Punjab-Haryana High Court
Femella Fashions Pvt. Ltd vs S.C. Jain And Ors on 6 May, 2024
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2024:PHHC:061729
RSA-2583-2019 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
109 RSA-2583-2019 (O&M)
Reserved on : 30.04.2024
Date of Decision : 06.05.2024
Femella Fashions Pvt. Ltd. ....Appellant
Versus
S. C. Jain & Ors. ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. I. S. Ratta, Advocate for the appellant.
ALKA SARIN, J.
CM-7043-C-2019
For the reasons stated therein, the delay of 6 days in refiling the
present regular second appeal is condoned. Application stands disposed off.
RSA-2583-2019
1. This is a second appeal by the plaintiff-appellant against the
judgments and decrees dated 31.07.2015 and 30.07.2018 passed by the Trial
Court and the First Appellate Court, respectively, whereby it's suit for
mandatory injunction has been dismissed.
2. The plaintiff-appellant approached the Court seeking the relief
of mandatory injunction for directing the defendant-respondents to hand
over the physical possession of the demised premise being No.803 Udyog
Vihar Phase-V, Gurgaon and further for directing them to execute and
register the lease agreement on the terms and conditions as agreed on
09.02.2013 in favour of the plaintiff-appellant. It was averred that the
plaintiff-appellant is engaged in the business of manufacturing cloth
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garments and was working from it's site at B-23 Udyog Vihar, Gurgaon and
since the plaintiff-appellant wanted to expand it's business it needed some
more property within Gurgaon and started searching for a suitable property
through a broker Sh. Jasvinder Singh Seth. It was further averred that after
seeing many properties the said broker showed the property bearing No.803
Udyog Vihar Phase-V, Gurgaon and thereafter the plaintiff-appellant
through the broker approached the owners of the said property i.e. the
defendant-respondents. A deal was struck between the parties wherein the
plaintiff-appellant agreed to take the property on lease with immediate effect
on a month lease of Rs.1,90,000/- per month wherein a sum of Rs.47,500/-
was to be paid to each of the defendants separately in lieu of the lease rent.
As the meeting was fruitful between the parties, the points discussed
between the parties were reduced into writing on a piece of paper on
09.02.2013. It was further averred that the defendant-respondents agreed that
the lease deed would be in writing with all the terms and conditions agreed
between the parties and would be got registered with both parties bearing the
registration expenses in equal proportion. It was the stand of the plaintiff-
appellant that the demised premises was not in a habitable condition and
required removal and construction of certain portions as per it's requirement
and the defendant-respondents undertook to clear all the issues pertaining to
the removal and raising of construction before execution of the lease
agreement and handing over the possession. As all the terms and conditions
were duly agreed between the parties, the plaintiff-appellant handed over
four cheques of Rs.47,500/- each (total Rs.1,90,000/-) in favour of the four
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defendant-respondents which were encashed by them. However, despite
email/letter sent to the defendant-respondents, they did not come forward to
prepare the demised premises for lease and execute the lease agreement in
favour of the plaintiff-appellant. It was further submitted that the plaintiff-
appellant had ordered material of Rs.2.5 crores to be transferred in the
demised premises but the defendant-respondents had not given the
possession of the demised premises and had misappropriated the amount of
rent and committed a criminal offence. A complaint was also lodged with
the Police. Hence, the present suit. Upon notice, the defendant-respondents
appeared and filed written statement raising preliminary objections of
maintainability, non-joinder of necessary parties, cause of action etc. On
merits it was submitted that they were the owners in possession of the
demised premises and Mr. Jasvinder Singh Sethi had contacted them for
leasing the same and agreement was entered between parties on 09.02.2013.
Replication was not filed.
3. On the basis of the pleadings of the parties the following issues
were framed by the Trial Court :
1. Whether the plaintiff is entitled for the relief as
prayed for ? OPP
2. Whether the plaintiff has no cause of action and
locus standi to file the present suit ? OPD
3. Whether the suit of the plaintiff is not maintainable
in the present form ? OPD
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4. Whether the suit of the plaintiff is barred under the
provisions of Section 41(h) of the Specific Relief Act ?
OPD
5. Whether the plaintiff has not come to the court with
clean hands and has suppressed the true and material
facts from the court ? OPD
6. Whether this Court has no jurisdiction to entertain,
try and decide the present suit ? OPD
7. Relief.
4. Vide judgment and decree dated 31.07.2015 the Trial Court
dismissed the suit of the plaintiff-appellant. The Trial Court held that the suit
for mandatory injunction was not maintainable and was barred under Section
41(h) of Specific Relief Act, 1963. The plaintiff-appellant filed an appeal
against the decision by the Trial Court but it's appeal was dismissed by the
First Appellate Court vide judgment and decree dated 30.07.2018. Hence,
the present regular second appeal.
5. Learned counsel for the plaintiff-appellant has contended that
both the Courts have erred in dismissing it's suit for mandatory injunction. It
is urged that the defendant-respondents have admitted the agreement reached
on 09.02.2013 and had also mis-appropriated Rs.1,90,000/- and therefore the
plaintiff-appellant was justified to approach the Court with a suit for
mandatory injunction, which was maintainable, and that both the Courts
have erred in holding that a suit for mandatory injunction was not
maintainable.
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6. Heard learned counsel for the plaintiff-appellant.
7. One of the main findings against the plaintiff-appellant is that a
suit of this nature for mandatory injunction is not maintainable as according
to both Courts the plaintiff-appellant ought to have sought such a relief by
way of an appropriate suit under the Specific Relief Act, 1963. Section 41(h)
of the Specific Relief Act, 1963 lays down that an injunction, which is a
discretionary equitable relief, cannot be granted when an equally efficacious
relief is obtainable in any other usual mode or proceeding.
8. The Trial Court found that :
"14. After hearing arguments of both the parties, I am of
the considered opinion that arguments put forth by Ld.
Counsel for defendants have weight and substance in it.
The execution of agreement dated 9.2.2013 has not been
disputed by the defendants. Through this present suit,
plaintiff wants to enforce agreement dated 9.22013. The
present suit has been filed by plaintiff for seeking relief
of mandatory injunction for directing the defendants to
hand over physical possession of demised premises and
to further direct them to execute and register lease
agreement on the terms and conditions as agreed on
9.2.2013. Section 41(h) of Specific Relief Act 1963
provides that no relief of injunction can be granted to
plaintiff in case equally efficacious remedy is available
to the plaintiff. It was required on part of plaintiff to file
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suit for specific performance of said agreement. From
the perusal of pleadings of plaint filed by plaintiff, it is
very much clear that plaintiff wants to enforce
agreement dated 9.2.2013 and for that purpose, proper
remedy that was available to the plaintiff was to file suit
for specific performance or to claim damages under that
act. In this regard, I am fortified with decision in State
of U.P. v. Tara Singh Jaiswal 2012(95) ALR 29
(Allahabad) wherein Hon'ble Division Bench of
Allahabad High Court have observed that "As a general
rule the proper remedy of a person seeking to enforce
the specific condition of contract is either to file suit if it
is maintainable for specific performance of contract to
sell or to claim damages for breach of contract. It has
been further observed that the bar created under Section
41(h) of the Act cast a duty on the court not to grant
injunction in the cases enumerated therein in clause (a)
to (j). We may also usefully refer Section 14(l)(a) of the
Act which provides that a contract for the non
performance of which damages is an adequate relief,
decree for specific performance cannot be passed. In the
case of contract, a party has two remedies either to get
the contract specifically enforced or to claim the
damages". Further, reliance can be made on decision in
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State of Punjab v. Phoola Singh (P&H) 2011 AIR CC
990 wherein it has been observed that "In a suit seeking
mandatory injunction, Court is required to see the
obligation and its breach and enforcement, while in a
suit for specific performance Court is to see the existing
valid enforceable contract. Since plaintiffs are coming
on the basis of the contract, hence, they should have
filed suit for specific performance of a contract and suit
for mandatory injunction is not at all maintainable".
Accordingly, present suit filed by plaintiff is barred
under section 41(h) of Specific Relief Act, 1963 and also
not maintainable in present form. Further it is pertinent
to mention that during cross examination by Ld. counsel
for defendants, PW1 has admitted suggestion put to him
that permission of HSIDC is required for taking
property on lease at Udyog Vihar and for that purpose
project report has to be submitted with application for
permission to take property on lease. He further has
deposed that plaintiff has not given any project report to
defendants".
The First Appellate Court also affirmed the said finding of the Trial Court.
Learned counsel for the plaintiff-appellant has been unable to convince this
Court that the provisions of Section 41(h) of the Specific Relief Act, 1963
were not applicable to the facts and circumstances of the present case. A
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specific objection was taken by the defendant-respondents in their written
statement regarding maintainability of the suit for mandatory injunction. The
plaintiff-appellant had ample opportunity to file a suit for specific
performance but failed to do so. A duty is cast on a plaintiff to show and
satisfy the Court that the suit as brought by him is property constituted and
maintainable in law. In this view of the matter, there is no error in the
decisions of both the Courts. No other point was argued.
9. There is no illegality or irregularity in the impugned judgments
and decrees while deciding the question with respect to Section 41(h) of the
Specific Relief Act, 1963 along with the other issues. There are concurrent
findings of fact recorded by both the Courts and this Court is of the view
that these findings, in the established facts and circumstances of the case,
cannot be disturbed in this second appeal.
10. In view of the above, no question of law, much less any
substantial question of law, arises in the present case. The present appeal is
devoid of any merit and is dismissed. Pending applications, if any, also stand
disposed off.
( ALKA SARIN )
06.05.2024 JUDGE
Ankur
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
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