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TMI Blog2020 (1) TMI 1281X X X X Extracts X X X X X X X X Extracts X X X X ..... r execution of a written agreement remaining a mere formality. Needless to state the balance of convenience is in favour of the defendants on account of the intervening developments, without furthermore, inter-alia by reason of the plaintiff having waited for seven months to institute the suit. The question of irreparable harm to a party complaining of a breach of contract does not arise if other remedies are available to the party complaining of the breach. The grant of injunction to the plaintiff is unsustainable. Resultantly the orders of injunction are set aside. Nothing in the present order shall be deemed or construed as any expression of opinion or observation by us at the final hearing of the suit which naturally will have to be decided on its own merits. Appeal allowed. - Civil Appeal No(s). 9346 OF 2019, 9347 OF 2019, 9348-49 OF 2019 (arising out of SLP (Civil) No(s). 23194 of 2019, 23200 of 2019, 27311-27312 of 2019) - - - Dated:- 6-1-2020 - Navin Sinha And Krishna Murari, JJ. JUDGMENT Navin Sinha, The present appeals arise from a common order dated 30.08.2019, passed in three separate miscellaneous appeals filed by the appellants before the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 coupled with the exchange of WhatsApp correspondences between the parties amounted to a concluded contract. 5. We have heard learned senior counsel Shri Kapil Sibal, Shri C.U. Singh and Shri Huzefa Ahmadi, appearing on behalf of defendant nos. 1 and 2, who are the appellants before us. Shri Sibal, making the lead arguments on behalf of the defendant sister concerns submitted that they had decided to sell the lands in view of financial stringency and their inability to meet financial commitments inter-alia leading to attachment of immovable properties by the Income Tax Department for dues of ₹ 48,74,45,929/- apart from other statutory liabilities, employee related liabilities and business liabilities. The negotiations with the plaintiff did not attain finality but remained at the stage of discussions only. The wavering conduct of the plaintiff to meet the Income Tax liability of the defendants as part of the consideration amount to facilitate sale by lifting of the attachment, left the defendants with no other choice but to negotiate afresh with defendant no.2. The contention that execution of the agreement remained a formality was disputed. This is evident from the al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 1 to submit that the grant of the injunction was contrary to the basic principles governing injunction more so in a suit for specific performance relying on Mayawanti vs. Kaushalya Devi, 1990 (3) SCC 1. 9. Shri Huzefa Ahmadi, learned senior counsel appearing on behalf of defendant no.2, submitted that it was a bona fide purchaser for value. The plaintiff was well aware of the simultaneous negotiations with it. The defendant no.2 had made substantial payments on 30.03.2018 only after obtaining a written confirmation from the defendant dated 26.03.2018 that it had not signed any other agreement or received payment from another with regard to the subject lands. The registered agreement for sale dated 31.03.2018 was followed by delivery of possession much prior to the institution of the suit. A specific objection with regard to delay was taken in the reply to the injunction application which was not considered. 10. Dr. A.M. Singhvi, learned senior counsel appearing on behalf of the plaintiff, submitted that his clients at no stage had declined to meet the Income Tax liabilities of the defendant sister concerns, as part of the consideration amount. The negotiations were widespr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the parties are still at a nebulous stage, has stalled the progress of the suit. We are of the considered opinion that at this stage we ought to refrain from returning findings of facts or express any opinion on the merits of the suit, except to the extent necessary for purposes of the present order, so as not to prejudice either party in the suit. 15. Chapter VII, Section 36 of the Specific Relief Act, 1963 (hereinafter referred to as the Act ) provides for grant of preventive relief. Section 37 provides that temporary injunction in a suit shall be regulated by the Code of Civil Procedure. The grant of relief in a suit for specific performance is itself a discretionary remedy. A plaintiff seeking temporary injunction in a suit for specific performance will therefore have to establish a strong prima-facie case on basis of undisputed facts. The conduct of the plaintiff will also be a very relevant consideration for purposes of injunction. The discretion at this stage has to be exercised judiciously and not arbitrarily. 16. The cardinal principles for grant of temporary injunction were considered in Dalpat Kumar vs. Prahlad Singh, (1992) 1 SCC 719, observing as follows : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aneously with two others. The plaintiff was further aware on 30.03.2018 itself that the deal with it had virtually fallen through as informed to the escrow agent. The fact that a draft MoU christened as final-for discussion was sent the same day cannot lead to the inference in isolation, of a concluded contract. There is no evidence at this stage that the acceptance was communicated to the defendant before the latter entered into a deal with defendant no.2 on 30.03.2018 and executed a registered agreement for sale on 31.03.2018. Defendant no.2 paid ₹ 17.69 crores and ₹ 2.20 crores towards the income tax dues of the defendant the same day, as part of the consideration amount. It is only thereafter the plaintiff purports to have communicated its acceptance to the defendant on 31.03.2018 at 01.13 PM. The prolonged negotiations between the parties reflect that matters were still at the embryo stage as observed in Agriculture Produce Market Committee, Gondal and ors. vs. Girdharbhai Ramjibhai Chhaniyara and ors., (1997) 5 SCC 468. The plaintiff at this stage has failed to establish that there was a mutuality between the parties much less that they were ad-idem. 18. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief. Similar view has been expressed in Mandali Ranganna (supra). 21. We are therefore of the considered opinion that in the facts and circumstances of the present case, and the nature of the materials placed before us at this stage, whether there existed a concluded contract between the parties or not, is itself a matter for trial to be decided on basis of the evidence that may be led. If the plaintiff contended a concluded contract and/or an oral contract by inference, leaving an executed document as a mere formality, the onus lay on the plaintiff to demonstrate that the parties were ad- idem having discharged their obligations as observed in Brij Mohan (supra). The plaintiff failed to do show the same on admitted facts. The draft MoU dated 30.03.2018 in Clause C contemplated payment of the income tax dues of ₹ 18.64 crores as part of the consideration amount only whereafter the agreement was to be signed relating back to the date 29.03.2008. Had this amount been already p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest . 24. The aforesaid discussion leaves us satisfied to conclude that in the facts and circumstances of the present case, the grant of injunction to the plaintiff is unsustainable. Resultantly the orders of injunction are set aside. Nothing in the present order shall be deemed or construed as any expression of opinion or observation by us at the final hearing of the suit which naturally will have to be decided on its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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