1. When this Civil First Miscellaneous Appeal was considered by the Court of co-ordinate jurisdiction on 5th March, 2012, following order was passed; "Learned counsel or the appellant seeks time for production of the agree ment dated 10th September, 2010 so as to justify his claim, shall be at liberty to do so. List on production thereof. Name of Mr. J.Iqbal be reflected in the cause list. Caveat No. 206/2012 Caveat stands discharged." 2. Till date the appellant has not produced agreement dated 10th September, 2010, though, Xerox copy of unsigned lease agreement dated 10th September, 2010 is placed on the record of the appeal. 3. Appellant instituted Civil Original Suit in the Court of learned Principal District Judge, Shopian, wherein following reliefs were sought; "A decree for declaration be passed in favour of the plaintiff and against the defendants by declaring the notification issued in daily news paper Greater Kashmir dated 12th March, 2011 to be declared as null and void, inoperative, ineffective vis-'-vis the rights of the plaintiff and decree for specific performance of contract with the prayer that the defendants shall occupy the premises (1st floor) constructed over the land measuring 06-Marlas falling under survey No. 1636/80 Min situated in village Keegam Shopian on Keegam Daramdoora Road of plaintiff for housing its branch office Keegam at Keegam along with a decree for mandatory injunction commanding the defendants to perform the agreement dated 10th Septem ber, 2010 and also restraining the defendants permanently for occupying any othe r building on rent basis at Keegam Shopian for housing its branch office at Keegam Shopian" 4. Alongside the suit, application for grant of temporary injunction was also filed. The court on 15th March, 2011 passed an ex-parte interim order, wherein respondents were directed to maintain status-quo in respect of taking on rent building for the bank at Keegam Shopian. The respondents filed written statement and the matter was considered by the court and vide its order dated 23rd February, 2012, status-quo was vacated. It is this order which is called in question in this appeal. 5. Initially Mr.
The respondents filed written statement and the matter was considered by the court and vide its order dated 23rd February, 2012, status-quo was vacated. It is this order which is called in question in this appeal. 5. Initially Mr. L.A. Latief, learned counsel for the appellant, appeared and submitted that the respondent-bank issued a notification, whereunder it was pro vided that it requires built-up space measuring around 1000 Sft each and interested persons were asked to submit their offers alongwith revenue extracts and permis sion from the concerned authorities and rates of rent per Sft carpet area were also to be quoted. The offers were to be sent to the office of Executive Manager of the respondent-bank within fifteen days from the date of publication of the notice. Learned counsel submitted that in pursuance to the said notification, the appellant approached the authorities and in terms of communication dated 8th September, 2010, the appellant was informed that the competent authority has acceded to his offer of providing site for bank at Keegam. In terms of the said communication, the appellant was directed to provide approximate carpet area of more or less 1400 Sft in the first floor of a building (under construction) @ Rs. 3.20 per sft/month and was requested to visit the office immediately for execution of proper lease agree ments for a period of fifteen years with 20% increase in rental after every five years. Learned counsel submitted that thereafter agreement was entered into between the parties and appellant raised the construction. Learned counsel submitted that without just and lawful reason, the respon dents backed out from the contract and issued fresh notification. Learned counsel submitted that issuance of fresh notification gave cause to the appellant to institute a suit before learned District Judge (Trial Court). Learned counsel submitted that initially the trial court directed for maintenance of status-quo but subsequently in terms of impugned order vacated the same. Mr. Thakur also made submission on behalf of the appellant. Mr. Thakur referred to Section 12 and 22 of the Specific Relief Act as also to the Order 6 Rule 8 of Civil Procedure Code. Learned counsel referred to and relied upon judgments of the Hon'ble Supreme Court reported in AIR 2008 SC, 2291 Supreme Reported Judgments 2012 page 205.
Mr. Thakur also made submission on behalf of the appellant. Mr. Thakur referred to Section 12 and 22 of the Specific Relief Act as also to the Order 6 Rule 8 of Civil Procedure Code. Learned counsel referred to and relied upon judgments of the Hon'ble Supreme Court reported in AIR 2008 SC, 2291 Supreme Reported Judgments 2012 page 205. Learned counsel submitted that averment was made in the plaint that there is a concluded contract between the parties, which though, has been denied by the other side, would requires to be ascertained during the trial of the case. Learned counsel further submitted that the learned trial court has not considered well established legal principles of prima-facie case, balance of convenience, and irreparable injury while dismissing the application of the appellant for grant of interim injunction. Learned counsel sub mitted that when, it appears that the triable issues are involved in the case, it could be said that prima-facie case was established. Learned counsel while referring to explanation appended to Section 12 of the Specific Relief Act submitted that in the facts of this case, damages could not be ascertained, as such, at initial stage when the trial of the case is yet to commence, it could be for prima-facie purposes safely concluded that the appellant would suffer irreparable damages incase temporary injunction would not be granted in his favour. Learned counsel also submitted that the appellant, who is resident of the village, has disposed of his landed property to raise construction and in these circumstances balance of convenience would lie in his favour. Learned counsel submitted that all three legal principles for granting injunction being available and favouring the appellant, the injunction application should have not been dismissed. Learned counsel accordingly prayed for setting-aside the order and for grant of interim injunction in favour of the appellant. 6. Mr. Javaid Iqbal, learned counsel for the respondents submitted that the suit of the appellant as pleaded in the plaint is based on the contract dated 10th September, 2010, which contract, learned counsel submitted is not concluded contract as same has not been signed by the respondents.
6. Mr. Javaid Iqbal, learned counsel for the respondents submitted that the suit of the appellant as pleaded in the plaint is based on the contract dated 10th September, 2010, which contract, learned counsel submitted is not concluded contract as same has not been signed by the respondents. Learned counsel further submitted that the communication dated 8th September, 2010 was only a counter offer and a legally valid agreement would come into existence only after the terms and conditions would be settled between the parties and an agreement executed and duly signed by the parties. Learned counsel submitted that even the suit is not competent on the basis of non-existent contract/agreement. Learned counsel also submitted that if the appellant has any complaint against the respondents on the basis of communication dated 8th September, 2010, then if advised, he can file suit for damages against the respondents. Learned counsel in support of his contentions referred to case reported in AIR 1995 SC 2372 and judgment of this Court dated 16th September, 2009 passed in CIMA No. 58/2008, Xerox copy whereof was produced during the course of arguments. Learned counsel also referred to Section 2(e) & (h) of the Contract Act and also placed reliance on Section 12 of the Specific Relief Act to canvass his point that there being no legal and valid agreement in existence and the suit instituted by the appellant itself being liable to be rejected, therefore, no interim relief can be granted. Learned counsel accordingly prayed for dismissal of the appeal. 7. The reliefs sought for in the plaint are primarily based on agreement dated 10th September, 2010. The appellant has sought specific performance of the said agreement/contract and has further prayed for issuance of decree for mandatory injunction to command the respondents to perform their part of agreement dated 10th September, 2010. Further a decree of declaration is sought, declaring the notification dated 12th March, 2011 to be null and void, inoperative ineffective vis-a-vis the rights of the appellant. The appellant has prayed for issuance of decree for permanent injunction thereby restraining the respondents from occupying any other building on rent basis at Keegam Shopian for housing its branch office at Kecgam Shopian. Perusal of the plaint, copy whereof has been placed on the appeal record by the appellant, refers to the notification dated 7th May, 2010 published in newspaper, to which the appellant responded.
Perusal of the plaint, copy whereof has been placed on the appeal record by the appellant, refers to the notification dated 7th May, 2010 published in newspaper, to which the appellant responded. Reference to which is made in the paragraph 5 of the plaint, reference is also made to the communication dated 8th September, 2010. In the same paragraph, it is further pleaded that on 10th Septem ber, 2010, the parties entered into agreement and after fulfilling all the requirements, the appellant raised the construction in accordance with the specifications provided by the respondents. The case of the appellant is, thus, primarily based on the agreement dated 10th September, 2010 and not on the communication dated 8th September, 2010. The respondents have taken specific stand in their written state ment that they had not entered into any agreement with the plaintiff and it was one of the reasons which became basis for passing impugned order. The Court on 5th March, 2012 directed the learned counsel for the appellant to produce agreement daled 10th November, 2010 so as to justify his claim. As already stated the agree ment has not been produced or placed on the record of the appeal. What is placed on appeal is Xerox copy of an unsigned agreement dated 10th September, 2010. 8. The suit for specific performance of contract can be instituted when there is concluded contract between the parties. Since the reliance is placed on the agree ment dated 10th September, 2010 in the suit itself and performance of the contract is sought, for prima-facie purposes it can be safely observed on the basis of the material available on record that there is no lease agreement dated 10th September, 2010 in existence, so the foundation of the appellants case gets knocked out. Appellant in these circumstances can not be said to have a prima-facie case in his favour. The reliance placed on explanation appended to Section 12 and 22 of Specific Relief Act by the learned counsel for the appellant would be of no assistance in view of the aforementioned observations of the Court.
Appellant in these circumstances can not be said to have a prima-facie case in his favour. The reliance placed on explanation appended to Section 12 and 22 of Specific Relief Act by the learned counsel for the appellant would be of no assistance in view of the aforementioned observations of the Court. The contention of learned counsel for the appellant that the denial of existence of contract is to be viewed on the basis of order 6 Rule 8 of Civil Procedure Code would be of no help to the appellant and in fact works against the interests of the appellant, inasmuch as, the said rule provides that the denial of contract by opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of the fact from which the same may be implied. The denial, however, on the basis of said rule would not be taken note of in respect of legality or sufficiency in law of such contract. For the purposes of determining a prima-facie case denial of existence of a contract would, thus, work against the appellant at this stage, inasmuch as, and it is held that the appellant has no prima-facie case in his favour. 9. The communication dated 8th September, 2010 though, is not basis for instituting the suit can not said to have converted the relationship between the appellant and respondents of the nature which would legally bind the parties. The balance of convenience also can not be said to be in favour of the appellant. Since the maintainability of the suit is under cloud and that if it is the case of the appellant that he has been subjected to loss that can be assessed and damages can be ordered to be paid by the court on the proof thereof. The appellant can not be said to have suffered irreparable loss. The judgments referred to by the learned counsel for the appellant refer to the principles which are to be considered while allowing or disallowing any temporary injunction application. 10. For the above stated reasons this appeal is found to be meritless is accord ingly dismissed.