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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.)
