1 BGD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.570 OF 2008 APPEAL FROM ORDER NO.570 OF 2008 APPEAL FROM ORDER NO.570 OF 2008 IN IN IN NOTICE OF MOTION NO.3681 OF 2007 NOTICE OF MOTION NO.3681 OF 2007 NOTICE OF MOTION NO.3681 OF 2007 IN IN IN SUIT (ST.)NO.4118 OF 2007 SUIT (ST.)NO.4118 OF 2007 SUIT (ST.)NO.4118 OF 2007 Maxi Francis Alex & Ors. ... Appellants Vs. Mr. Pramod G. Ahire & Ors. ... Respondents Mr. D.H. Mehta with Mr. Harinder Toor i/by Nandu Pawar for Appellants. Mr. J.S. Kini i/by Mr. Suresh Dubey for Respondents No. 1 and 2. CORAM : SMT. R.P. SONDURBALDOTA, J CORAM : SMT. R.P. SONDURBALDOTA, J CORAM : SMT. R.P. SONDURBALDOTA, J. DATE : 30TH JULY, 2008 DATE : 30TH JULY, 2008 DATE : 30TH JULY, 2008 P.C. :- P.C. :- P.C. :- 1. The appellants who are original defendants No.2 to 4 and 6 to 8 prefer this appeal against interim order dated 21st February,2008. Respondents No.1 and 2 are the original plaintiffs. Respondents No.3 and 4 are the original defendants No.1 and 5. The parties are hereinafter referred to by their original nomenclature. 2. The defendants by registered agreement of 2 sale dated 28th January,1992 agreed to sell the suit property to the Plaintiffs for the consideration of Rs.65,01,000/- and three flats each admeasuring 500 square feet in the building proposed to be constructed. There are 43 tenants on the suit property. Each tenant was to be provided tenament admeasuring 200 sq.ft. in the proposed building. After obtaining the appropriate permission from the Municipal authorities, the plaintiffs started work of constrution on the suit property. The plaintiffs allege that when the construction came to extent of two slabs, the defendants started obstructing the work in various ways. Consequently the work of development of the suit property came to be stopped. As per the plaintiffs there were several meetings between them and the defendants to resolve the disputes until the year 2006. Thereafter the plaintiffs learnt that the defendants are intending to create third party rights in the name of a third party, possibly by name M/s Jyoti Builders. The tenants on the suit property also got a whiff of creation of third party rights over the suit property and hence filed proceedings against the plaintiffs as well as defendants by filing various suits. In these suits, interim reliefs were granted to the tenants. On these facts, the plaintiffs sought two permanent reliefs. Firstly to restrain the 3 defendants from selling, alienating, transferring and/ or creating any third party rights in the suit property and secondly to restrain the defendants from constructing, developing, demolishing or doing any construction or development over the suit property without written consent of the plaintiffs. By way of interim reliefs, the plaintiffs sought same injunction as in the name of permanent reliefs and also appointment of Receiver in respect of the suit property. The plaintiffs further seek leave under Order 2, Rule 2 of the Code of Civil Procedure to file substantive suit for specific performance of the agreement in their favour. The reasons stated in paragraph 17 of the plaint do not enable them to file substantive suit against the defendants. 3. After hearing the parties, learned trial Court restrained the defendants by an interim injunction inter alia from creating any third party rights over the suit property. The defendaqnts are further restrained from interfering with the plaintiffs possession over the suit property during the pendency of the suit. The leave under Order 2, Rule 2 of C.P.C. as prayed for by the plaintiffs came to be granted. 4. Taking exception to the above order, Mr. Mehta, learned counsel for the Appellants submits 4 that if one peruses the plaint, it can be seen that the plaintiffs are no more in possession of the suit property. The information of loss of possession, according to Mr. Mehta can be gathered from two circumstances. Firstly the averments made at paragraph 20 of the plaint in support of interim prayer sought by the plaintiffs of appointment of Court Receiver, High Court, Bombay in respect of the suit property. The plaintiffs state that after the appointment of Court Receiver, High Court, Bombay, he be directed to put the plaintiffs in possession of the suit property to allow them to develop it as his agent. Mr. Mehta submits that if the plaintiffs were to be in possession of the suit property, they would not have sought a direction to the Court Receiver to put the plaintiffs in possession of the suit property. Mr. Kini, learned Advocate for the respondents explains that the averments at paragraph 20 had to be made since on appointment as Agent of Receiver, the plaintiffs cannot continue in possession without agency from the Receiver. It will be difficult to infer from the averments at paragraph 20 alone that the plaintiffs on the date of filing of the suit were not in possession of the suit property. 5. The second circumstance pointed out by Mr. Mehta is nature of two permanent reliefs sought by 5 the plaintiffs. Mr. Mehta submits that if the plaintiffs were to be in possession of the suit property, they would have asked for permanent injunction to restrain defendants from disturbing their possession of the suit property and not for the permanent injunction to restrain the defendants inter alia from creating any third party rights on the suit property. According to him for the purpose of creating third party rights, it is necessary that defendants, who are the original owners of the suit property must be in possession thereof. The defendants admit that the plaintiffs had been put in possession of the suit property pursuant to the agreement of sale dated 28th January, 1992. In that case, it is for the defendants to establish that the possession was lost by the plaintiffs at some point of time thereafter. Mr. Mehta then submits that the plaintiffs have abandoned the project of development and left the suit property. The defendants, however, are unable to specify the date of abandonment. 6. According to the defendants, they had terminated the contract with the plaintiffs by termination letter dated 24th July, 1996. A copy of this letter is in the compilation filed in the appeal. As rightly observed by the learned trial Judge, the letter dated 24th July, 1996 can hardly 6 be said to be a letter of termination. Learned trial Judge by quoting the relevant paragraphs from the letter has observed that the letter is a mere caution note given to the plaintiffs that the defendants would rescind the contract. There is no categorical termination of the contract by the defendants in the letter. About three years thereafter i.e. on 7th July, 1999, the defendants issued public notice in the newspaper. According to Mr. Mehta, this is a second termination of the contract by the defendants. Perusal of the notice shows that it is a mere intimation to the general public that defendants have terminated the agreement with the plaintiffs. The notice to general public cannot be said to be termination intimation. 7. Next though the defendants allege that the plaintiffs have abandoned the contract is not known as to how and when was the possession handed over or received by the defendants. 8. Mr. Mehta states that the defendants have already created third party rights over the suit property by entering into a registered agreement of sale with Jyoti Builders. Admittedly this fact has not been disclosed in the reply filed by the defendants before the trial Court. It appears that the obvious reason for not disclosing the 7 agreement in the reply is that the defendants would have to face contempt proceedings. This is because by the order dated 18th March, 2006 passed by the Bombay City Civil Court, Bombay has in L.C. Suit No.818 of 2006 the defendants are restrained from creating third party rights in the suit property. 9. It is thus seen that in the facts and circumstances of the case as pleaded before the trial Court by the parties, the learned trial Judge has rightly held that prima facie the plaintiffs are in possession of the suit property and granted interim reliefs to protect the possession. 10. Mr. Mehta lastly submits that the trial Court could not have granted the order of injunction in view of Section 14(1)(c) read with Section 41 of Specific Relief Act. He submits that the contract with the plaintiffs contains a clause for termination of the contract. According to him such a contract would be a contract which is in its nature determinable and hence not specifically enforceable, in view of Section 14(1)(c) of Specific Relief Act. Section 41(e) of Specific Relief Act provides that no injunction can be granted to prevent breach of a contract the performance of which would not be specifically 8 enforceable. 11. Merely because the contract contains a clause permitting either of the parties or both to terminate the same does not mean that the contract is in its nature determinable. For attracting Section 14(1)(c) of Specific Relief Act to a contract, it must be of such a nature that it would become determinable without any active role on the part of either of the sides. The determinability is within the nature of the contract or inherent to the contract. One example of a contract which is in its nature determinable would be a contingent contract, such a contract cannot be specifically enforced after the contingency failed. Another example of a contract determinable in its nature would be a contract of sale of property under attachment made subject to Court’s approval. Such a contract cannot be enforced after the sanction is refused. The very term in the contract obtaining sanction of the Court means it determinable on refusal of the sanction by the Court. Therefore, I am unable to appreciate the argument of Mr. Mehta that the trial Court could not have granted the injunction, in view of Section 41(e) of Specific Relief Act. 12. In my opinion, taking into consideration the facts and circumstances of the case, no fault 9 can be found with the order passed by the learned trial Judge in granting the order. Hence, the appeal is dismissed in limine. 13. Mr.Mehta makes a request that the order of ad-interim stay in the appeal be continued for a reasonable period. Mr. Kini, learned Advocate for the plaintiffs opposes the application. Ad-interim stay is continued for a period of four weeks. ( SMT.R.P. SONDURBALDOTA, J.) ( SMT.R.P. SONDURBALDOTA, J.) ( SMT.R.P. SONDURBALDOTA, J.)