JUDGMENT By the Court.—Heard Sri Ramendra Pratap Singh, Advocate for appellant and Sri S. Shekhar, Advocate for respondent. 2. This is a defendant’s appeal under Section 96 of the Code of Civil Procedure (hereinafter referred to as the “CPC”), which has arisen from the judgment dated 29.8.2002 and decree dated 5.9.2002 passed by Sri Rajbhan Singh, VIth Additional Civil Judge (Senior Division), Ghaziabad in Original Suit No. 321 of 1992, whereby the Court below has decreed suit and made a declaration that defendant-appellant is not entitled to recover 75% of auction money and interest thereon from plaintiff-respondent until it perform and complete the following works: ^^,- ys vkmV Iyku esa nf’kZr dE;qfuVh QsflfyVh dks deflZ;y dsUnz ds :i esa ifjofrZr u dj fn;k tk;A c- deflZ;y dsUnz iw.kZ :i ls fodflr u dj fn;k tk;sA l- tc rd fd oknxzLr IykV ,oa blds lehi vukf/kd`r vfrdze.k u gVk fn;k tk;A n- lapkj lqfo/kk VsyhQksu] VsysDl iksLV vkWfQl dh lqfo/kk izfroknh }kjk iznRr u dj nh tk;sA** “A. The community facility shown in the layout plan be not changed into commercial centre. B. The commercial centre be not fully developed. C. Till the time the unauthorised encroachment at the plot and in its vicinity is not removed. D. Communication facilities like telephone, telex and post office facility be not provided by the defendant.” (English translation by the Court) 3. It has also directed defendant-appellant to restore plaintiff’s allotment and to not forfeit 25% of money deposited by plaintiff. 4. The plaintiff-respondent, M/s Marwan Hotels Private Limited, a Company registered under the Companies Act, 1961 having its registered office at 17-Defence Colony, New Delhi, instituted Original Suit No. 321 of 1992 in the Court of Civil Judge, Ghaziabad pleading that defendant-appellant, i.e., New Okhla Industrial Development Authority (hereinafter referred to as the “NOIDA”) published an advertisement in daily newspaper “Hindustan Times” on 11.1.1989 offering plot No. C-18, Sector-4, Noida Complex on lease for the purpose of construction of a Restaurant and Hotel in accordance with parameters set up by Ministry of Tourism. The plot is situated on the main road, in the heart of fully developed commercial center, Sector-4, and there existed facilities of Telephone, Telex, Post Office, Banking etc. The plaintiff made highest bid for Rs. 40,75,000/- (at the rate of Rs. 4075/- per square meter). As per the terms and condition of auction, it deposited 25% i.e., Rs. The plot is situated on the main road, in the heart of fully developed commercial center, Sector-4, and there existed facilities of Telephone, Telex, Post Office, Banking etc. The plaintiff made highest bid for Rs. 40,75,000/- (at the rate of Rs. 4075/- per square meter). As per the terms and condition of auction, it deposited 25% i.e., Rs. 10,20,000/- at the time of auction. The remaining 75% of amount was to be deposited by plaintiff-respondent by 27.4.1989. The defendant had assured plaintiff that before payment of 75% amount, it will remove all slum dwellers from the site and shall also provide various facilities as per offer. The plaintiff sent letters dated 4.2.1989 and 20.2.1989 requesting defendant to comply with their assurance but in vain. In March, 1989, plaintiff received a lay out plan showing that instead of commercial, concerned area was declared as community center. The plaintiff sent letter dated 12.4.1989 requesting defendant to correct lay out plan, remove slum dwellers and develop area into commercial center but received no reply. Several reminders were also sent, i.e., dated 4.2.1989, 20.2.1989, 12.4.1989, 26.5.1989, 1.6.1989, 25.2.1991, 23.5.1991, 15.8.1991 and 28.12.1991. Instead of taking any action as per its assurance, defendant served a letter dated 24.2.1992 upon plaintiff demanding Rs. 30,55,000/- as balance auction money alongwith interest. Defendant was not entitled to demand interest since it has not observed its own part of obligation and on the contrary plaintiff has suffered due to their inaction. The defendant, however, informed plaintiff that either it should pay balance amount alongwith interest else 25% amount already deposited shall be forfeited and recovery certificate shall be issued to recover amount mentioned in letter dated 24.2.1992. 5. At this stage, plaintiff vide plaint dated 26.3.1992 instituted suit for declaration that defendant is not entitled to demand 75% of amount as well as interest thereon until it carry out change in lay out plan making concerned area as commercial, full development of area, clearance of slum dwellers, availability of communication facilities etc. It also sought a mandatory injunction directing defendant to restore allotment and set aside forfeiture of 25% amount. During pendency of suit allotment of disputed land was cancelled by defendant vide letter dated 7.4.1993 whereupon plaint was amended by inserting para 10A, and some amendments were made in paras 12, 13 and 14 as also the relief. 6. It also sought a mandatory injunction directing defendant to restore allotment and set aside forfeiture of 25% amount. During pendency of suit allotment of disputed land was cancelled by defendant vide letter dated 7.4.1993 whereupon plaint was amended by inserting para 10A, and some amendments were made in paras 12, 13 and 14 as also the relief. 6. The defendant-appellant contested suit by filing written statement stating that advertisement for auction of disputed land for hotel and restaurant was published in various newspapers. Auction was held on 24.1.1989 and highest bid of plaintiff was accepted. Plaintiff deposited 25% of bid amount and balance 75% was to be deposited within 90 days of issue of allotment letter. There was no encroachment on disputed land. The terms and conditions laid down in brochure provide that 75% of balance amount was to be deposited within 90 days, which was extended in case of default for another period of 90 days, subject to penalty of 18% for first month, 24% for second month and 36% for third month. Plaintiff neither deposited amount of 75% within 90 days nor in the extended period. However, taking a sympathetic consideration, by letter dated 24.2.1992, plaintiff was given last opportunity to deposited amount, which he failed. The suit is barred by Sections 34, 38 and 41 of Specific Relief Act, 1963 (hereinafter referred to as the “Act, 1963”). 7. Plaintiff filed replication denying averments contained in written statement. 8. An additional written statement dated 5.10.1999 was also filed by defendant-appellant wherein it was pleaded that allotment was cancelled vide letter dated 7.4.1993 and plaintiff had knowledge thereof. The additional written statement was filed as a result of amendment of plaint by insertion of para 10A and amendment of paras 12, 13 and 14 and relief in the plaint. 9. Trial Court formulated following two issues: ^^1- D;k oknh bl vk'k; dk ?kks"k.kkRed vuqrks"k ikus dk vf/kdkjh gS fd izfroknh mlls 'ks"k /kujkf'k 75 izfr'kr vkoafVr /kujkf'k vkSj C;kt vFkkZr vadu 30]55]000@& :i;k olwyus ds vf/kdkjh ugha gSa] tc rd fd izfroknh viuh lafonk dk Hkkx izLrko fnukafdr 11-1-1989 ds vuqlkj iw.kZ u dj nsa tSlk fd okn i= vfHkopuksa esa dgk x;k gSA ;fn gka rks izHkkoA 2- D;k oknh okni= ds vfHkopuksa ds vkèkkj ij okafNr fu"ks/kkKk dk vuqrks"k vius i{k esa fo:) izfroknh ikus ds vf/kdkjh gSA** “1. Whether the plaintiff is not entitled to get declaratory relief to the effect that the defendant is not entitled to realise from him the remaining 75% of the allotment amount alongwith interest i.e. a total of Rs. 30,55,000/- until & unless the defendant fulfils his part of the contract as per proposal dated 11.1.1989 as averred in the plaint. If so, its effect? 2. Whether the plaintiff, on the basis of the averments made in the plaint, is entitled to secure the relief of injunction, as sought, in his favour and against the defendant?” (English translation by the Court) 10. Both parties filed their oral and documentary evidence whereafter Trial Court answered issues in favour of plaintiff and decreed suit. 11. Before this Court, the appellant contended that allotment of plaintiff was already cancelled and letter of cancellation was also communicated to plaintiff but it did not seek any relief of declaration against aforesaid document, hence consequence of such cancellation could not have been stopped as the relief in absence of any declaration with respect to order of cancellation of allotment is impermissible in law. It is contended that relief of injunction or declaration was vague inasmuch as allotment was already cancelled and unless and until order cancelling allotment is declared illegal, no further relief which may obstruct natural consequence of cancellation order could have been granted. The Trial Court has committed manifest error in decreeing suit. It is further contended that plaintiff did not comply with his own obligations as per terms and conditions of brochure and auction, hence Court below committed manifest error in decreeing suit. 12. Per contra, learned counsel appearing for plaintiff-respondent supported the judgment and decree for the reasons stated therein. 13. Having heard learned counsel for the parties, in our view, following three points for determination have arisen for adjudication of this appeal: (1) Whether Court below erred in law in granting relief to plaintiff in absence of any relief of declaration sought by plaintiff-respondent with respect to letter dated 7.4.1993, cancelling allotment made in favour of plaintiff and forfeiting 25% amount deposited by it. (2) Whether the suit is barred by Section 38 and 41 of Act, 1963? (3) Whether plaintiff was justified in not making payment of 75% of auction money and still to claim that allotment must be deemed to continue in his favour? 14. (2) Whether the suit is barred by Section 38 and 41 of Act, 1963? (3) Whether plaintiff was justified in not making payment of 75% of auction money and still to claim that allotment must be deemed to continue in his favour? 14. We propose to consider and answer all the above three points together since the facts and discussion would be overlapping. 15. At the outset, we may place on record that learned counsel for appellant could not dispute the fact that once allotment made in favour of plaintiff-respondent was cancelled by letter dated 7.4.1993 and the said letter continued to remain in force, appellant would not be able to recover the remaining 75 per cent of bid amount alongwith interest for the reason that cancellation of allotment has been given effect by following forfeiture clause and for not depositing 75 per cent amount within the stipulated period. Hence, as a result of cancellation of allotment, defendant-appellant can claim only the authority to re-allot the plot by fresh auction and to forfeit 25 per cent amount, already deposited, by plaintiff-respondent provided other issues are decided in their favour. 16. Parties agree that advertisement was published in Daily Newspaper “Hindustan Times” dated 11.1.1989, a copy whereof has been filed as paper No. 57Ga. The advertisement contains of proposed offer as under : 1- m0iz0 foRrh; dkjiksjs'ku }kjk gksVy izkstsDV ds fy, _.k vklkuh ls izkIrA 2- IykV fLFkr eq[; lMd] iw.kZ fodflr O;kikfjd dsUnz lsDVj&4 ds e/; esaA 3- lapkj VsyhQksu] VsysDl ,oa iksLV vkWfQl dh lqfo/kk miyC/kA 4- cSfdax lqfo/kk vklkuh ls izkIrA 5- dukV Iysl ls dsoy 16 fdyksehVj nwjA 1. Loan for Hotel project easily available from U.P. Finance Corporation. 2. Plot situated at main road, fully developed, in the midst of Sector-4. 3. Facilities of communication, telephone, telex and Post Office available. 4. Bank loan easily available. 5. Just 16 kilometers away from Connaught Place. 17. Plaintiff pleaded that before auction, he visited site and found that site itself as well as in the vicinity thereof, existed several hutments and slum dwellers were residing. Besides, area was also not properly developed. Plaintiff brought this fact to the notice of officials of defendant appellants, who assured that before receiving entire auction money, encroachment shall be removed and site would be appropriately developed. Auction took place on 24.1.1989 on which date highest bid of plaintiff was accepted. Besides, area was also not properly developed. Plaintiff brought this fact to the notice of officials of defendant appellants, who assured that before receiving entire auction money, encroachment shall be removed and site would be appropriately developed. Auction took place on 24.1.1989 on which date highest bid of plaintiff was accepted. It is also not in dispute that plaintiff deposited 25 per-cent of bid amount on that very day i.e., 24.1.1989. Auction was confirmed by defendants on 28.1.1989. 18. We do not find anything from record that till 24.1.1989, with respect to the disputed site, any objection was raised by either plaintiff or any other bidder that the offered plot is encroached by slum dwellers or that area is not developed. Pleadings in this regard have been made by plaintiff in the plaint. In oral statement of P.W. 1, R.B. Marwan, it has also been stated but this fact has been denied by defendant. The name of officer concerned or other details, who gave such assurance to plaintiff has not been disclosed. No evidence has been brought on record to support the pleading except oral deposition which has been denied by defendant-appellant. Nothing has been shown by plaintiff that it participated in the auction with any condition that alleged encroachment should be removed or that area is not developed and the same shall be developed before making payment. 19. It is admitted by the counsel for the respondent that plaintiff participated in auction without any reservation or condition. Even if we proceed to assume that there existed some hutments of slum dwellers on plot in dispute but in the absence of any reservation or condition put by plaintiff at the time of auction and its unconditional participation would mean that plaintiff cannot be allowed to take a defence subsequently to justify non-payment of complete bid money on any ground i.e. until something is done which was not a condition at the time of auction. 20. The terms and conditions of allotment are contained in paper No. 148Ga which says that plot in question would be auctioned for a leased term of 90 years. Bid, once accepted cannot be withdrawn. The proposed bidder has to deposit Rs. 20,000/- prior to the date of bidding. 20. The terms and conditions of allotment are contained in paper No. 148Ga which says that plot in question would be auctioned for a leased term of 90 years. Bid, once accepted cannot be withdrawn. The proposed bidder has to deposit Rs. 20,000/- prior to the date of bidding. After fall of hammer, highest bidder, whose bid is accepted, shall pay a sum equal to 25 per-cent of bid amount immediately either in cash or through bank draft. The amount of Rs. 20,000/-, already deposited, will stand adjusted in this 25 per-cent amount. The remaining 75% shall be deposited in 90 days from the issue of allotment letter. 21. Clause VIII(a) of terms and conditions of Allotment provides following conditions : “VIII(a) After the acceptance of the bid Chairman New Okhla Industrial Development Authority, the bidder will be informed of such acceptance in writing and the bidder shall within 90 days thereof pay to New Okhla Industrial Development Authority the balance 75% amount of the bid in cash or in bank draft drawn in favour of New Okhla Industrial Development Authority and payable at any nationalized bank at Delhi/ New Delhi /Noida only. If the bid is not accepted , the amount of 25% will be refunded to the bidder without any interest unless if may have been forfeited.’’ 22. Clause VIII(b) talks of extension of time for payment of balance 75 per-cent amount and reads as under : “VIII(b) Extension of time to make the payment of balance 75% of amount may be allowed under exceptional circumstances by the Chairman for a maximum period of three months subject to the charging of penalty @ 18% p.a. for the first month @ 24% p.a. for the second month and @ 30% p.a. for the third month of extension. No further extension beyond this period will be allowed under any circumstances. An application seeking extension of time by the purchaser for making the payment of the balance premium, should be made at least 15 days in advance and it should be accompanied with a demand draft equal to the amount of penalty at the above mentioned rate for the period of extension is asked for. It may be noted that if the request is made without the required amount of demand draft it will not be entertained and will summarily be rejected. It may be noted that if the request is made without the required amount of demand draft it will not be entertained and will summarily be rejected. It may also be noted that within 90 days period or during the extended period if no payment is received, the bid will be treated automatically as cancelled and the 25% amount deposited will be forfeited.” (emphasis added) 23. The above Clauses make it very clear that for the purpose of payment of bid money, conditions were very stringent. 25 per cent was to be deposited after fall of hammer when bid is accepted, remaining 75 per cent within 90 days from the date of issue of allotment letter. The extension of time for payment of balance 75 per cent amount is permitted but that too on stringent condition of payment of penalty at the rate of 18 per cent for first month, 24 per cent for second month and 36 per cent for third month of extension. This extension is not automatic but party concerned would have to submit an application fifteen days in advance accompanied by a demand draft equal to amount of penalty which would be attracted for the period extension is being asked. The consequences are also provided that if request is made without demand draft, request for extension will not be entertained and will summarily be rejected. Further, the consequence of non-payment of 75 per cent within stipulated time is also provided stating that bid will stand cancelled automatically and 25 per cent amount already deposited will stand forfeited. This consequence is also reiterated in Clause-9 which reads as under: “IX. If the successful bidder fails to pay the balance amount of the accepted bid to the New Okhla Industrial Development Authority within 90 days of its acceptance or within such period as may have been extended otherwise, he shall be liable to the forfeiture of 25% amount deposited by him plus any interest and the plot shall vest in the Authority.” 24. Clause 10 also provides that successful bidder shall submit a duly filled application in the prescribed format after close of auction. Clause 10 also provides that successful bidder shall submit a duly filled application in the prescribed format after close of auction. Copy of this application filed by plaintiff has been placed on record as paper No. 147G which does not show that plaintiff placed on record any such condition that disputed plot is encroached by slum dweller or it is not properly developed and the amount of 75% would be deposited after the aforesaid infirmities are rectified. The application (Paper No. 147Ga) does not contain any such condition. 25. Defendant appellant issued allotment letter dated 28.1.1989 (paper No. 149Ga) informing plaintiff that its bid in auction held on 24.1.1989 in respect to plot No. C-18, Sector 4, has been accepted. It also acknowledges receipt of 25 per-cent of the bid amount i.e. Rs. 10,20,000/- and required plaintiff to deposit balance amount of Rs, 30,55,000 within 90 days from the date of issue of letter i.e. 28.1.1989 i.e., 27.4.1989. This letter also specifically mention that in case of failure to deposit balance amount action would be taken as per terms and condition of auction. 26. Paper No. 150Ga shows that after receiving allotment letter dated 28.1.1989, some complaint was made by plaintiff for the first time vide letters dated 10.2.1989 and 20.2.1989 regarding presence of some hutment adjacent to the plot in question. In this regard defendant appellant informed vide letter dated 27/28.2.1989 that plot in question allotted to plaintiff was free from all encroachment and he was advised to pay balance amount within prescribed period of 90 days. 27. It appears that plaintiff sent a letter dated 12.4.89 to the defendant which was replied by Development Manager, Noida that as per terms and conditions of auction it has to deposit balance amount of 75 per-cent by 27.4.1989 and since the said amount was not paid and plaintiff has also not asked for extension of time, it may show cause why allotment of plot in question be not cancelled and 25per-cent amount deposited by it be not forfeited. Plaintiff did not make payment of balance amount but continued to indulge in correspondence. Assistant Development Manager, Noida vide letter dated 9.12.1991 informed plaintiff that there is no unauthorised construction on the allotted site and as per condition No. 7 of the Brochure, till 31.12.1989, Rs. Plaintiff did not make payment of balance amount but continued to indulge in correspondence. Assistant Development Manager, Noida vide letter dated 9.12.1991 informed plaintiff that there is no unauthorised construction on the allotted site and as per condition No. 7 of the Brochure, till 31.12.1989, Rs. 7446469.50/- was outstanding which plaintiff may deposit by 31.12.1991 else further action would be taken as per show cause notice dated 24.4.1991. Paper No. 151Ga is also on record which shows that Secretary, Noida informed plaintiff that allotted site is totally vacant. Plaintiff has not deposited balance amount of 75 per-cent till due date and therefore, has committed breach of conditions of allotment. It should show cause, why allotment be not cancelled and the amount already deposited deposited be not forfeited. 28. The Court below, however has relied on Commissioner’s Report dated 28.3.1992 which states that some hutmant of slum dwellers were there on south and east of the allotted side as also on the allotted site itself. Court below, in our view has failed to appreciate that this report is almost three years later to the date of allotment and cannot be a relevant evidence to show that before or at the time of allotment there was any encroachment on the allotted site. The Court below has also referred to certain photographs said to have been taken by Harish Gauri, P.W. 3, at the instance of R.B. Marwan P.W. 1 but these photographs also having been taken on 4.1.1992, cannot represent the status and correct position of the disputed site on the date of auction or prior thereto. 29. Entire record show that for the first time, plaintiff sought to make a complaint about alleged encroachment on 4.2.1989 i.e. after allotment made in favour of the plaintiff and letter of allotment dated 28.1.1989 was issued demanding balance amount of 75 per-cent within 90 days from the date of auction. Before or till the date of auction, no such complaint was made by plaintiff. Besides, it also participated without any reservation in the auction agreeing with the terms and conditions contained in the brochure, hence the claim that subsequently it was open to the plaintiff to justify non-payment of 75 per-cent of bid amount within prescribed time cannot sustain. 30. Before or till the date of auction, no such complaint was made by plaintiff. Besides, it also participated without any reservation in the auction agreeing with the terms and conditions contained in the brochure, hence the claim that subsequently it was open to the plaintiff to justify non-payment of 75 per-cent of bid amount within prescribed time cannot sustain. 30. Court below, in our view, has also committed manifest error and failed to appreciate the evidence available on record correctly in holding that there actually was encroachment on the allotted site inasmuch as such evidence is of year 1992 , i.e. Commissioner’s Report and Photographs. Complaint made by plaintiff about alleged encroachment was denied by defendant and they said that there is no encroachment on the disputed site. With regard to existence of alleged encroachment by way of hutments of slum dwellers, whatsoever evidence has come on record is of much subsequent period, hence was not relevant to prove a fact as to what was correct position before and at the time of auction of site in question. Even plaintiff did not raise any such complaint till he participated in auction as his participation was unconditional and thereupon letter of allotment was issued. It is only when letter of allotment was issued and subsequent thereto when this ground was taken by plaintiff, may be to obtain certain further time for payment of balance amount, that is neither legal nor shows bona fide on the part of appellant nor, even otherwise, can justify deferment of payment of balance 75 per cent bid amount within stipulated time. 31. Moreover, we are of the view that once the plaintiff has participated in auction without any reservation, unconditionally, it was not open to plaintiff to justify non-payment of remaining 75 per cent of bid amount, for which it has agreed to deposit within 90 days from the date of issuance of allotment letter, on any ground, whatsoever. There was an admitted breach of terms and conditions of the auction and brochure published by defendant-appellant on the part of plaintiff-respondent and that being so neither it can claim any right to continue with the allotment of site in question in its favour nor can successfully request for not giving effect to consequences of such breach. 32. There was an admitted breach of terms and conditions of the auction and brochure published by defendant-appellant on the part of plaintiff-respondent and that being so neither it can claim any right to continue with the allotment of site in question in its favour nor can successfully request for not giving effect to consequences of such breach. 32. This Court considering similar terms and conditions, in First Appeal No. 150 of 1998 (Charan Singh v. New Okhla Industrial Development Authority) decided on 31.3.2015, has held, if there is a breach of conditions on the part of bidder, Noida officials would be justified in canceling allotment. In our view, plaintiff-respondent could not have wriggled out of its obligation of deposit of 75 per cent amount within due time for any reason, whatsoever, when it has participated in the auction without any reservation. In respect to certain facts, which the plaintiff alleges existed before auction to which he objected and was assured otherwise by defendant but could not bring on record any evidence hence the plaintiff could not have been given any relief in this regard. 33. Once the plaintiff-respondent participated without any reservation or condition in the auction and his bid was accepted, in the light of such unconditional participation of plaintiff-respondent, terms and conditions agreed between parties were binding on both the parties, the plaintiff-respondent was obliged to comply his part of obligation. It is not a case where defendant is said to have auctioned site in question on account of any fraud or misrepresentation or by force. Everything was open. Plaintiff could have visited site. As admitted, it was actually visited by plaintiff, and thereafter without any reservation or condition, it participated in auction. 34. In Bihar State Electricity Board, Patna and others v. M/s. Green Rubber Industries and others, (1990) 1 SCC 731 and M/s. Grasim Industries Ltd. and another v. M/s. Agarwal Steel, AIR 2010 SC (Supp) 291, it has been held by Court that a person who has entered into an agreement or contract with open eyes is bound by it unless it is a case of fraud or misrepresentation. The presumption is against the party who challenges the contract. 35. The presumption is against the party who challenges the contract. 35. In the present case, plaintiff admittedly agreed to pay bid amount in terms and conditions of brochure and auction, yet after issue of allotment letter, it has tried to evade the same for one or other reason which in our view is not permissible. 36. It brings us to ancillary question, whether plaintiff could have sought a declaration that allotment of questioned site in favour of plaintiff would continue and defendant-appellant cannot or should not forfeit 25 per cent amount unless and until order passed by defendant-appellant canceling allotment is challenged and declaration that said cancellation order is bad in law is not prayed by plaintiff. 37. It is not disputed that cancellation letter dated 7.4.1993 (Paper No. 93-Ga) was in the knowledge of plaintiff. In fact, record shows that after filing suit in March’ 1992 vide plaint dated 26.3.1992, plaintiff received cancellation order dated 7.4.1993 (Paper No. 94Ka) communicating that in terms of condition No. 3 (Clause VIII(b) and 9) of terms and conditions, his allotment is cancelled and the amount, already deposited, stands forfeited. 38. Thereafter, plaintiff sought amendment in the plaint but neither any relief was sought to be added by plaintiff for declaration of letter dated 7.4.1993 as illegal or bad nor plaintiff made any prayer for refund of amount, already forfeited, by authorities concerned. Prayer-B seeking mandatory injunction that defendant should restore allotment and set aside forfeiture could have been prayed being a consequential relief once cancellation order dated 7.4.1993 is declared illegal, but in absence of any relief sought against the order dated 7.4.1993, consequential relief could not have been granted by Court below. 39. In this regard, we may refer to Sections 38 and 41 of Act, 1963, which read as under: “38. Perpetual injunction when granted.—(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II. (2) When any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely:— (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.” “41. Injunction when refused.—An injunction cannot be granted— (a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings; (b) to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought; (c) to restrain any person from applying to any legislative body; (d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter; (e) to prevent the breach of a contract the performance of which would not be specifically enforced; (f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance; (g) to prevent a continuing breach in which the plaintiff has acquiesced; (h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust; (i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Court; (j) when the plaintiff has no personal interest in the matter.” 40. A perpetual injunction, thus, in the light of Section 38 of Act, 1963 may be granted to prevent breach of an obligation existing in favour of plaintiff. Sub-Section (2) further says that if such application has arisen from contract, the Court shall be guided by the rules and provisions contained in Chapter II. Meaning thereby, it has to be seen whether agreement is enforceable or not and whether plaintiff himself as complied with the obligation which he was to observe under the agreement. Sub-Section (2) further says that if such application has arisen from contract, the Court shall be guided by the rules and provisions contained in Chapter II. Meaning thereby, it has to be seen whether agreement is enforceable or not and whether plaintiff himself as complied with the obligation which he was to observe under the agreement. Further, injunction may be granted when defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property. 41. In the present case, plaintiff has already committed breach by not depositing 75 per cent of the amount and as per the stipulation in the agreement, as soon as breach is committed, agreement itself would stand cancelled automatically and the amount already deposited would stand forfeited. In fact, the letter dated 7.4.1993 issued by defendant-appellant was only a communication of an event which had already taken place under the terms and conditions of agreement. 42. Section 41 clearly bars grant of an injunction where performance of contract cannot be specifically enforced. Further, the conduct of plaintiff in the present case, in our view, by not depositing balance amount within stipulated time dis-entitles him for assistance of the Court. 43. In other words, a perpetual injunction can be granted only to prevent defendant to commit breach of an obligation existing in favour of plaintiff, whether expressly or by implication. The Court cannot grant an injunction to enforce an agreement when it has already been revoked and letter revoking contract is not challenged. When agreement itself has ceased to be operative, question of its enforcement does not arise. Further, after cancellation of auction by defendant-appellant and forfeiture of money already deposited, there was no question of any recovery of balance amount of 75 per cent since there was no such condition in the brochure. 44. So far as forfeiture is concerned, it had already taken effect and order, whereby the money was forfeited, was not sought to be declared as illegal. The result would be that letter dated 7.4.1993 continue and shall have all its consequences. In absence of any relief sought by plaintiff to made this order ineffective, consequences of such order cannot be and could not have been arrested by Trial Court by granting an injunction in favour of plaintiff. In our view, Court below in passing decree to this effect has completely erred in law. In absence of any relief sought by plaintiff to made this order ineffective, consequences of such order cannot be and could not have been arrested by Trial Court by granting an injunction in favour of plaintiff. In our view, Court below in passing decree to this effect has completely erred in law. We, therefore, answer the aforesaid questions in favour of defendant-appellant and against plaintiff-respondent. 45. Appeal is, accordingly, allowed. Impugned judgment 29.8.2002 and decree dated 5.8.2002, insofar as it has directed defendant-appellant to treat the allotment as continuing in favour of plaintiff-respondent and also not to forfeit 25 per cent bid money, already deposited by plaintiff-respondent, is hereby set aside. The suit of plaintiff in respect to aforesaid relief is dismissed. 46. Appellant shall be entitled to cost throughout to the extent it has succeeded this appeal. ———————