Can a court reject a plaint U/S 41(h) of the Specific Relief Act if the relief sought cannot be granted under the said Act?

In so far as the second submission of the learned counsel for the petitioners as to the legal bar to file a suit under Section 38 read with Section 41(h) of the Specific Relief Act, it is to be noted that Specific Relief Act is only an equitable and common relief or remedy and does not deal with any cause of action. Therefore, a plaint cannot be rejected on the ground that the relief sought for in the suit cannot be granted under the provisions of the Specific Relief Act. This is more so when an element of fraud on the part of the defendants is also alleged by the plaintiff. 

The averments of the plaint specifically disclose a fraud on the part of the defendants which itself is sufficient cause of action for the plaintiff to maintain a suit. Therefore, I do not agree, with the contention of the learned counsel for the petitioners that in view of the legal bar under Section 38 read with Section 41(h) of the Specific Relief Act, the suit is not maintainable. Accordingly, I reject the said contention also. {Para 13}

 IN THE HIGH COURT OF MADRAS

C.R.P. No. 3928 of 1999 and C.M.P. No. 22015 of 1999

Decided On: 31.01.2001

 K. Thakshinamoorthy Vs.  State Bank of India

Hon'ble Judges/Coram:

D. Murugesan, J.

Citation: MANU/TN/0066/2001

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Whether the court can grant specific performance of contract if plaintiff has prayed for grant of mandatory injunction?

Shri R.R. Deshpande learned Counsel for the respondents submits that prayer itself would show that plaintiff should have prayed for specific performance and when he makes a prayer for mandatory injunction the suit ought to be held to be hit by provisions of Clause (h) of Section 41 of the Specific Relief Act. Section 41(h) reads as follows:

41(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. {Para 7}

8. There cannot be any dispute with the proposition that where equally efficacies relief can be had injunction cannot be granted. The law is well settled that mofussil pleadings are to be interpreted liberally. While doing so mere reading of the prayer clause would not do. The prayer clause will have to be read in the context of the pleadings and then interpreted to hold whether the relief is in fact one for injunction or specific performance. If the plaint is read as a whole it would be very clear that plaintiffs essentially filed suit for conveyance of the plots in favour of the plaintiffs which defendants had agreed to convey. Thus what plaintiffs essentially want is conveyance of plots in their favour. 

9. If the prayer is read in this context it would be clear that plaintiffs demanded the execution of the sale deed in their favour. Even while passing a decree for specific performance the Court would have even otherwise directed execution of the sale deed in favour of the plaintiff. Such a direction even in a suit for specific performance by the Court is nothing less than a mandate. The prayer clause in the instant case at the most could be said to be not very happily worded but the purport of the relief is one to seek specific performance. Simply because the words mandatory injunction are used it is not as such a suit for mandatory injunction but a suit for specific performance. The bar of Clause (h) would not apply in such cases.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 448 of 1996

Decided On: 07.10.2009

Shrikant Gopalkrushna Tare and Ors.  Vs.  Vasant Nagorao Mahalley and Ors.

Hon'ble Judges/Coram:

C.L. Pangarkar, J.

Citation: MANU/MH/1151/2009,2010(1) ALLMR 114

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Whether court can grant injunction U/S 9 of Arbitration Act contrary to provision of Specific relief Act?

The position that emerges from the above authorities is, therefore, that power to grant injunctive relief, under Section 9 of the 1996 Act, has to abide by the provisions of the Specific Relief Act. Injunction which cannot be granted under Section 41 of the Specific Relief Act, cannot be granted under Section 9 of the 1996 Act, either. Neither can relief be granted, under Section 9, as would amount to specific enforcement of a contract which, by nature, is determinable, in view of Section 41 of the Specific Relief Act. The power to grant injunctive relief, under Section 9 of the 1996 Act, is essentially intended to protect the subject matter of the contract, and to avoid frustration of arbitral proceedings which may be initiated with respect thereto. Such relief can be granted only if the three pre-requisites, governing grant of injunctive relief, i.e. existence of a prima facie case, balance of convenience being in favour of the claimant and possibility of irreparable loss that would ensue to the claimant were such relief not granted, stand fully satisfied. Even in cases where a contract is being sought to be terminated, in violation of the terms thereof, if it appears that the party who suffers as a result of such termination could be adequately compensated in terms of money at the stage of final adjudication of the dispute, no injunctive relief, under Section 9 of the 1996 Act, would be granted.

In the High Court of Delhi at New Delhi

(Before C. Hari Shankar, J.)

Parsoli Motors Works Private Limited  v. BMW India Private Litmited .

O.M.P. (I) (COMM.) 559/2017

Decided on January 15, 2018, 

Citation: 2018 SCC OnLine Del 6556

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