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Sunday, June 23, 2013

Section 41(h) provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding. The relief of specific performance is equally efficacious, rather more efficacious, remedy than the suit for injunction simplicitor.= “Clause (e) of section 41 of the Specific Relief Act is relevant to the extent and in the context of the provisions of section 53­A of the Transfer of Property Act, which requires the plaintiff to satisfy that he was ready and willing to perform his part of the contract. It is only when such readiness and willingness is there that the contract of agreement for sale can be specifically enforced. If this basic readiness and willingness is not established, then the performance could not be specifically enforced. It follows, therefore, that by reason of the principle underlying section 41(e) of the Specific Relief Act, when the plaintiff seeks injunction so as to prevent breach of a contract whose performance cannot be specifically enforced, such an injunction has to be refused. Similarly, when a suitor of such a type would have equally efficacious relief available so as to enforce the contracts by taking appropriate remedy, without recourse to it, it would be indeed difficult to extend the discretionary relief of permanent injunction. Clause (h) of section 41 of the Specific Relief Act would require the Court to refuse such a type of prayer for injunction. It is not as if that in a suit to enforce the agreement itself, such a relief is sought. On the other hand, although the plaintiff came to the Court with the allegation that the other party has repudiated the agreement for sale, he has omitted to seek its enforcement and is trying to hold the property obviously without seeking to complete his title by enforcing the agreement for sale. To such a case, the principles underlying Clause (h) of section 41 of the Specific Relief Act can be extended so as to refuse such an ancillary relief.”= Thus the legal position is well settled by this Court that when remedy of a suit for specific performance is available to the plaintiff, he cannot file a suit for injunction simplicitor nor he can claim temporary= In the present case the plaintiff could have filed suit for specific performance of the contract as soon as he found that defendant no.1 had repudiated contract and was trying to dispose of the property to somebody else. = In view of the above circumstances, as the suit for injunction simplicitor itself is not tenable in view of Section 41(h) of the Specific Relief Act, the plaintiff is also not entitled to temporary injunction pending the suit. Therefore the appeal is allowed and impugned order stands set aside. Notice of Motion stands dismissed.

PUBLISHED IN judis/bitstream/123456789/31980/1/CAO1273110.pdf#

 :1: 616.10.ao.j
ata
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER  NO.616 OF 2010
IN
NOTICE OF MOTION NO. Ex.2 OF 2008
FROM
B. C. C. C. Suit No. 1602 OF 2008
WITH
CIVIL APPLICATION NO.193 OF 2012
Mr. Abdul Wahid
Residing at Room No.22,1st floor,
Ramzan Building, Hans Road,
Neara National Diary,
Byculla(W), Mumbai .. Appellant
               Vs.
1.Shri. Manish Hansraj Chandaria
Residing at Flat No.8,3rd Floor,
Link Corner,
Residential and Non­residential Premises
Co­operative Society(Prop.)Ltd,
Plot No.  231, T. P. S. III,
Linking Road, Bandra(W), Mumbai
2. Smt. Nasreen wd/o Yusuf Ibrahim Shaikh
Residing at Flat No.16 and 17,
Building No. 185, Nishant Pada,Dongri,
Mumbai .. Respondents :2: 616.10.ao.j
Mr. Jagdish N. Jayale,for the Appellant/Applicant..
Dr. Amod S. Tilak, for the Respondent No.1.
CORAM :­  J. H. BHATIA,J.
DATE     :­  FEBRUARY 17, 2012
 JUDGMENT
1 Rule.  Rule made returnable forthwith.  With the consent of  the
learned  counsel for both the parties, the appeal is heard forthwith.
2 The appeal is preferred by the original defendants challenging the
order dated 21.04.2010 passed by the learned Judge, City Civil Court in
Notice   of   Motion   whereby   the   defendants   are   restrained   from
dispossessing the plaintiff from the suit flat.
3 The plaintiff­respondent no.1 contended that the defendant no.1.
appellant is the owner of the suit flat.  On 6th June, 2008 the defendant
no.1 agreed to sell the suit flat to the plaintiff for consideration of Rs.40
lac.   Out of  the consideration amount, a sum of Rs.1 lac was paid by
cheque on the said date and amount of Rs.15 lac was paid in  cash on
that day.  Balance amount was to be paid on or before September 2008
before   registration   of   the   agreement.   According   to   the   plaintiff,
subsequent to the contract with the plaintiff, defendant no.1 agreed to :3: 616.10.ao.j
sell the property to defendant no.2. Therefore, the plaintiff filed suit the
for permanent injunction restraining the defendants from dispossessing
the plaintiff from the suit flat without following due process of law.  The
plaintiff also took out Notice of Motion for temporary injunction of the
same nature.  Defendant no.1, contested the Notice of Motion denying
that  there was any agreement  for sale between him and  the plaintiff.
He also denied to have received any amount of consideration from the
plaintiff.  According to him, the agreement is a forged  document.  After
hearing parties, learned  trial Court allowed  the Notice of Motion and
granted temporary injunction against defendant no.1.
4 Learned   counsel   for   the   defendant/appellant   vehemently
contended that when the plaintiff claims possession of the suit property
on the basis of the agreement for sale, he could not have filed suit for
injunction simplicitor because equally, rather more, efficacious relief of
specific performance  of contact is available to him.  He contends that
had the plaintiff filed the suit for specific performance of the contract he
could have claimed the relief of injunction and also temporary injunction
pending the suit, but when he has not filed suit for specific performance
of the contract, in view of Section 41(h) of the Specific Relief Act, the
injunction  cannot  be  granted  and  therefore in  such  a  suit  temporary
injunction also cannot  be granted.  In support of his contention learned :4: 616.10.ao.j
counsel   placed   reliance   upon  Mathurabai   Kadu   Koli   and   Ors   v/s
Roopchand Lalji Koli and Anr 2000(I) Bom.C. R. page 133.  On the
other   hand   the   learned   counsel   for   the   plaintiff   contended   that
agreement for sale between the plaintiff and defendant no.1 was subject
to realization of certain cheques and consent terms to be filed in earlier
suit  no.  509  of  2008  filed  by  defendant  no.1  against  his vendor Zia
Safruddin Ali  and  as  per  the  consent  terms,  the  defendant  no.1 was
entitled to retain as well as to dispose of the suit premises.   The deal
between the plaintiff and defendant no.1 would be subject to realization
of the cheque and  consent terms of suit no. 509 of 2008.   From the said
agreement, it is clear that defendant no.1 was entitled  to retain the suit
property and also  to dispose of  the same.    In such circumstances,  the
plaintiff claims have entered into contract to purchase the suit property
from defendant no.1 for consideration of Rs. 40 lac.  Out of which, an
amount of Rs.16 lac  was allegedly paid by him.  Defendant no.1 denies
receipt of money as well as execution of the agreement.  That defence
need not be  taken into consideration at  this stage.   According  to  the
plaintiff, the balance of amount Rs.24 lac was to be paid on or before
September, 2008 at the time of registration of the agreement for sale.
According to him, as per clause ‘h’ of the terms of the said agreement
defendant   no.1   had   handed   over   possession   of   the   suit   flat   to   the :5: 616.10.ao.j
plaintiff, and on that basis he is in possession.  He contends that after he
had entered into an agreement, defendant no.1 was  trying  to sell  the
property to defendant no.2 and therefore he filed the suit. According to
him, in view of these circumstances, he was not in a position to file suit
for specific performance of the contract and therefore was required to
file the suit for perpetual injunction simplicitor to protect his possession
till sale deed is actually executed and registered.
5 From the pleadings and contention of the plaintiff, it is clear that
the plaintiff claims to have received possession of the suit premises in
part performance of the contract between the parties.  According to him,
the balance amount of Rs.24 lac was to be paid by September 2008 at
the time of execution and registration of agreement for sale, infact the
sale  deed  and  not  agreement  for   sale.    However,    even  before  that
defendant no.1 had repudiated the contract with the plaintiff and was
trying  to sell  the property  to  third person.   That shows  that cause of
action  for  filing  the suit  for specific performance   had accrued  to  the
plaintiff.
6 The   contract   for   sale   of   the   property   is   specifically   enforcible
under Section 10 of the Specific Relief Act and the plaintiff who claims
to   have   agreed   to   purchase   the   property   was   entitled   to   seek   such
specific performance under Section 15 of  the Specific Relief Act.   He :6: 616.10.ao.j
could file the suit for specific performance of the contract and in such
suit  he  could  also  claim   permanent injunction   as  well   as  temporary
injunction pending the suit.
Section 41(h) provides that an injunction
cannot   be   granted   when   equally   efficacious   relief   can   certainly   be
obtained by any other usual  mode of  proceeding. The relief of specific
performance is equally efficacious, rather more efficacious, remedy than
the suit for injunction simplicitor.
7 It is  settled  position  of law  that where  the  plaintiff  claims  the
possession on the basis of part  performance  of the agreement for sale,
his   remedy   is   to   file   the   suit   for   specific   performance   and   suit   for
injunction simplicitor is not tenable.  This position was clarified by the
learned single Judge of this Court in Mathurabai Kadu Koli (supra).
8 Learned Judge referred  to  Yeshwantrao Martandrao Mukane v
Khushal K. Bhatia  ­1986(1) Bom. C. R.  533  in which  the Division
Bench of this Court had observed thus:­
“Clause  (e)  of  section  41  of  the  Specific  Relief  Act is
relevant   to   the   extent   and   in   the   context   of   the
provisions  of  section  53­A  of  the  Transfer  of  Property
Act, which requires  the plaintiff  to satisfy  that he was
ready and willing to perform his part of the contract. 
It
is only when such readiness and willingness is there that
the  contract  of  agreement for  sale  can  be  specifically
:7: 616.10.ao.j
enforced.  If  this basic  readiness and willingness is not
established,   then   the   performance   could   not   be
specifically enforced. 
It follows, therefore, that by reason
of the principle underlying section 41(e) of the Specific
Relief Act, when  the plaintiff seeks injunction  so as  to
prevent breach of a contract whose performance cannot
be  specifically  enforced,  such  an injunction  has  to  be
refused. 
Similarly, when a suitor of such a type would
have equally efficacious relief available so as to enforce
the   contracts   by   taking   appropriate   remedy,   without
recourse to it, it would be indeed difficult to extend the
discretionary relief of permanent injunction. 
Clause (h)
of section 41 of the Specific Relief Act would require the
Court to refuse such a type of prayer for injunction. 
It is
not as if that in a suit to enforce the agreement itself,
such a relief is sought. 
On the other hand, although the
plaintiff came to the Court with the allegation that the
other party has repudiated  the agreement for  sale, he
has omitted to seek its enforcement  and is trying to hold
the property obviously without seeking  to complete his
title by enforcing the agreement for sale. 
To such a case,
the principles underlying Clause (h) of section 41 of the
Specific Relief Act can be extended so as to refuse such an
ancillary relief.”
9 Thus  the legal position is well  settled by  this Court  that when
remedy of a suit for specific performance is available to the plaintiff, he :8: 616.10.ao.j
cannot file a suit for injunction simplicitor nor he can claim temporary
injunction  in pending suit for injunction simplicitor. 
10 In the present case the plaintiff could have filed suit for specific
performance of the contract as soon as he found that defendant no.1 had repudiated     contract   and   was   trying   to   dispose   of   the   property   to somebody   else.      
The   plaintiff   filed   the   suit   on   the   basis   of   the
agreement  allegedly executed by defendant no.1 in his favour and that
agreement shows  that consent  terms in  the earlier suit were accepted
and defendant no.1 was entitled to retain and dispose of the premises.
The   defendant   no.1   denies     execution   of   this   agreement.   When
pleadings of the plaintiffs  show that  there was no impediment in filing
suit  for  specific performance, now he cannot  say  that because of  the
earlier suit he could not file suit for specific performance.  These aspects
were   not   considered   by   the   trial   court   while   granting   temporary
injunction in favour of the plaintiff.
11 In  view  of  the  above  circumstances,  
as  the   suit  for injunction
simplicitor itself is not tenable in view of Section 41(h) of the Specific Relief   Act,   the   plaintiff   is   also   not   entitled   to   temporary   injunction pending the suit.  
Therefore the appeal is allowed and impugned order
stands set aside.  Notice of Motion stands dismissed.
(J. H. BHATIA,J.)

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