ORDER Vikramajit Sen, J.
1. This is an application filed by the Plaintiff praying for an ad interim injunction in respect of the suit property for preserving it in its present position and condition. This application has been filed in a suit for specific performance, injunction and declaration. The facts as disclosed in the plaint are that the suit property was the self-acquired property of Defendant No. 1 and he was its exclusive owner. On this premise, the parties executed a Receipt-cum-Agreement dated 14.10.1998 and Rs.two lacs were paid as a token advance. The various terms of the alleged Receipt-cum-Agreement have been set up. But significantly, in this narration the handwritten term, which is not denied by the parties, to the effect that a "Collaboration Agreement will have to be signed by both the parties on the terms and conditions to be mutually agreed" was not stated. On the failure of Defendant No.1 to perform the contract written as well as verbal notices /demands were issued lastly on 29.5.1999. Having learnt on 13.6.1999 of an intended sale by Defendant No. 1 to a third party, the Plaintiff herein filed a suit bearing No. 1302/99 for permanent injunction, which suit is stated to have been filed by the Plaintiff "due to extreme urgency". The plaint further discloses that the plaintiff came to know that Defendant No. 2 had entered into an Agreement to Sell dated 7.4.1999 with Defendant No. 1 with regard to the entire terrace above the first floor with the rights to carry out construction thereon and on the entire third floor. Vide orders dated 21.7.1999 the interim order directing the parties to maintain status quo, was recalled, and an Appeal against the order, being FAO (OS) 222/99 was also disposed of on 3.8.1999 with, inter alia, the following observations :
"We have seen the photographs of the construction, which has already taken place. The proposed building is almost complete. In our view, the learned Single Judge thus rightly refused relief. At this stage, it would be inappropriate to grant any relief in a suit only for an injunction.
Appellant is at liberty to file appropriate proceedings, if he so desires. In those proceedings Appellant may apply for such reliefs as he may be advised. Such an Application if made will undoubtedly be considered on its merits. Undoubtedly while considering that Application the impugned order and /or this Order will not be considered".
2. It is further averred that Defendant No.1 had informed the Plaintiff that the suit property had been offered as Collateral Security to the Punjab National Bank, New Delhi and that the outstanding was only Rupees Eighteen lacs and that this sum would be cleared from and out of the agreed amount of Rs. 22 lacs. However, the Plaintiff later learnt that these outstanding were for the much larger sum of Rupees Eighty Three lacs. A perusal of legal notice dated 29.5.1999 discloses that the demand raised by the Plaintiff was that the original documents pertaining to the suit property be duly redeemed from the Punjab National Bank, New Delhi and possession of this property be simultaneously handed over to the Plaintiff. Para 15 of the plaint mentions "that the plaintiff after coming to know of the magnitude of the construction being carried out at the suit property bearing No. D-67, East of Kailash, New Delhi, made enquiries from Municipal Corporation of Delhi, the Defendant No.3, but they have refused to give any information to the Plaintiff." It is thereafter stated that the construction of the third floor is being carried out illegally. Various other infractions and transgressions, vis-a-vis Municipality Rules allegedly committed by the Defendant are thereafter mentioned. In para 17 it has been averred that the Agreement between the Defendant Nos.1 and 2 is a sham document entered into only with a view to frustrate the Plaintiff's Agreement. Thereafter three reliefs are prayed for.
3. After arguments were heard in length learned counsel for the Plaintiff had prayed for an adjournment in Order to file further documents. This was done on 14.12.1999. The so called sham. Agreement between Defendants 1 and 2 was filed along with the photocopy of the Sanctioned Plan dated March 1998 and a copy of the Realisation Plan dated September 1999. The Plaintiff has also filed proceedings initiated by the Municipal Corporation of Delhi against Defendant No.1 in respect of the deviations carried out. The order passed in these proceedings has been substantially relied upon to emphasis that it was the case of Defendant No. 1 in those proceedings that the construction had been started in April 1998 on the second and third floors and the structure of the same was completed by June 1998 and furnishing in April 1999.
4. In the Written Statement Defendant No.1 has emphasised that no concluded contract had come into effect between the parties and that this term had been deliberately concealed in the narration contained in the plaint. In the Written Statement the averments in the plaint has been specifically traversed and its contents denied. It has been emphasised that a cheque for Rs.2 lacs was dishonoured and that the Plaintiff's back of interest was manifest from 15.10.1998 itself. It is mentioned that the address given by the Plaintiff is incorrect and that Defendant No.1 never had any direct dealings either personally or even telephonically with the Plaintiff, who has always communicated with a person named Sunil Khandelwal. It is submitted that alleged transaction was entered into by the plaintiff with the sole intention to grab valuable property of the Defendant. Thereafter the maintainability of the plaint is assailed on the grounds of it being incorrectly valued as well as by operation of the provisions of Order II Rule 2 CPC and because of misjointed of parties. It is the Defendant's case that despite being unable to conclude the Agreement and/or have sufficient finds for the collaboration. Shri Sunil Khandelwal refused to accept the return or Rs. two lacs and demanded a sum of Rs. fifteen lacs to settle the matter. In sub para VII of para 2 of Reply on Merits it is stated that construction at the site has been going on at full swing for the five preceding months, which is apparent to all and sundry. At the time of arguments learned counsel for Defendant No.1 had again offered to return the sum of Rs. two lacs along with reasonable interest but this offer was declined by learned counsel for the Plaintiff.
5. Before a party is entitled to the grant of an injunction he must conclusively satisfy the three requirements of the existence of prima facie case, of the balance of convenience being in his favour, and that if the injunction is not granted irreparable loss and injury would be caused to the Applicant.
6. I am not convicted that a prima facie case exists in favour of the plaintiff. It has been rightly stressed by learned counsel for Defendant No.1 that there has been a material suppression of the fact, in that the Receipt-cum-Agreement contained a specific clause of the effect that a Collaboration Agreement would be entered into between the parties. It is true that a copy of the Agreement has been filed along with the plaint but it is equally true that this very significant and important factor has been glossed over in it. An Agreement does not have to take on a particular form for it to be given effect to become legally efficacious. Reliance was placed on J.K. Industries Limited Vs. International Cooperative Alliance Domus Trust & Ors., , but this is of no avail in the facts and circumstances of the present case. In that case a firm, unequivocal and binding offer had been made for the purchase of a particular property. It was not the contemplation of the parties that further negotiations were to be carried out or that the terms contained in the offer were nebulous and could not be given effect. It was for this reason that the objection on behalf of the Seller that no concluded contract had come into existence was negatived by the Court. This is not the case here. The holographed clause, which has sought to be glossed over by the Plaintiff has been suppressed or atleast obviously specifically mentioned and inserted because a concluded contract had not come into effect. A Collaboration Agreement was envisaged and was in the process of negotiation, which by its very nature, would have to contain several covenants to be mutually performed. This is altogether different from a simpliciter Agreement to Sell a property. On this ground alone, therefore, a prima facie case has not been established.
7. Furthermore it is not every prayer for Specific Performance of a contract which is to be allowed. Section 14 of the Specific Relief Act would be a substantial hurdle in the grant of an injunction, inasmuch as it prescribes that a contract which runs into such minute or numerous detail and which is so dependent on the personal qualifications or volition of the parties, or involves the performance of a continuous duty which the Court cannot supervise or not to be specifically enforced. In the present case even if the Collaboration Agreement had come into effect it was certainly arguable that it would not be ordered to be specifically performed. This Agreement, as has been mentioned above, is wholly missing. Furthermore, in the case of building contracts this very Section contemplates that specific performance would be allowed only if the work is described in the contract in terms sufficiently precise to enable the Court to determine the exact nature of the building work. For these reasons also a prima facie case does not exists in favour of the Plaintiff.
8. The notice issued by the Plaintiff dated 29.5.1999, on which the cause of action has been founded, calls upon Defendant No.1 to clear bank loans so that the so called contract could be worked upon. Quite obviously the Plaintiff was not willing to go ahead with the Agreement unless the Bank's liability had first been discharged. Not only was the Agreement between the parties in an inchoate stage, but even on the date of the issuance of the notice as well as on the date of the suit, there was an impediment and a pre-conditions to the performance of the so called Agreement. This is also adequate reason to decline the injunction.
9. The matter can well be disposed off on the above considerations alone. However, on further reflection it would also have to be held that the balance of convenience is also not in favour of the Plaintiff. It is not in dispute that construction was being carried out by Defendant No.1 at least for several months prior to the filing of the suit, as stated in the plaint itself. Photographs of the construction have been filed and they amply prove this position. It would be wholly inequitable to now grant the injunction, at this delayed stage, when due to indolence and inactivity of the Plaintiff, several lacs of rupees have been ploughed into the building by or on behalf of the Plaintiff by or on behalf of the Plaintiff.
10. The arguments were substantially concluded several hearings ago, but learned counsel for the Plaintiff had sought an adjournment to facilitate him to file documents pertaining to proceedings before the MCD. It may well appear that the Defendant No.1 has adopted shifting stands as regard the date on which construction was commenced. This prevarication could have been a consequence of this Defendant's eagerness to present a fit case before the M.C.D. for regularisation of construction on the site. This, in itself, would not be a ground to grant the injunction prayed for, and would be relevant for proceedings by the MCD. Since no statement purported to have been made by Defendant No.1 has been shown by the learned counsel for the Plaintiff which would fix the commencement of the date of construction immediately prior to the prayer for grant of interim injunction, thus would not be relevant at all. At best what could be said is that the Plaintiff had commenced construction in 1998. But this would not shift the balance of convenience in favour of the Plaintiff. An injunction would be wholly inappropriate if it is granted several months after the cause of action pleaded in the plaint has arisen.
11. For these reasons I am convinced that the prayers made in this application ought not to be granted. The application is, therefore, dismissed with costs of Rs.3000/-.