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[Cites 2, Cited by 0]

Delhi District Court

( vs Sh. Kailash Chand Sharma on 1 May, 2009

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IN THE COURT OF SH. PRASHANT KUMAR CCJ/ARC ROHINI COURTS
                         DELHI


                                                SUIT No. 481/09


Sh. Jagdish Kumar Arora,
S/o Late Sh. R. N. Chachra,
R/o 993, 2nd Floor,
Rani Bagh, Delhi - 110 034.
                                                             (PLAINTIFF)


                        Versus


Sh. Kailash Chand Sharma,
S/o. Late Sh. Musaddi Lal Sharma,
R/o. 668/1, Rishi Nagar,
Rani Bagh, Delhi - 110 034                                   (DEFENDANT)



                                    ORDER

1. By way of this Order I shall dispose off one application u/o. 39 Rule 1 & 2 CPC.

The facts of the case are in brief as under that:-

The defendant, owner of the property bearing no. 668/1, Rishi Nagar, Rani Bagh, Delhi - 110 034 had entered into agreement with plaintiff for construction of the said plot up to the third floor and as per the agreement the defendant was to retain 2nd & 3rd floor in the said property and the plaintiff was to retain ground and 1st floor. The Collaboration Agreement was dt. 30.05.08. It was further agreed in between the parties that plaintiff shall also pay Rs. 55,00,000/- to the defendant. As per the agreement the defendant had handed over the possession of the said suit property and plaintiff has been 2 raising the construction over the said property and has already paid a sum of Rs.

15,00,000/- to the defendant and it has been agreed that the remaining amount of Rs. 40,00,000/- shall be paid by the plaintiff to the defendant after completion of the construction work as well as execution of necessary documents for the ground floor shop including back side alongwith the 1st Floor without roof right. It is further stated by the counsel for plaintiff that the defendant however, is not ready and willing to perform his part of contract and threatening to dispossess him from the suit property in question. The defendant has further threatened to create third party interest. A legal notice was also sent by the plaintiff dt. 16.03.09, however, the defendant has not given any reply, hence this suit.

2. Defendant on the other hand, in his reply has stated that a Collaboration Agreement dt. 30.05.08 was entered with the plaintiff and it was settled that plaintiff was to complete the construction as per the agreement by 30.08.08 but he failed to discharge his liability. The plaintiff also left the construction work incomplete. The plaintiff after the expiry of the period i.e., 30.08.08 expressing his inability to complete the construction work in time and sought some more time. However, the construction work has not been completed by the plaintiff. Thus the suit of the plaintiff is without merits having no cause of action.

3. Arguments heard at length.

Record perused. Before proceeding further it is important to discuss the scope of application u/o. 39 Rule 1 & 2 CPC. Order 39 Rule 1 & 2 CPC provides the provision for temporary injunction:

Temporary injunction is to be granted after considering three ingredients:-
(i) Prima Facie case established by the plaintiff.
(ii) Balance of convenience in the favour of plaintiff.
(iii) The plaintiff shall suffer an irrecoverable loss which cannot be compensated in terms of money.
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4. The other grounds are also to be considered by granting such reliefs. The relief of injunction is a relief in equality. Whether the applicant is guilty of suppressing facts, he is entitled to any relief. It was observed in "Manish Commercial Ltd. V/s. N.S. Dongra 2001 AIHC 1767".

5. It is further important to mention that injunction is a relief founded in equity. The power to grant or refuse injunction essentially lies in the realm of the discretion of the court. The power therefore has to be exercised with the greatest care, caution and circumspection. As the court is required to considered the question of granting or refusal of injunction at the initial stage of the proceedings. When the benefits of the statements made in the plaint and the injunction petition are available to the court. It was observed in "Arviy Goyanka V/s. Sushila Devi Tiberwala (2002) 1GLR453 (Gaw)."

6. Temporary mandatory injunction is an extra ordinary relief and cannot be granted except in exceptional circumstances. Every filing of plaint alongwith application Order 39 Rule 1 & 2 CPC, does not entitled plaintiff to obtain automatically and temporary injunction. There are equitable consideration, for example the conduct of the applicant, the delay in filing the application which have to be carefully weighed before issuing temporary injunction. It was observed in "Radhey Shyam Nigam V/s. Jyoti Shrivastav (2001) AIHC 3708 (MP)."

7. For first essential requirement i.e., "Prima Facie Case", The plaintiff has to show his prima facie legal right; Prima facie case should be as such, that it should appear on record, that there is a bona fide contest between the parties and serious question is required to be tried.

The plaintiff in the present case as stated that he had 4 entered into agreement called as Collaboration Agreement with the plaintiff whereby he was to construct over the said plot belonging to the defendant. During arguments the counsel for defendant has drawn the attention towards the para number 2 and 14 of the said Collaboration Agreement.

After reading the said clause i.e., para number 2, it is reflected that as per this clause it is mentioned that:

"That whereas the first party will handover the physical vacant possession of plot to the second party and allow the second party to carry on construction work for 30th May, 2008."

Para number 14 is also perused which reads as under:

"That the second party shall get the possession from the first party after giving balance amount i.e., Rs. 40,00,000/- to first party."

8. After reading both these clauses of this Collaboration Agreement, it is reflected that the physical vacant possession of the plot was handed over by the first party i.e., the defendant to the second party i.e., plaintiff for allowing the second party i.e., plaintiff to carry on construction work. As per the clause 14, the plaintiff was to get the possession from the first party i.e., the defendant after giving of balance amount of Rs. 40,00,000/- to the defendant. This agreement as well as its clauses are admitted by both the parties. Both the parties are heavily relying upon these two particular clauses. The counsel for plaintiff interprets these two clauses in his favour stating that the possession of the said plot has already handed over, as mentioned in the agreement whereas the counsel for defendant has stated that the plaintiff has been merely handed over the possession of the plot only for the construction purpose and the physical possession of the ground and first floor as mentioned in the agreement itself is to be handed over after the construction work is completed and the requisite payment is made by the plaintiff to the defendant. During arguments both the 5 parties have admitted that at present the construction work is not going on. The plaintiff on the one hand has stated that he is ready and willing to carry on the construction work. On the other hand defendant has stated that entire construction work has not been completed by the plaintiff as desired and agreed under the Collaboration Agreement. Thus there arises no question of handing over the physical possession of the plot more specifically ground and the first floor as stated in the Collaboration Agreement.

After careful perusal of averment made in the plaint as well as the relevant clauses of the Collaboration Agreement and more specifically clause number 2 & 14, it is reflected that the plaintiff has been given a right of construction over the said plot by the defendant and after the construction work is completed and the entire payment is made by the plaintiff to the defendant then the physical possession of plot in question i.e., a De facto ownership by handing over the possession of the plot in question was made by the defendant in his favour, is not established by him. In these circumstances therefore, I am of the opinion that the plaintiff has not been able to establish the prima facie case. However, it is admitted by both the parties that the Collaboration Agreement in between them and as per the agreement the plaintiff was carry on construction. It is further stated jointly by both the parties a dispute has been arises in between the parties before completing the agreement which the plaintiff says still surviving and the defendant has been terminated, in these circumstances, I am further of the considered opinion that the balance of convenience at this stage is equally divided. The plaintiff has further stated during arguments that he has already made a substantial part payment to the defendant and has already spent huge amount on the construction of the said plot for which the defendant has to account for. In these facts and circumstances, I am further of the opinion that a relief claimed by plaintiff is a subject which can be quantified and compensated in terms of money after an assessment including the cost and the damages and compensation.

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In the light of the above reasonings I am of the considered opinion that the plaintiff has not been able to establish all the three essential ingredients, thus, the application u/o. 39 Rule 1 & 2 CPC is dismissed. It is further important to mention here that the opinion express above shall not lay its impact upon the merits of the main case. 

Announced in Open Court                         (Prashant Kumar)
Dated 01.05.09                                  CCJ/ARC/ROHINI/
                                                 Delhi
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Suit No.: 481/09


01.05.2009              Present:      Plaintiff alongwith counsel.
                        Counsel for defendants.
                        WS alongwith certain documents alongwith

Photographs and Vakalatnama is filed. Copies supplied. One application is filed u/o. 7 Rule 11 CPC by the defendant, copies supplied.

By way of this application, the defendant has stated that the suit of the plaintiff is not maintainable as per the provisions of Section 41 (h) of Specific Relief Act as the plaintiff is having alternate equally efficacious remedy i.e., a suit for specific performance. Before seeking reply from the plaintiff, the counsel for defendant is asked to show prima faciely as to whether this application is maintainable in terms of the averments so made in it. The counsel for defendant has stated that the application u/o. 7 Rule 11 provides for the provisions of rejection of plaint and under one of its clause i.e., " Barred by Law", the present suit is not maintainable and plaint is liable to be rejected. The counsel for defendant has stated during arguments that plaintiff is having equally efficacious remedy available with him, thus as per the provisions of Section 41(h) of Specific Relief Act, present suit is "Barred by Law."

Arguments heard at length.

Record perused.

Application u/o. 7 Rule 11 CPC is also perused throughly. One of the ingredients and essential requirement as laid down u/o. 7 Rule 11CPC is that the plaint is liable to be rejected if it is " Barred by Law."

By way of this application, the counsel for 8 defendant has stated that the Section 41 (h) of Specific Relief Act creates bar for filing this suit for injunction.

From the arguments heard by the counsel for defendant, I am of the opinion that the provision of Section 41 (h) Specific Relief Act are not putting any bar to the relief sought by the plaintiff. Section 41 (h) provides for certain circumstances under which the remedy for injunction is refused. Section 41 (h) is one of such clause where the relief of injunction should not be granted. This Section 41 (h) specifically nowhere puts any bar granted by law against the relief available to the plaintiff. The counsel for defendant himself has stated that the plaintiff is having an alternate efficacious remedy i.e., a suit for Specific Performance. Thus, it is stated by the counsel for defendant himself that the alternate relief is available to the plaintiff and appropriate relief that he should file a suit for specific performance. In these circumstances, I am of the opinion, that Section 41 (h) of the Specific Relief Act does not comes under the preview of Order 7 Rule 11 CPC in the application filed by the defendant. No other ground of Order 7 Rule 11 CPC is attracted or alleged by the defendant. In the light of these facts and circumstances, therefore, I am of the considered opinion that the application filed by the defendant u/o. 7 Rule 11 CPC is not maintainable and it is not required that reply of the plaintiff be called for deciding this application on merits. It is further important to mention here and it is well established principal of law, that if a relief cannot be granted at the initial stage itself then the Court should not wait till the final stage to decide that the relief sought by the applicant is not maintainable and such application should be dismissed at the very inception. Thus the application filed by the defendant is dismissed as it is not maintainable in the eyes of law.

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Arguments on application u/o. 39 Rule 1 & 2 CPC heard vide separate order sheet. The application is decided and dismissed.

Put up for replication, if any, admission/ denial of documents, if any, by the parties and framing of issues for 26.05.09.

If the parties wish to conduct the admission/ denial of the documents then they should be present in person and with the original documents preferably on next date of hearing.

(Prashant Kumar ) CCJ cum ARC Rohini Courts, Delhi 01.05.2009