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2004 DIGILAW 707 (JHR)

Pramod Behl v. Shova Maya Ghosh

2004-07-15

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the defendant-appellant stands directed against the impugned order dated 25.9.2003 passed in Title Suit No. 116 of 2001 by Shri R.K. Gupta, Sub-Judge III, Ranchi whereby and whereunder the petition under Order XXXIX, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure filed by the defendant for grant of temporary injunction was rejected. 2. The plaintiff-respondent (hereinafter referred to as plaintiffs) had filed Title Suit No. 116 of 2001 against the defendant-appellant (hereinafter referred to as defendant) for a declaration that the defendant has violated the terms and conditions of the agreement dated 11.2.1999 and thereupon for a further declaration that the cancellation/termination/discharge of the said agreement by the plaintiffs for breach of terms and conditions thereof on the part of the defendant was proper, legal and valid and binding upon the parties. A further declaration has been sought that consequent upon the discharge of the agreement, the defendant is only entitled to cost of the part construction done by him during the subsistence of the said agreement as per CPWD or PWD rates after deduction/adjustment of the amount owning from him to the plaintiffs. 3. The case of the plaintiffs, in brief, is that they are the owner of M.S. Plot No. 1101 of Ward No. 4 situate at Purulia road in the town of Ranchi and they being desirous of developing an area of 5 kattha and 7 chhatak equivalent to approximately 4000 sq. ft. (hereinafter referred to as the suit land) out of the said M.S. Plot No. 1101 by construction of a multi-storied commercial-cum- residential building complex thereon had obtained sanction for the same from R.R.D.A., Ranchi vide order date 14.2.1997 passed in B.C. Case No. 865 of 1996 and the defendant in pursuance of the agreement aforesaid started making construction over the same as a contractor as per the terms and conditions enumerated in the said agreement and he has to complete the construction within a period of 18 months. As per the terms of the agreement, the plaintiffs carried out all the obligations as per the said agreement but the defendant failed or neglected or defaulted to perform his part of obligations and committed various breaches of the said agreement, particularly of Clause VII (vi) and Clause (X) and Schedule-C of the said agreement and the plaintiffs vide notice dated 19.10.2000 called upon the defendant to pay the sum of Rs. 2,30,000/- as per Schedule-C and also to pay liquidated damages at the rate of Rs. 1,000/- per day from the day when the stipulated period of 18 months for completion of complex expired i.e. from 12.8.2000 in terms of the said agreement but of no avail and due to the breach of the terms and conditions, the agreement aforesaid stands discharged and thereafter the plaintiffs sent a notice dated 18.5.2001 to the defendant under registered post with acknowledge due on 21.5.2001 determining the agreement aforesaid. 4. The defendant filed his written statement. The case of the defendant, inter alia, is that the plaintiffs got the map sanctioned on 14.2.1997 in B.C. Case No. 865 of 1996 for the purpose of construction of a multi-storied commercial-cum- residential building complex on the suit land and the said sanction was valid for a period of three years only and its validity period expired on 13.2.2000 and no order of revalidating the said period was obtained by the plaintiff. It is alleged that initially the construction was started by the plaintiffs by awarding a contract to the defendant and construction was initially started by him as such, but subsequently the aforesaid arrangement between the plaintiffs and the defendants was converted into a development agreement dated 11.2.1999. It is alleged that it is not the defendant who has failed and neglected to carry out his liabilities, obligations and duties causing stoppage/cessation of work but it is the plaintiffs who have failed to perform their part as contemplated in the agreement and they are guilty of committing breaches of the various terms of the said agreement making themselves liable for compensation, damages and payment of the loss sustained by the defendant for which a counter claim has been made in terms of Order VIII, Rule 6(A) of the Code of Civil Procedure detailed in his written statement and the defendant has prayed for grant of decree in favour of defendant and against the plaintiffs. It is alleged that the non-completion of work within the stipulated period as per Clause VII of the agreement is-solely on account of the failure of the plaintiffs to provide facilities as stipulated in the agreement to the defendant and the possession of the worksite was not handed over to the defendant immediately as agreed after the execution of the agreement and the defendant was not given any power of attorney by the plaintiffs to take steps for getting the sanctioned plan revalidated on its expiry after the completion of three years from the date of sanction which lost its validity on 13.2.2000 and the plaintiffs have also not taken steps themselves for the revalidation of the sanction plan by R.R.D.A., Ranchi. It is alleged that he has learnt reliably that the plaintiffs had applied for revalidation of the original sanctioned plan but the same was refused by R.R.D.A., Ranchi vide order date 6.7.2000 passed in Revalidation Case No. 182 of 2000 and it was the latches on the part of the plaintiffs as in the absence of revalidated plan, the defendant was unable to complete the construction within the time stipulated in the agreement and there is no question of breach of Clause VII (vi) of the agreement aforesaid by this defendant. It is further alleged that this defendant had almost complete the entire construction work by making huge investment of not less than Rs. It is further alleged that this defendant had almost complete the entire construction work by making huge investment of not less than Rs. 1,35,01,338.95 and in such circumstances the allegation of abandoning the project or ceasing the building activities by this defendant is palpably false and only some minor work are to be done in the said construction and the plaintiffs were asked to execute and give the separate power-of-attorney empowering and authorizing the defendant to deal with his share in these constructed area, but the plaintiffs in order to swallow the investment made by the defendant did not execute power of attorney and the alleged non-completion of minor work in the said construction is solely attributable to the plaintiffs themselves and so far the installation of firefighting is concerned until and unless the plaintiffs construct the staircase as provided in the agreement, the same cannot be installed and the determination of the agreement by the plaintiffs is unwarranted and illegal in view of Clause (IX) of the agreement according to which the right to determine the agreement is available only in case of latches/neglect/violation on the part of the defendant to abide by the commitments made in Clause I to VIII of the agreement and since there is no violation or latches on the part of this defendant, determination of the agreement cannot be done nor the same can be legal and valid. The defendant has made a counterclaim of Rs. 2,59,30,761.00 against the plaintiffs in terms of order VIII, Rule 6(A) of the Code of Civil Procedure, the basis for which has been detailed in the written statement. 5. The plaintiffs have also filed their written statement refuting the counterclaim made by the defendant. 6. The defendant has made a counterclaim of Rs. 2,59,30,761.00 against the plaintiffs in terms of order VIII, Rule 6(A) of the Code of Civil Procedure, the basis for which has been detailed in the written statement. 5. The plaintiffs have also filed their written statement refuting the counterclaim made by the defendant. 6. The defendant filed a petition under Order XXXIX, Rules 1 and, 2 read with Section 151 of the Code of Civil Procedure on 2.5.2002 and supplementary injunction petition on 25.7.2003 stating therein that the defendant has got a very strong prima facie case as against the plaintiffs and he has already made huge investment in the said construction and the plaintiffs are making attempts to oust the defendant by using undesirable means and also threatening the defendant to take over possession forcibly of the entire complex including the developers allocation therein and are also trying to sale/rent out the flats and shops in the said multi-storied commercial-cum-residential building complex constructed by the defendant on the false plea that the agreement aforesaid stands determined even without obtaining the occupancy certificate as required from R.R.D.A., Ranchi and on previous occasion also the plaintiffs had made attempt for removing the various articles of the defendant kept in the building for which the plaintiff are facing criminal prosecution. It is also alleged that if the plaintiffs succeed in the attempt, the defendant shall be put to irreparable loss and injury which cannot be compensated in terms of money and the balance of convenience lies in favour of the defendant inasmuch as he has already made investment in the said construction of about Rs. 1,35,01,338.95. It is also alleged that if the plaintiffs succeed in the attempt, the defendant shall be put to irreparable loss and injury which cannot be compensated in terms of money and the balance of convenience lies in favour of the defendant inasmuch as he has already made investment in the said construction of about Rs. 1,35,01,338.95. In view of the facts aforesaid, it was prayed to restrain the plaintiffs from interfering with the peaceful possession of the defendant in respect of the developers allocation in the multi-storied commercial-cum-residential building complex and also from taking over the possession of the owners allocation of the multi-commercial-cum- residential building forcefully until the defendant hands over the possession of the same to the plaintiffs and also from remaining the building materials, fixtures and fittings on the site and from the multi- storied commercial- cum-residential building constructed by the defendant and further to restrain the plaintiffs from carrying out any addition/renovation/alteration of the existing multistoried building constructed by the defendant and from alienating, transferring or to let out on rent or lease in the construction made by the defendant or in any portion thereof. 7. The plaintiffs have filed their rejoinder on 18.5.2002 and 20.8.2003 to the aforesaid petitions filed by the defendants. It has been stated, inter alia, therein that there is neither any violation of the agreement dated 11.2.1999 on the part of the plaintiffs nor is the termination of the said agreement by them illegal or arbitrary or with the mala fide intention to cause loss and harassment to the defendant and the plaintiffs are not bound to perform any part of the said contract and the defendant is also not entitled to any decree as per his counterclaim and it is false to say that the plaintiffs are threatening the defendant to take possession for the sale of the entire complex including the developer allocation and to sell or let out the flats/shops of the said complex. It is further alleged that the plaintiffs are nonetheless entitled in taw for do so and has every right to do in view of the termination of the agreement dated 11.2.1999 for the reasons stated in their plaint, which are in tune with the law. It is further alleged that the plaintiffs are nonetheless entitled in taw for do so and has every right to do in view of the termination of the agreement dated 11.2.1999 for the reasons stated in their plaint, which are in tune with the law. It is further alleged that it is false on the part of the defendant to allege that the plaintiffs are attempting to induct persons in the flat without obtaining occupancy from R.R.D.A., Ranchi. It is alleged that the plaintiffs have never threatened nor are they making attempts for removing the building materials as alleged and there is no question of irreparable loss or injury in the fact that the loss and injury, if any, has already been alleged and estimated by the defendant in his counterclaim. It therefore, goes to show that even if any loss or injury will be caused to the defendant at any time in future, the same can be compensated in terms of money and thus, the defendant is not at all entitled for any injunction, It is also alleged that the balance of convenience does not lie in favour of the defendant and the counterclaim made by the defendant is false and incorrect and defendant has no prima facie case at all. It is alleged that as per terms of the agreement aforesaid, there is no obligation on the part of the plaintiffs to do anything in connection with the invalidation of the building plan and it appears that with effect from the date of the said agreement, the entire construction work and as also incidental and ancillary function relating thereto were exclusive obligations on the part of the defendant, who had to do everything including renewal of the validity period thereof, if necessary, and it is evident from the averments in the written statement that the construction work was almost completed within the validity period of the sanctioned plan and hence there was actually no need for renewal or revalidation of the same and the excuse of renewal or revalidation of the sectioned plan is nothing but a pretence by the defendant to escape from the legal consequences and liabilities by reasons of the breach of the terms of the agreement by the defendant himself and similarly the plea of firefighting arrangement is also totally false and distorted inasmuch as Clause V of the agreement aforesaid clearly indicates that arrangement for tender of firefighting has to be done by the defendant only apart from payment of Rs. 2,36,000/- by the defendant which admittedly he has not done even up-to-now and similar is the case with regard to the staircase and installation of lift as per Clause XI (a) of the said agreement and thus, the application for injunction of the defendant is liable to be rejected. 8. The learned Court below on consideration of the materials on the record read with the pleadings of the parties had come to the conclusion that the defendant has a prima facie case in his favour and the balance of convenience also lies in his favour but on the question of irreparable loss or injury it has been held relying upon the ratio of the case of Dalpat Kumar and Anr. v. Prahlad Singh and Ors., AIR 1993 SC 276 that irreparable loss, if any, to the defendant can be compensated in terms of money and thus, the defendant is not entitled for grant of temporary injunction as prayed. 9. Since both the parties have appeared in this case and as such this appeal along with stay petition is finally disposed of in the admission stage itself. 10. Assailing the impugned order, Mr. 9. Since both the parties have appeared in this case and as such this appeal along with stay petition is finally disposed of in the admission stage itself. 10. Assailing the impugned order, Mr. Pandey Neeraj Rai, Advocate for the defendant mainly dwelled upon regarding the strong prima facie case of the defendant in course of his argument as well as the balance of convenience lying in favour of the defendant and justification regarding the quantum of counterclaim. It has been submitted that the learned Court below erroneously adverted to the finding that the injury caused to the defendant is capable of being compensated in terms of money and it suffers from the vice of the non- application of judicial mind by the learned Court below and the said finding is perverse and unreasonable. It is has also been submitted that the irreparable loss/injury can be compensated in terms of money if the incident of damages or loss caused to defendant can be assessed or calculated or ascertained in terms of money but here in this case, the loss or damage caused to the defendant cannot be assessed or calculated in terms of money as in case of refusal of the injunction, the material evidence to establish the nature and extent of the loss or damage may be destroyed and the existence or reasonable apprehension of destruction of evidence by the plaintiffs is the very basis of the counterclaim of the defendant as made in his written statement and due to such apprehension, a case of irreparable loss is made out in favour of the defendant for the grant of temporary injunction against the plaintiff. It has also been submitted that the suit land it admittedly in possession of the defendant and there is no averment in the plaint that the plaintiffs has ever taken possession over the suit land on which the multi-storied commercial-cum-residential building complex is situated and likewise, there is no averment in the rejoinder of the injunction petition in respect thereof and in this view of the matter, a person in possession is entitled to continue in possession unless duly evicted in accordance with law. It has also been submitted that in case of the plaintiffs entering into possession forcibly during the pendency of the suit he may interfere with the existing construction of the said complex and in that case the evidence for the assessment of the irreparable loss prima facie assessed by the him in his counterclaim shall be destroyed by the plaintiff. In support of his contention, reliance has been placed upon the ratio of the case of Dalpat Kumar and another (supra) referred to above and in the backdrop of the facts of the case, the impugned order is unsustainable. 11. In contra, it has been submitted by the learned counsel for the plaintiffs that time is the essence of the contract as per the terms of the agreement aforesaid and there is also a clause regarding the determination of the agreement on the breach of the conditions by the defendant and when the breach has occurred, at the instance of the defendant, the plaintiffs after service of notice had determined the agreement. It has also been submitted that as per the terms of the agreement, the plaintiffs are the owner of the suit land and its legal possession is with the plaintiffs as owner of the suit land. It has further been submitted that the scope of this suit filed by the plaintiffs is very limited whereby a declaration has been sought for the validity of the termination of the agreement in question. It has further been submitted that here in this case, the defendant has himself calculated the damages as a result of the determination of the tenancy and on that basis he has put forward a counterclaim and it is, thus, apparent that the loss, if any, likely to be occasioned to the defendant can be compensated in terms of money and the learned Court below has rightly considered this aspect of the matter in proper perspective and has rejected the prayer of temporary injunction as claimed by the defendant. In support of his contention, reliance has been placed upon the ratio of the cases of Hindustan Petroleum Corporation v. Sri Sriman Narayan and Anr., 2002 (3) JCR 57 (SC) and Lakshmi Singh and Ors. v. Prithivi Raj Prasad and Ors., 1993 (2) PLJR 303. 12. In support of his contention, reliance has been placed upon the ratio of the cases of Hindustan Petroleum Corporation v. Sri Sriman Narayan and Anr., 2002 (3) JCR 57 (SC) and Lakshmi Singh and Ors. v. Prithivi Raj Prasad and Ors., 1993 (2) PLJR 303. 12. Admittedly, the plaintiffs are the owner of M.S. Plot No. 1101 situated at Puralia road in the town of Ranchi and 5 kattha and 7 chhattak, equivalent or approximately 4000 sq. ft. out of the suit plot is the suit land over which multi-storied commercial-cum-residential building complex has been constructed. The plaintiffs had got the plan for the aforesaid construction sanctioned on 14.2.1997 vide order passed in B.C. Case No. 865 of 1996 by R.R.D.A., Ranchi for the construction of the said complex. Under Section 43 of the Bihar Regional Development Authority Act, the sanctioned map by R.R.D.A. had three years of is validity period for completing the construction. The defendant was initially engaged as a contractor in relation to the said construction but subsequently, there had been a development agreement between the plaintiffs and the defendant on 11.2.1999 for the said construction as per the terms and condition enumerated therein. The plaintiffs handed over the possession of the said land to the defendant for the said construction. There is a specific term in the said agreement that the defendant shall within 18 months from the date of the said agreement complete the complex in question in all respects as per the sanctioned plan at his own cost and the time is the essence of the contract and the defendant shall put the plaintiffs in possession of the entire portion of the building as described in Schedule-B and C failing which the defendants shall be liable to pay compensation-to the plaintiffs at the rate of Rs. 1,000/- per day. There is further a stipulation that in case of breach of terms and conditions by the defendant of the agreement in question, the said agreement shall be determined by the plaintiffs on fifteen days notice and in that case the defendant shall be entitled to the cost of the materials of the works done, if any, calculated as per Government (CPWD and PWD} rates. The defendant has made out a case that he has almost complete the construction work except the some minor works which could not be done due to the latches on the part of the plaintiffs as the sanctioned plan after the expiry of the period of its validity has not been revalidated by the plaintiffs nor have they executed any power-of- attorney authorizing the defendant to take steps for revaluation of the said sanctioned plan. The breach of the terms of the agreement as per the respective case of the parties is matter in issue, which is to be decided on the basis of the evidence on the record. Therefore, it appears that there is a prima facie strong case of defendant for adjudication in this suit and the learned. Court below has rightly come to the conclusion that the defendant has a prima facie case in his favour. Further in the facts and circumstances of this case, the balance of convenience has also been found in favour of the defendant by the Court below. However, the learned Court below has observed in the impugned order that irreparable loss or injury in the facts and circumstances of this case to the defendant can be compensated in terms of money and in view of the said finding, the prayer for injunction of the defendant was rejected. Order XXXIX, Rules 1 and 2 provide for the grant of temporary injunction when (i) any property in dispute is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; (if) the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors, (iii) the defendant threatens to dispossess the plaintiff or otherwise causes injury to the plaintiff in relation to any property in dispute in the suit. Rule 1 of Order XXXIX of the Code of Civil Procedure primarily concerns with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the Court in exercise of the power of granting ad interim injunction is to preserve the subject matter of the suit in the status quo for the time being. It is the settled proposition of law that the grant of injunction is a discretionary relief and the exercise thereof is subject to the Court satisfying that there is a serious disputed question to be tried in the suit and that an act. on the facts before the Court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant, the Courts interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial, and that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it. While exercising the discretion, there are certain guidelines evolved by the catena of decisions of the Apex Court as well as of the High Courts and these guidelines are that the plaintiff has a strong case for trial i.e. it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction, it is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money and the balance of convenience is in favour of the one seeking such relief. Injunction being essential an equitable relief, its grant or refusal shall ultimately rest on the sound judicial direction of the Court to be exercised in the light of the facts and circumstances in each case. Here in this case at hand, the defendant has made a counterclaim of Rs. 2,59,30,764/- against the plaintiffs on various counts due to the determination of the agreement by the plaintiffs. It, therefore, appears that the defendant has himself assessed the irreparable loss in terms of money as per his counterclaim and thus, the irreparable loss, if any, in the facts of this case can be compensated in terms of money. 2,59,30,764/- against the plaintiffs on various counts due to the determination of the agreement by the plaintiffs. It, therefore, appears that the defendant has himself assessed the irreparable loss in terms of money as per his counterclaim and thus, the irreparable loss, if any, in the facts of this case can be compensated in terms of money. The Apex Court in the case of Dalpat Kumar and another (supra) has observed which runs thus :-- "The phrases "prima facie case"; "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by mans ingematy in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts are eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience. The respondents can be adequately compensated on their success." In the case of Lakshmi Singh and others (supra) it has been observed that the expression "irreparable injury" has got definite connotation. Temporary injunction can be issued only if the "injury" likely to be caused is such as cannot be compensated in terms of money where claim involved in suit is in the nature of money claim. It is difficult to appreciate how, in the event of success in the suit, the plaintiff cannot be compensated monetarily. In the case of Hindustan Petroleum Corporation (supra) the Apex Court while setting aside the order of ad interim injunction has observed which runs thus :-- "The High Court has not at all discussed the considerations which weighed and the reasons which persuaded the trial Court in rejecting the prayer for interim mandatory injunction as prayed for by respondent No. 1. Most importantly, the High Court has not considered the question whether on the facts and circumstances of the case, if the prayer for interim injunction is refused the plaintiff petitioner will suffer irreparable loss by damages." It, therefore, appears from the ratio of the cases referred to above that where the irreparable loss to the defendant in the facts of the case can be adequately compensated in terms of money, there is no need to grant ad interim injunction. Here in this case at hand, the learned Court below has rightly rejected the prayer of the defendant for grant of temporary injunction and its finding that the irreparable loss of the defendant can be adequately compensated in terms of money is legal and valid and I see no illegality therein. The apprehension of the defendant regarding the destruction of material evidence by the plaintiffs in respect of construction already made by him in the said complex to establish the extent and nature of loss or damage being the basis of his counterclaim is not at all well founded. However, the defendant may have the recourse of getting the nature and extent of the construction of the complex ascertained by local inspection through the agency of the Court to ward of his reasonable apprehension of destruction of the material evidence in respect of the said construction made by him. For the reasons aforementioned, I do not find that the defendant is entitled to grant of interim injunction and thus the impugned order of the trial Court requires no interference. 13. There is no merit in this appeal and it fails. The impugned order is hereby affirmed. The appeal is dismissed without cost. 14. The learned Court below is directed to take up the hearing of the suit and dispose of it as expeditiously as possible preferably within six months from the date of the receipt of this order. In case, the suit is not disposed of by the middle of January 2005, the learned Court below shall submit an explanation to this Court in respect thereof.