Delhi High Court
Vijay Srivastava vs Mirahul Enterprises And Ors. on 21 August, 1987
Equivalent citations: 1988RLR7, AIR1988DELHI140, ILR1987DELHI51, AIR 1988 DELHI 140, 1988 RAJLR 7
JUDGMENT N.C. Kochhar, J.
(1) This older will also dispose of I.A. 1365 of 1986 in Suit No. 450 ofJ986 filed by Rear Admiral KLshi RaJ Sood (the plaintiff in the other suit).
(2) The facts giving rise to this application (J.A. 1367186) and 7.A. No. 1365186 (the other I.A.) in Suit No. 450186 (the other suit) are that Suit. Vijay Srivastava (the plaintiff) had filed this suit on 25th February 1986 in this High Court and on the same day, the plaintiff in the other suit filed the other suit in this court. The cases set up by the plaintiffs in these suits arc as under :
(3) M/S. Miranul Enterprises (the defendant No. 1) is a partnership firm with Shri S. B. Kishore (defendant No. 2) as its managing partner and Smt. Kusum Kishore wife of Shri S.B. Kishore, Shri Rahul Kishore son of Shri S.B. Kishore and M/s. Simira Kishore daughter of Shri S.B. Kishore (hereinafter to be referred as defendants No. 3 to 5 respectively) are its other partners. Defendant No. I was engaged in the business of promoters and builders of multistoreyed residential flats in the name and style of "Mirahul Enterprises'. In the course of the said business, the defendants promoted the construction of multistoreyed residential flats on a plot of land bearing No. A-13, Green Park Extension, New Delhi The plaintiff was in need of suitable residential accommodation in Delhi as her husband was retiring and defendant No. 2 knowing about such need approached the plaintiffs husband. Brig. K. K.Srivastava. some time in June/July 1982 and represented to the plaintiff and her Husband that the defendants proposed to construct multistoreyed building of residential flats at A-13, Green Park Extension, New Delhi and such building would be known as 'Mirahul Apartments' and the plaintiff would be benefited by making payment of advance booking of flat/flats and a formal agreement to sell could be executed later on. Relying on the representation and acting on the faith thereof, the plaintiff advanced first payment of Rs. 10,000 on 16th July, 1982 for booking of flat No. S-1 in the proposed project of defendant No. I and thereafter from time to time the plaintiff and/or her husband on behalf of the plaintiff paid a total sum of Rs. 3.15,000 between the period from 16th July, 1982 till 9th October, 1983 lo the defendants by cheques/case against receipts issued by defendant No. 1 and the defendant issued letter dated 7th January 1983 to the plaintiff wherein it was confirmed that the residential flat measuring covered area 1869 sq. ft. in fiats No. S-2 and S-4 had been booked as per area mentioned in the drawings attached with the said letter.
(4) The plaintiff in the other suit is a family Mend of the plaintiff. He braving learnt from the plaintiff's husband about the booking of the residential flats in 'Mirahul Apartments', approached defendant No. 2 along with plaintiff s husband in the first week of May 1983 for allotment of a suitable fiat Certain discussions and negotiations took place between the parties and it was agreed on 24th October, 1983 that the plaintiff in the either suit would pay a sum of Rs. 40,000 to the defendants and out of sum of Rs. 3,15,000 already received by the defendants from the plaintiif, a sum of Rs. 1,40,000 would be transferred and stand adjusted as advance money paid and received in the account of the plaintiff in the other suit against booking of a flat in his name and the agreement to sell would be executed later on. Accordingly. on 24th October 1983, the plaintiff in the other suit paid a sum of Rs. 40,000 by cheque to defendant No. 1 and Rs. 1,40,000 was adjusted from the above said amount of Rs. 3,15,000 deposited by the plaintiff with defendant No.1.
(5) On 2nd November 1983 defendant No. 2 brought two prepared agreements-one to be executed with the plaintiff and the ether with the plaintiff in the other suit. While the plaintiff and the plaintiff in the other suit had signed the two agreements brought by defendant No. 2, it was noticed that the defendants had illegally and dishonestly and without the consent of either of the two plaintiffs included certain terms for payment of some additional amounts other than agreed upon between the parties and when the plaintiffs protested to. defendant No. .2 and some correction and changes were attempted to be earned out, the defendant No. 2 got those agreements back so that two fresh agreements could be prepared in accordance with the terms earlier agreed to between the parties, and accordingly on 2nd November, 1983 itself, defendant No. 2 got prepared fresh two agreements incorporating the agreed terms of the payment between the parties and one such agreement was executed with the plaintiff and the other was executed with the pontiff in the other suit.
(6) According to the agreements arrived at between the parties the defendants had agreed to sell to the plaintiff flat bearing No. S-2 measuring approximately 1156 sq. fts. on the second floor of 'Mirahul Apartment^ as p"r plan annexed to the agreement for Rs. 2,64,261 and had agreed to sell to the plaintiff in the other suit flat No. 51 measuring approximately 950 sq. fts. on the/second floor of the said apartments as per plan annexed to the said agreement for Rs. 2,68.000. According to the agreements, the balance amount of sale price was to be paid by the two plaintiffs in Installments according to the progress of the construction. Accordingly, a further sum of Rs.. 88,000 was paid by the plaintiff between the period from 9th November, 1983, till 9th March, 1984, thus making a total ment of Rs. 2,63,000 out of the total consideration of Rs. 2,64,261 and this only a sum of Rs. 1,261 remained to be paid although according to the agreement 5 per cent of the pace was to be paid at the time the defendants gave possession of the flat to the plaintiff, The plaintiff in the other suit had paid to the defendants a further sum of Rs. 83,000 between the period 22nd December, 1983 to 14th June, 1984 thus making a total payment of Rs. 2,63,000 and the balance amount to be paid by the said plaintiff was only Rs. 5,000 whereas according to the agreement, 5 per cent of. the price was to be paid at the time of handing over of the possession of the flat by the defendants.
(7) Although the possession, of the flats in question was to be given to the two plaintiffs in March 1984, but it was noticed that the progress was very slow and in February 1984 when the defendant No. 2 was approached, he revealed that the defendants were facing acute shortage of funds. The defendant, requested both the plaintiffs to advance interest free loans with the condition that the same would be returned on completion of the building or soon thereafter on demand by the plaintiffs and that interest@ 15 percent p.a. would be paid in the event of the defendants' failure to return the said loan amounts on demand. The plaintiff accordingly advanced sum of Rs. 1,45,000 to the defendants between the period from 11th February, 1984 to 23rd May, 1984 from time to time against receipts and in this way the total amount received by the defendants from the plaintiff came to Rs. '4,03,000 in the account of the plaintiff. The plaintiff in the other suit advanced to the defendants a sum of Rs. 70,000 by way of loan on same conditions by paying a sum of Rs. 25,000 on 7th July, 1984 and a sum of Rs. 45,000 on 9th July 1984. In this way, the total amount received by the defendants in the account of the plaintiff in. the other suit comes to Rs. 3,33,000.
(8) In the month of August 1984 both the plaintiffs learnt that defendant No. 2 and his family had shifted in one of the fiats on the ground floor of 'Mirahul Apartments' and thereafter the 'plaintiffs made repeated requests to the defendants to let them know the suitable date for taking possession of the flats in question but did not receive any response from the defendants and even letter dated 8th October, 1984 was sent by the plaintiff to defendant No. 2 by registered post A.D was not replied to. in December 1984, a letter was received from defendant No. 1 according to which the defendants had desired that the plaintiff should execute a regular agreement to sell in respect of the flat in question but for the. area of approximately 950 sq. ft. and the plaintiff in the other suit was required tc execute such agreement for an area of 955 sq. ft. with the threat that if this was not done by 31st December, 1984 the provisional allotment of the flats would stand cancelled whereupon the plaintiffs wrote letters to defendant No. 4 staling that they had made all payments in accordance with the agreements and -the balance amount remaining unpaid has to be paid at the time defendant No. 1 delivered possession of the flats to the plaintiffs, and there was no provisional booking or allotment and the agreement already executed were regular agreements to sell entered into between the parties and further that the defendants had no right to reduce the area of the size of the flat of the plaintiff from 1156 sq. ft. to 950 sq ft. The defendants had been requested to intimate the date when possession could be taken. By letter dated 29th December, 1984 the defendant No. 1 wrongly alleged that it had been mutually agreed between the parties that unless the loan amount received by defendant No. 1 had been returned, it was not possible to have a regular agreement to sell finalised and as such the date for execution of such agreement was extended up to 31st March, 1985 but the plaintiffs wrote back a letter dated 31st December, 1984 contradicting the contents of the letter dated 29th December 1984.
(9) On 5th January, 1985 defendant No. 1 was contacted on telephone and was requested to hand over the possession of the flats in question and defendant No. 2 was contacted on 12th January, 1985 and 14th January, 1985 with similar requests but the defendants did not pay any heed and failed to hand over the possession. In January 1985 the defendants had advertised for sale certain flats in Mirahul Apartments' and the plaintiffs apprehending that their flats might be sold, filed suits for permanent injunction against the defendants and an interim injunction was passed by the subordinate court restraining defendants from transferring a disposing of the flats in question or creating any charge thereon. The plaintiffs m both the suits have contended that the agreements dated 2nd November, 1983 are regular ones and are subsisting agreements between the parties and they are entitled to enforce respective agreement to sell. They have further alleged that the defendants not baying paid the mounts given by way of loan in spite of demands, the plaintiffs are entitled To charge interest at the rate of 15 per cen p.a. on the said amount. In these circumstances the plaintiffs have prayed for a decree for specific performance of the contracts in accordance with the agreements dated 2nd November, 1983 entered into between the parties besides a decree for the amounts of loan with interest and alternatively for a decree for return of the entire amount along with damages and interest.
(10) Along with the plaint in the two suits, these two LAs. have been moved by the plaintiffs under Order 39 Rules I and 2 read with section 151 Civil Procedure Code praying that during the pendency of the suits, the defendants be restrained from alienating, parting with possession or encumbering the flats in question and further that the defendants be directed to hand over the possession of the flats in question to the plaintiffs on such terms and conditions asw might be deemed fit (11) The suits and the I.As.have been contested by the defendants. The case of the defendants in the written statements as also in the replies to the I.As. is as under: The plaintiff had originally booked flat in the building in question. Later on a flat was booked in the name of the plaintiff in the other suit also The plaintiff had paid a total sum of Rs. 3,77,000 to the defendants and a sum of Rs. 1,16,000 had been paid by the plaintiff in the other suit. After transferring a sum of Rs. 1.40,000 from the account of the plaintiff, the balance amount at the credit of the plaintiff comes to Rs. 2,37,000 and the total amount thus standing at the credit of the plaintiff in the other suit comes to Rs. 2,56,000. No regular and binding agreements had been executed between the parties and the plaintiffs who had to pay at the rates prevailing at the time of execution of the regular agreement and while taking possession The plaintiffs had represented to the defendants that they wanted to raise loan from the H.D.F.C. and as such had requested that some documents be executed in writing and consequently with a view to oblige the plaintiffs, agreements dated 2nd November, 1983 were executed. The loan amounts were received from the plaintiffs but there was no agreement to pay interest thereon and there is no liability for the same. The plaintiff and the plaintiff in the ether , had to pay. a sum of Rs. 4,35,975 and Rs. 3,89,000 respectively for purchasing the flats; in question failed to make the payment and to execute the regular agreements to sell and as such have no right to ask for specific performance of the contract. Neither of them had given instructions to the defendants to transfer the amount of loan in the payment account. There is no liability to pay damages or to transfer the fats. The suits and the I.As. merit dismissal and should be dismissed as such.
(12) I have heard the learned counsel for the parties at length and have also persued the records of the case, (13) The agreements dated 2nd November, 1983 filed by the plaintiff show that it had been agreed between the parties that the flat No. S-2 situated on the second floor and measuring about 1156 sq. f. would be sold to the plaintiff for Rs. 2,64,261 and flat No. S-1 situated on the second floor and measuring about 950 sq. ft. would be sold to the plaintiff in the other suit for Rs. 2,68,000. Clause 10 of these agreements provide that if for any reason or unforeseen circumstances there happened to bean increase in the cost construction due to sudden rise in the cost of material and labour, the total cost of the Hats in question would be increased by a fixed amount of Rs. 10 per sq. ft. and the purchaser would have no objection to the same and would make the payment of the enhanced amount as well payment of the enhanced amount as well.
(14) The copies of the agreements dated 2nd November, 1983 filed by the defendant's, which according to the case of the plaintiffs, had been taken back by defendant No. 2 for being destroyed, also that the price fixed for the flats in question were Rs. 2,64,261 in the case of the plaintiff and Rs. 2.68,000 in the case of the plaintiff in the other suit and both these agreements also have the same clause 10 where by each of the plaintiffs had to pay the enhanced price at the fixed amount of Rs 10 per sq. ft. these of increase due to any reason. However in the last pages of these agreements, it has been mentioned that over and above the amount of Rs. 2.64,961 the plaintiff would pay a sum of Rs. 1,71,712 including the value" stated in clause 10 of the agreement and the plaintiff in the other suit would pay an additional sum of Rs. 1,21,000 including the value stated in clause 10 over and above the amount of Rs. 2,68,000. These agreements further provide that it had been agreed that proper sale deeds would be executed when the flats would be ready for possession.
(15) The agreements filed by either of the parties show that the progress in construction and the only thing remained to be defendants to the plaintiffs had been settled and part payments had been received by the defendants from the plaintiffs and the plaintiffs were to pay the remaining amount in accordance with done was to execute the proper sale deeds after the completion of the construction of the flats and at the lime of taking possession. ther of, It. therefore, cannot be said that this was a case where the plaintiffs had merely booked flats in question and had to pay the prices as existing on the date of talking possession thereof.
(16) During the course of arguments I had directed the defendants to produce on record the copies of the agreements entered into between the defendant and other persons who had 'purchased the fiats in the building in question and consequently copies of seven other agreements have been placed on record by the defendants. They relate to fiats No. 0-2, 0-3, G-4, F-l, F-2, S-3 and S-4, (G,F and S denote ground, first and second floor respectively). The agreement in respect of flat No.' G-2 was entered into between the defendants and M/s. Jolly Sudershan Kamar Huf and Shobha Jolly on 30th November, 1986 and according to this agreement, the said flat consisting of two bed rooms, drawing-dining, kitchen, three bath rooms and one store and one study on the lower and upper ground floors of the budding was agreed to be sold for Rs. 3,00,000 and a sum of Rs. 10,000 was received on 9th October, 1986 and the remaining amount of Rs. 2,90,000 bad been received on 30th November, 1986. The area of the flat is not mentioned in this agreement but from the layout plan Ex.P9, it is found that 'it is having an area of 1660 sq.ft. The rate per sq. ft. for this flat thus comes to Rs. 180.90 P. (17) The agreement in respect of flat No G-3 is dated 27th September 1985. This is a duplex type of flat with an area of 1720 sq. ft. and the cost of the flat mentioned in the agreement is Rs. 4.44 lakhs and the rate per sq. ft, comes to Rs.-258.14 P. The agreement in respect of flat No. G-4 is dated 2nd June, 1986. It is also a duplex flat with an .area of 1730 sq. ft. and its cost is mentioned as Rs. 4.5 lakhs i.e. .at the rate of Rs. 260.11 sq: ft. Flat No. F-3 is having an area of-950 sq. ft. a^d its value is mentioned as Rs. 2.28 lakhs in the agreement to sell executed on 2nd September, 1984. This flat is situated towards the front of the building and its specifications are similar to those of flat No. S-2 which is one of the flats in dispute. The rate works cut to Rs. 240 per sq.ft.
(18) The agreement in respect of flat F-2 was executed on 27th March,. 1985. It is located on the front side of the building and the total value for this flat measuring 955 sq. ft. is Rs. 2.38 lakhs i.e. at the rate of Rs. 254.45 per sq. ft. The agreement in respect of flat No. S-3 was executed on 23rd October, 1985, It has an area of (85) sq. ft. and it was sold for Rs. 2.30 lakhs i.e. at the ratio of Rs. 270.60 per sq. ft. The agreement in respect of flat No. S-4 was executed on 5th My, 1984. This flat has an area of 913 sq. ft. and it has been agreed to be sold for Rs. 2.51 lakes at the rate of Rs. 276 per sq. ft. Flats No. S-1 and S-2 are involved in the present two cases The rate per sq. ft. in respect of the flat to be purchased by the plaintiff comes to Rs. 228.60 per sq. whereas the rate per so. ft. in respect of flat for which an agreement was entered into between the plaintiff in the other suit and the defendants comes to Rs. 282 and both these agreements were executed on 2nd November 1983. All the above said agreements ate having clauses similar to the clauses as are contained in the agreements filed by the plaintiffs and in neither of them there' is payment of any additional fixed amount except the amount mentioned in clause 10 i.e at the rate of Rs. 10 per sq. ft. in case of escalation.
(19) The certificate Ex. P17 dated 7th January 1983 issued by the defendants shows that originally the plaintiff had booked a flat measuring 1869 sq. ft. as per drawing attached therewith for Rs. 4,11,8541- i.e. at the rate of Rs, 220.36 per sq. ft. The date of booking of this flat is riot mentioned in this certificate, but from the fact that the first payment of Rs. 10,0001-was made by the plaintiff on 16th July, 1987, it can be taken that the said agreement between the parties was made on or around that date. It is the common case of the parties that subsequently, the plaintiff of the other suit also became interested in purchasing a inland it was decided between the plaintiff, the plaintiff in the other suit and the defendants that whereas plaintiff would purchase a flat of the area of 1156 sq. ft., the plaintiff in the other suit would purchase a flat of the area of about 950 sq. ft. in the apartment in question and the agreements to sell the flats were executed between parties on 2nd November 1983.
(20) The seven agreements discussed above (copies of which were filed by the defendants) show that the rates ' agreed to be charged from the intending .purchasers of those flats ranged between Rs. 180.90 per sq ft. and Rs. 2701- per sq. ft. If the case of the defandants is accepted that the plaintiff and the plaintiff in the other suit had to pay sum. of Rs. 4,35,9731- and Rs. 3,89,000.00 respectively, it would mean that the plaintiff had agreed .to pay at the rate of Rs. 377. 14 per sq. ft. for the flat of 1156 sq. ft. whereas the plaintiff in the other suit had agreed to pay at the rate of Rs. 409.47 per sq. ft. No explanation 'is coming forward even at the Bar as to why such higher rates were to be paid by the plaintiffs when the intending purchasers of the other flats were to pay at the rates mentioned above, although their agreements were executed on the dates which are later than the date of agreements in the present case. Without any explanation coming forward even at the Bar it does not stand to reason that the plaintiff to whom the defendants had agreed to sell a flat of the area of 1869 sq.ft. for Rs. 4,11,854.00 would agree to pay a sum of Rs 4,35,9731- for a flat of the area of 1156 sq. ft. which is of the size of less than 2/3rd of the flat originally .agreed to be sold to her. The case of the defendants, therefore, docs. not appear to be genuine. Looking to all these circumstaoces, I am prima fade of the view that the plaintiffs in these suite had agreed to purchase the flats in question in accordance with the terms and conditions and at the rates mentioned in the agreements produced by them.
(21) In order to show that the plaintiff had paid a sum of Rs. 4,03,000.00 to the defendants towards the cost of the flat, the plaintiff has produced 25 receipts, a statement of account sent by the defendants to the plaintiff, and a certificate dated 9th January, 1984 issued by the Hindustan Commercial Bank, Green Park Extension, New Delhi. The above said receipts and the statement have been admitted by the defendants and the receipts have been. admitted in evidence as Ex Pl9 to Ex. P36 and Ex. P39 to Ex.P45 and the statement has been admitted in evidence as Ex. P38. The receipts show that a sum of Rs. 3,70,000.00 was paid by the plaintiff to the defendants between the period from , July 1982 to 14th December 1983 besides a .sum of Rs. 5,0001- paid to-the defendants on 4th October 1983 as admitted in statement Ex. P38. The certificate from the bank shows that cheques amounts in the sums of Rs. 8,0001-, Rs. 10,000.00 and Rs. 10,000.00 were debited, to the account of the husband of the plaintiff and were credited to the account of the defendants on 1st February 1984, 29th February 1984 and 19th March 1984 respectively and in this way a sum of Rs. 28,000.00 besides the above said amount of Rs. 3,75,00.00 was received by the defendants from the plaintiff towards the cost of the flat. After giving adjustment of Rs. 1,40,000.00 which had been transferred from the account of the plaintiff to the account of the plaintiff in the other suit, the amount which thus remained at the credit of the plaintiff towards the cost of flat 'comes to Rs. 2.63,000.00 .
(22) The plaintiff in the other suit has filed seven receipts which have been admitted by the defendants and have been admitted in evidence as Ex. P10 to Ex. P16. These receipts show that a sum of Rs. 1,23,0001- was paid by the plaintiff in the other suit to the defendants between the period 24th October 1983 to 14th June 1984, besides the sum of Rs. 1,40,000.00 admittedly transferred in the account of the plaintiff in the other suit from the account of the plaintiff. This thus shows .that a sum of Rs. 2,63,000.00 ' was received by the defendants from the plaintiff in the other suit towards the cost of the flat.
(23) It has not been disputed that besides the amounts received by the defendants towards the costs of the flats in question, the defendants also received from the plaintiff and the plaintiff in "the other suit the sums of Rs. 1,45,000.00 and Rs. 70,0001- respectively by way of interest free loans and no part of the said amounts has been returned or has been offered to be returned at .any time. The allegations in the plaint that the interest free loan agreed to be given by the plaintiffs as the .defendants were finding difficulty in completing the building due to shortage of funds have not been controverter. This shows that in order to see that the bluiding is completed and the plaintiffs get their flats without unnecessary delay the plaintiffs advanced interest free loans to the defendants, although they themselves might be paying interest on the said amounts.
(24) There is no dispute that this is a fit case where a temporary injunction should be issued against the defendants restraining them from alienating, parting with possession or creating any charge on the flats in question. The. main' dispute between the parties is in regard to the relief claimed by the plaintiff in these I.As. for a mandatory injunction directing the defendants to put the plaintiffs in the possessing of the flats during the pendency of the suit.
(25) It has been contended by the learned counsel for the defendants that the plaintiffs never having been put in possession of the flats in question, this court cannot pass any order in the form of mandatory injunction at this stage directing the defendants to hand over the possession of the flats in question to the plaintiffs as that would amount to giving the final relief to the plaintiffs before the decision of the main suit itself. It has further been contended hat a mandatory injtunction, on an interlocutory application, can be granted only to restore the status kuo and not to establish a new state of. things differing-from the state which existed at the date when the suit was instituted. Reliance has been placed on the decision of the Division Bench of Calcutta High Court in case Naadan Pictures Ltd. v. Art Pictures Ltd. and others, decision of Single Bench of Patna High Court in case The University of Bihar and another v. Rajendra Singh, and the decision of Single Bench of this Court in Ranbaxy Lab. Ltd. v. Doon Apartments, (1979 Rajdhani Law Reporter 7x3).
(26) In Ranbaxy's case (supra), an ad interim injunction was issued in mandatory form and when the matter came up for vacation of that order, it was observed by V. S. Deshpande, J. (as his Lordship then was) that the object of the temporary, injunction is to maintain status quo and not to order the status quo particularly when the injunction is granted ex parte and without notice to the defendant. On merits, it was found that there was no prima facie case for grant of injunction. This decision can, thus, not be said to an authority for the proposition that no mandatory injunction can be granted on an interlocutory application even after notice to the defendant and after hearing the parties.
(27) In Nandan Pictures case (supra) also an ad interim order in the form of an ad interim injunction had been issued and when the matter came up for hearing after notice to the other side, it was held that the order had not been properly made. It was observed that it is only in very rare cases that mandatory injunction is granted on an interlocutory application and instances where such an injunction is granted by means of ad interim; order pending decision of the application itself are almost unknown, and as it was not necessary for the purpose of that case, it could not be said that in no case such an injunction can be granted by the court. It was further observed that injunctions are, a form of equitable relief and they have to be adjusted in aid of equity and justice to the facts of each particular case and that no court, therefore, ought to lay down absolute propositions when such are not necessary and forg:e fetters for itself. The court further observed that according to the accepted principles, as found from the reported cases, the. practice of the courts was that if a mandatory injunction is granted on an interlocutory application, it is granted only to restore the status quo and not granted to establish a new state of things differing from the state which existed on the date when the suit was instituted.
(28) The decision in Nandan Pictures' case (supra) came up before a Division Bench of the same Court in case Indian Cable Company Limited v. Smt. Sumitra Chakraborty, and it was observed as under. "COMING back to consider the observations of Chakrabarti, C. J. in the act of Nandan Pictures, it has been observed by me hereinbefore that those observations should be read only in the context. I find that Chakrabarti, C. J. himself recognised the power of a court to grant interim orders in mandatory form though in exceptional cases and the learned Chief Justice was careful enough to obseerve; "Injunctions' are form of equitable relief and they have to be adjusted maid of equity and justice, to the facts of each particular case. No courts, therefore, ought to lay down absolute proposition when such are not necessary and' forge letters for itself'. Read in that context it appears clear to me that the later observations of the learned Chief Justice which has been relied on in this case by Mr. Chakrabarti, learned counsel for the respondent must be read merely as illustrative and should not be read as laying down any absolute proposition that in no case a court can grant an interlocutory order directing restoration of status quo ante. When the learned Chief Justice was speaking of "a new state of things differing from the state which existed at the date when the suit was instituted" he was not really excluding the state of things which should have in law existed on such a date but for the wrongful act of the defendant of altering such a state of things"
(29) I am in respectful agreement with the observations of the Division Bench in Indian Cable Cos case (supra) in regard to the ^interpretation of Nandan Pictures' case (supra). .-
(30) In the University of Bihar's case (supra) the decision in Nandan Pictures was followed and limited interpretation was given loathe observations of the Division Bench and as such, in my view, this case can also not be said to be an authority for the proposition that no mandatory injunction can be grant- ed by the court on an interlocutory application in any circumstance.
(31) The Supreme Court in case Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, (1962 (1) S.C.R. 450x5) has held that, in exercise of the inherent powers the court can grant injunction even in cases which are not covered by Order 39 or by any Rule made under the Code of Civil Procedure if the interest of justice so requires.
(32) A review of these decisions, therefore, lead to the conclusion that there is no bar to the courts granting interlocutory relief in the mandatory form though in doing so, the. court should act with greatest circumspection and such powers can be exercised only in rare and exceptional cases. Whether or not a case comes in the category of 'rare" and 'exceptional' one, is to be judged according to the facts and circumstances surrounding it.
(33) I, therefore, now proceed to consider whether the plaintiffs in the present case have made out, any exceptional case.
(34) As noted above, the parties had entered into agreements on 2nd November, 1983 for purchase of the flats in question at the fixed price and the 95 per cent of the cost of the flats was to be paid by the plaintiffs to the defendants in accordance with the progress in 'construction whereas the remaining 5 per cent cost was to be paid by the plaintiffs to the defendants .at the time of taking over the possession. The plaintiffs in the present cases have paid more than 95 per cent of the cost fixed in the agreements in as much as each of the two plaintiffs has paid a sum of Rs 2,63,000.00 in that account leaving an amount much less than 5 per cent of the total cost of their flats.
(35) Besides the above said amounts, the plaintiffs had advanced the interest free loans so that the construction can be completed by the defendants and each one of them can get possession of the flat booked by them. The plaintiffs, thus, have been anxious to be in possession of the flats by discharging not only their liability under the contract but also by giving financial assistance to the defendants.
(36) It may be noticed that whereas according to the original agreement entered into between the plaintiff and defendants, the plaintiff was to get a flat of the area of 1156 sq. ft. vide letter dated 12th December 1984 (Ex. 116), the defendants had asked the plaintiff to execute a fresh agreement in respect of the flat of the area of 950 sq. ft. and vide reply dated 15th December 1984 (Ex. P/4), the Plaintiff had protested that the area of the Hat had been reduced from 1156 sq. ft. to 950 sq. ft. But had shown the willingness to enter into new agreement of sale for the said area of the flat slating .that full and adequate payment in respect of the flat had already been made in terms of the agreement. Vide letter dated 29th December 1984 (Ex. Pl2)the defendants had written to the plaintiff that during discussion with her husband, it had been agreed that unless the loan amount was returnee by the defendants, it was not possible to have regular agreement finalised and as such the date for executing the agreement to sell was being extended to 31st March 1985. The fact that any such agreement was actually arrived at between the plaintiff's husband and the defendants was disputed by the plaintiff vide letter dated 31st December, .1984. placed on record. Letter similar to Ex. P2 of this case of 29th December 1984 was written to the plaintiff in the other suit also and the same has also been admitted in evidence as Ex.2. The amount of loan waste be returned to the plaintiffs by the defendants who had also to execute the sale deeds of the .flats in question in favor of the plaintiffs and had also to put them in possession thereof. It is not Forthcoming as to hew execution of the sale deeds and giving possession of the flats in question to the plaintiffs depended on the return of the loan. It appears that the defendants have been putting off the plaintiffs on one pretext or the other in spite of having received the amounts for beyond the amounts agreed to be paid by the plaintiffs to the defendants for purchasing the flats in question and inspite of the fact that the plaintiff had agreed to accept the flat of an area of 950 sq. ft. instead of the flat of the area of 1156 sq. ft. as originally agreed to between the parties. It further appears that the defendants understood that the plaintiffs were insurgent need of the residential premises and as such had been exploiting the plaintiffs by extracting the amounts beyond those agreed upon besides the amounts by way of interest free loan and the plaintiffs have been paying the same with the hope that the flats would be given to them without any delay. If in the present case; only an interim injunction is issued restraining the defendants from alienating or parting with possession of the flats in question, the position would be that whereas the plaintiffs would be deprived of getting possession of the flats and would continue paying rents for the premises in their occupation to their present landlords, the defendants who have received much more that what could be expected by them from the plaintiffs, would enjoy the possessory benefits of the flats. ' The defendants, thus, are stealing the march on the plaintiffs by taking advantage of their own wrong.
(37) In my view the court must come to the aid of the plaintiffs and if no interlocutory order in the form of mandatory injunction is issued, the court would be failing in its duty of doing justice between the parties. The present cases thus fall within the category of rare and exceptional cases where power to issue mandatory injunction on interlocutory application must be exercised'.
(38) Accordingly, I allow both the I.As. and not only restrain the defendants from transferring or parting with possession of the flats in question in favor of any body other than the plaintiffs or from creating any charge thereon but also issue a mandatory injunction directing the defendants to hand over the flats in question to the plaintiffs without any delay. 1. As. No. 1367186 in Suit No. 451/86 and I.A. 1365186 in Suit No. 450186 stand disposed of accordingly.