1 2025:CGHC:18306 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 362 of 2025  Domar Singh Verma S/o Late Shri Jagannath Verma Aged About 80 Years R/o Ward No. 43, Kasaridih, Durg, Tahsil And District Durg (C.G.) ... Petitioner(s) versus 1. Rajaram Baghel S/o Late Chandulal Baghel Aged About 91 Years Agriculturist Of Village Bhibhauri, Tahsil- Tilda, District Raipur (C.G.) Present Address- Village Dangania, Teacher Colony, Tahsil And District Raipur (C.G.) 2. State Of Chhattisgarh Through Collector, Raipur, District Raipur (C.G.) ... Respondent(s) For Petitioner : Mr. Santosh Kumar Chaturvedi, Advocate For State/ Respondent No. 2 : Mr. Prateek Tiwari, P.L. Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board 23-04-2025 1) The petitioner has filed this petition assailing the order passed by the learned First Additional District Judge, Raipur (C.G.), in Misc. Appeal No. 52-A/2024 dated 14.02.2025, whereby the appeal preferred by the petitioner under Order 43 Rule 1 of CPC has been dismissed and the order passed by the learned trial Court dated 28.06.2024 has been affirmed. 2) Facts of the present case are that petitioner/plaintiff filed a civil suit for declaration of title and specific performance of contract based on the 2 agreement dated 20.09.2001 wherein respondent No. 1/defendant No. 1 had agreed to sell his land bearing Khasra No. 605 situated at Village - Bhibhauri, Tehsil- Tilda, District- Raipur (C.G.) ad-measuring 0.664 hectares for the sale consideration of Rs. 24,600/-. The petitioner moved an application under Order 39 Rules 1 and 2 of CPC inter-alia on the ground that if the suit property is alienated, it would invite a multiplicity of cases. It is also stated in the application that prima-facie case, the balance of convenience and irreparable injury are in favour of the petitioner. Learned trial Court vide order dated 28.06.2024 allowed the application. Respondent No. 1 preferred an appeal before the learned First Additional District Judge, Raipur which was allowed vide order dated 14.02.2025 and against that order, the instant petition has been preferred. 3) Learned counsel for the petitioner submits that the application for temporary injunction was allowed by the learned trial Court as the prima-facie case was in favor of the petitioner. He further submits that the balance of convenience and irreparable injury which could not be compensated in terms of money were also in favour of the petitioner, therefore, the learned trial Court allowed the application. He contends that there was an agreement between the petitioner and respondent No. 1 dated 20.09.2001; respondent No. 1 failed to execute the sale deed in favour of the petitioner and; the petitioner was ready and willing to perform his part, therefore, the petitioner filed the civil suit. He further contends that from 2001 till 2022, the petitioner has developed the suit property and during the pendency of the civil suit, respondent No. 1 may create a third-party interest, therefore, this petition may kindly be allowed and the order passed by the learned appellate Court dated 3 14.02.2025 may be set-aside. 4) On the other hand, learned State counsel opposes. 5) Heard learned counsel for the parties at length and perused the documents available on the record. 6) Admittedly, the petitioner has filed a civil suit for declaration of title and specific performance of contract. An agreement was entered into between the petitioner and respondent No. 1 on 20.09.2001 and for a long 21 years, no steps were taken by the petitioner against respondent No. 1 to execute the sale deed. Though it is pleaded in the plaint that the petitioner was ready and willing to perform his part but the conduct of the petitioner would show that he slept over his rights for a long 21 years. 7) In order to claim a relief of temporary injunction, the petitioner has to prove (i) prima-facie case; (ii) a strong likelihood of success and (iii) the contract/agreement is valid and enforceable. The burden is on the plaintiff to establish that the defendant is obliged to perform his part. If facts pleaded by the plaintiff are disputed by the defendant, the order of temporary injunction cannot be passed in favour of the plaintiff. With regard to the balance of convenience, this Court has to weigh the hardship that would be caused to respondent No. 1 if a temporary injunction is granted. With regard to the irreparable injury, if it is established that the harm which caused, cannot be compensated by monetary assistance, then certainly a case would be made out in favour of the petitioner. 8) The Hon’ble Supreme Court in the matter of AMBALAL SARABHAI ENTERPRISE LIMITED VS. KS INFRASPACE LLP LIMITED AND ANOTHER reported in (2020) 5 SCC 410 while dealing with the issue 4 of temporary injunction and specific performance of contract has held that temporary injunction cannot be granted when there are doubts as to the existence of a concluded contract and there is a delay in instituting the suit. It shall be apt to reproduce paras 15 to 24 of the aforementioned judgment herein below:- 15. Chapter VII, Section 36 of the Specific Relief Act, 1963 (hereinafter referred to as ‘the Act’) provides for grant of preventive relief. Section 37 provides that temporary injunction in a suit shall be regulated by the Code of Civil Procedure. The grant of relief in a suit for specific performance is itself a discretionary remedy. A plaintiff seeking temporary injunction in a suit for specific performance will therefore have to establish a strong primafacie case on basis of undisputed facts. The conduct of the plaintiff will also be a very relevant consideration for purposes of injunction. The discretion at this stage has to be exercised judiciously and not arbitrarily. 16. The cardinal principles for grant of temporary injunction were considered in Dalpat Kumar vs. Prahlad Singh, (1992) 1 SCC 719, observing as follows : “5…Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that noninterference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that “the balance of convenience” must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be 5 issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.” 17. The negotiations between the plaintiff and the defendant is reflected in approximately 17 emails exchanged between them commencing from December 2017 to 31.03.2018. The file size of the attachment to the mails has varied from 485052485756 KBs indicating suggestions and corrections from time to time. The WhatsApp messages which are virtual verbal communications are matters of evidence with regard to their meaning and its contents to be proved during trial by evidenceinchief and cross examination. The emails and WhatsApp messages will have to be read and understood cumulatively to decipher whether there was a concluded contract or not. The use of the words ‘final draft’ in the e- mail dated 30.03.2018 cannot be determinative by itself. The email dated 26.02.2018 sent by the defendant at 11:46 AM had also used the same phraseology. The plaintiff was well aware from the very inception that the defendant was negotiating for sale of the lands simultaneously with two others. The plaintiff was further aware on 30.03.2018 itself that the deal with it had virtually fallen through as informed to the escrow agent. The fact that a draft MoU christened as ‘finalfor discussion’ was sent the same day cannot lead to the inference in isolation, of a concluded contract. There is no evidence at this stage that the acceptance was communicated to the defendant before the latter entered into a deal with defendant no.2 on 30.03.2018 and executed a registered agreement for sale on 31.03.2018. Defendant no.2 paid Rs.17.69 crores and Rs.2.20 crores towards the income tax dues of the defendant the same day, as part of the consideration amount. It is only thereafter the plaintiff purports to have communicated its acceptance to the defendant on 31.03.2018 at 01.13 PM. The prolonged negotiations between the parties reflect that matters were still at the ‘embryo stage’ as observed in Agriculture Produce Market Committee, Gondal and ors. vs. Girdharbhai Ramjibhai Chhaniyara and ors., (1997) 5 SCC 468. The plaintiff at this stage has failed to establish that there was a mutuality between the parties much less that they were ad idem. 18. The pleadings in the suit acknowledge the awareness of the plaintiff of the ongoing negotiations with defendant no.2. The advance of Rs.2.16 crores was refunded to the plaintiff in the evening on 31.03.2018 by RTGS. No effort was made by the plaintiff to again remit the sum by RTGS immediately or the next day. Only a public notice was published on 03.04.2018 refuted by the defendant on 04.03.2018. The suit was then filed seven months later on 6 01.10.2018. The explanation that the plaintiff waited hopefully for a solution outside litigation as a prudent businessman before finally instituting the suit is too lame an excuse to merit any consideration. 19. In a matter concerning grant of injunction, apart from the existence of a prima facie case, balance of convenience, irreparable injury, the conduct of the party seeking the equitable relief of injunction is also very essential to be considered as observed in Motilal Jain (supra) holding as follows : “6. The first ground which the High Court took note of is the delay in filing the suit. It may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property: (i) delay running beyond the period prescribed under the Limitation Act; (ii) delay in cases where though the suit is within the period of limitation, yet: (a) due to delay the third parties have acquired rights in the subjectmatter of the suit; (b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief.” 20. The defendant no.2, in addition to the dues of the Income Tax department as aforesaid, made further payments to the defendant of Rs.25,44,57,769/ by 16.01.2019 aggregating to a total payment of Rs.45,84,71,869/. The defendants had also proceeded to utilize a sum of Rs.36.20 crores also and had therefore materially altered their position evidently by the inaction of the plaintiff to institute the suit in time and having allowed third party rights to accrue by making substantial investments. In Madamsetty (supra) it was observed : “11…..It is not possible or desirable to lay down the circumstances under which a court can exercise its discretion against the plaintiff. But they must be such that the representation by conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief.” Similar view has been expressed in Mandali Ranganna (supra). 7 21. We are therefore of the considered opinion that in the facts and circumstances of the present case, and the nature of the materials placed before us at this stage, whether there existed a concluded contract between the parties or not, is itself a matter for trial to be decided on basis of the evidence that may be led. If the plaintiff contended a concluded contract and/or an oral contract by inference, leaving an executed document as a mere formality, the onus lay on the plaintiff to demonstrate that the parties were ad idem having discharged their obligations as observed in Brij Mohan (supra). The plaintiff failed to do show the same on admitted facts. The draft MoU dated 30.03.2018 in Clause C contemplated payment of the income tax dues of Rs.18.64 crores as part of the consideration amount only whereafter the agreement was to be signed relating back to the date 29.03.2008. Had this amount been already paid or remitted by the plaintiff, entirely different considerations would have arisen with regard to the requirement for execution of a written agreement remaining a mere formality. Needless to state the balance of convenience is in favour of the defendants on account of the intervening developments, without furthermore, interalia by reason of the plaintiff having waited for seven months to institute the suit. The question of irreparable harm to a party complaining of a breach of contract does not arise if other remedies are available to the party complaining of the breach. The High Court has itself observed that from the negotiations between the parties that “some rough weather was being reflected between the plaintiff and the defendant ……….”. The Special Civil Judge failed to address the issue of delay. The High Court noticed the arguments of the defendants with regard to delay in the institution of the suit but failed to deal with it. 22. In M.P. Mathur vs. DTC, (2006) 13 SCC 706, this Court observed : “14. The present suit is based on equity…In the present case, the plaintiffs have sought a remedy which is discretionary. They have instituted the suit under Section 34 of the 1963 Act. The discretion which the court has to exercise is a judicial discretion. That discretion has to be exercised on wellsettled principles. Therefore, the court has to consider—the nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the court granting the decree. In such cases, the court has to look at the contract. The court has to ascertain whether there exists an element of mutuality in the contract. If there is absence of mutuality the court will not exercise discretion in favour of the plaintiffs. Even if, want of mutuality is regarded as 8 discretionary and not as an absolute bar to specific performance, the court has to consider the entire conduct of the parties in relation to the subjectmatter and in case of any disqualifying circumstances the court will not grant the relief prayed for (Snell’s Equity, 31st Edn., p. 366)….” 23. Wander Ltd. (supra) prescribes a rule of prudence only. Much will depend on the facts of a case. It fell for consideration again in Gujarat Bottling Co. Ltd. vs. Coca Cola Co., (1995) 5 SCC 545, observing as follows : “47….Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest.” 24. The aforesaid discussion leaves us satisfied to conclude that in the facts and circumstances of the present case, the grant of injunction to the plaintiff is unsustainable. Resultantly the orders of injunction are set aside. Nothing in the present order shall be deemed or construed as any expression of opinion or observation by us at the final hearing of the suit which naturally will have to be decided on its own merits. The High Court has already given directions to expedite the hearing of the suit and we reiterate the same. 9) Now coming to the facts of the present case, (i) An agreement was executed between the parties on 20.09.2001. (ii) The petitioner filed a suit on 06.03.2022 without explaining the reasons for the delay. (iii) There are disputed facts involved in the present case as respondent No. 1 has not admitted the claim of the petitioner. 10)The petitioner has to establish that the contract/agreement is valid and 9 enforceable against respondent No. 1 and with regard to the hardship, the petitioner failed to establish his part. The petitioner waited for a long 21 years to file the civil suit and according to the Limitation Act, the period of limitation is three years to seek a decree of specific performance of the contract. The plaintiff has to establish a strong prima facie case for the grant of temporary injunction on the basis of undisputed facts but in the present case, defendant No. 1 has disputed the plaint averments. 11) Taking into consideration the above-discussed facts and the law laid down the Apex Court in the matter of AMBALAL SARABHAI (Supra), no case is made out for interference. 12) Consequently, this petition fails and is hereby dismissed. No cost(s). 13) It is made clear that this Court has not expressed any opinion on the merits of the case. Sd/- (Rakesh Mohan Pandey) JUDGE Ajinkya Digitally signed by AJINKYA PANSARE Date: 2025.04.24 18:04:48 +0530 10 ∞ HEAD NOTE ∞ “Order 39 Rules 1 and 2 of CPC in suit for specific performace of contract – Temporary injunction cannot be granted when there are doubts as to the existence of a concluded contract and there is delay in institution of the suit. ” " अनुबंध के वि शि्ቖ विनष्पादन के लिए ाद में सी.पी.सी. के आदे 39 विनयम 1 और 2 - जब संप्ቐ अनुबंध के अቜኌ !त् के बारे में संदेह हो और ाद ्ቚ !ु! करने में देरी हो !ो अ थायी विनषेधा्ሺा नहीं दी जा सक!ी। "