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2012 DIGILAW 485 (CAL)

Amarendra Nath Mondal v. Subhas Dutta

2012-05-18

MURARI PRASAD SHRIVASTAVA, SUBHRO KAMAL MUKHERJEE

body2012
Judgment :- Subhro Kamal Mukherjee, J.: All these three appeals are taken up for consideration analogously as all these appeals are directed against orders dated February 27, 2011 passed by the learned Civil Judge (Senior Division) First Court, at Barasat, district: North 24 – Parganas in Title Suit Nos. 286 of 2007, 289 of 2007 and 290 of 2007. By consent of Mr. Sudhis Dasgupta, learned senior advocate, appearing for the appellant in F.M.A.T. No. 379 of 2012, Mr. Bidyut Kumar Banerjee, learned senior advocate, appearing for the appellant in F.M.A.T. Nos. 380 – 381 of 2012 and Mr. Saktinath Mukherjee and Mr. Shyama Prasanna Roy chowdhury, learned senior advocates, appearing for the respondents, all these appeals are taken up for final hearing analogously, upon dispensation of all formalities, to avoid conflicting judicial opinions. By the orders impugned, the learned trial judge allowed applications under Order 39, rules 1 and 2 read with Section 151 of the Code of Civil Procedure filed by the plaintiff-respondent and rejected the applications filed by the defendant under Order 39, rule 4 read with Section 151 of the Code of Civil Procedure. These appeals arise out of suits, inter alia, for specific performance of contract for sale. The plaintiff alleged that the defendants were the owners of the suit property. The plaintiff agreed to purchase the property and advanced Rs. 1,67,000/- (Rupees one lakh sixty seven thousand) only to the defendants as advance and entered into an agreement for sale on some terms and conditions. Subsequently, the plaintiff advanced further sum of Rs. 5,00,000/- (Rupees five lakh) only by several cheques to the defendants, but the defendants refused to execute the deed. Therefore, the plaintiff was compelled to institute the suits for specific performance of contract. The defendants contested the applications for temporary injunction. It was contended that taking advantage of the acute financial hardship, the plaintiff obtained fraudulent signatures of the defendants in the purported documents without furnishing copies of the said documents or the alleged money-receipts purportedly granted by the defendants to the plaintiff. It was alleged that the plaintiff practiced fraud upon the defendants in obtaining signatures on the purported documents without disclosing the contents of such documents to the defendants. The learned trial judge, initially, passed an ex-parte ad interim order of injunction. It was alleged that the plaintiff practiced fraud upon the defendants in obtaining signatures on the purported documents without disclosing the contents of such documents to the defendants. The learned trial judge, initially, passed an ex-parte ad interim order of injunction. The defendants, upon entering appearance in the suits, took out applications under Order 39, rule 4 read with Section 151 of the code of Civil Procedure, inter alia, praying for vacating the ad interim order of injunction. All the applications were considered together and the learned judge, by the orders impugned, extended the ad interim orders of injunction granted earlier till the disposal of the suits. Mr. Sudhish Dasgupta and Mr. Bidyut Kumar Banerjee, learned senior advocates appearing in support of these appeals contend that the learned judge, in the facts and circumstances of the case, ought not to have granted temporary order of injunction till the disposal of the suits unconditionally without imposing reasonable terms on the plaintiff. Mr. Saktinath Mukherjee, learned senior advocate for the respondent, on the contrary, strenuously, argues that, in the suits for specific performance of contract as the plaintiff has established prima facie case, the plaintiff is entitled to get temporary order of injunction during the pendency of the suits. Mr. Mukherjee, further, submits that imposition of condition will cause great hardship on the plaintiff. He draws our attention to Explanation (i) to Sub-section (c) of Section 16 of the Specific Relief Act, 1963, and submits that the legislature in its wisdom explained that where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court. Mr. Mukherjee cites the decision in the case of Sakti Ranjan Chatterjee versus Hindusthan Steel Limited reported in 73 CWN 228 and, in particular, draws our attention to the following observation of the Court: “Nobody questions the powers of the Court to put a party on terms, in granting a temporary injunction. But, it is only becoming of a court of law to impose such terms as are fair and reasonable. If the terms are such as are incapable of being met, it comes to saying: What you give with one hand, you take away with the other. That is what I see here. But, it is only becoming of a court of law to impose such terms as are fair and reasonable. If the terms are such as are incapable of being met, it comes to saying: What you give with one hand, you take away with the other. That is what I see here. Who amongst us and how many amongst us, save of course the multimillionaires and the black marketeers, can furnish ‘security deposit’ of Rs.4,00,000/- (Rupees four lakh)? To order a party of Sakti Ranjan’s type to do so is virtually to deny him the relief of an interim temporary injunction, and, worse, to stultify the hearing of the appeal.” Mr. Mukherjee, further, cites the decision in the case of Prem Chand Garg and another versus Excise Commissioner, Uttar Pradesh and others reported in AIR 1963 SC 996 and submits that the Supreme Court of India declared Order 35, rule 12 of the Supreme Court Rules and Orders, in so far as it relates to giving of security in proceedings under Article 32 of the Constitution of India, invalid as it infringed the fundamental right to move the Supreme Court of India under the said Article 32. Mr. Mukherjee, therefore, submits that if the plaintiff is asked to deposit the entire consideration money for the purpose of obtaining an order of temporary injunction that would amount to infringement of his right to pursue his claim before a competent Court of law. Finally, Mr. Mukherjee cites the decision in the case of S. Ramalingam Pillai versus G.R. Jagadammal and another reported in AIR 1957 Andhra Pradesh 960. A purchaser obtained a decree for specific performance of contract. Subsequently, he instituted a suit for compensation contending that on breach of a contract for sale of immovable property, the purchaser would be entitled to sue for compensation proceeding on the basis that the possession of the vendor was wrongful and that he was bound to account to the purchaser for the profit till the execution of the sale deed in favour of the plaintiff. While dismissing the suit, it was held that the right to compensation arises coincidentally with the right to specific performance & out of the breach or non-performance of the contract of sale. While dismissing the suit, it was held that the right to compensation arises coincidentally with the right to specific performance & out of the breach or non-performance of the contract of sale. Where, therefore, the purchaser sues for and obtains a decree only for the specific performance of the contract, his subsequent suit was not maintainable as it was barred under Order 2, rule 2 of the Code of Civil Procedure. Further, it was observed that the duty of the vendor under the contract of sale was to take as much care of the property in his possession as an owner of the ordinary prudence would take till possession was delivered to the purchaser. Mr. Mukherjee, finally, suggests that the plaintiff is ready and willing to pay the entire consideration money provided, however, the defendants agree to execute conveyance in favour of the plaintiff. The law of injunction is well settled that granting or refusing to grant temporary injunction is governed by three well established principles – (a) if prima facie case has been made out; (b) whether the balance of convenience is in favour of the party seeking injunction; (c) whether the party seeking injunction will suffer irreparable loss and injury if injunction is not granted. The Court must take into account the overall necessity to balance the interests of both parties. Undoubtedly, the Court has power to impose reasonable terms as a condition while granting injunction. Law empowers the Court in granting injunction to impose such conditions on the plaintiff as it deems fit for safeguarding the rights of the defendant till the disposal of the suit. Mr. Dasgupta, learned senior advocate, appearing for the appellant, in our view, rightly, cited N. Srinivasa versus Kuttukaran Machine Tools Limited reported in (2009) 5 SCC 182 . The Supreme Court of India noticed that it would take some time for the arbitrator to pronounce the award. It was felt that the balance of convenience & inconvenience of the parties demanded that the appellant should be directed to deposit the balance amount of consideration as during the pendency of the arbitral proceeding the parties would have to maintain status quo in respect of the property in suit and that the owner would remain restrained from transferring, alienating or encumbering the property in dispute. Mr. Mr. Bidyut Kumar Banerjee, learned senior advocate, in our view, rightly drew out attention to a passage from Fry on the Specific Performance of Contracts (sixth edition, 1921). The learned author observed that it might here be added that whenever in such cases, a person is compelled by injunction to observe some negative term of a contract, the whole benefit of the injunction is conditional upon the plaintiff’s performing his part of the contract, and the moment he fails to do any of the acts which he has engaged to do, and which were the consideration for the negative term, the injunction will be liable to be dissolved. The property in dispute is vacant land of about 95 cottahs. The total consideration for such land comes to about 4,00,00,000/- (Rupees four crore) only. The defendants are restrained by an order of injunction from transferring, alienating or encumbering the property in dispute during the pendency of the suit. It will be the duty of the vendors to take such care of the property in their possession as owners of ordinary prudence would take. It involves costs. The defendants contended that taking advantage of the acute financial hardship, the plaintiff persuaded them to put their signatures on purported documents for agreement of sale of vast tract of vacant land upon payment of Rs. 1,67,000/- (Rupees one lakh and sixty seven thousand) only. Subsequent payment of Rs.5,00,000/- (Rupees five lakh) only was made by cheques. Admittedly, the cheques have not been encashed. When the suits are pending and the plaintiff has established his prima facie case to go to trial, we, also, feel that, during the pendency of the suits, defendants should be restrained from transferring, alienating or encumbering suit property or from changing the nature and character thereof. Simultaneously, we feel that it will take some time for the trial court to dispose of the suit and when the defendants are restrained from transferring, alienating or encumbering the suit, we should impose reasonable terms and conditions considering the balance of convenience and inconvenience of the parties. We, therefore, feel that the orders impugned require to be modified. The defendants should be restrained by an order of injunction from transferring, alienating or encumbering the property in the suits or from changing the nature & character thereof unconditionally for a period of 2(two) months. We, therefore, feel that the orders impugned require to be modified. The defendants should be restrained by an order of injunction from transferring, alienating or encumbering the property in the suits or from changing the nature & character thereof unconditionally for a period of 2(two) months. The plaintiff is directed to invest Rs.1,00,00,000/- (Rupees one crore) only in short term interest bearing fixed deposit scheme in any scheduled bank and to deposit the fixed the deposit receipt with the Court. The plaintiff shall not be entitled to encash fixed deposit during the pendency of the suits. However, the plaintiff shall be entitled to renew the fixed deposit, if necessary, with the leave of the trial Court. We do not think that the imposing of such terms is either unfair or unreasonable. The plaintiff is not a middle class person as that of ‘Sakti Ranjan’s type’, but the plaintiff is a multimillionaire promoter builder, who allegedly has the capacity to purchase vast tract of vacant land for promotion and development. Therefore, imposition of security of Rs. 1,00,00,000 /- (Rupees one crore) only by way of investment in short term interest bearing fixed deposit cannot be construed that what we give to him with one hand, we propose to take away with the other. If the receipt, as aforesaid, is deposited with the trial Court within 2(two) months from this date, the interim order of injunction shall continue till the disposal of the suits. In default, the interim order shall automatically stand vacated. The learned trial judge is requested to dispose of the suits by December 2012, peremptorily. The appeals and all connected applications are, thus, disposed of. We make no order as to costs. Murari Prasad Shrivastava, J. I agree.