JUDGMENT R.P. Misra and Shishir Kumar, JJ.
1. Heard the learned Counsel for the appellant Sri Ashutosh Srivastava and learned Counsel for the respondents Sri Ravi Kant Agrawal, Senior Advocate assisted by Sri J.J. Munir and Sri Shashi Nandan Senior Advocate assisted by Sri A.A. Kazmi on behalf of the newly added respondents.
2. The present appeal has been filed against the judgment and order dated 16.11.2006 passed by Civil Judge, Senior Division, Gautam Budh Nagar in Suit No. 311 of 2006 rejecting the application for ad-interim injunction which was numbered as 6-C-2.
3. The facts arising out of the present appeal are that the appellant M/S Bagla Advertising Private Limited is a company dealing in various types of roadsides hoardings new signboards, glow signboard etc. The appellant was allotted an L shape plot being Plot No. SH-3 area 18096 Sq. meter, industrial area, Surajapur, Site- 4 for setting up a shopping complex- vide allotment letter dated 10.1.2003 issued by Regional Manager, UPSIDC. A copy of the allotment letter dated 10.1.2003 has been annexed as Annexure-1 to the writ petition. The allotment of L-shape plot was subject to approval of Greater Noida. After the allotment of Plot No. SH-3, appellant submitted the building plan before the General Manager (Planning) Greater Noida on 1.7.2003. Under the terms and conditions of the allotment the appellant was required to deposit Rs. 1,12,85,840/- by 7.2.2003. Initially the appellant paid a sum of Rs. 41,41,000/- towards the earnest money and thereafter made other deposits totaling to approximately Rs. 80,00,000/-. The said plot was surrounded by deep drain on account of which the plot could not be accessed and the appellant was not in a position to make use of the plot. A request to this effect was made to the authority to provide an approach road to the plot and cover the nala but the respondents had given only assurance but did not provide with any approach road over the nala. The respondents have also not obtained necessary approval from Greater Noida for approving the L-shape plot allotted to the appellant without which no building can be constructed. The respondents in a most arbitrary manner proceeded to cancel the allotment of the plot principally on the ground that the appellant has not deposited the requisite amount under the allotment letter. It has further been submitted that no notice and opportunity whatsoever was afforded before canceling the said allotment. The appellant has already deposited a sum of Rs. 80,00,000/- as against Rs. 1,12,85,840/-. The UPSIDC respondent on the other hand did not perform his part of obligation. In such circumstances, the appellant was justified in not making good the balance amount. In the aforesaid circumstances Suit No. 311/2006 was filed before Civil Judge Senior Division, Gautam Budh Nagar claiming a declaratory decree that cancellation of plot allotted to the appellant is illegal, void, and ineffective. A relief for permanent injunction restraining the respondents authorities with a prayer for not transferring its possession and for granting permission for raising construction and the same may not be allotted to anybody has been made. The said application was numbered as Application No. 6-C-2. The Civil Judge refused to grant an ex-parte injunction order and issued a notice vide its order dated 22.5.2006 and fixed 30.5.2006. The respondents authority have put their appearance but delayed the disposal of application for interim injunction on some pretext or the other. They ultimately filed their objections to the interim injunction on the application on 15.9.2004 stating therein that the aforesaid land has already been allotted in favour of M/s Bhasin Infotech and Infrastructure Pvt. Ltd. on 5.8.2006. As the application was pending, a writ petition was filed before this Court bearing No. 5677 of 2006 seeking for modification of the order dated 22.5.2006 refusing to grant injunction. The writ petition was finally disposed of with a direction to decide the interim application on the date fixed or within two weeks but the said application was dismissed vide its order dated 16.11.2006. Aggrieved by the aforesaid order dated 16.11.2006 the appellant has filed the present FAFO stating therein that admittedly the plot was allotted in his favour and about Rs. 80,00,000/- were deposited. The rest amount was not deposited only on the basis in view of agreement between the parties, Clause 23 of which clearly states as under:
23. The request of the bidder to make the Plot No. SH 3 shape maintaining the same area would considered by the Corporation favorably in due course. However, since this would necessitate swapping of land of Park No. 3 with the land of Plot No. SH-3, change in plots dimensions to make it 'L' shape be subject to approval of NOIDA.
4. As the same has not been done and the respondents UPIDC has not fulfilled their part of contract and without any information, the allotment has been cancelled, as such, the Court below was obliged to pass an order of injunction in favour of the appellant. The Court below has not considered this aspect of the matter that prima-facie case was in favour of the appellant to the effect that he has already paid Rs. 80,00,000/- and as the plot in question which was allotted in favour of the appellant was in L-shape and according to Clause -23 mentioned above, change in plot dimension to make it will be subject to approval of Noida and the same has not been done and the Nala has not been covered. Therefore, the court below should have taken into consideration all these facts and should have granted an injunction order in favour of the appellant.
5. It has further been submitted on behalf of the appellant that as the respondents have not discharged their burden according to the agreement executed between the parties and without any notice, the allotment has been cancelled, on the ground that he has not deposited the amount. In spite of the complaint made by the appellant, the UPSIDC has not constructed the pathway. All these factors have not been considered while disposing of the application for ad interim injunction -vide its order-dated 16.11.2006.
6. The Court below has also erred in law and has utterly failed in recording the finding on the question of irreparable injury. It has been averred by the appellant as admittedly the appellant has deposited Rs. 80 lacs against Rs. 1,12,85,840/- and is deprived of a workable plot. Though the balance of convenience was in favour of the appellant but no finding has been recorded to this effect.
7. On the other hand Sri Shashi Nandan, Senior Advocate who has brought to the notice of the Court that an impleadment application has been filed by one M/S Bhasin Infotech and Infrastructure Pvt. Ltd. D-24, Rajouri Garden, New Delhi-27 to be impleaded as respondent No. 3 as the said plot has already been allotted in favour of the applicant and possession has already been given on deposit of the total amount by the applicant and a lease-deed has also been executed on 23.8.2006. As the applicant was not impleaded as a party to the suit, therefore, when they came to know regarding the aforesaid fact of the institution of the suit, moved an application on 15.9.2006 before the trial Court for being impleaded as n defendant. The said application is still pending before the trial Court.
8. Sri Shashi Nandan learned Senior Advocate has submitted that on the aforesaid ground which was before the court below that admittedly the appellant has not fulfilled the conditions laid down in Clause-4 of the agreement and admittedly the amount of first deposit according to the agreement has not been deposited, as such the respondents have rightly cancelled the lease and has allotted in favour of the applicant and they are in possession of the property in dispute.
9. Sru Ravi Kant learned Senior Advocate assisted by Sri J.J. Munir has submitted that the judgment and order passed by the court below is just and proper as admittedly in view of the provisions of Order XXXIX Rule 2 C.P.C. there was no prima facie case in favour of the appellant, the balance of convenience as well as the irreparable injury which cannot be compensated in terms of money. All these ingredients are not in favour of the appellant, therefore, considering all these facts which were apparent before the court below, the court below after recording a finding of fact, has come to the conclusion that the application for ad interim injunction is liable to be dismissed. Sri Ravi Kant, Senior Advocate has further submitted that as the appellant has not fulfilled the first condition of the agreement and has not deposited the amount, therefore, the allotment has already been cancelled and the same has already been allotted in favour of the third person and a lease deed to that effect has already been executed in favour of the M/S Bhasin Infotech on 23.8.2006 and the possession has already been handed over. The court below has clearly recorded a finding that the appellant was directed to deposit the amount. Subsequently on 22.9.2003 the appellant was directed to deposit the balance amount within 15 days. On 24.10.2003 again a letter was sent but in spite of the aforesaid fact when the money was not deposited, it was published in 'Dainik Jagran' on 18.4.2004 and it was clearly mentioned that if the money is not deposited, the said land will be allotted to another person. To this effect a letter was sent on 9.2.1005. In spite of the aforesaid fact the amount has not been deposited and the appellant has taken no action. As such, once a person has not complied with the condition of the agreement, then the allotment order has been cancelled. A specific finding to this effect has been recorded by the court below. In such situation the appellant is not entitled for any relief.
10. After hearing counsel for the parties and after perusal of the record it is apparent that the land was allotted to the appellant on 10.1.2000 and an agreement between the appellant and respondents were arrived with certain conditions. One of the conditions was that the appellant has to deposit Rs. 1,12,85,840/- by 7.2.2003 and balance amount was to be deposited within 30 days of the demand from UPSIDC. Further there was a condition in Clause-4 that if the payment was not made within stipulated time or within the extended time, the allotment will automatically be cancelled and the entire amount deposited by the appellant shall be forfeited by the Corporation. Further there was a condition that remaining 75% of premium shall be recovered in 10 half early equal installments along with interest at the rate of 15%which shall fall due for the payment on first day of Jan./July each year. Admittedly, the appellant has not fulfilled the said condition of the agreement. The appellant was fully aware that plot which was being allotted to the appellant is in L shape and there was a Nala but in spite of the repeated requests as submitted by the appellant if that was not corrected, according to the appellant, the appellant should have made an application before the respondents for canceling his allotment and to return the amount deposited by the appellant. At no point of time, there was any request on the part of the appellant. The allottee was corresponding with the respondents only to correct the shape of the plot and to cover the Nala. Admittedly the allotee has not complied with the conditions of first deposit which was to be discharged in view of the conditions of the agreement. Admittedly the first condition of the agreement has not been complied with. From the judgment passed by the trial court it clearly appears that various notices were issued to the appellant for the purpose of depositing the balance amount. Subsequently a publication was made giving information regarding deposit of the money. But in spite of the aforesaid fact, the balance amount has not been deposited. In such situation the court below has come to the conclusion that the plaintiff-appellant is not able to establish prima facie case in his favour and nor the balance of convenience. Further a finding has also been recorded that in case no injunction order is granted, there will not be any irreparable injury to the plaintiff-appellant as he can be compensated in terms of money. The court below has also taken into consideration the fact that the land has already been allotted to M/S Bhasin Infotech and Infrastructure Pvt. Ltd., and lease-deed has already been executed and the possession of the property has also been given to the subsequent allottee.
11. According to Order XXXIX Rule 2 C.P.C. the plaintiff is entitled to get an interim injunction only if he has been able to satisfy the court regarding the ingredients mentioned in the said order. The Court while granting or refusing ad-interim injunction has to take into consideration the provisions of Sections 38 and 41 of the Specific Relief Act. The same are being quoted below:
38. Perpetual injunction when granted. -(1) Subject to the other provisions contained in or referred to by this Chapter a perpetual injunction may, be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant is trustee of the property for the plaintiff;
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
41. Injunction when refused --An injunction cannot be granted-
(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in criminal matter;
(e) to prevent the breach of a contract the performance of which would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;
(j) when the plaintiff has no personal interest in the matter.
If a person is not able to satisfy the court, the conditions laid down in Section 38, then he is not entitled to get any ad interim injunction under Order XXXIX Rule 2 C.P.C.
12. We have perused the order passed by the court below. The court below has clearly recorded a finding that admittedly the plaintiff appellant after the allotment has not fulfilled the conditions of agreement, which was executed between the parties while allotting the said land. A finding to this effect has also been recorded that even the appellant has not fulfilled the first condition of agreement by depositing Rs. 1,12,85,840/-. In case the first condition of the agreement would have been completed by the appellant, then he can have a dispute that a pathway should be constructed upon the Nala but as the appellant himself has violated the terms and conditions of the agreement which was contrary to the provisions of the agreement as such the allotment has been cancelled by the respondent. From the record it is also clear that after canceling the said allotment, the same has been allotted in favour of another person and a lease deed was executed on 23.8.2006 and the possession of the said land has already been given. In such situation, the court below was of the opinion that the appellant was not entitled for any injunction and as such he has rejected the application 6-C-2 vide its order dated 16.11.2006.
13. In view of the aforesaid fact we are of opinion that the appellant is not entitled for any relief. The court below has rightly rejected the application.
14. In the result the present appeal lacks merit and is hereby dismissed. It is however, in the interest of justice that the court below will take necessary steps to decide the suit expeditiously within a reasonable time. No order as to costs.