THE GAUHATI HIGH COURT ( HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No.: FAO/32/2025 1. LEARNERS EDUCATION TRUST AND 2 ORS A NON GOVERNMENT EDUCATIONAL INSTITUTION, SITUATED AT SHANTI NAGAR, BEESAKOPIE GAON, DOOMDOOMA, PO RUPAI SIDING, PS -DOOMDOOMA, DIST.- TINSUKIA, ASSAM 786153 2: MR. VARGHESE PANJIKARAN, S/O P.L ANTONY RESIDENT OF SHANTI NAGAR, RUPAI SIDING DOOMDOOMA, DIST.- TINSUKIA ASSAM 786153. RESIDING AT PANJIKARAN HOUSE LAKHIDI, PO OTTAPALAM VIA PALAKKAD DIST KERALA 679301 3: SMTI ALICE VARGHESE PANJIKARAN W/O SRI VARGHESE PANJIKARAN RESIDENT OF SHANTI NAGAR, RUPAI SIDING, DOOMDOOMA, DIST TINSUKIA ASSAM 786153. RESIDING AT PANJIKARAN HOUSE LAKHIDI, PO OTTAPALAM VIA PALAKKAD DIST KERALA 679301” VERSUS DR SANJAY KUMAR GUPTA S/O SRI DHARAM NATH PRASAD, RESIDENT OF BORHAPJAN, PO BORHAPJAN, PS- DOOMDOOMA, DIST TINSUKIA, ASSAM, 786150 Advocate for the Petitioner :- Mr. G.N. Sahewalla, Sr. Advocate, Assisted by Ms. S. Todi Advocate for the Respondent:- Mr. P.J. Saikia, Sr. Counsel, GAHC010134802024 2026:GAU-AS:10338 Assisted by Mr. A.K. Gupta Linked Case: IA. (Civil)/1703/2025 LEARNES EDUCATION TRUST AND 2 ORS A NON GOVERNMENT EDUCATIONAL INSTITUTION, SITUATED AT SHANTI NAGAR BEESAKOPIE GAON DOOMDOOMA, PO RUPAI SIDING, PS- DOOMDOOMA, DIST TINSUKIA ASSAM 786153 2: MR. VARGHESE PANJIKARAN S/O PLANTONY RESIDENT OF SHANTI NAGAR RUPAI SIDING DOOMDOOMA, DIST- TINSUKIA ASSAM 786153. RESIDING AT PANJIKARAN HOUSE LAKHIDI, PO OTTAPALAM VIA PALAKKAD DIST KERALA 679301 3: SMTI ALICE VARGHESE PANJIKARAN, W/O SRI VARGHESE PANJIKARAN RESIDENT OF SHANTI NAGAR, RUPAI SIDING DOOMDOOMA, DIST TINSUKIA ASSAM 786153. RESIDING AT PANJIKARAN HOUSE LAKHIDI, PO OTTAPALAM, VIA PALAKKAD DIST KERALA 679301 VERSUS DR SANJAY KUMAR GUPTA S/O SRI DHARAM NATH PRASAD, RESIDENT OF BORHAPJAN, PO BORHAPJAN, PS- DOOMDOOMA, DIST TINSUKIA, ASSAM, 786150 BEFORE HONBLE MR. JUSTICE ROBIN PHUKAN Advocate for the Petitioner :- Mr. G.N. Sahewalla, Sr. Counsel, Assisted by Ms. S. Todi Advocate for the Respondent:- Mr. P.J. Saikia, Sr. Counsel, Assisted by Mr. A.K. Gupta Date of hearing :- 11.06.2026. Date of which judgment is reserved :- 11.06.2026. Date of pronouncement of judgment :- 28.07.2026. Whether the pronouncement if of the :- N/A operative part of the judgment? Whether the full judgment has been :- Yes pronounced? JUDGMENT Heard Mr. G.N. Sahewalla, learned Sr. Advocate, assisted by Ms. S. Todi, the learned counsel for the appellant. Also heard Mr. P.J. Saikia, learned Sr. Counsel, assisted by Mr A. K. Gupta, the learned counsel for the sole respondent. 2. This appeal, under Order 43 Rule 1(r) of the Code of Civil Procedure read with Section 104 of the said code is directed against the order dated 20.05.2019, and 12.05.2023, so passed by the learned Civil Judge, (Senior Division), Tinsukia, (herein after trial court) in Misc (J) Case No. 63/2019 arising out of Title Suit No. 30/2019. 3. It is to be noted here that vide impugned order dated 20.05.2019, the learned trial court had granted ad-interim injunction against the present appellant in the aforesaid Misc (J) Case as absolute under Order 39 Rules 1, 2 and 3 read with Section 151 of the Code of Civil Procedure, 1908. And vide impugned order, dated 12.05.2023, the learned trial court had made the interim order 20.05.2019, absolute. 4. For the sake of convenience and to avoid confusion, the parties will be referred to by their original status in the Title Suit No. 30/2019, before the learned Trial Court. Background Facts:- 5. The background facts leading to filing the present appeal is adumbrated herein below:- The Learner's Education Trust (Defendant No.1) is a non- governmental institution having Learner's High School and Learner's Junior College with residential boarding situated at Shanti Nagar, Bisacupi Gaon, Doomdooma having its registration vide M/No. GIS/Final Registration/9/2011/4 dated Kahilipara, the 09.12.2011 standing over a plot of land measuring 8 Bighas covered by Dag No.110 under P.P. No.13 owned by defendant No.3, which is the subject matter of the Title Suit 30 of 2019. The defendant No.2 is the managing trustee of the suit property and on account of serious financial problems; he had to lease out the suit property in favour of Dr. P.J. Deka and when Dr. P.J. Deka approached for taking over the possession of the suit property in December, 2018, the defendant No.2 had fled away from the suit property. Thereafter, the defendant No.2 together with defendant No.3, approached the plaintiff, namely Sri (Dr.) Sanjoay Kumar Gupta, for taking over the control and management of the school. Then after discussions regarding the terms and conditions and on physical inspection of the school on 19.12.2018, the defendant No.2 entered into a memorandum of understanding dated 19.12.2018 with the plaintiff to overcome all financial crisis. The plaintiff, pursuant to the said MOU, had agreed to invest a sum of rupees one crore to run and manage the affairs of the suit properties on and from 19.12.2018 and in consideration, the defendant Nos. 2 & 3 had handed over the total control and management of the said educational institutions along with all the existing infrastructures, land, other immovable and movable properties to and in favour of the petitioner. The defendant Nos.2 & 3 also handed over the right of operation of the bank accounts, delivery and taking over management of the said educational institutions was accordingly agreed to be informed to all concerned authorities of the said educational institutions, District Administration and concerned bank and for such purposes, the defendant No.2 agreed to sign and execute all papers and documents as may deem necessary from time to time. The defendant No.2 maintained bank account in the name of Learner's High School operated by him as its Principal and another bank account in the name of Learner's Junior College operated by him and his Assistant Sri Dhiraj Sharma both maintained with Assam Gramin Vikash Bank, Rupai Siding. The defendant No.2 had executed a special power of attorney duly Notarized authorizing and empowering the plaintiff to operate/run all the bank accounts as well as school financial system and for making correspondence to higher educational departments and higher authorities. On 19.12.2018, the bank liquidated the loan agreement of Rs.35,89,333/- taken by the defendant No.2 from Dr. P.J. Deka and transferred an amount of Rs.20,50,000/- in the bank account of defendant No.2, an amount of Rs. 18,00,000/- for renovation and construction of the suit property and assets creation. The defendant No.2 took Rs.53,00,000/- from the school sources for liquidating the debts taken by him but the defendant No.2 had failed to furnish the submission of accounts till date on repeated demands. The plaintiff also paid the salary of teachers and staffs for the month of March, 2019. The plaintiff contended that he also spent some amount towards updating of the school for providing necessary facilities to the staff, teachers by providing ESI, PF facilities and the school management committee was also formed for smooth running of the said institutions. The plaintiff also made necessary correspondence to the concerned authorities giving information regarding his status as the managing director of the school. The plaintiff on and from 19.12.2018, continued to run and manage all the affairs of the said educational institutions without any hurdle, interference or intervention from the defendants Nos.2 & 3 or any other person. But on 16.04.2019, the defendant No.3 in association and in connivance of defendant Nos.4, 5 and 6 started creating troubles in day to day affairs of said institutions in absence of defendant No.2 thereby causing hindrance, nuisance and hurdles in the functioning of the said institutions. The defendant Nos. 4, 5 and 6 entered into school premises unauthorizedly and threatened the masons and workers engaged in the work of development of infrastructures of the institutions. The plaintiff had acquired legal right and valid authority under the said MOU followed by the power of attorney duly executed by defendant No.2 in favour of plaintiff to run and mange the aforesaid institutions and after taking over the possession of the said institutions and investing huge amount of money after making necessary improvements, the petitioner has been smoothly running the said institutions to the full satisfaction of the staffs, teachers, students as a whole. The defendant No.2, then suddenly revoked the power of attorney dated 19.12.2018, executed in favour of the plaintiff in connivance with the defendant Nos.4 & 6, who stood as witnesses to the revocation of power of attorney, and thereby making his motive apparent. The plaintiff had contended that the defendant No.2 has no any valid right and authority to revoke cancel the power of attorney as the petitioner has acquired legitimate right in the suit property under the MOU. The plaintiff has contended that the revocation of the power of attorney has no legal effect against the petitioner as in the MOU, it has been specifically mentioned that the defendant No.2 will not create any sort of interference in the running and management of the suit property and the power of attorney was executed only in furtherance of the MOU. The plaintiff has contended that the said illegal activities of the defendants, the plaintiff as well as the staffs, teachers and students in general are facing hardship in convenience due to acts of repeated visit of defendant Nos. 4, 5 & 6 in the suit premises in connivance with the defendants Nos.2 & 3 creating nuisance in the school premises, the plaintiff was compelled to file an F.I.R. in the Doomdooma P.S. upon which Doomdooma P.S. Case No.112 of 2019, U/S 447, 506, 294, 387, 34 of I.P.C has been registered, where in it has been alleged that the defendant Nos.4 to 6 in connivance with the defendant No.3 had been demanding commission from the school fund. The defendant No.3 also filed a case with the Doomdooma P.S. with false allegations against the plaintiff, upon which Doomdooma P.S. Case No.110/2019 was registered against the plaintiff and school staffs, even after so many situations, the defendants are attempting to dispossess the petitioner from the control and management of the said institutions. Then after investigation, the investigating officer has filed one non F.I.R. cases vide Nos. 10/2019 and 36/2019 before the District Administration stating that the plaintiff has been running and managing the suit property smoothly to the satisfaction of the teachers and staffs and the defendants have been creating problem making attempts to dispossess the plaintiff from the suit property. The teachers and staffs of the said institutions also apprised the Deputy Commissioner, Tinsukia of the situation by filing joint application dated 20.04.2019 and the District Administration ultimately passed an prohibitory order on 26.04.2019, in case No.36/2019. And inspite of such prohibitory order, the defendant Nos.2 to 6 showed not respect for law and continued to make illegal attempts to dispossess the plaintiff from the suit property and on one such occasion on 27.04.2019, 'the defendants had assembled in front of the institutions and tried to trespass into the institutions thereby creating unruly situation. The plaintiff has further contended that due to such illegal and unauthorized acts of the defendants, the situation became urgent and emergent in nature for which the plaintiff has instituted the Title Suit seeking following relief(s):- a) For declaration that the plaintiff has acquired valid and enforceable right having legal authority over and in respect of the suit property, under the Memorandum of Understanding. b) For declaration that the plaintiff is legally entitled to continue the control and management of the suit property and the defendants have no sanction of law to cause any interference thereto. c) For declaration that the plaintiff is legally entitled to manage and control the suit property on the basis of investment made in accordance with MOU. d) For declaration that the plaintiff having acquired the actual possession, management and control over the Suit Property cannot be dispossessed or otherwise obstructed there from save and except in due process of law. e) For declaration that the power of attorney executed by defendant No.2 in favour of plaintiff in furtherance of MOU has continuing legal effect and force and the plaintiff is already giving effect to the same is legally entitled to act and continue under the same. f) For declaration that the revocation/cancellation of the power of attorney dated 19/12/2018 by the defendant No.2 is illegal, in-operative and null and void and the same cannot have any effect upon the running and managing of the suit property by the plaintiff and the said document is liable to be cancelled. Page 11 of 56 g) For granting perpetual injunction restraining the defendants, their agents, employees, servants, associates and or any person(s) claiming through or under them from dispossessing or causing any sort of interference, intervention, hurdles in continuing the control and management of the suit property by the plaintiff. h) For ad-interim temporary injunction for the relief(s) as claimed in clause (9), above. i) For costs of the suit. j) For any other relief(s) to which, the plaintiff may be found entitled as per law, equity and justice. Along with the Title Suit, the plaintiff has also filed one application praying for granting ad-interim temporary injunction against the defendants and restraining them from dispossessing or causing any sort of interference or intervention, hurdle in continuing the control of management of the said property. The plaintiff/petitioner has contended that he has a prima- facie case for granting injunction and also balance of convenience is shifted in his favour and that if the defendants/O.P.s are not restrained, then he will suffer irreparable loss as he has invested a huge amount of money in the suit property. Therefore, the petitioner prays for granting ad- interim injunction restraining the defendants/O.P.s and their men from dispossessing and causing any sort of interference or intervention, hurdles in the management of the suit property. Thereafter, hearing learned counsel for the plaintiff /petitioner and also for the defendants/O.P. No. 2, 4 and 6, and considering all the materials placed on record the learned trial court found as under:- ‚Hence, from the above discussions and observations, it is found that the petitioner could make out a very strong case for grant of ad-interim injunction, in absence of written objection, against the OP Nos.2, 4 and 6 and ex-parte against the other OPs. Now, as regard the principle as to whether the balance of inconvenience is in favour of the petitioner or not, from the present facts and circumstances, it is found that the MoU and the special power of attorney were executed on the 19th of December, 2018, not long ago and till today, as alleged by the petitioner, the petitioner has invested lacs of rupees, near and about one crore in paying dues/debts of the OP Nos.2 & 3 and now after such investment and interest being created in the suit property by the petitioner, if the petitioner is dispossessed or removed from the suit property or the management and control of the suit educational institutions, it can be said that it would cause inconvenience to the petitioner and on the other hand, if ad- interim injunction is passed in favour of the petitioner, it would not in any way cause inconvenience to the OPs, especially the OP Nos.2 & 3. Also, as regard the principle as to whether there would be irreparabile loss/injury is concerned, the learned counsel for the OPs (attending) had argued that the petitioner can be compensated in terms of money and as such if the money is returned; it will do good for the petitioner. However, on perusing the documents of the petitioner as well as the pleading of the petitioner, it is found that the petitioner is alleged to be a person associated with various educational institutions and as such, it cannot be ascertained at this stage that the matter is only involving money and not the interest of the petitioner over the subject matter and under such circumstances when the petitioner has invested a huge amount of money and has created a interest over the suit property and the educational institutions situated thereon and it cannot be said, at this stage, that the petitioner can be adequately compensated in terms of money and no irreparable, loss/injury would be caused to him rather it seems otherwise.‛ Thereafter, the learned trial court had granted ad-interim temporary injunction in favour of the plaintiff/petitioner vide impugned order dated 20.05.2019. The relevant part of the order is extracted herein below:- ‚Hence, the OPs or any one claiming under them are hereby restrained and prohibited from dispossessing the petitioner from the suit property (described in the Schedule of the plaint/instant application) and they are also restrained and prevented from interfering with the control and management of the suit educational institutions by the petitioner, until further orders. Issue show-cause notices to the O.P.'s to reply as to why the ad-interim injunction granted today shall not be made absolute.‛ Thereafter, the defendants/O.P.s have contested the said application by filing written objection on 02.08.2019 claiming that the case is not maintainable in law and in facts and the educational institutions referred to in the plaint are trust properties. It is also stated that the defendants/O.P.s claimed that the petitioner has no right to pray for any injunction without impleading the trustees in the main suit as well as in the instant case as the defendant/O.P. No.2 has no authority to deal with the trust property without having any resolution of the Board of Trustees. The defendants/O.P.s further claimed that the plaintiff/petitioner had failed to make out a prima-facie case so as to entitle him to get an order of temporary injunction. The defendants/O.P.s claimed that the MOU was fraudulently obtained by the plaintiff/petitioner in order to take possession of the suit property and the same is highly illegal and lacks material in order to get sanction of law for enforcing the same against the defendants/O.Ps. The defendants/O.Ps claimed that the plaintiff/petitioner failed to substantiate that the balance of convenience is in his favour. The defendants/O.P.s have contended that the Learner's High School and Learner's Junior College are not the only institutions with residential buildings in a plot of land measuring 8 Bighas covered by same Dag number 110 and patta number 13. The defendants/O.P.s have contended that the Learner's Junior College is situated in a plot of land measuring 2 Bighas 1 Katha 3 Lechas covered by Dag No.113 of P.P. No.10 of Beesakopie Gaon, under Hapjan Mouza which is part and parcel of total land measuring 14 Bighas. The defendants/O.P.s further asserted the statements made in paragraph No.2(ii) of the instant petition that Dr. P.J. Deka approached for taking possession of the suit property but the defendant No.2 had fled away from the suit property and thereafter, the defendant/O.P. Nos.2 & 3 approached the present petitioner for taking over control and management of the said property and thereafter they also entered into the memorandum of understanding dated 19.12.2018, in order to overcome the financial crisis faced by the defendants/O.P. Nos.2 & 3. The defendants/O.P.s have contended that Dr. P.J. Deka pressurized defendant No. 2 to sign a document purported to be a sale deed in respect of the entire property in the plot of land measuring 14 bighas and also put him under severe threat and hence the defendant/O.P No 2 had no other option than to stay away from him. The defendants/O.P.s had denied all the allegations levelled against the O.P. and also contended that the petitioner has not given the full details of the property of the defendant/O.P. Nos.2 & 3 in order to project the educational institutions to have been in a poor and pathetic condition. The defendants/O.Ps claimed that the O.P. Nos.2 & 3 were smoothly and efficiently running the educational institutions since inception and institutions were growing year after year, as such these institutions cannot be in a pathetic condition as alleged by the petitioner. The defendants/O.P.s claimed that the MOU referred in the instant petition is highly illegal, void and inoperative in law as it lacks material and have been obtained by practicing fraud. The defendants/O.P.s also declined the contentions that they handed over the total control and management of the said educational institutions along with all existing infrastructures including land and other movable and immovable properties, including rights and operation of the bank accounts etc. The defendants/O.P.s have alleged the plaintiff/petitioner, taking advance of the illegal and unauthorized MOU in order to grab the entire 14 Bighas of land with existing structures and facilities standing therein i.e. suit property and hence, the petition is liable to be rejected. It is further stated that there is no allegations of any such disturbance caused in the management of the educational institutions, rather allegations have been made for creating obstruction in the construction work or development work of the infrastructure of the educational institutions. The defendants also stated that the revocation of the special power of attorney will not legally affect the plaintiff/petitioner and hence will create no difficulty in running the school which was only executed for the purpose of empowering the petitioner to operate the bank accounts of the educational institutions. Therefore, it is contended to dismiss the application for granting temporary injunction. However, the learned trial court, after hearing learned counsel for both the parties and considering the objection petition and documents placed on record vide impugned order dated 12.05.2023, made the interim order dated 20.05.2019, absolute. 6. Being aggrieved by the aforesaid interim order, dated 20.05.2019, and also the order dated 12.05.2023, the defendants have preferred the present appeal, contending to set aside the impugned orders, inter-alia on the following grounds:- a) The learned trial court fell into grave error of law and facts while passing the order dated 12.05.2023 impugned herein, which is perverse in context of the pleadings and documents laid down by the parties in as much as the learned trial court has passed the same without application of judicial mind to the materials on record by making the ad-interim injunction order dated 20.05.2019 absolute. As such the same is beyond the scope and authority of law causing serious prejudice to appellants. b) The learned trial court did not apply its mind judiciously in considering and deciding the three golden principles of equity for the grant of temporary injunction by the impugned order dated 12.05.2023 and as such the same having no leg to stand. c) The principle of injunction is to prevent irreparable loss that cannot be adequately compensated in terms of money has been bade farewell by the learned trial court. d) The learned trial court has misread the pleadings of the respondent/plaintiff which do not transpire even a prima facie case in his favour for securing any injunction as prayed for. As such, the impugned order, having been passed beyond the scope of jurisdiction is bad in law. e) The learned trial court miserably failed to consider the facts pleaded by the respondent in his plaint that under the MoU concerned he had got only the right of control and management of the two readymade educational institutions against financial investments only which necessarily includes the tenements but never includes the immovable properties (land and buildings) whereupon the two institutions are standing along with other establishments of the defendant No.1 Trust. f) The learned trial court glaringly overlooked the appellant's pleaded fact that the appellants have additional 6 Bighas of land in Dag No.113 of K.P. Patta No.10 conjointly with the land shown in the respondent's schedule land in the injunction petition as well as plaint. Thus, the respondent having not come with clean hands is not entitled to the equitable relief by way of the impugned injunction order prayed for his wrongful gain beyond the scope of the MoU and as such the impugned order dated 12.05.2023 is improper and bad in law. g) The learned trial court is misconceived the importance of the three golden principles of equity that is Prima facie case, Irreparable loss and Balance of convenience while applying those in passing the impugned order dated 12.05.2023 in as much as for any loss of the investments made by the respondent/plaintiff in the institutions under the Memorandum of Understanding (MoU) dated 19.12.2018, is compensable in terms of money and no injunction ought to have been granted by the learned trial court. As such the impugned order is bad in law and equity. h) The learned trial court ought to have applied its mind to the plaint carefully not to overlook the facts pleaded therein that the MoU nowhere transpires that the land purportedly shown in the Schedule was never agreed to be alienated in favour of the plaintiff to create any interest therein in him. As such the business loss apprehended by the plaintiff is always repairable by way of compensation in terms of money. As such the impugned Order dated 12.05.2023 suffers from gross legal and equitable infirmity. i) The learned trial court ought not to have overlooked order dated 16.02.2023 passed in the same Court as the Appellants' petition No.4449/22 dated 02.09.2022 which transpires that the respondents agreed to settle the dispute against payment of an amount of Rs.2,45,00,000/- (Rupees two crores forty five lakhs) only which clearly established the appellants' contention that the loss purportedly to be suffered by the respondent is compensable in terms of money and he has no other right over the land except the management and control of the two academic institutions and as such the learned Court below ought not to have granted the impugned injunction order dated 12.05.2023. j) The learned trial court while passing the impugned Order failed to appreciate the pleaded facts that the land described in the Schedule to the plaint as purported suit property was never intended to be transferred under the MoU to the plaintiff and some other establishments are run by the appellants/ defendants as the same land in which the respondent has no manner of right even to manage to prevent the appellants from entering those other institutions. As such the impugned blanket order of injunction passed by the Court below is beyond the purview of the injunction sought for and hence the same is without jurisdiction. Submissions of learned counsel for the appellants:- 7. Mr. Sahewalla, learned counsel for the appellants, has assailed the impugned orders on several counts. He submitted that while passing the impugned orders, the learned trial court had failed to consider that there was fiduciary relationship between the parties and as such temporary injunction cannot be granted. In support of such contention he has referred to a decision of Hon‟ble Supreme Court in Best Sellers Retail (India) Private Limited vs. Aditya Birla Nuvo Limited and Others, reported in (2012) 6 SCC 792. Referring to Section 41 (h) and (j) and also 38(3) of the Specific Relief Act, he submitted that the suit is not at all maintainable. 7.1. He also pointed it out that the appellants are the true owners of the suit property and against true owner injunction cannot be granted. Further, he pointed it out that the finding of the learned trial court in respect of irreparable loss is illegal and arbitrary as the alleged loss to be suffered by the respondents herein can be compensated in terms of money. In support of the said contention Mr. Sahewalla has referred to decision of this court in State of Assam and Another vs. M/S MS Associates, New Delhi reported in 1994(1) Gauhati Law Journals 447. Mr. Sahewalla also submits that the MOU is a fraudulent document wherein the signature of the appellant/defendant No.2 was taken fraudulently and the alleged contract is a voidable contract. 7.2. Mr. Sahewalla also submitted that the MOU is a fraudulent document wherein the signature of the defendant No.2 was taken fraudulently and the said MOU also failed to satisfy the requirements of a valid contract. Page 23 of 56 7.3. Referring to another decision of Hon‟ble Supreme Court Seema Arshad Zaheer and Others vs. Municipal Corporation of Greater Mumbai and Others, reported in (2006) 5 SCC 282, Mr. Sahewalla submits that power of granting an interim injunction is discretionary one and while exercising such power, the court has to be satisfied regarding the existence of a prima-facie case and balance of convenience and irreparable loss in favour of the petitioner, but, in the instant case, even in absence of a prima-facie case and irreparable loss, the learned trial court had granted an injunction which is illegal and arbitrary and under the aforesaid circumstances Mr. Sahewalla has contended to allow this appeal by setting aside the impugned orders. Submissions of learned counsel for the respondents:- 8. Per contra, Mr. Saikia, learned counsel for the respondent has supported both the impugned orders. Mr. Saikia submitted that the present case involves mixed questions of law and facts and that the MOU signed by both the parties is a valid contract not voidable as the same does not fall under Section 24/25/26/27 of the Contract Act for being voidable. He also submits that whether the contract is determinable or not all is a subject matter of trial only. He further submitted that during trial injunction is granted only to preserve the suit property. He also submitted that as contended by the appellant there is no fiduciary relationship between the parties also. He also submits that the power to grant injunction is discretionary and while the trial court, after considering the submissions of counsel for both the parties and also considering the material placed on record decided to exercise its discretionary power, this Court cannot substitute its own view for that of the learned trial court. Under the aforesaid facts and circumstances, Mr. Saikia has contended to dismiss this appeal leaving the parties to face trial. 8.1. In support of his submissions, Mr. Saikia has referred following decisions:- (i) Wander Ltd. and Anr. vs. Antox India P. Ltd. reported in AIR Online 1990 SC 156, (ii) Dalpat Kumar and Another vs. Prahlad Singh and Others, reported in AIR 1993 SC 276, (iii) Rajasthan Brewaries Ltd. vs. Stroh Brewary Company, reported in AIR 2000 Delhi 450, 9. Having heard the submissions of learned senior counsel for both the sides, I have carefully gone through the memo of appeal and the grounds mentioned therein and also gone through the documents placed on record and also through the case laws referred to at the bar. Page 25 of 56 The Principle Governing Grant of Temporary Injunction:- 10. There are several landmark decisions of Hon‟ble Supreme Court wherein Hon‟ble Supreme Court has dealt with the principle of granting temporary injunction. Dalpat Kumar (supra) is one of such decision, wherein Hon‟ble Supreme Court has held as under:- ‚4. Order 39 Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing … or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission clause (c) was brought on statute by Section 86(i)(b) of the Amending Act 104 of 1976 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power under Section 151 CPC to grant ad interim injunction against dispossession. Rule 1 primarily concerned with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court, on exercise of the power of granting ad interim injunction, is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it. 5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is ‚a prima facie case‛ in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference 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 issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.‛ 10.1. Again in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi and others, reported in (1993)3 SCC 161, a Bench of three Judges of Hon‟ble Supreme Court held as under:- "A party is not entitled to an order of injunction as a matter of course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles - ex debito justifiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. Further, The court should be always willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or, without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court.” 10.2. In the case of Hindustan Petroleum Corpn. Ltd. v. Sriman Narayan and Another, reported in (2002) 5 SCC 760, Hon‟ble Supreme Court has held that it is elementary that grant of an interlocutory injunction during the pendency of the legal proceeding is a matter requiring the exercise of discretion of the court. While exercising the discretion the court normally applies the following tests: (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. Finding of learned Trial Court in respect of Prima- Facie Case, Balance of Convenience and Irreparable Loss:- 11. In the instant case, the finding recorded by the learned trial court while granting interim temporary injunction, vide impugned order, dated 20.05.2019, has already been extracted in the forgoing para of this judgment. And while making the interim injunction order, dated 20.05.2019, absolute vide impugned order, dated 12.05.2023, the learned trial court, in respect of the three golden principles for granting injunction, had observed as under:- (i) Prima-facie:- The petitioner has claimed reliefs on basis of MOU and special power of attorney dated 19.12.2018, and from these two documents annexed as document Nos.1 & 2 of the petitioner, prima facie it appears that the petitioner has the right to run the management and all affairs of the suit property. The O.P.s on the other hand, have objected that the said MOU and special power of attorney are illegal as the same have been executed by playing fraud with the O.P. No.2. The petitioner has stated he has been running the educational institutions and all affairs of the suit property without any hindrance and interference until the O.P.s have started creating nuisance by trespassing into the suit property and obstructing the construction works going on inside the suit property for development of infrastructure etc. The parties have several disputes to be resolved in a full-fledged trial and hence it is sufficient to hold that there is prima facie case for granting injunction and the point No. 1 is decided in the positive and in favour of the petitioner. (ii) Balance of convenience:- From the document No.6 of the petitioner i.e. a correspondence made by the plaintiff/petitioner regarding management and control of school, document No.7 which is resolution register of proceeding of school conducted by school management committee, document No.8 which is the report of an incident of 05.05.2019 signed by guardians and teachers alleging the O.P. Nos.2 & 3 along with their men of obstructing the school building gates and requesting the school to be run by the new management without any interference by O.P. No.2 or any person related to him, document No.10 which is a letter of support given by various ancillary schools in praise of new management committee, Document No.17 which is a copy of complaint letter filed by the school management committee and staff of Learner's High School to the Deputy Commissioner, Tinsukia against O.P. No.3 and others causing obstruction and threat to the teachers, students, staffs etc, document No.18 is a copy of Order passed by Addl. District Magistrate, Tinsukia in Case No.36 of 2019 filed by O.P. No.3 against the petitioner wherein the Addl. Deputy Commissioner has prohibited the O.P. No.3 from creating any nuisance and hurdle in the smooth functioning of the school and also prohibited the O.P. No.1 from revoking and cancelling the special power of attorney, it appears that the school management started by the petitioner pursuant to MOU was getting fame and popularity amongst many and the teachers and guardians were also supportive of the new management run by the petitioner as managing director of Learner's Education Institutions. It has been alleged that the O.P. No.3 in connivance with others have been creating nuisance by trespassing into the suit property and threatening the workers engaged in construction work in developing infrastructures of the suit property and by demanding commission from the school fund and also by interfering in day to day affairs of the educational institutions disturbing the staffs, students and teachers in general. The O.P.s also have been alleged of threatening the petitioner of dispossessing him by their repeated acts of creating nuisance and hurdle in the school premises as a result of which an Ejahar was also lodged in the Doomdooma police station. The O.P.s have on the other hand denied of all these allegations and have put forward a different story alleging the petitioner and his men of forcefully confining O.P.No3 inside her residence situated inside the suit property from where she managed to flee by climbing a boundary wall and went to the police station for filing complaint, all these allegations brought by both the parties can only be adjudicated in a full-fledged trial considering evidences adduced by both the parties. However, in respect to this case the matter does not confine to the personal rights of the parties but is related with the future of the students of two educational institutions of Learners' Education Trust. The dispute between both the parties can only be decided in a trial. However, from the allegations made against the O.P.s about creating nuisance inside the school premises with the help of other O.P.s. for the welfare of the students, teachers and staff and for smooth functioning of the educational institutions, it is important to prohibit any kind of such illegal activities inside the school premises. Inconvenience will be caused to the petitioner i.e. the students, teachers and staff of the schools at large of such legal activities are allowed to be continued without restraining the O.P.s or any men on behalf of the O.P.s. But no inconvenience will be caused to the O.P.s if they are restrained from entering into the suit property and creating nuisance. Other than the pleadings in the written statement the O.P.s have failed to produce any document against the allegations that the O.P. No.3 and others have trespassed and created nuisance inside the school premises. The O.P.s even failed to furnish copy of the ejahar filed by the O.P.s in the police station. Rather the O.Ps have only taken the plea that the MOU and the special power of attorney are illegal and the petitioner acquires no right and authority to take over the management of the suit property/schools etc. On the contrary the petitioner has produced several documents in support of his case that the O.Ps had created nuisance and hindrances inside the school premises. A joint complaint was also filed by the teachers and SMC to the Deputy Commissioner, Tinsukia in this regard. Hence prima facie this Court is of the opinion that the petitioner has succeeded in bringing balance of convenience in favour AM of the petitioner and this principle is decided in the positive. (iii) Irreparable loss or injury:- As the petitioner has invested, huge amount of money in improving the financial affairs and management of the educational institutions of the suit property, in discharging the liabilities of the O.P. No2, if the O.P.s are not restrained from creating nuisance and other hindrance over the suit property and the petitioner is dispossessed illegally from all the powers given to him on basis of MOU, the petitioner will suffer irreparable loss. It appears that O.P.s have been in financial crisis since long for which prima-facie it appears that they have entered into several agreements with not only the petitioner but also with one M/S Technodesign Oil and Gas India Pvt. Ltd. for improving their financial conditions, therefore, no irreparable loss will be caused to the O.P.s that cannot be compensated in terms of money. Further, with respect to whether the O.P. No.1 is a trust property and whether the O.P. No.2 has authority to delegate or hand over the management of the suit property to any other person on behalf of the trust etc. are matters to be decided in trial. Furthermore, if the suit is not decided in favour of the petitioner, the O.P.s will receive back the suit property as a whole. Hence, in my considered opinion from the above discussions, it is a fit case for granting temporary injunction in favour of the petitioner and hence this principle is also decided in favour of the petitioner and in the positive. In the result from the overall discussions, the petition filed by the petitioner praying for granting temporary injunction against the O.P.s is hereby allowed and accordingly, the order dated 20.05.2019 passed by my learned predecessor granting temporary injunction is hereby made absolute. Accordingly, the petition vide No.2048/2019 dated 06.05.2019 is allowed and the Misc. (J) Case No.63/2019 is disposed of on contest. 12. This Court has examined the findings, so recorded by the learned trial court, in respect of the three golden principles, in the light of the principles enunciated by the Hon‟ble Supreme Court in the case of Dalpat Kumar (supra), and also in the light of the facts and circumstances on record. But, this Court is unable to agree with the finding, so recorded by the learned trial court in respect of the three golden principles for granting injunction. The reasons are being discussed in the below noted paragraphs. Analysis and Finding of this Court:- (i) In respect of Prima-facie Case:- 13. It is well settled in the case of Dalpat Kumar (supra) that the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is “a prima facie case” in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition precedent for the grant of temporary injunction. 13.1. In the case of Hindustan Petroleum Corpn. Ltd.(supra), in paragraph No.11, Hon‟ble Supreme Court has held as under:- “Coming to the case on hand, it is to be kept in mind that the controversy raised in the case relates to a commercial contract entered between the appellant and Respondent 1 for sale of petroleum products manufactured by the appellant Corporation. Permission for sale of such products was granted by the appellant on the terms and conditions set out in the agreement. In the said agreement, it was clearly stipulated that Respondent 1 shall not change the structure of the firm without the permission of the appellant. Concededly, Respondent 1 had changed the structure of the firm from a proprietary firm to a partnership firm. The consequence of violation of any condition of the agreement by Respondent 1 was provided under clause 45 in which it was stated that the grantor/licensor will be entitled to revoke the agreement on the happening of such event. Therefore, prima facie the appellant was entitled to take action for revoking the agreement entered into with Respondent 1. Validity or otherwise of the order of revocation can be considered at the stage of interim injunction only for the limited purpose of ascertaining whether there is prima facie case in favour of the plaintiff-petitioner and not for determination of the question finally. From the discussions in the impugned order it appears that the High Court has dealt with the matter as if it was deciding the suit.” 13.2. In the instant case, it is not in dispute that the appellant No.1 herein is a Trust and the appellant No.2 is the managing trustee and the appellant No.3 is the wife of the appellant No.2. And indisputably, the suit property belongs to the appellant No.1, i.e. Learners‟ Education Trust. The respondent, namely, Dr. Sanjoy Kumar Gupta has been possessing the suit property on the basis of the MOU and special power of attorney dated 19.12.2018, i.e. document Nos.1 & 2 enclosed with the application by the respondent herein. Page 38 of 56 13.3. Thus, the right of the plaintiff/respondent accrues from the MOU, which was allegedly signed by the defendant/appellant on 19.12.2018 and on the basis of the Power of Attorney. It is, however, not in dispute that the power of attorney, dated 19.12.2018, i.e. document No.2, has already been revoked by the defendant/appellant No.2. 13.4. Further it appears that the defendant had prayed for cancellation of the MOU, in the counterclaim filed by him, on the ground of the same being executed fraudulently. There is a specific allegation against the plaintiff that the signature of the defendant, in the MOU, was obtained without giving him an opportunity to go through the same. Therefore, the MOU, based upon which the plaintiff claimed having existence of prima-facie case in his favour, itself is under a cloud, due to a negative situation or perceived wrongdoing. 13.5. It is to be noted here that a MoU can be legally binding in whole or in part, if: (i) It includes language showing clear intent to create legal obligations such as words like "shall," "must," or "agree to be bound". (ii) It contains essential contract elements: offer/acceptance, consideration (something of value exchanged), and specificity on terms. Page 39 of 56 (iii) Parties act on it, such as money changes hands or performance begins which may create estoppel or implied obligations. (iv) Jurisdiction-specific rules apply.. 13.6. Thus, it is well settled that an MOU can sometimes be considered a binding agreement for granting an injunction, but it depends on its substance, not just its label. It must contain the essential elements of a valid contract such as offer, acceptance, consideration, lawful object, intention to create legal relations, and certainty of terms. Besides, the document's overall terms, parties' conduct, and intention matter. 13.7. In the instant case the alleged MOU, dated 19.12.2018, is being challenged by the defendant No.2 on following grounds that:- (a) The MOU, dated 19/12/2018, is totally one-sided besides being vague and wanting in material particular. The terms and conditions thereof are ambiguous and uncertain. (b) Through the said MOU, a right appears to have been created in favour of only one party i.e. the plaintiff without providing any remedy for the defendants. Page 40 of 56 (c) No time limit is provided therein as if the same has created absolute right in favour of the plaintiff in perpetuity. (d) For the reasons stated above, besides others, the said MOU is void, unreasonable, uncertain and unenforceable under the law, is not binding on the defendants and is liable to be cancelled. 13.8. Further, it appears that the defendant No.2 has already filed a Counter Claim upon which Cross-Suit No. 53 of 2019, has been registered and the same is pending for adjudication. 13.9. In the instant case, having carefully gone through the MOU, its overall terms and the intention and conduct of the plaintiff and the defendant, prima-facie, it cannot be said that it satisfies the requirement of a valid contract. However, this is a subject matter of trial and can be decided at the end of the trial. 13.10. But, apparently, no time limit is provided in the MoU. Instead, it shows that it has created absolute right in favour of the plaintiff in perpetuity, which appears not to be the intention of the defendants. Its terms appear to be vague. In view of above finding of prima-facie case in favour of the plaintiff vide impugned orders cannot be said to have withstand the legal scrutiny. Page 41 of 56 13.11. Though Mr. Saikia, learned counsel for the plaintiff, submits that a prima-facie case is made out and the learned Trial Court has rightly found the same, yet in view of the aforesaid factual and legal matrix, this Court is unable to agree with the submission of Mr. Saikia. (ii) In respect of Balance of Convenience:- 14. In the case of Hindustan Petroleum Corpn. Ltd.(supra) Hon‟ble Supreme Court has held that whether or not to grant an interlocutory injunction has to be taken at a time when the exercise of the legal right asserted by the plaintiff and its alleged violation are both contested and remain uncertain till they are established on evidence at the trial. The relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before which that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the ‚balance of convenience‛ lies. Page 42 of 56 14.1. In the case of Gujarat Bottling Co. Ltd. and others vs. Coca Cola Co. and others, reported in (1995) 5 SCC 545, Hon‟ble Supreme Court has held that - ‚43. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests — (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the ‚balance of convenience‛ lies. [See: Wander Ltd. v. Antox India (P) Ltd. [1990 Supp SCC 727], (SCC at pp. 731-32.] In order to protect the defendant while granting an interlocutory injunction in his favour the court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial.‛ 14.2. Again in para No. 47 it has been held as under:- ‚47. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. 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. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings.‛ 14.3. Further, as held by Hon‟ble Supreme Court in the case of Hindustan Petroleum Corpn. Ltd. (supra), the learned trial court had failed to assess the need for protection of interim injunction weighing the same against the corresponding need of the appellant/defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. It is well settled that the court must weigh one need against another and determine where the “balance of convenience” lies. 14.4. In the case of Dalpat Kumar (supra) also in respect of the “the balance of convenience” it has been held that 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 issued. Thus, the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit. 14.5. In the case in hand, what the learned Trial Court has considered is the order of the Addl. Deputy Commissioner prohibiting the O.P. No.3 from creating any nuisance and hurdle in the smooth functioning of the school and also prohibiting the O.P. No.1 from revoking and cancelling the special power of attorney, and also the fame and popularity school management started by the plaintiff pursuant to MOU and the support extended by the teachers and guardians to the new management. The learned Trial Court has also considered alleged threat to the plaintiff/petitioner of being dispossessed by the opposite parties and the ejahar lodged with the Doomdooma police station. It has also considered the future of the students of two educational institutions of Learners' Education Trust. 14.6. But, it has failed to consider the fact that the suit property belongs to defendant No.1- Trust. And also it has failed to consider that under the MOU the plaintiff got the right to control and management of the two readymade educational institutions against financial investments only, which, of course, necessarily includes the tenements, but never includes the immovable properties (land and buildings) whereupon the two institutions are standing along with other establishments of the defendant No.1 Trust. The learned Trial Court also overlooked the fact pleaded in the written statement, as well as in the objection petition, filed by defendant No.2, that nowhere in the MOU it is stated that the land purportedly shown in the Schedule of the plaint was agreed to be alienated in favour of the plaintiff so as to create any interest in his favour. 14.7. Further, it becomes apparent that the exercise mentioned in the case of Hindustan Petroleum Corpn. Ltd. (supra), and also Dalpat Kumar (supra) has not been carried out by the learned trial court in both the impugned orders. Therefore, this Court afraid the finding of the learned trial court in respect of balance of convenience failed to withstand legal scrutiny and on this count also the impugned orders failed to withstand the legal scrutiny and as such liable to be interfered with. (iii) In respect of Irreparable Loss:- 15. In the case of Percept D'Mark (India) (P) Ltd. v. Zaheer Khan and Another, reported in (2006) 4 SCC 227, Hon‟ble Supreme Court has held that if a party can be adequately compensated in terms of money if injunction is refused and if grant of injunction would result in irreparable injury and great injustice to the other side which is incapable of being remedied in monetary terms. It has further been held that specific performance of a contract for personal, confidential and fiduciary service, which is barred by clauses (a), (b) and (d) of Section 14(1) of the Specific Relief Act, 1963. It has also been held that if the agreement may not be specifically enforced under Section 14 of the Specific Relief Act, 1963 and accordingly, under Section 41(e), no injunction could be granted as prayed for by the appellant. 15.1. In the case of Hindustan Petroleum Corpn. Ltd.(supra), in paragraph No. 12, it has been held that the questions whether, if Respondent No.1 had violated the condition stipulated in the agreement by changing the structure of the firm without taking prior permission from the appellant, still the latter was bound to give to the former an opportunity for rectifying the defect; and whether passing the order revoking the agreement without affording such opportunity will render the revocation order invalid, are matters which are to be considered when the suit is taken up for hearing. These are not matters to be considered in detail for considering the prayer for interlocutory order of injunction. Regarding the question of status quo on the date of the order of injunction there was serious dispute whether the appellant had taken over possession of the property after notice of revocation of the agreement was served on the Manager of Respondent No.1 and had made over possession of the suit property to Respondent No.2 for the purpose of running the petrol pump. The High Court has tried to get over this question by recording a finding that there were some materials on record to show that Respondent No.1 was transacting business of sale of petroleum products on the date of filing of the suit. This finding has been arrived at by the High Court without considering the reasons given by the trial court which had recorded a finding to the contrary in its order. The High Court has not at all discussed the considerations which weighed and the reasons which persuaded the trial court in rejecting the prayer for interim mandatory injunction as prayed for by Respondent No.1. Most importantly, the High Court has not considered the question whether on the facts and circumstances of the case, if the prayer for interim injunction is refused the plaintiff-petitioner will suffer irreparable loss which cannot be adequately compensated by damages. 15.2. In the instant case, Mr. Sahewalla submits that the contention of the plaintiff is that he had invested huge amount and referring to an order of the learned trial court dated 16.02.2023, he submits that the plaintiff has proposed to settle the dispute on payment of Rs. 2.50,00,000/. And thus, alleged loss, if any, can be compensated in damages recoverable in the action. And in that view of the matter injunction could not have been granted by the learned trial court and this aspect is blissfully ignored by the learned trial court and on such count the impugned order is liable to be interfered with. 15.3. This court finds sufficient force in the submission of Mr. Sahewalla and accordingly this Court is inclined to record concurrence to the same. The plaintiff/petitioner only had the apprehension of the business loss, which is always repairable by way of compensation, in terms of money. 15.4. Thus, the finding of the learned trial court in respect of the irreparable loss is found to be not legally sustainable in as much as the loss to be suffered can be compensated in terms of money. In holding this Court derives authority from the decisions of Hon‟ble Supreme Court in of Gujarat Bottling Co. Ltd.(supra) and also in Sriman Narayan(supra). 16. Now an endeavour will be made to deal with the other submissions of Mr. Sahewalla. (i) Injunction Cannot be Granted Against True Owners: 16.1 As discussed herein above, the suit property belongs to the appellant No.1, which is a Trust and appellant No.2 is the managing trustee. The respondent presently possesses the suit property on the strength of MOU and Power of Attorney. The Power of Attorney has been already cancelled by the appellant No.2 and the appellant has also filed a counter claim for the cancellation of the MOU, which, according to him, was executed fraudulently by the respondent. Thus, the authority of respondent to possess the suit property is under a cloud. It is well settled that an injunction protects lawful possession, not mere possession. A person in unlawful possession (e.g., a trespasser) is not entitled to an injunction against the true owner. 16.2. Reference in this context can be made to a decision of Hon‟ble Supreme Court in the case of Premji Ratansey Shah & Ors. vs. Union of India and Others, reported in (1994) 5 SCC 547, wherein it has been held that an injunction cannot be issued against the true owner. Possession must be lawful; a trespasser or person in unlawful possession cannot seek injunction against the owner. "Injunction is a personal right... A right that is non-existent cannot be protected by injunction." Padhiyar Prahladji Chenaji (Deceased) vs. Maniben Jagmalbhai (Deceased) CIVIL APPEAL NO. 1382 OF 2022, Hon‟ble Supreme Court has reversed concurrent findings of lower courts granting injunction to the plaintiff despite the defendant being the true owner (based on registered sale deed). It reiterated that an injunction cannot be issued against a true owner or title holder in favour of a trespasser or person in unlawful possession. Page 51 of 56 16.3. Reference can also be made in the case of Mahadeo Savlaram Shelke and Ohters vs. Pune Municipal Corporation and Another, reported in (1995)3 SCC 33. The Court emphasised that a trespasser cannot seek injunction against the true owner. Judicial proceedings cannot protect a wrong. Relevant paragraph is extracted herein below:- ‚9. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. It is true that the appellants placed reliance in their plaint on resolutions passed by the Municipality on 11-11-1972 and 29-11-1972. A reading of those resolutions would prima facie show that possession would be taken where the acquisition proceedings have become final and land acquisition proceedings would not be pursued where award has not been made as on the date of the resolutions. In this case, since the acquisition proceedings have become final, then necessarily possession has to be taken by the Corporation for the public purpose for which the acquisition was made. In that context the question arises whether the appellants can seek reliance on two resolutions. They furnish no prima facie right or title to the appellants to have perpetual injunction restraining the Corporation from taking possession of the building. The orders of eviction were passed by due process of law and had become final. Thereafter no right was created in favour of the appellants to remain in possession. Their possession is unlawful and that therefore, they cannot seek any injunction against the rightful owner for evicting them. There is thus neither balance of convenience nor irreparable injury would be caused to the appellants.‛ (ii) Fiduciary Relation Between the Parties and Grant of Injunction:- 17. Mr. Sahewalla, learned counsel for the appellant/defendant No.2, referring to the definition of „Fiduciary‟ in Black Law Dictionary, has rightly pointed out at the time of hearing and he also submitted that injunction cannot be granted when there exists fiduciary relation between the parties. 17.1. Notably, the word „Fiduciary‟ and „Fiduciary Relation‟ is defined in Black Law of Dictionary as under: Fiduciary:- The term is derived from the Roman law, and means (as a noun) a person holding the character of a trustee, or a character analogous to that of a trustee, in respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires. A person having duty, created by his undertaking, to act primarily for another's benefit in matters connected with such undertaking. As an adjective it means of the nature of a trust; having the characteristics of a trust; analogous to a trust; relating to or founded upon a trust or confidence. Page 53 of 56 A person or institution who manages money of property for another and who must exercise standard of care in such management activity imposed by law of contract, eg. executor of estate receiver in bankruptcy; trustee. A trustee, for example, pos senses a fiduciary responsibility to the beneficiaries of the trust to follow the terms of the trust and the requirements of applicable state law. A breach of fiduciary responsibility would make the trustee liable to the beneficiaries for any damage caused by such breach. The status of being a fiduciary gives rise to certain legal incidents and obligations, including the prohibition against investing the money or property in in-vestments which are speculative or otherwise imprudent. 17.2. ‘Fiduciary or confidential relation’. A very broad term embracing both technical fiduciary relations and those informal relations, which exist wherever one man trusts in or relies upon another. One founded on trust or confidence reposed by one person in the integrity and fidelity of another. A "fiduciary relation" arises whenever confidence is reposed on one side, and domination and influence result on the other, the relation can be legal, social, domestic, or merely personal. ………..” 17.3. It is also to be noted here that in the case of Best Sellers Retail (India) Private Limited(supra) Hon‟ble Supreme Court has held that where the totality of the obligations between the parties give rise to a fiduciary relationship injunction would not be granted. Relevant para are extracted herein below:- ‚16. The learned counsel for the appellants cited the decision in Indian Oil Corpn. Ltd. v. Amritsar Gas Service [(1991) 1 SCC 533] in which this Court has held that a contract which is in its nature determinable cannot be enforced by the court. They also cited the decision in Percept D'Mark (India) (P) Ltd. v. Zaheer Khan [(2006) 4 SCC 227] in which this Court has held relying on the judgment of the Chancery Division in Page One Records Ltd. v. Britton [(1968) 1 WLR 157 : (1967) 3 All ER 822] , that where the totality of the obligations between the parties give rise to a fiduciary relationship injunction would not be granted because the performance of the duties imposed on the party in the fiduciary relationship could not be enforced at the instance of the other party. 17. The learned counsel for the appellants further submitted that the agreement between Liberty Agencies and Respondent 1 was an agency agreement and it did not create any interest whatsoever in the suit schedule property and, therefore, Respondent 1 was not entitled to any injunction restraining the owner of the suit schedule property from dealing with the property in any manner with a third party.‛ 17.4. In the written statement, the defendant/appellant No.2, herein, has not denied to his signature over the alleged MOU, though however, he denied giving him an opportunity to go through the same. Perusal of the MOU and the totality of the obligations between the parties gave rise to the fiduciary relationship between the parties. 17.5. And that being so, in view of decision of Hon‟ble Supreme Court in the case of Best Sellers Retail (India) Private Limited(supra), injunction cannot be granted against the appellants. Mr. Sahewalla has rightly pointed this out at the time of hearing and there appears to be substance in his submission. But, this aspect eschewed consideration of learned trial court. (iii) Equitable Relief vis-à-vis Clean Hand Approach:- 18. Further, it appears that the plaintiff has not approached the court with clean hand. He has not shown additional 6 Bighas of land in Dag No.113 of K.P. Patta No.10 conjointly with the land shown in the schedule land in the injunction petition as well as plaint. Thus, the plaintiff has not approached the court with clean hands and as such he is also not entitled to the equitable relief. 18.1. As held in the case of Gujarat Bottling Co. Ltd.(supra), when the conduct of the plaintiff is not fair and honest he cannot claim the relief, which is wholly equitable in nature. Further, the plaintiff has failed to demonstrate 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 defendants, against whom he has been seeking relief. 18.2. Notably, in para No.12 of the objection petition filed by the defendant No.2 has categorically stated that by taking advantage of illegal and unauthorised MOU, the plaintiff has been trying to grab the entire 14 Bighas of land with all the existing structures and facilities standing therein by taking recourse unscrupulous and illegal means to completely oust the Opp. Party No. 2 & 3 (defendant No.2 &3) gradually. 19. Thus, this Court is of the considered opinion that the learned trial Court has failed to exercise its sound judicial discretion in granting the relief of interim temporary injunction pending the suit. 20. In the result, this Court finds sufficient merit in this appeal and accordingly, the same stands allowed. The impugned order dated 12.05.2023 stands set aside and quashed. The parties have to bear their own costs. J U D G E Comparing Assistant