Friday, 5 May 2017

When court should grant injunction in suit for specific performance of contract?

We have seen that already the suit property was sold twice. If we permit the suit property
to be transferred further by not granting injunction, there would be every possibility of
multiplication of proceedings. That apart, nature and character of the suit property should not be
allowed to be altered during the pendency of the suit.
As such, we hold that the learned court below did not commit any illegality in passing the
impugned order of injunction in the facts of the present case.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
 Justice Jyotirmay Bhattacharya
AND
 Justice Ishan Chandra Das
 F.M.A.T. 685 of 2016
 (CAN 7943 of 2016)
 Sujan Maity
 V
 Sri Raj Kumar Koley & Ors.

Judgement on: 17th January, 2017.
Citation: AIR 2017 Cal 63

This first miscellaneous appeal is directed against an order being 50 dated 7th April, 2016
passed by the Learned Civil Judge, 2nd Court at Hooghly in Title Suit No. 369 of 2013.
By the impugned order, the plaintiff and the defendant no.3 were directed to maintain
status quo as regards the nature, character, possession and construction over the suit property
as on the date of passing of the impugned order till the disposal of the suit. The defendant no.3
was further restrained by an order of temporary injunction from transferring the suit property to
any third person.The legality and/or propriety of the said order is under challenge in this appeal at the
instance of the defendant no.3.
Let us now consider as to whether there is any merit in this appeal for which the appeal is
required to be admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil
Procedure.
The plaintiff filed a suit for specific performance of contract. An agreement was entered
into between the plaintiff and the defendant no.1 for sale of the suit property for a consideration
of Rs. 2,00,000/-, on 19th July, 2007. Admittedly, the defendant no.1 was the owner of the suit
property at the time of execution of the said agreement. The defendant no.1 executed the said
agreement on acceptance of a sum of Rs. 30,000/- as earnest money. The parties agreed to
complete the said transaction within Poush of 1414 B.S. It was stated therein that in spite of
repeated requests to complete the said transaction on acceptance of the balance consideration
money, the defendant no.1 did not execute a proper deed of conveyance for transferring his right,
title and interest in respect of the suit property in favour of the plaintiff. The plaintiff also came to
learn that the defendant no.1 sold the suit property to the defendant no.2 on 17th February, 2009
who in turn again sold the suit property to the defendant no.3 in the year 2010. The plaintiff
went to the defendant no.3 on 24th August, 2011 and informed him about the entire incident
regarding the transaction held between the parties concerning the suit property. He also claimed
that he is a bonafide purchaser for value without notice. However, since the defendant
threatened to sell the suit property to third person and/or also trying to demolish the bamboo
fencing of the suit property, the instant suit was filed.
After filing the said suit, injunction was sought for by the plaintiff for restraining the
defendant from changing the nature and character of the suit property and from transferring,
selling, alienating the suit property to any third party till the disposal of the suit.The defendant no.3 contested the said suit by filing written objection claiming therein
that he was a bonafide purchaser for value without notice and they claimed that the plaintiff was
not entitled to get any injunction order against the defendant no.3.
The learned Trial Judge after considering the pleadings of the parties held that when the
execution of the deed of agreement for sale between the plaintiff and the defendant no.1 is not
denied, the injunction which is sought for by the plaintiff by way of interim measure, cannot be
denied at this stage, when the defendant’s plea about he being the bonafide purchaser for value
without notice is yet to be established in the suit during its trial.
The learned Trial Judge held that if the injunction as sought for, is not granted and
parties are permitted to change the nature and character of the suit property, then the relief
which is claimed in the suit by the plaintiff, may ultimately be frustrated.
Under such circumstances, the learned Trial Judge was pleased to pass the impugned
order of injunction.
Let us now consider the legality of such interim order in the context of the submission
made by the learned advocate appearing for the appellant.
The learned advocate for the appellant submits that the agreement for sale which was
allegedly executed between the plaintiff and the defendant no.1, was not a registered agreement.
According to him, such an unregistered agreement is incapable of being performed specifically by
suit.
We do not find any merit in such contention of the learned advocate appearing for the
appellant. An agreement for sale, be it oral or written, is capable of being performed specifically
by suit, provided however, existence of such agreement is proved and the agreement is found to
be legal, valid and enforceable and the party who is seeking enforcement, is found to be ready
and willing to perform his part of the contract all throughout.On perusal of the pleadings of the parties, we are of the view that all the aforesaid
ingredients for passing an order of injunction in such a suit for specific performance of contract
are present in the instant case. Execution of the agreement for sale between the plaintiff and the
defendant no.1 is not denied.
It is not the case of the defendant that the agreement was terminated by the defendant
no.1. It is also not the case of the defendant that the earnest money which was received by the
defendant no.1 at the time of execution of the agreement, was returned to the defendant no.1.
Thus, when the agreement has not been terminated and the defendant no.1 is still
enjoying the benefits of the earnest money received by him at the time of execution of the said
agreement, we are of the prima facie view that he cannot avoid the agreement being specifically
performed subject to fulfilment of the condition contained in Section 16(c) of the Specific Relief
Act.
We have seen that already the suit property was sold twice. If we permit the suit property
to be transferred further by not granting injunction, there would be every possibility of
multiplication of proceedings. That apart, nature and character of the suit property should not be
allowed to be altered during the pendency of the suit.
As such, we hold that the learned court below did not commit any illegality in passing the
impugned order of injunction in the facts of the present case.
We thus, find no merit in this appeal.
The appeal thus, stands dismissed.
The judgement and order passed by the learned Trial Court is affirmed.
Since the appeal is disposed of in the manner as aforesaid, no further order need be
passed on the stay application.The application for stay being CAN 7943 of 2016 is thus, deemed to be disposed of.
Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned
advocates for the parties immediately.
 (Jyotirmay Bhattacharya, J.)
 (Ishan Chandra Das, J.)

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