Swastic Projects Private Limited vs Kazi Amiruzzaman

Subhro Kamal Mukherjee, J.—Although the matters are appearing under the heading ''for orders'', by consent of Mr. Saktinath Mukherjee, learned senior advocate appearing for the appellants in F.M.A.T. No. 93 of 2013, Mr. Joy Saha, learned advocate appearing for the appellants in F.M.A.T. No. 94 of 2013 and Mr. Jiban Ratan Chatterjee, learned senior advocate appearing for the respondent No. 1 in both the appeals, we take up the appeals for hearing. All formalities are dispensed with.

These two appeals are against a common order passed by the learned Trial Judge allowing an application for temporary injunction in a suit for specific performance of contract.

The learned Trial Judge held that the plaintiff could not produce any documentary evidence in support of the alleged agreement for sale and alleged payments. Still, he opined that serious disputed questions were to be tried in the suit.

The plaintiff alleged that the owners entered into an agreement for sale of the disputed property for Rs. 40,00,000/- (Rupees forty lakh) only. It is alleged that the entire payments have been made. It is, further, alleged that the possession was delivered and the plaintiff/respondent No. 1 was in possession of the property-in-suit.

The plaintiff at one stage of the suit purportedly filed the original agreement for sale and the money receipts.

An application for temporary injunction was pending. There was no occasion for the plaintiff to take back the original documents when serious disputed questions were to be considered in connection with an application for temporary injunction.

By order No. 18, the Trial Court, on the prayer and at the risk of the plaintiff, permitted his learned advocate to take back the original documents.

The purported original documents were taken back. In spite of repeated opportunities by the Trial Court, the plaintiff failed to produce those alleged original documents in support of his contention that an agreement was entered into between the parties and payments were made.

Mr. Jiban Ratan Chatterjee, learned senior advocate appearing for the plaintiff/respondent No. 1, strenuously, argues that Rs. 40,00,000/- (Rupees forty lakh) only was paid in cash and all the receipts were lying with the erstwhile learned advocate for the plaintiff. Therefore, opportunities should be given to his client to produce the original documents at the proper time.

This Court directed the plaintiff/respondent to produce the original documents by order dated February 28, 2013. Admittedly, those original documents are not filed. Mr. Chatterjee submits that the original documents were taken by the erstwhile learned advocate for the plaintiff, who is not returning those documents.

In a suit for specific performance of contract injunction is not a matter of course. It is settled law that grant or refusal of temporary injunction is covered by well-established principles, that is, whether the petitioner has made out a prima facie case, whether the balance of convenience is in favour of the petitioner and whether the petitioner would suffer irreparable injury. While the first condition is sine qua non, the petitioner is, also, to establish two other conditions conjunctively. Mere proof of any one of the said three conditions does not entitle a petitioner to get an order of temporary injunction. When none of the three conditions are fulfilled, the application for temporary injunction is liable to be rejected.

The learned Trial Judge was conscious that the original documents were not produced before him in spite of his repeated orders. Still, the learned Trial Judge granted an order of temporary injunction on the ground that serious disputed questions are to be tried in the suit.

The conduct of the plaintiff is not inspiring our confidence. It is unbelievable that the plaintiff permitted his learned advocate to back the original agreement and the money receipts acknowledging payment of Rs. 40,00,000/- (Rupees forty lakh) only. It is difficult for this Court to believe that the plaintiff permitted his erstwhile learned advocate to retain those documents with him.

When the application for temporary injunction was pending, it was difficult to conceive that the plaintiff would take back the original documents. He had no occasion to ask for return of the original documents.

An order of injunction is a discretionary order and it is essential for a party appealing against such order to establish that the Court, against whose judgment the appeal is preferred, acted in the exercise of its discretion wrongly.

In the facts and circumstances of the case, we are of the opinion that the Trial Court acted wrongly in exercise of its discretion by passing the order impugned granting injunction.

The order impugned is, therefore, set aside. The application for temporary injunction filed in Title Suit No. 121 of 2009 stands rejected.

However, any action taken in the meantime shall abide by the result of the suit.

We request the learned Trial Judge to dispose of the suit as early as possible.

We record that we have not gone into the merits of the claim and the counter claim of the parties and all points for consideration are kept open and shall decide by the learned Trial Judge uninfluenced by any of his observation in the order impugned or our observations made in the appeals as all those observations are limited for the purpose of disposal of the application for temporary injunction.

With the aforesaid directions, the appeals and the connected applications stand disposed of. We make no order as to costs.

Asim Kumar Mondal, J.

I agree.