Dismissed

Ms a v. Buildcon through One of Its Partner Sri Bimal Kumar Singhania v Smt Chaya Papneja

Jharkhand HC8 Oct 2020MA/164/2020

Case brief

AI extract

What is this about?

This court dismissed an appeal against the dismissal of an interim injunction application. The bench found the appellant failed to prove readiness and willingness after three years, failed to file a sanctioned building plan, and the writ petition regarding plan sanction was ultimately dismissed and attained finality.

What did the court decide?

Dismissed the miscellaneous appeal and closed the application for condonation of delay.

Ms a v Buildcon through One of Its… — Contract and Commercial Disputes | Jharkhand HC (2020)

¶1

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Miscellaneous Appellate Jurisdiction)

¶3

…..

¶4

M.A. No. 164 of 2020

¶5

…...

¶6

M/s A.V. Buildcon, Ranchi

¶7

…… Appellant

¶8

Versus

¶9

Smt. Chaya Papneja 2. Smt. Sheela Arora 3. Smt. Shanti Devi 4. Smt. Sunita Kumari 5. Smt. Gouri Kumari ….. Respondents

¶10

…..

¶11

CORAM: HON’BLE MR. JUSTICE KAILASH PRASAD DEO (Through :-Video Conferencing) For the Appellant : Mr. Indrajit Sinha, Advocate Mr. Ankit Vishal, Advocate For the Respondents :

¶12

…….

¶13

C.A.V. on 30.09.2020 Pronounced on 08.10.2020

¶14

Kailash Prasad Deo, J.

¶15

1. Heard, learned counsel for the appellant.

¶16

2. Plaintiff is the appellant before this Court being aggrieved of the order dated 08.01.2020 in Misc. (Civil) Application No.148 of 2019 passed by learned Civil Judge (Sr. Division) VII, Ranchi whereby the application filed by the plaintiff/appellant under order XXXIX Rules 1 & 2 read with Section 151 of the Code of Civil Procedure vide Original Suit No.557 of 2014 has been dismissed.

¶17

3. Being aggrieved of the said dismissal order the appellant preferred the present appeal.

¶18

4 . Learned counsel for the appellant has submitted that appeal has been preferred with delay of 50 days and for condonation of the same, I.A. No.4621 of 2020 has been filed.

¶19

5. Learned counsel for the appellant has further submitted that learned court below has not considered the material which has been brought on record, as the suit has been filed by the plaintiff/appellant before the learned court below on 04.12.2014 against the defendant/respondent with following prayer: -

¶20

(a) A decree declaring that the cancellation of the development agreement dated 27.03.20111 by the defendants through their notice dated 15.09.2014 is void ab-initio , illegal and not binding on the plaintiff nor has it affected the rights of the plaintiff under the development agreement dated 27.03.2011.

¶21

¶22

(b) A decree be passed directing the defendants to allow the plaintiff to give effect to the terms of the development agreement dated 27.03.2011 and complete the project according to the terms of the development agreement.

¶23

(c) In alternative, a decree for Rs.1.50 crores be passed against the defendants jointly and severally for the loss that the plaintiff shall suffer on account of the illegal cancellation of the development agreement by the defendants.

¶24

(d) Costs.

¶25

(e) Any other reliefs.

¶26

6. Learned counsel for the appellant has further submitted that after several rounds of meetings and negotiations, the plaintiff and defendants have agreed to reduce the terms and conditions of developing the Schedule-E land into writing and thus a development agreement dated 27.03.2011 was executed between the defendants for the first part and the plaintiff of the second part.

¶27

7. Defendant nos.1 and 2 are the absolute owner of the area- 26.5 decimal of land situated at Village- Getlatu (R.S. Khata No.03, Plot No.201, Sub-Plot No.201/A,, Area-10.5 decimals, Sub-Plot No.201/B, Area- 10.5 decimals & Sub-Plot No.201/C-1, Area 05.5 decimals, Thana No.166, P.S.- Ranchi, District- Ranchi morefully described in Schedule-A appended below. 8. The defendant nos.1 and 2 acquired the aforesaid land by virtue of a registered sale deed No.7796 dated 08.10.1996 registered in the office of District Sub-Registrar, Ranchi. After purchasing the land, the defendant nos. 1 and 2 got their names mutated in the Circle Office, vide Mutation Case No.393 R 27/96-97 and accordingly paid rent to the Government.

¶28

The defendant no.3 is the absolute owner of 25 decimals of land at Village Getlatu situated within R.S. Khata No.82, Plot No.188 (Part) (area 12 decimals), Plot No.199 (area 12.5 decimals) and Plot No.200 (area 0.5 decimals), Thana No.166, District Ranchi more fully described in Schedule- B appended below.

¶29

The defendant no.3 acquired the same land by virtue of the registered sale deed no.7526 dated 27.09.1996 registered at the office of District Sub Registrar, Ranchi. The defendant no.3 also got her name

¶30

¶31

mutated in the Circle Office vide Mutation Case No.392 R 27/1996-97 and thereafter paid rent to the State Government.

¶32

The defendant nos.4 and 5 absolute owners of 26.5 decimals of land situated at Village Getlatu within R.S. Khata No.3, Plot No.201, Sub Plot No.201/C-II, 201/D and 201/E, Thana No.166, District Ranchi more fully described in Schedule-C appended below. The defendant Nos.4-5 purchased the aforesaid land by virtue of registered sale deed no.7789 dated 08.10.1996 and got their names mutated in the revenue records vide Mutation Case No.394 R 27/1996-97 and accordingly paid rent to the State Government.

¶33

The defendant Nos.4-5 are also absolute owner of 16 decimals of land situated at Village Getlatu within R.S. Khata No.82, Plot No.188 Sub-Plot 188A, Thana No.166, District Ranchi morefully prescribed in Schedule-D appended below.

¶34

9. The defendant Nos.4-5 purchased the same land through registered sale deed no.4277 dated 20.07.1999 registered in the office of District Sub Registrar, Ranchi and thereafter got their names mutated in the office of Circle Office in the Revenue record vide Mutation Case No.159 R 27/1999-2000 and paid rend to the State Government.

¶35

10. The defendants in order to put their respective lands to more beneficial and commercial use, decided to amalgamate their lands and to jointly develop the same through a developer in order to achieve maximum utilization. The defendants were therefore, on the look out of a suitable builder for getting their lands jointly developed. The respective lands of the defendants, amalgamated together were more fully described as Schedule-E property.

¶36

11. The defendants thereafter came in contact with the plaintiff, who after being satisfied with the documents of title over the suit land and offered to construct a multi-storied residential cum commercial building over Schedule-E property, vide agreement dated 27.03.2011. It is pertinent to mention here that agreement has not been brought on record. 12. Learned counsel for the appellant has further submitted that as per the terms and conditions of the development agreement, a building plan was to be presented for sanction before the Ranchi Regional Development Authority, Ranchi and after sanction of the same, the project/multi-storied building would be constructed by the plaintiff within

¶37

¶38

a period of three years from the date of sanction of the plan and additional six months grace and/or such other period as may be lost by any force majeure. It was also agreed that the parties may mutually extend the time period, if so required. As per the agreement, the plaintiff would give 33% of super built-up area out of total built-up area in lieu of land provided by them with mutual consent of the parties along with undivided share of the land and common facilities and amenities. It was also provided that the roof right shall also be retained by the plaintiff and the defendant if any future construction is done. Thereafter the same shall be divided in the similar ratio. It was further agreed that the plaintiff shall pay Rs.20 Lacs to the defendants jointly out of which Rs.10 lacs was paid at the time of execution of the agreement and further Rs.10 lacs at the time of commencement of the construction. It was also agreed that the plaintiff shall pay to the defendants Rs.45,000/- every six months as house rent @ Rs.7,500/- per month till handing over the defendant's share. The said amount of Rs.20 lacs was refundable to the plaintiff by the defendants at the time of taking over the respective share.

¶39

On the execution of the agreement dated 27.3.2011, the defendants handed over the land/suit property in terms of the agreement and the plaintiff came in possession over the same.

¶40

The plaintiff paid a sum of Rs.10 lakhs to the defendants on 27.03.2011 which was duly acknowledged by them.

¶41

13. In furtherance of the agreement dated 27.03.2011, the plaintiff earnestly and bona-fidely took steps for initiating the project firstly by obtaining a report in the name of Sri Shyamlal, (the husband of the defendant no.3 and the father of the defendant nos.4 and 5 who was acting as a power of attorney holder of defendant nos.4 and 5) from the National Highway Authorities and appointed an architect and spent a considerable amount for preparation of the building plan and submitted before the Ranchi Regional Development Authority, Ranchi hereinafter referred as R.R.D.A. for sanction in the prescribed format with all necessary details along with a demand draft. The Ranchi Regional Development Authority, Ranchi, however, did not take steps for sanction of the building plan, even though the plaintiff kept on pursuing the same. 14. The plaintiff as a matter of fact again revalidated the demand-draft in the favour of Ranchi Regional Development Authority. The delay

¶42

¶43

caused by Ranchi Regional Development Authority towards sanction of the building plan is of course beyond the control of the plaintiff and plaintiff on its part kept on taking steps in furtherance of the agreement dated 27.03.2011. The plaintiff stacked construction materials worth several lacs of rupees for the purpose of undertaking the construction as soon as building plan is sanctioned by the Ranchi Regional Development Authority, Ranchi. However, in the month of June, 2014, Ranchi Regional Development Authority, Ranchi returned the building plan submitted by the plaintiff along with the demand-draft without passing any order on the same. The plaintiff tried to pursue with the Ranchi Regional Development Authority after return of the building plan without sanction, but did not fetch any response. Hence, the plaintiff filed a Writ Petition before the Hon'ble Jharkhand High Court against the illegal and arbitrary action of the Ranchi Regional Development Authority. Thereafter the plaintiff received a legal notice dated 15.09.2014 (received on 16.09.2014) from the learned Advocate of the defendants whereby it was informed that the development agreement dated 27.03.2011 has been cancelled.

¶44

15. The plaintiff through its advocate immediately replied to the said notice denying the false allegations made against it and also requested the defendants to withdraw /rescind the said notice dated 15.09.2014 in view of the fact that plaintiff has been performing and is still ready and willing to perform its remaining part of the obligation under the Development Agreement dated 27.03.2011. The suit was filed and defendants appeared and filed their written statement and has submitted that agreement dated 27.03.2011 has already been terminated. As per Para-16 of the written statement, the defendant has submitted that as per agreement dated 27.03.2011 the plaintiff shall develop the property within 3 years from the sanction of the plan map and also such period may be extended for a grace period of six months. It is pertinent to mention here that the plaintiff not able to prove the plan of multi-storied building within 3 years of the agreement dated 27.03.2011 in the land of defendants and said agreement dated 27.03.2011 itself terminated/revoked/cancelled due to lapse of prescribed period of 3 years.

¶45

16. The plaintiff never came in possession of the suit land rather the present defendants are in possession of the suit land. The plaintiff failed to perform their part of agreement within a stipulated period hence

¶46

¶47

the defendants suffered a huge monetary loss. As per the agreement, there was no time frame under which map shall be sanctioned and in this regard the plaintiff failed to get the approval for the building plan within 3 years, hence this excuse of plaintiff is not sustainable in the eyes of law. The plaintiff would have filed a petition for injunction under Order XXXIX Rules 1 and 2 read with Section 151 C.P.C. which has been registered as Misc. (Civil) Application No.148 of 2019 on the aforesaid grounds which was opposed by the defendants by way of their reply dated 26.04.2019 stating therein all the grounds which were taken in the written statement and also, prior to the filing of the petition. The plaintiff had earlier filed the same and similar petition on the same grounds vide petition dated 12.01.2016, after filing of the show-cause by the defendant. The defendant did not press the petition and said petition for grant of injunction earlier filed by the plaintiff stood dismissed.

¶48

17. It has been categorically stated in Para-22 of the show cause, that the plaintiff after execution of the agreement till the period of 3 years, did not take any pain or burden to perform his part on the basis of the agreement nor he sent any notice/letter to the defendants stating therein about delay caused in progress of the development work rather he chose to keep mum and silent for a long period of 3 years by just entering into the agreement and as soon as after a period of 3 years when defendants terminated the agreement, he started claiming the property on the basis of the agreement. It shows the mala-fide intent of the plaintiff. From the pleading of the plaint, the plaintiff has also failed to establish that neither plaintiff has submitted fresh plan to Ranchi Regional Development Authority nor plaintiff got any sanctioned plan of the project and the plaintiff has not done the same, till date. This act of plaintiff itself proves that the plaintiff never intended to perform its part and obligation as per the agreement.

¶49

18. In para-26 of the show-cause, the defendants have further stated that plaintiff never came in possession and occupation over the suit land and the development agreement has already been terminated by the defendants due to non-performance of obligation on the part of the plaintiff for more than 3 years. Therefore, the defendants terminated the agreement.

¶50

19. In para-28 of the show-cause, the defendants have further

¶51

¶52

submitted that defendants properly terminated the agreement due to laches on the part of the plaintiff as they have failed to perform any of the obligation within a period of 3 years nor they are in possession of the suit land. So, the question of acquirement of property and investing huge money is false and incorrect. Therefore, the plaintiff does not have any prima facie case and balance of convenience does not lie in favour of the plaintiff at all.

¶53

20. In para-30 of the show-cause it is pleaded that the plaintiff is not entitled for the grant of equitable relief of injunction as claimed by them. 21. Mr. Indrajit Sinha, learned counsel for the appellant/plaintiff has submitted that the plaintiff filed map before the Ranchi Regional Development Authority along with demand-draft of Rs.75,100/-, but the same was returned in the month of June 2014 along with demand-draft without passing any order regarding the same and plaintiff tried to pursue Ranchi Regional Development Authority after the building plan was returned without sanction, but did not fetch any response. Hence, plaintiff instituted Writ Petition before the Hon'ble Jharkhand High Court, Ranchi vide W.P.(C) No.5127 of 2014 which was disposed of, in terms of order No.3, dated 12.02.2020 by Co-ordinate Bench of this Court and a copy of the same has been sent through e-mail in course of argument.

¶54

Learned counsel for the appellant/plaintiff in support of his submissions has relied upon two judgments to buttress his argument and stated that in the case of MD. Army Welfare Housing Organization vs. Sumangal Services (P) Ltd. , reported in (2004) 9 SCC 619 at Paras 109 to 111 which are profitably quoted hereunder :-

¶55

109 . Section 56 of the Indian Contract Act reads thus:

¶56

“56. Agreement to do impossible act:- An agreement to do an act impossible in itself is void.

¶57

Contract to do act afterwards becoming impossible or unlawful:-A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.

¶58

Compensation for loss through non-performance of act known to be impossible or unlawful:-Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promise did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non- performance of the promise."

¶59

110. Impossibility to fulfill the contractual obligation may arise in different fact situations.

¶60

111. Statutory injunction by a statutory authority may be one of such causes. A building bye-law must be scrupulously followed.

¶61

¶62

Violation of Section 204 of the West Bengal Municipal Act, 1993 attracts penal provisions contained in Section 440. It is, therefore, mandatory in nature. The correspondences between AWHO and the Municipality clearly show that even infrastructural works were not permitted to be carried out. Sumangal, therefore, cannot be said to have committed any illegality in complying with the stop work notice. To what extent it committed breach of the terms of the contract, assuming that it could have carried out some job as pointed out by AWHO would depend upon the commercial viability as a large number of workmen were to be engaged although it cannot carry out the major construction work, which was a relevant factor for determining the quantum of damages. Sumangal might have been partially liable but it cannot be faulted when it refused to carry out any constructional work in violation of the stop work notice which would attract the penal provisions of Section 440 of the West Bengal Municipal Act, 1993.”

¶63

Learned counsel for the appellant/plaintiff has also placed reliance upon another case rendered in the case of Julien Educational Trust vs. Sourendra Kumar Roy and Ors. , reported in (2010) 1 SCC 379 at Para 26 and has submitted that this Court may grant ad-interim injunction as 3^rd party right may be created and the plaintiff will suffer irreparable loss. 22. After hearing learned counsel for the appellant and on the basis of material brought on record, it appears that plaintiff/appellant has not brought the agreement date 27.03.2011 on record before this Court. From perusal of the written statement filed by the respondent/defendant, the stand taken by the defendant at Para-16 of the written statement, it appears that as per the agreement dated 27.03.2011, the plaintiff shall develop the property within 3 years from the sanction of the map plan, and also such period which may be extended for a grace period of six months. It is pertinent to mention here that plaintiff has not been able to get the approval of the plan for multi-storied building within 3 years of the agreement dated 27.03.2011,over the land of the defendants and such agreement dated 27.03.2011 itself terminated/revoked/cancelled due to lapse of prescribed period of 3 years and in Para-18, the defendants have categorically stated that plaintiff never came in possession of the land in the agreement rather the present defendants are in possession of the same.

¶64

In the show-cause, it appears that earlier injunction petition was filed which was dismissed, as not pressed after filing of the show-cause of the defendants on 12.01.2016 itself. The plaintiff did not prefer any appeal against the said order though the suit was filed in the year 2014. The earlier injunction petition was dismissed on 12.01.2016 and thereafter the present injunction petition was filed on 20.02.2019. The

¶65

¶66

defendants have also submitted in their show-cause in Para-22 that the plaintiff after execution of the agreement till the period of 3 years, did not take any pain or burden to perform his part on the basis of agreement nor he sent any notice/letter to the defendants stating therein about the delay caused in progress of the development work rather he chose to keep mum and silent for a long period of 3 years by just entering into the agreement and after the lapse of 3 years when the defendants terminated the agreement, he (plaintiff) started claiming the property on the basis of the agreement which shows the mala-fide intent of the plaintiff. From Para23 of the show-cause, it appears that plaintiff also failed to establish that neither plaintiff submitted fresh plan to the R.R.D.A. nor plaintiff got any sanction plan of the project and till date plaintiff has not done the same. This act of the plaintiff itself proves that the plaintiff never intended to perform his part of the obligation as per the terms of the agreement.

¶67

23. From perusal of the order dated 12.02.2020 passed in W.P.(C) No.5127 of 2014, as furnished through e-mail by the learned counsel for the plaintiff/appellant in course of argument, it appears that the said Writ Petition was filed for a direction to the respondent (R.R.D.A.) to show cause as to how and under what authority of law, the file of the petition with regard to the application made for sanctioning of the map/plan for the purpose of construction of commercial/residential building has been returned to the petitioner along with the demand-draft submitted toward application fee, without assigning any reason. Learned counsel for the respondent (R.R.D.A.) in aforesaid writ petition has submitted that application for the sanction of plan was not filed before the R.R.D.A. The learned Single Judge of this Court disposed of the said Writ Petition by giving liberty to the plaintiff/petitioner to file a fresh application along with all the required documents, but nothing has been brought on record to show that till date any application was made or not.

¶68

24. This Court after going through the order passed by learned Single Judge which attains finality, as the learned counsel for the appellant has submitted that no appeal has been preferred against the order dated 12.02.2020 passed in W.P.(C) No.5127 of 2014, is constrained to believe that any step has been taken by the plaintiff ,though the plaintiff has not stated anything in the plaint or in the petition filed under Order XXXIX Rule 11 CPC with regard to date of filing of sanction map, the demand

¶69

¶70

draft number or receipt thereof to establish their contentions. There is nothing on record to show the readiness and willingness of the plaintiff/appellant after entering into an agreement. The plaintiff has not taken any steps even after receiving the Advocate notice dated 16.09.2014 by the defendants, which was served by the plaintiff on 15.09.2014 as admitted in para 24 of the plaint. Writ petition was filed on 20.09.2014 on the premises that the map submitted for approval has been returned without any reason, but the said writ petition was disposed of as because the R.R.D.A. has submitted that application was not filed before the R.R.D.A. and that order attains finality, as such, the conduct of the plaintiff/appellant shows that he has never taken any step pursuant to the agreement and also not informed the defendants about any development in this regard.

¶71

So far, the judgment relied upon by the learned counsel for the appellant in the case of MD. Army Welfare Housing Organization (supra), this Court has perused the same. The particular paras 109-111 as submitted above and found that factual matrix of both the cases are different. In the referred case the infrastructural works were not permitted to carry out in view of violation of provisions of West Bengal Act, 1993, but in the present case the plaintiff/appellant has even failed to show a document with regard to their conduct in filing sanctioned map before the R.R.D.A. rather the writ petition was disposed of on the ground that the plaintiff/appellant has not filed any sanctioned map before the R.R.D.A. nor there is any pleading in the plaint or in the petition for injunction that subsequent to the disposal of the writ petition, they have also filed sanctioned map along with required documents as fresh application for consideration before the R.R.D.A..

¶72

25. So far, the judgment placed by the learned counsel for the appellant in the case of Julien Educational Trust (Supra) is concerned, though the fact of the case is different. The plaintiff- Julien Educational Trust was running a reputed school and entered into an agreement to purchase the adjacent premises of respondent joint owner of Sourendra Kumar Roy and Ors. , of 15 cottahs 8 chittaks 29 sq ft of land, including a three-storey old dilapidated structure and garage and outhouses constructed thereon, being Premises No.3/1, which was adjacent to the school and thus, an

¶73

¶74

interim order was passed by the Hon'ble Apex Court. However, the larger Bench in subsequent judgment dated December 17^th , 2019 passed in Civil Appeal No.9483 of 2019 in the case of Saketa Vaksana LLP and another vs. Kaukutla Sarala and Others , reported in 2019 SCC Online SC 1626 has vacated the stay granted by the court below on the ground that issue raised are seriously disputed, which will be decided during the course of trial and the said suit was also with regard to specific performance of contract. The Hon'ble Apex Court in the case of Samir Narain Bhojwani vs. Aurora Properties and Investments and Another, reported in (2018) 17 SCC 203, at paras 24 to 26 by the larger Bench, which are profitably quoted hereunder:-

¶75

24. That apart, the learned Single Judge as well as the Division Bench have committed fundamental error in applying the principle of moulding of relief which could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage. As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. This Court in Dorab Cawasji Warden Versus Coomi Sorab Warden and Others,2 has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paragraphs 16 & 17, after analysing the legal precedents on the point as noticed in paragraphs 11-15, the Court went on to observe as follows:

¶76

“16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

¶77

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

¶78

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

¶79

(3) The balance of convenience is in favour of the one seeking such relief.

¶80

17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.”

¶81

¶82

(emphasis supplied)

¶83

25. The Court, amongst others, rested its exposition on the dictum in Halsbury‟s Laws of England, 4th edition, Volume 24, paragraph 948, which reads thus:

¶84

“948. A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.” 26. The principle expounded in this decision has been consistently followed by this Court. It is well established that an interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction. (See Metro Marins and Another Versus Bonus Watch Co. (P) Ltd. and Others3, Kishore Kumar Khaitan and Another Versus Praveen Kumar Singh4 and Purshottam Vishandas Raheja.”

¶85

26. In the case of Seema Arshad Zaheer and Ors. vs. Municipal Corpn. of Greater Mumbai, reported in (2006) 5 SCC 282 at Para-30 which is profitably quoted hereunder :-

¶86

“ 30. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands” .

¶87

27. The Hon'ble Apex Court has held in the case of Kishorsinh Ratansinh Jadeja vs. Maruti Corp. & Ors., reported in (2009) 11 SCC 229 enunciated the Principles while passing ad-interim order of injunction under Order XXXIX Rules 1 & 2 C.P.C., the Court is required to consider three basic principles: -

¶88

(i) prima facie case;

¶89

(ii) balance of convenience and inconvenience; and

¶90

(iii) irreparable loss and injury.

¶91

And in para 40, the Honble Apex Court has held that the owners of the property remain restrained from developing the same, it is they, who will suffer severe prejudice, as they will be deprived of the benefit of the

¶92

¶93

user of their land during the said period. The balance of convenience and inconvenience is against grant of such injunction. The success of the suit for specific performance filed by the Respondent No.1 depends to a large extent on tenuous proof of genuineness of the agreement sought to be enforced after 19 years.

¶94

The question of conduct of the Respondent No.1 also becomes relevant, inasmuch as, having slept over its rights for more than 19 years, it will be inequitable on its prayer to restrain the owners of the property from dealing with the same.

¶95

28. On the test to be applied in granting mandatory injunctions on interlocutory applications in Halsbury's Laws of England, 4^th edn., Vol. 24 para 948 it is stated:-

¶96

"A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steel a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application."

¶97

29. In the case of Dorab Cawasji Warden vs. Coomi Sorab Warden and Ors., reported in (1990) 2 SCC 117 at Para-16 which is profitably quoted hereunder :-

¶98

“ 16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injus- tice or irreparable harm, courts have evolved certain guid- lines. Generally stated these guidelines are:

¶99

(1) The plaintiff has a strong case for trail. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

¶100

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief.”

¶101

30. Considering the aforesaid judgment and tested on the factual matrix of the present case. It appears that plaintiff/appellant is not fair in his conduct for the reason that after execution of the agreement dated 27.03.2011, no

¶102

¶103

communication was made to the defendant/respondent - land owner with regard to steps taken by him for sanctioning the map. More than three years have lapsed and in the absence of the communication, landlorddefendant/respondent issued a legal notice to the plaintiff (developer) on 15.09.2014, which was received by them and thereafter a writ petition was filed before the High Court vide W.P.(C) No.5127 of 2014 and the said writ petition was disposed of and attains its finality as R.R.D.A. has taken a stand that builder- M/s A.V. Buildcon, Ranchi has not filed any application before the R.R.D.A. and the same was not appealed by the plaintiff. The aforesaid observations coupled with the fact and the pleading made by the plaintiff compels this Court to think that the averments made in the plaint at paras 22 and 23,the plaintiff/appellant failed to furnish the details with regard to the date of filing of the map/plan for sanctioning before the R.R.D.A, along with the details of the bank demand draft and the required papers. The plaintiff also failed to explain whether signature of the landlords have been obtained on the same or their power of attorney has been obtained on the said map/plan, which was submitted before the R.R.D.A, for sanction rather the R.R.D.A. has taken stand in the writ petition filed by the plaintiff/appellant that they have not filed any such map/plan for sanctioning and if they will file, R.R.D.A. will act in accordance with law. The order has attained finality. This court also finds no reason, whatsoever for not bringing the Agreement dated 27.03.2011 on record.

¶104

31. This Court is of the opinion that the in the absence of readiness and willingness of the plaintiff to abide the terms of the agreement, without obtaining sanction plan, after the lapse of 3 years is not a bona-fide conduct rather everything has to be proved by the plaintiff/appellant before the learned trial court for having a decree.

¶105

32. The plea taken by the plaintiff/appellant that construction has to be completed within 3 years from the date of sanction of map and also such period may be extended for a grace period of six months, but in view of Para-16 of the written statement filed by the defendant/respondent that as per the agreement dated 27.03.2011, the plaintiff shall develop the property within 3 years from the sanction of the plan/map, the plea taken by the plaintiff /appellant is not tenable at the present juncture in the absence of sanctioned map even after the lapse of so many years. It is pertinent to mention here that plaintiff failed to take any steps for approval of plan of multi-storied building within 3 years of the agreement dated 27.03.2011 in the land of the defendants, as such, agreement dated 27.03.2011 has been

¶106

¶107

terminated/revoked/cancelled after lapse of prescribed period of three years after due notice. The case of the plaintiff is on the basis of an agreement. As per the pleading of the parties, plaintiff/appellant has not taken any steps nor brought any document on record to establish that they were diligent in pursuing the building plan before receipt of the legal notice termination. After receipt of the legal notice of termination dated 15.09.2014/16.09.2014 by the plaintiff /appellant, the plaintiff tried to justify the stand by filing the Writ Petition being W.P.(C) No.5127 of 2014 which was disposed of by Coordinate Bench of this Court vide order dated 12.02.2020 as the respondentR.R.D.A. has submitted that no application was filed before the R.R.D.A., as such, the contention raised by the plaintiff/appellant that his map was not sanctioned without assigning any reason seems to be doubtful. The said order passed by the Writ Court on 12.02.2020 attains its finality as no appeal has been preferred by the aggrieved party and pursuant thereto, no fresh map has been filed with required documents before the R.R.D.A., rather a suit was filed in the year 2014. The defendants appeared and filed their written statement denying the same. The petition for the grant of injunction was also filed by the plaintiff earlier before the court below under Order XXXIX Rules 1 and 2 read with Section 151 C.P.C. which was dismissed, as not pressed in terms of order dated 12.01.2016 after filing of the show-cause of the defendant, amply proves that conduct of the plaintiff/appellant was not to construct the building rather only to delay the matters, as till the date issues have not been framed in the suit.

¶108

33. After due consideration and going through the impugned order as well as on the basis material brought on record, this Court is not inclined to interfere with the impugned order whereby the petition filed by the plaintiff/appellant under order XXXIX Rules 1 and 2 read with Section 151 C.P.C. has been rejected on 08.01.2020 passed in Misc. (Civil) Application No.148 of 2019 arising out of Original Suit No.557 of 2014 passed by learned Civil Judge (Sr. Division) VII, Ranchi.

¶109

34. Accordingly, the instant Miscellaneous Appeal stands dismissed.

¶110

35. I.A. No.4621 of 2020 filed for condonation of delay is hereby closed.

¶111

36. However, it is needless to say that the learned trial court would frame the issues and proceed in accordance with law without giving unnecessary adjournment to any of the parties.

¶112

(Kailash Prasad Deo, J.)

¶113

sandeep/R.S.-

Ms a v. Buildcon through One of Its Partner Sri Bimal Kumar Singhania v Smt Chaya Papneja

Case brief

What is this about?

What did the court decide?

Ms a v. Buildcon through One of Its Partner Sri Bimal Kumar Singhania v Smt Chaya Papneja

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shiv Mangal Singh And Ors. Vs Union Of India Through The General Manager East Central Railway

Smt Sanju Devi Vs Union Of India Through General Manager South Eastern Railway

Smt Zaheda Bibi Vs Union Of India Through The General Manager Eastern Railway

Deepak Saw Alias Deepak Modaha Alias Deepak Sahu Vs the State of Jharkhand

Bablu Kumar Dangi Alias Bablu Kumar Vs the State of Jharkhand

Manish Mahajan Vs Shailendra Chandravanshi and Ors.