is to be performed. viz: was the plaintiff ready to perform it in the manner it was agreed! That is also a question, which is to be weighed with for the purpose of a prima facie case with regard to the averment made. The readiness and willingness must be according to the terms or mode in which it is to be performed and not otherwise. Whether the plaintiff was ready and willing: 11. However, as discussed hereinbefore, it appears that the agreement was an agreement for development. The readiness and willingness must be according to the terms or mode in which it is to be performed and not otherwise. Whether the plaintiff was ready and willing: 11. However, as discussed hereinbefore, it appears that the agreement was an agreement for development. The plaintiff had once withdrawn then sought to revive the application for registration. This may be a ground on which it can, at least, be alleged that the plaintiff was not ready and willing to perform her part of the contract. 11.1. In view of the provision contained in 1993 Act, unless there is a registration, the construction cannot be made by the plaintiff. In other words, she would not be entitled to carryon the construction. Therefore, the plaintiff, as it prima facie appears, had made such an application for registration, which is mandatory in order to enable her to perform her part of the contract. Unless it is shown that she keeps herself capable of performing her part of the contract, it cannot be said that she was ready and willing to perform her part of the contract. The application was withdrawn on 2nd May, 1996. She sought to revive the application on 9th September, 1996. As least, between these two dates, the plaintiff had signified that she was ineligible to perform her part of the contract by reason of her withdrawal of her application. Thus, it cannot be said that she was ready and willing to perform her part of the contract during the period between these two dates. The fact of withdrawal or revival was never intimated to the defendants. The Authorised Officer had informed the defendants the fact of withdrawal by the plaintiff. Therefore, prima facie, there were sufficient materials for the defendants to form an opinion that the plaintiff was not ready and willing to perform her part of the contract on account of her withdrawal from registration. This fact appears to be supported by the fact discussed above to the extent that during the period between those two dates, the plaintiff was ineligible and, therefore, could not be said that she was ready and willing. 11.2. Obtaining of the sanctioned plan cannot be construed to mean that she was ready and willing to perform the contract, until and unless it is shown that she was ready and willing to perform the contract and had taken all steps therefor. 11.2. Obtaining of the sanctioned plan cannot be construed to mean that she was ready and willing to perform the contract, until and unless it is shown that she was ready and willing to perform the contract and had taken all steps therefor. The withdrawal may be construed to be the absence of willingness. At least it can be construed to be a break/breach in the willingness. So far as the revival is concerned, it was not within the knowledge of the defendants. They were never informed about the willingness. The willingness must be communicated or known to the defendant against whom the specific performance is asked for. There is nothing on record to show that it was ever communicated to the defendants. 11.3. On the other hand, the defendants were communicated with the knowledge of the withdrawal, namely, the absence of the willingness, by the Authorised Officer. Therefore, the plaintiff was right in construing that the plaintiff was not willing since it had withdrawn her registration. 11.4. Since the agreement became the subject matter of the statute, which came into force afterwards and since the statutory obligations were cast upon the plaintiff in order to seek the specific performance, in such agreement, it can be construed that she was ready and willing to comply with the provisions of the statute. The withdrawal of the registration itself indicates and unwillingness or absence of willingness to perform her part of the contract. There cannot be any question of postponement of willingness to perform the part of the contract. 11.5. The readiness and willingness is a question of fact to be inferred from the materials on record. It is a question of preparedness, which is to be gathered from the conduct of the parties. Such preparedness must be aimed at keeping the performances of the contract alive. It must be shown that the plaintiff was always ready and willing. It cannot be a tilting affair. If there is anything to show that at a particular point of time or for certain period whereof the party was not prepared to perform its part of the contract, subsequent preparedness will not absolve or repair willingness or lack of preparedness, notice of which has been taken by the other party and steps have been taken thereout. If there is anything to show that at a particular point of time or for certain period whereof the party was not prepared to perform its part of the contract, subsequent preparedness will not absolve or repair willingness or lack of preparedness, notice of which has been taken by the other party and steps have been taken thereout. If it could be ascribed to the other party that he was also equally negligent and was not ready and willing during that period, then such breach of readiness and willingness for a particular period may be ignored. If it can be shown that the other party has not taken note of this situation and then the plaintiff had taken steps and became ready and willing and had asked for specific performance and then it is declined, then the breach would not be material and would be of no importance. But, it assumes a different dimension and great importance when it is noted by the other party, the defendant has changed its position or had acted in terms of a situation, as in the present case. In such a case, it can definitely be construed as an absence or lack of preparedness to keep the agreement alive for being performed. 11.6. Such willingness could also be shown at the time when the decree is passed or the order of injunction is decided or the appeal is disposed of. Even before this court, nothing is shown that the plaintiff had obtained registration in the meantime or had got the agreement registered or had obtained permission for construction as the case may be. In the appeal, there was an interim order. But there was no interim order restraining the plaintiff from obtaining registration or for obtaining permission under the provision of the 1993 Act. It has not shown to this Court that it had taken any steps to comply with the provision of the said Act or that the plaintiff has made any attempt, which can go to show that she was ready and willing during all these periods. This fact is also a question, which can be taken note of as a factor to be weighed with for the purpose of finding out a prima facie case in favour of the plaintiff. Thus, we cannot presume that there was willingness on the part of the plaintiff to make out a prima facie case. This fact is also a question, which can be taken note of as a factor to be weighed with for the purpose of finding out a prima facie case in favour of the plaintiff. Thus, we cannot presume that there was willingness on the part of the plaintiff to make out a prima facie case. No perversity: 12. Having gone through the order appealed against, we do not find that there is any perversity with regard to the finding on the basis whereof the order was passed. Special equity: 13. In such circumstances, the decisions cited by the learned Counsel for the plaintiff/appellant, namely, Punit Beriwala vs. Suva Sanyal and Anr., AIR 1998 Calcutta 44, does not held the plaintiff in the facts and circumstances of this case. On facts, the same is distinguishable. On the other hand, the propositions laid down in paragraph 19 thereof helps the defendants to the extent that an agreement for sale does not confer any interest on a person. Therefore, unless the existence of special equity in favour of the principle seeking injunction is shown, one cannot ask for injunction. 13.1. The special equity was based on the allegation that it was an agreement for sale, but not an agreement for development. Unless it is an agreement for sale, the special equity cannot be claimed. When the developer wants to acquire and sell it to the intending buyers, there cannot be any special equity. It is only when the developer intends to acquire the property for its personal use, then it can claim special equity. 13.2. A special equity is an equity when a particular interest is attached to the property on account of some personal liking on account of the person's intention, when such person wants to utilize such property for his personal use. But for commercial exploitation or for acquisition for the purpose of selling it out to someone else, would not create a special equity. Inasmuch as, in such a case, the aim is to exploit the property commercially. In other words, it is for the deriving certain commercial benefit for earning profits. Such profit does not create any special equity in view of the fact that it can be quantified in money. Either determined or undetermined, the quantum would definitely compensate the person. Inasmuch as, in such a case, the aim is to exploit the property commercially. In other words, it is for the deriving certain commercial benefit for earning profits. Such profit does not create any special equity in view of the fact that it can be quantified in money. Either determined or undetermined, the quantum would definitely compensate the person. It is only when he attaches special interest by using the said property all by himself, without any commercial motive, special equity can be claimed. 13.3. In the present case, prima facie, there is nothing on record to show that it was an agreement for sale and that the developer intends to retain the same for his personal use. Therefore, the said decision helps the defendant and not the plaintiff. 13.4. On the other hand, the defendants, who were admittedly residing in the building, had demolished the building according to the terms of the agreement. The defendants were living together. They want to live together in the reconstructed building. They have admittedly shifted to some other different temporary accommodation, resulting into a separation between themselves. Until the building is reconstructed, they will not be able to live together and will continue to suffer. Such sufferance cannot be compensated. It is a special equity in favour of the defendants, who want to live together after the building is reconstructed, where their forefathers were living. They may contend that they have special sentiment and attachment for the building. It may be of great importance to the defendants. Whereas that of the plaintiff is of commercial importance, capable of being compensated, without attracting special equity. Conclusion: 14. As discussed above, it is abundantly clear that the plaintiff has been unable to make out a prima facie case in order to show that she is entitled to injunction. Until and unless she is able to make out a prima facie case, the question of balance of convenience and inconvenience does not arise. But then, as discussed in paragraph 13.4 hereinabove, the balance of convenience and inconvenience appears to tilt more in favour of the defendants than the plaintiff. The contention that if construction is made by the defendants, the plaintiff would suffer irreparable loss and injury, cannot be sustained. Inasmuch as, loss and injury is irreparable when it cannot be compensated by money. The contention that if construction is made by the defendants, the plaintiff would suffer irreparable loss and injury, cannot be sustained. Inasmuch as, loss and injury is irreparable when it cannot be compensated by money. As discussed above, it appears that the covenant itself provides for compensation in terms of money and that too quantified @ Rs. 200/- per day, which can very well be said to be liquidated sum to be calculated, multiplied by days in terms of the covenant contained in the agreement. Thus, we do not find any merit in the appeal. Order: 15. In the facts and circumstances, as discussed above, we do not find any reason to interfere with order appealed against. The appeal, therefore, fails and the same is, accordingly, dismissed. The interim order, if any, stands vacated. 15.1. The observations made herein are all tentative and for the purpose of deciding the question of the interim order. These observations shall, in no way, influence the learned Trial Court in deciding the case before it. Since the suit appears to be six years old, we will expect that the learned Trial Court will expedite the hearing and dispose of the same at the earliest, preferably within a period of one year from date. If an urgent xerox certified copy of this judgment is applied for, the same is to be supplied to the applicant at an early date, subject to compliance of all the required formalities. Jyotosh Banerjee, J.: I agree. Appeal dismissed. Interim order vacated.