w w w . L a w y e r S e r v i c e s . i n



Britannia Industries Limited rep. by its Authorized Signatory Sanjay K. Handur v/s Sulochana Cotton Spinning Mills Private Limited, rep. by its General Manager & Another


Company & Directors' Information:- GENERAL MILLS INDIA PRIVATE LIMITED [Active] CIN = U15510MH1995PTC094741

Company & Directors' Information:- BRITANNIA INDUSTRIES LTD [Active] CIN = L15412WB1918PLC002964

Company & Directors' Information:- P A S COTTON MILLS PRIVATE LIMITED [Active] CIN = U17111TN2005PTC058104

Company & Directors' Information:- V R A COTTON MILLS PRIVATE LIMITED [Active] CIN = U15311PB1997PTC020061

Company & Directors' Information:- C A V COTTON MILLS PRIVATE LIMITED [Active] CIN = U17115TZ1987PTC002014

Company & Directors' Information:- SULOCHANA COTTON SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17111TZ1990PTC002580

Company & Directors' Information:- V K S M COTTON MILLS LIMITED [Active] CIN = U17111TZ1998PLC008682

Company & Directors' Information:- P K COTTON MILLS PRIVATE LIMITED [Active] CIN = U17111DL2004PTC130281

Company & Directors' Information:- K G COTTON SPINNING MILLS PRIVATE LIMITED [Active] CIN = U17219PB1997PTC019422

Company & Directors' Information:- K P G COTTON MILLS PRIVATE LIMITED [Active] CIN = U17115TZ1993PTC004509

Company & Directors' Information:- D B V COTTON MILLS PRIVATE LIMITED [Active] CIN = U17115TZ1982PTC001145

Company & Directors' Information:- SULOCHANA INDUSTRIES PRIVATE LIMITED [Under Process of Striking Off] CIN = U24230JH2006PTC012560

Company & Directors' Information:- S S COTTON MILLS PRIVATE LIMITED [Active] CIN = U17115PB1997PTC019918

Company & Directors' Information:- P R COTTON INDUSTRIES PRIVATE LTD. [Active] CIN = U74899DL1987PTC028281

Company & Directors' Information:- G N GENERAL MILLS PRIVATE LIMITED [Strike Off] CIN = U15311DL1981PTC012466

Company & Directors' Information:- J R COTTON MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TN1996PTC034302

Company & Directors' Information:- D C H COTTON MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ1997PTC008130

Company & Directors' Information:- L D COTTON MILLS PRIVATE LIMITED [Strike Off] CIN = U17291MH2014PTC256832

Company & Directors' Information:- A D COTTON MILLS PVT LTD [Active] CIN = U99999MH1970PTC014837

Company & Directors' Information:- J S COTTON SPINNING MILLS PRIVATE LIMITED [Amalgamated] CIN = U17111TZ1990PTC002643

Company & Directors' Information:- GENERAL INDUSTRIES LTD [Strike Off] CIN = U36900WB1934PLC007878

Company & Directors' Information:- V P K COTTON MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ2000PTC009530

    C.R.P. (PD) No.3627 of 2011 & M.P.No.1 of 2011

    Decided On, 30 September 2011

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE K. VENKATARAMAN

    For the Petitioner: P.S. Raman, S.C. for R. Saravana Kumar, Advocate. For the Respondents: R1 - T.R. Rajagopalan, S.C. for T.R. Rajaraman, Advocate, (Caveator).



Judgment Text

(Prayer: Civil Revision Petition has been filed under Article 227 of the Constitution of India against the order dated 5.9.2011 made in I.A.No.1058 of 2011 in O.S.No.475 of 2011 on the file of the learned Principal Subordinate Judge, Tiruppur.)

1. The present civil revision petition is directed against the order of the learned Principal Subordinate Judge, Tiruppur dated 5.9.2011 made in I.A.No.1058 of 2011 in O.S.No.475 of 2011.

2. The first defendant in the aforesaid suit is the petitioner, the plaintiff and the second defendant thereon are respondents 1 and 2 herein.

3. The first respondent herein has laid the said suit against the petitioner and the second respondent for permanent injunction restraining the petitioner herein and its men from in any manner alienating or encumbering or causing delivery of possession of the suit schedule property to any person other than the first respondent herein.

4. The claim of the first respondent as put forth by it in the plaint, in nutshell, is set out hereunder:-

(a) The second respondent had vide its tender, invited quote for sale of immovable and movable properties belonging to one Cuthberts Textiles India Private Limited, Bangalore. The petitioner was interested in submitting a composite quote for both immovable and movable assets auctioned by the second respondent, provided the first respondent agreed to purchase the movable assets being auctioned, from the petitioner. Prior to the petitioner submitting its composite quote, a back-to-back arrangement was concluded between the first respondent and the petitioner providing that if the petitioner succeeds in bidding, the movables will be sold to the first respondent.

(b) In terms of such understanding, the first respondent has undertaken to buy the movable assets at a cost of Rs.12.50 Crores plus applicable taxes and duties subject to the petitioner participating and succeeding in the auction.

(c) The first respondent accepted the offer of the petitioner and sent an e-mail dated 3.8.2011 confirming the arrangement agreed to between them. In furtherance of the same, the first respondent paid Rs.1.25 Crores and made further remittance of Rs.1.88 Crores. The first respondent accepted that formal confirmation of successful bid by e-mail communication from the petitioner. Since there was no response from the petitioner, the first respondent was sending repeated communication to the petitioner. However, the petitioner has attempted to wriggle out of the transaction and hence, the suit has been laid for permanent injunction restraining the petitioner herein and its men from in any manner alienating or encumbering or causing delivery of possession of the suit schedule property to any person other than the first respondent herein.

(d) In view of the time constraint and urgency of the matter, the first respondent instituted the suit for permanent injunction and has filed a separate application under Order II Rule 2 C.P.C. seeking leave of the Court for instituting a separate suit for specific performance. Though the second respondent has been impleaded as the second defendant in the suit, no relief is sought for against it.

5. In the said suit, the first respondent herein has filed an application in I.A.No.1058 of 2011 for interim injunction and the same was granted on 8.8.2011. Aggrieved over the same, the petitioner approached this Court by filing a civil revision petition in CRP (PD) No.3084 of 2011. In the said revision, by an order dated 18.8.2011, I have directed the learned trial Judge to dispose of the application for interim injunction giving time frame. Thereafter, the matter was heard by the learned trial Judge and he confirmed the order of interim injunction already granted. The same is challenged in the present civil revision petition.

6. The learned Senior Counsel appearing for the petitioner has made the following submissions viz.,

(i) No part of cause of action has arisen within the jurisdiction of the Court where the suit has been filed. Hence, the order of interim injunction granted by the learned trial Judge is liable to be set aside.

(ii) The suit has been valued at Rs.1,00,100/- without any basis.

(iii) The first respondent ought to have sought for a declaratory relief and not a mere prayer for permanent injunction. As per the averments made in the plaint, the suit will lie only for declaratory relief and for permanent injunction and not the relief of permanent injunction alone. If the declaratory relief is sought for, which should have been, the learned Principal Subordinate Judge, Tiruppur has no pecuniary jurisdiction to decide the suit.

(iv) The claim of the first respondent is barred under the provisions of the Specific Relief Act.

(v) There was no concluded contract between the petitioner and the first respondent and hence, the claim of interim injunction should not have been granted.

(vi) In view of the peculiar circumstances of the case, the petitioner has approached this Court by filing the present civil revision petition under Article 227 of the Constitution of India without taking the normal recourse by filing a civil miscellaneous appeal.

7. On the other hand, the learned Senior Counsel appearing for the first respondent contended that'

(a) when the petitioner has got an alternative remedy of filing a civil miscellaneous appeal, without exhausting the same, a civil revision petition under Article 227 of the Constitution of India has been filed and hence, the same has to be dismissed as not maintainable.

(b) The court fee is between the plaintiff in the suit and the Government and it is not the matter concern for the defendant.

(c) The contract between the petitioner and the first respondent was concluded and hence, on merits also, the order of interim injunction that has been granted by the trial Court does not require any interference by this Court.

8. I have considered the rival submissions made by both the learned Senior Counsels.

9. It is the case of the first respondent in the suit that there was a concluded contract between the petitioner and the first respondent, in and by which the petitioner would participate in the auction to be conducted by the second respondent and if succeeds in the bidding, the movable assets being auctioned would be purchased by it. Pursuant to the same, the first respondent, it is stated, has remitted a sum of Rs.1.25 crs and later a sum of Rs.1.88 crores to the petitioner. Thereafter, it is alleged by the first respondent that the petitioner without honouring the said agreement and understanding, tried to negotiate with the third parties and hence, the said suit has been laid by the first respondent for permanent injunction restraining the petitioner and its men from in any manner alienating or encumbering or causing delivery of possession of the suit schedule property to any third parties other that the first respondent. In the said suit, the first respondent has filed an application in I.A.No.1581 of 2011. In the said application, the petitioner herein has contended that

(a) No part of cause of action arose within the jurisdiction of the Court where the suit has been laid;

(b) Valuation of the suit has not been properly made;

(c) There is no concluded contract between the parties.

10. Even assuming that there is a legally enforceable contract between them, admittedly the subject matter of the suit is movable and no specific performance can be granted in terms of Section 10 of the Specific Relief Act. No interim injunction could be granted if the person who seeks for interim injunction could be compensated in terms of money.

11. On considering the rival submissions, the learned trial Judge has granted an order of interim injunction and the present civil revision petition is directed against the said order.

12. Now, the primary issue that has to be considered is, whether there was a concluded contract between the petitioner and the first respondent. I am conscious of the fact that the final say over the said matter has to be decided at the time of trial. However, prima facie, it has to be seen whether there was a concluded contract for a limited purpose of coming to the conclusion whether the first respondent is justified in asking for an order of interim injunction and whether the trial Court was justified in granting the same. As stated already, though I am not discussing at length about the said aspect, the same requires adjudication atleast for a limited purpose to find out whether the first respondent has got prima facie case in its favour in order to sustain the relief claimed by it for interim injunction.

13. The e-mail sent by the petitioner to the first respondent pertaining to the present issue is set out here under:-

"Dear Mr.Krishnakumar,

It was a pleasure meeting you yesterday in our office.

As discussed, we are in the process of obtaining internal approvals for filing a composite quote for both immovable & movable property belonging to M/s.Cuthberts Textiles India Pvt. Ltd, Bangalore being auctioned by SBI, SAMG Branch, Bangalore vide its tender no EA/SBI/SAMG/BLR/CT/1 on the specific understanding that all the movable assets being auctioned would be bought by your company viz., Sulochana Cotton Spinning Mills Pvt. Ltd., Tiruppur (SCSM) from Britannia Industries Ltd (BIL).

Subject to the internal approvals of BIL, for making a composite bid, the following are the key terms & conditions.

a. That SCSM undertakes to buy the movable assets being auctioned from BIL at a cost of Rs.12.50 Crs plus applicable taxes & duties subject to BIL participating & succeeding in the auction.

b. That SCSM shall pay BIL by way of DD / RTGS transfers sums of money as detailed below:-

- Rs.1.25 crs by 3rd Aug. 11

- Rs.1.88 crs by 4th Aug. 11

- Rs.1.87 crs by 6th Aug.11

- Rs.7.50 crs plus applicable taxes / duties on or before 19th Aug.11

c. In the event of failure on the part of SCSM to pay the amount as per agreed time schedule, BIL shall have the right to forfeit the amounts paid by SCSM & proceed to dispose off the assets in the manner deemed fit by it.

d. BIL shall grant a period of 3 months from the date of auction for removal of assets from the factory premises being bought by BIL.

e. In the vent of BIL not participating in the auction / failing in the auction, the amounts paid by SCSM shall be returned back by BIL to SCSM by 5th Aug.11. No interest shall be paid to SCSM.

The above understanding shall be converted into a formal agreement between both the parties by 5th Aug.11.

Pl confirm the understanding & transfer Rs.1.25 crs immediately to enable us to file the bid by 3 pm. I am still in the process of obtaining internal approval."

14. In reply to the said e-mail, the first respondent sent a e-mail, which is extracted hereunder:-

"Dear Sir,

We have received the mail and gone through the contents. Excepting the condition that an amount of Rs.1.87 crs to be paid on 6th Aug.2011, which we have requested you to accept along with the final payment to be paid on 19th Aug. 2011, the other terms and conditions are generally OK. We will discuss all the other terms & conditions and modalities, in person when we meet you in person at your office.

We have already remitted an amount of Rs.12500000/- by way of RTGS through Indian Bank, Tirupur vide RTGS ref No.IDIBH 11215528075. Pls confirm the receipt of the payment.

Regards

S.Krishnakumar ( Kannan)"

15. The reply to the said e-mail by the petitioner is set out hereunder:-

"Dear Mr.Krishnakumar,

Thanks for your mail & confirmation of the agreement.

As suggested by you, we can discuss & conclude the terms formally when you are in Bangalore.

We confirm receipt of Rs.1.25 crs through RTGS into our account & confirm having put in our bid.

As discussed, i request you to transfer the 15% amount of Rs.1.88 crs by 10 AM tomorrow morning. In the event of our failing to win the auction, i confirm that the total amount of Rs.3.13 crs (Rs.1.25 cr + Rs.1.88 crs) would be transferred to your account within 1 hour of conclusion of the auction.

Kindly arrange for transfer of funds as requested as this would help us go forward with the auction very effectively.

Also pl arrange to give us details of your bank, account no & IFSC code for effecting RTGS transfer, if needed.

Regards

Venkat."

16. Thus, the above referred communications are relied on by the first respondent to contend that there was a concluded contract between the petitioner and the first respondent. The learned trial Judge also relied on the same to come to the conclusion that there was a concluded contract between the petitioner and the first respondent.

17. However, I am unable to come to a prima facie conclusion that there was a concluded contract between the petitioner and the first respondent regarding the issue, which is the subject matter of the suit laid by the first respondent. The reason being, the communications between the parties referred to above will speak for themselves viz., that there was only an understanding between the petitioner and the first respondent and it could not be said that the contract between them was concluded. The reply e-mail sent by the first respondent would also denote that there was no concluded contract between them. The e-mail dated 3.8.2011 sent by the first respondent viz., ‘we will discuss all the other terms and conditions and modalities in person when we meet you in person at your office’, will make it explicitly clear that though the terms and conditions suggested by the petitioner was acceptable to the first respondent, the same was not reduced in writing and the contract was not concluded. At best, it could be said that the terms, conditions and modalities have been accepted by both of them and nothing more. The reply by the petitioner to the e-mail sent by the first respondent will further establish that there was no concluded contract. The e-mail reads ‘as suggested by you, we can discuss and conclude the terms formally when you are in Bangalore’. Thus, prima facie, I am of the view, for the limited purpose of finding out whether the first respondent is entitled for an order of interim injunction against the petitioner, that there was no concluded contract between the petitioner and the first respondent. At the risk of repetition, I am making it very clear that though at this juncture there cannot be a full-fledged decision on this point, the same requires a preliminary investigation and preliminary decision.

18. The Division Bench of this Court in the decision reported in AIR 1999 Madras 59 - Multichannel (India) Limited, rep. by its Director, 301, Sheetal Lehren, Dr.Ambedkar Road, khar (West), Mumbai-400 052 vs. Kavitalaya Productions Pvt., Limited, 17-A, Krpagambal Nagar, Mylapore, Chennai-4 and two others, has relied on the decision reported in 1912 (1) Ch.284 - Von Hatzfeldt - Wildenburg v. Alexander, wherein it has been held as follows:-

"It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognise a contract to enter into a contract. In the latter case, there is a binding contract and the reference to the more formal document may be ignored. In other words, there may be a case where the signing of a further formal agreement is made a condition or term of the bargain, and if the formal agreement is not approved and signed there is no concluded contract. In Rossiter v. Miller, 1878 (3) AC 1124 Lord Gairns said:

"If you find not an unqualified acceptance subject to the condition that an agreement is to be prepared and agreed upon between the parties and until that condition is fulfilled no contract is to arise then you cannot find a concluded contract."

Thus, considering the totality of the circumstances, I am of the considered view that at this juncture it could be safely concluded that there was no concluded contract between the petitioner and the first respondent.

19. The next issue that has to be considered is pertaining to pecuniary jurisdiction. The suit has been valued at Rs.1,00,100/- for the purpose of court fee and jurisdiction and a sum of Rs.7,510/- has been paid as Court Fees under Section 27(C) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 as amended. Section 25 (d) of the Act reads as follows:-

'(d) in other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees one thousand, whichever is higher.'

The said provision envisages that where the relief is incapable of valuation, it shall be valued at Rs,1,000/- and the court fee has to be payable. But, in the present case on hand, the first respondent has valued the suit at Rs.1,00,100/- without any basis. Had the first respondent stated that the relief that has been sought for by it cannot be valued and it has paid the court fee as per Section 27 (d) of the Act, one can understand that the first respondent was justified in valuing the court fee and paying the same thereon. However, without any basis, the first respondent has valued the suit as referred to above. That apart, the entire claim of the first respondent was that there was a concluded contract between it and the petitioner, but, however, by-passing the same or giving a go by to the same, the petitioner unilaterally proceeded to dispose of the assets committed to be sold to the first respondent, to third parties. As per the understanding between them, the petitioner is bound to sell the movables and cannot act contrary to the terms of understanding. Hence, the first respondent has filed the said suit for the relief set out earlier. Further, it has been made very clear in paragraph 9 of the plaint that the first respondent would not be able to institute a suit for specific performance since it is movables and since it may get irretrievably lost and not traceable. Given the time constraint and urgency of the matter, it is instituting the suit for permanent injunction and has filed a separate application under Order II Rule 2 C.P.C. seeking leave of the Court to institute a separate suit for specific performance. Thus, the entire burden of song of the first respondent was that as per the understanding between them, the movables have to be sold to it and the petitioner cannot try to sell out the same to third parties. The claim, if at all by the first respondent, should be the relief of specific performance and not a mere permanent injunction restraining the petitioner from in any manner alienating or encumbering or causing delivery of possession of the suit schedule property to any third parties. Even if we look at the prayer that has been sought for by the first respondent, one can easily come to the conclusion that it is more on the relief of specific performance. Though it has been couched intelligently to claim only for permanent injunction, in effect, it is only a declaratory relief or specific performance.

20. In 2003 (4) CTC 268 - Solaiammal (died) and Anr. vs. Rajarathinam and five Ors., this Court in the given circumstances of the case, has held as follows:-

'25. Thus while verifying / considering the question of Court fee, the Court shall not be carried by the form in which the plaint is drafted. The Court has the onerous duty of going into the substance to ascertain the base for the reliefs claimed and the reliefs that are really emerging from the averments and the relief asked for in the plaint. The cardinal principle that should be borne in mind while disposing a question relating to Court fee or verifying the plaint is that the Court should not be carried away by the form in which the plaint is drafted; by the Court should keep in mind the substance to ascertain the actual relief asked for.

26. The argument advanced on behalf of the revision petitioner that two-fold permanent injunction asked for by the plaintiff is only the relief of permanent injunction simpliciter and no more and that the suit is correctly valued under Section 27(c) does not merit acceptance. Though the relief asked for is only permanent injunction, that relief of injunction is consequential to the declaratory relief that the plaintiff is the legal heir. In the context of the defendants 1 to 3 being appointed as Nominees to the FDRs, the substance of the relief asked for is only to declare the legal heirship right of the plaintiff and consequentially restraining the defendants 1 to 3 from withdrawing the same and thereby the plaintiff to withdraw the same. Though the relief of permanent injunction is not explicitly connected or omitted to be stated as consequential, in essence the relief is only for declaration and for consequential permanent injunction. The plaint ought to have been valued at the market value and the face value of the Fixed Deposits which certainly exceed rupees two lakhs.

27. In fact the valuation of the suit and maintainability of the same in the Court of District Munsif could have been gone into even at the time of admission of the plaint. But there seems to have been no attempt to go into that aspect. It is always desirable that the particulars of valuation is insisted to be furnished in the plaint. In the case in hand, from the plaint averments, no such particulars of valuation is stated in the plaint. In my view, even at the time of admission of the plaint, the Court ought to have verified the substance of the plaint and the relief asked for.

28. More often than not, most of the valuable claims and money suits relating to valuable properties involving huge market value are filed under Section 27(c) stating 'incapable of valuation' and notionally valuing the same at Rs.400. This tendency of filing the suits relating to the properties of huge valuation under Section 27(c) need to be arrested. Courts would have to be vigilant in verifying the plaint carefully and with circumspection. Duty cast upon the Subordinate Courts in verifying the plaint and collecting the proper Court fee cannot be disowned saying that the Court is bound to accept the plaint averments. Duty is cast upon the Judicial Officers and also the Head Ministerial Officers who are in charge of verifying the plaint with regard to the valuation and the payment of Court fee.

29. At this juncture the views of the Supreme Court that there must be broad correlation with the fees collected and the cost of Administration of Civil Justice need to be emphasized. Referring to the various case laws and elaborately considering the concept of Court Fees the Supreme Court insisted upon broad and general correlation between the Court fee and the Expenditure involved in rendering the Judicial Service. To impress upon the Subordinate Courts, the Advocates and the litigant public about the duty of proper valuation of the suits and payment of Court Fee, it is appropriate to refer to the following observations of the Supreme Court in P.M.Ashwathanarayana Setty v. State of Karnataka/Manu/SC/0360/1988: AIR 1989 SC 100 which read thus:

"A fee is, therefore, a charge for the special service rendered to a class of citizens by Government or Governmental agencies and is generally based on the expenses incurred in rendering the services ..

If the essential character of the impost is that some special service is intended or envisaged as a quid pro quo to the class of citizens which is intended to be benefited by the service and there is a broad and general correlation between the amount so raised and the expenses involved in providing the services, the impost would partake the character of a 'fee' notwithstanding the circumstance that the identity of the amount so raised is not always kept distinguished but is merged in the general revenues of the State and notwithstanding the fact that such special services, for which the amount is raised, are, as they very often do, incidentally or indirectly benefit the general public also. The test is the primary object of the levy and the essential purpose it is intended to achieve. The correlation between the amount raised through the 'fee' and the expenses involved in providing the services need not be examined with a view to ascertaining any accurate, arithmetical equivalence or precision in the correlation; but it would be sufficient that there is a broad and general correlation.'

21. Considering the above facts and circumstances, I am of the considered view that in order to avoid payment of court fee, which will be a substantive one, the first respondent has laid the suit only for permanent injunction, that too, valuing the suit at Rs.1,00,100/- without any basis.

22. Further more, pecuniary jurisdiction of the District Munsif to decide the suit is upto Rs.1 lakh and perhaps to bring the suit within the jurisdiction of the Subordinate Judge, Rs.100/- has been added more and the suit has been valued at 1,00,100/-. As stated already, how the suit value was arrived at, is a million dollar question.

23. As regards the territorial jurisdiction is concerned, much has been argued by the learned Senior Counsels appearing for the petitioner and the first respondent. In my considered view, it is a mixed question of fact and law which cannot be decided at this juncture and it could be relegated for deciding the same at the time of trial.

24. Yet another submission that has been made by the learned Senior Counsel appearing for the petitioner is that the interim injunction granted by the trial Court is contrary to the statutory bar under the provisions of the Specific Relief Act. Emphasis was made on explanation to Section 10 of the Specific Relief Act, which is usefully extracted hereunder:-

'10. Cases in which specific performance of contract enforceable:- Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the Court, be enforced--

(a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or

(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.

Explanation:- Unless and until the contrary is proved, the Court shall presume --

(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and

(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:-

(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;

(b) where the property is held by the defendant as the agent or trustee of the plaintiff.'

25. Further, learned Senior Counsel appearing for the petitioner relied on Section 14(1)(a) and Section 41(e) and (h) of the Specific Relief Act, which are usefully extracted hereunder:-

"14. Contracts not specifically enforceable:- (1) The following contracts cannot be specifically enforced, namely:-

(a) a contract for the non-performance of which compensation in money is an adequate relief;

(b) ...

(c) ...

(d) ..."

"41. Injunction when refused:-

(a) ...

(b) ...

(c) ...

(d) ...

(e) to prevent the breach of a contract the performance of which would not be specifically enforced;

(f) ..,.

(g) ...

(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;"

26. As far as explanation to Section 10 of the Act which is extracted above is concerned, a breach of contract to transfer immovable property can be adequately relieved except if the property is not an ordinary article of commerce or is of special value or interest or consists of goods which are not easily obtainable in the market. In the given case on hand, nowhere in the plaint or in the affidavit in support of the application for interim injunction, the first respondent has stated that the movable which the petitioner agreed to sell to the first respondent is not an ordinary machinery which cannot be easily obtainable in the market. However, it seems, the trial Court accepted the contention of the first respondent that the machineries are imported from various countries and are not available in the open market in India and hence, compensation would not be an adequate relief. Though the said aspect has not been pleaded, as stated already, in the plaint or in the affidavit in support of the application, it seems, the trial Court has accepted the affidavit containing the facts that all the machineries are imported and are not available easily in the open market in India, after the matter was reserved for orders. Learned Senior Counsel appearing for the petitioner emphasised that receiving of such affidavit behind the back of the petitioner after the entire argument was over, is unknown to law, which was not denied at the time of argument by the learned Senior Counsel appearing for the first respondent, deserves to be appreciated and accepted. What has not been pleaded, cannot be substituted or added or included by way of an affidavit, which is unknown to any law or procedure. All the more, relying on the same, behind the back of the petitioner, cannot be accepted.

27. In view of the above stated position, I am of the considered view that the order of the learned trial Judge in this regard is liable to be rejected.

28. Regarding Section 14(1)(a) of the Specific Relief Act is concerned, it clearly spells out that a contract for the non-performance of which compensation in money is an adequate relief, the same cannot be specifically enforceable. In the given case on hand, it may not be the case of the first respondent, as could be seen from the plaint and the affidavit in support of the application for interim injunction, that non-performance of the contract said to have been entered into between the petitioner and the first respondent cannot be compensated adequately in terms of money. When it has not been pleaded in the said manner, it should be inferred that the non-performance of the contract said to have been entered into between the petitioner and the first respondent can be adequately compensated in terms of money. In the said circumstances, as per the said provision, the first respondent cannot enforce the contract even assuming that the contract was concluded between them.

29. As far as Section 41 (e) and (h) of the Specific Relief Act, which was extracted above is concerned, an interim injunction cannot be granted and could be refused if the performance would not be specifically enforced and when equally efficacious relief could be obtained. In the given case on hand, as stated already, even if there is a breach of contract between the petitioner and the first respondent, the breach may require the first respondent to claim for damages and nothing more.

30. The said Division Bench in the decision referred to above viz., AIR 1999 Madras 59, has also relied on the decision reported in AIR 1978 Madras 374 M/s.Gordon Woodroffe and Co. Madras (P) Ltd., v. C.D.Gopinath and another, wherein it has been held as follows:-

"We are also satisfied that even if there is a breach of the negative covenant as alleged, it could be compensated in money and, therefore, S.s.38(3)(C) and 14(a) will come in the way of the Court granting relief to the appellant by way of an injunction. This is the view taken by the trial Judge and we are in entire agreement with him. It is well established that a contract of service cannot be specifically enforced, as a breach thereof can always be compensated in money. The general rule is that the grant of an injunction is a matter of discretion of the Court and it cannot be claimed as of right. No doubt, the discretion has to be exercised in a judicious manner and in accordance with the provisions relating to the grant of injunction contained in the Specific Relief Act. As already stated, in this case the appellant's prayer for an 'interim injunction' is based on S.42, which is more or less an exception to the general rule contained in S.41(e). That an injunction cannot be granted to prevent the breach of a contract which cannot be specifically enforced is not disputed."

31. Finally, in the said decision, the Division Bench of this Court has held as follows:-

"26. It is not in every case of breach of contract or covenant that the Court will interfere by way of injunction. In exercising its jurisdiction by way of interlocutory injunction, the Court acts upon the principle of preventing irreparable injury. If a covenant is clear and the breach clear and serious injury is likely to arise from the breach, the Court will interfere before the hearing to restrain the breach; but if the covenant is obscure or the breach doubtful, and no irreparable damage can arise to the plaintiff / appellant, then the question resolves itself into a question of comparative injury, whether the defendant will be more damnified by the injunction being granted or the plaintiff by its being withheld. Mere interference with a legal right does not, however, ipso' facto entitle a plaintiff to an injunction and mere inconvenience is not enough to entitle a party to an injunction. There must be violation of an enforceable right and the violation must be of a substantial character. An injunction will not be granted where the plaintiff has a remedy by way of damages. The injury must be irreparable and it must be continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired. If, however, by the conduct of the appellant having regard to the nature of transaction being commercial and the injury complained of is one which may in some way be compensated by money, the Court may declined to grant the injunction. Keeping these principles in view, it has to be noticed that whenever the Court grants an injunction restraining the breach of any express or implied term of the contract, thereby, the Court specifically enforces the performance of the contract. Where the contract contains express terms, negative as well as positive, and positive terms are capable of specific performance by the Court, the Court may naturally well enforce an injunction. The observations of the negative terms, for by so being, promote the complete performance of the contract as a whole. It may here be noticed that whenever in such cases, a person is compelled by an injunction to observe some negative term of a contract, the whole benefit of the injunction is conditionally upon the plaintiff performing his part of the contract, and the moment he fails to do any acts which he has engaged to do and which were the considerations for the negative term, the injunction is liable to be withheld."

32. One more aspect that has to be seen is that the trial Court on point No.1 viz., whether the said Court has jurisdiction to try the suit, after extracting the arguments made by the counsel for the petitioner and the first respondent, has finally concluded as follows:-

"14. Considering the argument submitted by both sides and the ruling submitted by both sides, it is concluded by this Court the notional value fixed by the plaintiff is the value of the suit for the purpose of jurisdiction. The ruling submitted by the first respondent is not applicable to the present suit. As per Ex.P.3 the acceptance takes place at Tirupur. The Tirupur Court has jurisdiction to try the suit. For

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the above reasons, I answer in favour of the petitioner for point No.1." The said finding arrived at by the learned trial Judge, in my considered view, is without any discussion on the claim made by the petitioner and the first respondent. Nevertheless, as stated already, the said issue requires consideration at the time of trial of the suit. 33. Regarding the second issue viz., whether there is a concluded contract between the petitioner and the first respondent, the learned trial Judge went wrong in deciding that there was a concluded agreement between the petitioner and the first respondent, as was discussed earlier. 34. As regards the third point, whether the damage is adequate relief for breach of contract, the finding of the learned trial Judge in para 18, in my considered view, is untenable. The said issue was considered by me earlier, which requires no repetition. 35. Even regarding point No.4, whether the court fee paid by the first respondent is correct, the learned trial Judge went wrong in saying that the valuation made by the first respondent is correct. Even regarding the said issue, the matter has been discussed at length. 36. The next submission that has been made by the learned Senior Counsel appearing for the first respondent is that when the petitioner has got an alternative remedy by filing an appeal against the order of interim injunction, the present civil revision petition under Article 227 of the Constitution of India is not maintainable or justifiable. However, learned Senior Counsel appearing for the petitioner contended that in view of the circumstances of the present case, without exhausting the alternative remedy, a revision could be filed under Article 227 of the Constitution of India. 37. While considering the said submission, I am of the considered view that in normal circumstances, alternative remedy has to be availed without invoking the extra ordinary jurisdiction under Article 227 of the Constitution of India. In the present circumstances of the case, which was set out earlier, the learned trial Judge exercised its discretion and jurisdiction in a manner not permitted by law and thus, caused great injustice to the petitioner by granting order of interim injunction. In such circumstances, entertaining a revision under Article 227 of the Constitution of India, in my considered view, may be a correct approach. The power under Article 227 of the Constitution of India is wider than one conferred on the High Court by Article 226. The said power is not subject to those technicalities of procedure or traditional fetters which are available under Article 226 of the Constitution of India. 38. In the case of Surya Devi Rai vs. Ram Chander Rai and another reported in (2003) 6 Supreme Court Cases 675, the Hon’ble Apex Court has given answer to the said issue. The Hon’ble Apex Court has held that jurisdiction under Article 227 of the Constitution of India can be invoked when the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction, which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby. 39. Considering the totality of the circumstances referred to above, I am of the considered view that the order of interim injunction that has been granted by the learned trial Judge, which is challenged in the present civil revision petition, is liable to be set aside and accordingly, set aside and the civil revision petition stands allowed. However, the learned trial Judge is directed to dispose of the suit in O.S.No.475 of 2011 at the earliest, in any event, within six months from the date of receipt or production of a copy of this order. While disposing of the said suit, the learned trial Judge is directed to decide the same on merits, uninfluenced by the order made by him and the order made here under. No order as to costs. Consequently, connected miscellaneous petition is closed.
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