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Judgment
This Civil Misc. Appeal under Order 43 Rule 1 CPC has
been filed against the order dated 28.01.2017 passed by the
learned Additional District Judge, Kherwara in Civil Misc. Case
No.40/2016.
Briefly stated, a suit was filed by the appellant for
specific performance of contract and permanent injunction along
with an application for temporary injunction stating that the
respondent is holding a mining lease near village Nayagaon, Tehsil
Simalwada, District Dungarpur for an area measuring 10,000
square meter, which stands renewed up to 05.02.2022. It was
submitted that the respondent made an application before Mining
Engineer, Dungarpur and the said mining lease was transferred
vide order dated 17.12.2012 and the rider agreement was
executed and registered on 19.12.2012. It was stated that the
appellant had invested crores of rupees for development of the
mining lease area by deploying latest machineries, by raising
loans from financial institutions, however, the sanction for transfer
of mining lease and rider agreement were canceled by the State
Government on the ground that in the various land mining lease
could not be transferred without prior permission of the Ministry of
Forest, Government of India. It was further stated that the
appellant had challenged the aforesaid cancellation by way of writ
petition before this Court and this Court has directed for
maintaining status quo and the writ petition is pending. It was
further stated that since the humble appellant has developed the
mining lease area by investing huge money and by deploying
machineries, the respondent had executed an agreement dated
15.09.2014 in favour of the appellant to the effect that whatever
mineral shall be excavated by respondent shall be sold to the
appellant only and to none else. Thus, a concluded contract came
to be executed between the parties. In pursuance of the
agreement dated 15.09.2014, the respondent handed over the
excavated mineral to the appellant and started earning profit,
however, in the meantime, due to greed, the respondent started
selling the mineral to other parties and when the appellant started
watching the activities of the respondent, he started threatening
the appellant that he will not sell entire excavated material to him
and will not abide by the agreement dated 15.09.2014. It was
submitted that the respondent is bound to comply with the terms
of the agreement dated 15.09.2014 and in case the respondent
does not comply with the terms, the appellant would suffer
irreparable injury, which could not be computed in terms of
money. It was prayed that during the pendency of the suit,
temporary injunction may be granted and that the respondent be
restrained from selling the excavated mineral to any person and
comply with the terms of the agreement dated 15.09.2014.
The respondent filed reply to the application for
temporary injunction and denied allegations contained in the
application for temporary injunction. However, the transfer of
mining lease in favour of the humble appellant vide order dated
17.12.2012 was admitted. It was submitted that the writ petition
is pending before this Court and the suit is not maintainable. It
was also submitted that the agreement dated 15.09.2014 is
forged. The respondent also raised the question of jurisdiction of
the Court. It was also submitted that the appellant filed an
application under Order 8 Rule 9 read with Section 151 CPC and
controverted the allegations contained in the reply filed by the
respondent. It was prayed that the humble appellant may be
permitted to file rejoinder. A rejoinder was also filed on record by
the humble appellant, which was taken on record by the trial
court. Certain documents filed by the parties were also taken on
record by the trial court.
After hearing the counsel for the parties, the trial court,
vide its order dated 28.01.2017, rejected the application for
temporary injunction of the appellant by observing that none of
the three ingredients for grant of temporary injunction are found
in favour of the appellant.
Being aggrieved of the order dated 28.01.2017, the
appellant prefers this appeal.
It was contended that the learned trial court has
committed illegality in holding that the appellant does not have
prima facie case in its favour. It was contended that the
respondent has admitted transfer of mining lease in favour of the
appellant and rider agreement pursuant thereto having been
executed by them. However, cancellation of transfer on mere
technicalities led to execution of agreement by the respondent in
favour of the humble appellant and there was nothing wrong in it
and the respondent is liable to be bound down to strictly comply
with the agreement, which was executed by him presence of
witnesses. Thus, the appellant has well proved the prima facie
case in its favour but the learned trial court, on complete
misconstruction of facts and merely on the basis of pendency of
writ petition before this court, has declined the relief of temporary
injunction.
It was also contended that the trial court has
proceeded on wholly irrelevant considerations by misintepreting
the clauses of the agreement in question and holdnig the
agreement to be indefinite agreement, which is not at all relevant
on the face of the agreement and the respondent is bound to
supply entire mineral excavated from the lease area to the
appellant and is prima facie liable to honor the agreement
executed by him in favour of the appellant.
It was contended that while deciding the question of
balance of convenience, the trial court has taken shelter of interim
order passed by this Court in the writ petition filed by the
appellant. It was contended that the writ petition relates to the
challenge of cancellation of transfer of mining lease and this
agreement is independent of the said writ petition and, in such
circumstances, the question regarding balance of convenience is
liable to be decided in favour of the appellant.
It was also contended that the trial court has
committed illegality in deciding the question of irreparable loss. It
was contended that the respondent once had transferred the
entire mining lease by taking huge consideration in favour of the
appellant and the Mining Department had also sanctioned transfer
and executed rider agerement also but the same was cancelled on
the technical grounds by the respondent as a moral responsibility
cannot be ruled out and once the entire machinery of the
appellant is deployed on the mines and it is the appellant who had
invested huge amount in development of the mines all this time, it
is the appellant, who is going to suffer irreparable injury if the
temporary injunction is not granted in its favour.
In the context of the contentions raised by the
appellant, perused the entire pleadings and documents placed on
record.
In the present case, the appellant sought specific
performance of agreement dated 15.09.2014 and in the main suit,
sought the following relief:-
"VERNACULAR MATTER OMITTED"
On perusal of the impugned agreement dated
15.09.2014, in the condition No.7 it is stated as under:-
"VERNACULAR MATTER OMITTED"
From the aforesaid condition agreed between the
parties, it is not clear that as to at what rate excavated mineral
will be sold by Kalu Solanki to M/s. Solanki Green Marbles Pvt.
Ltd. Nothing has been cleared as to what would be the partial
profit nor anything has been clarified that what would be the rent
of machinery deployed by Kalu Solanki, declared for excavation of
minerals.
The respondent contended that the specific
performance of such a condition, which is in itself uncertain with
regard to the profit, which will be charged by Kalu Solanki and
rate of rent for the machinery deployed by Kalu Solanki for the
machinery deployed by Kalu Solanki for excavation of minerals.
Such uncertain condition of contract cannot be specifically
enforced in view of Section 29 of the Indian Contract Act.
The respondent placed reliance upon the judgment
delivered in the case of Barkat Ram Vs. Anant Ram [AIR 1915
Lahore 328] and contended that the provisions of Section 29 of
the Indian Contract Act rests upon practical common sense. It is
obviously impossible for the Court of Justice to give effect to a
contract, the meaning of which it is unable to find out with
reasonable clearness. The principle is firmly established that a
court cannot undertake to supply defects or ambiguities according
to its own notions of what is reasonable, for this would be not to
enforce a contract made by the parties but to make a new
contract for them.
He also placed reliance upon the judgment delivered in
the case of Delhi Development Authority, N.D. and another
Vs. Joint Action Committee, alottee of SFS Flats and others
[AIR 2008 SC 1343] and contended that the Hon''ble Supreme
Court, in the above matter, has specifically opined that it is well
settled that a definite price is an essential ailment of the binding
agreement. Although a definite price need not be stated in the
contract but accession thereof either expressly or impliedly is
imperative.
Reliance was also placed on the judgment delivered in
the case of Smt. Phuljhari Devi Vs. Mithai Lal & Ors. [AIR
1971 Allahabad 494], in which it was held that in a suit for
specific performance, the contract of sale must be definite and
precise and if it is uncertain it must be held to be void under
Section 29 of the Indian Contract Act. Specific performance is an
equitable relief and the contract of which, specific performance is
sought, must appear to be correct and precise and no oral
evidence was admissible to add to the terms or contents of Ex.6.
(See Sections 91 and 92 of the Evidence Act). It must, therefore,
be held that the contract fo sale, Ex.6, was void for uncertainty.
In Kovuru Kalappa Devara Vs. Kumar Krishna
Mittar & Anr. [AIR 1945 Madras 10], the Hon''ble Madras High
Court observed that Section 29 contemplates that the meaning of
an agreement shall be clear from the face of it. Hence, a suit on a
document undertaking to pay the certain amount "after
deductions as would be agreed upon" between the parties must
fail by reason of Section 29 .
In Sudha Jain Vs. MP Housing and Infrastructure
Development and Ors. [2014(1) MPLJ 630], it was held that
the importance of definite price being the bedrock of the binding
agreement was noted in following terms in Delhi Development
Authority, N.D. and another Vs. Joint Action Committee, allottee of
SFS Flats and others:-
"80A Definite is an essential element of a binding agreement. A definite price although need not be stated in contract but it must be worked out some premise as was laid down in the contract. A contract cannot be uncertain. It must not be vague."
In view of this, the trial court has rightly observed that
the agreement, which is sought to be enforced, is an uncertain
agreement. While deciding the application for grant of temporary
injunction, the appellate court can interfere with the order of trial
court only in the event when the trial court, while granting or
refusing temporary injunction, if:
(a) the trial court possesses no power to grant such order; (b) the trial court exceeded jurisdiction vested with it; (c) the temporary injunction granted or denied is based on totally irrelevant considerations; (d) the trial court has left out relevant considerations; (e) the trial court acted malafidely; (f) the discretion exercised for improper or collateral purposes; (g) the discretion has been exercised colourably; (h) the discretion has been exercised without adhering principles of natural justice; and (i) the order granting or denying temporary injunction is highly unreasonable.
Thus, it is well settled that the issuance of temporary
injunction is a discretion vested with adjudicating court and in its
most basic sense the decision to grant or deny a temporary
injunction is an attempt to promote substantial justice with a view
to strike balance of equities between the parties. Substantial
justice requires that all circumstances be considered before a
temporary injunction is issued, and a determination be made that
injunction is reasonably necessary to protect legitimate rights of
the parties during the course of adjudication of the principal
dispute. Specific criteria in reaching a decision for grant or deny
temporary injunctions includes the real likelihood of irreparable
injury, beside the degree relating to likelihood of success of the
dispute on the merits. There is nothing on the record, which
shows that the trial court has acted arbitrarily, capriciously or
passed contrary to the facts and circumstances of the case.
In view of the above, I do not find any merit in this
case and, therefore, the appeal is hereby dismissed.