Judgment:
Manmohan Singh, J.
1. By this order, I shall dispose of three applications being I.A. No. 3331/2009 filed by the plaintiffs under Order 39 Rules 1 & 2 of Code of Civil Procedure, 1908, I.A. No. 6237/2009 filed by the defendant under Order 39 Rule 4 CPC seeking vacation of the ad interim injunction order dated 13th March, 2009 and I.A. No. 6232/2009 filed by the defendant under Order 7 Rule 11 CPC for rejection of the plaint.
2. Brief facts are that the plaintiffs have filed the present suit for mandatory injunction praying that a decree be passed against the defendant with a direction to register the Lease Deed dated 5th September, 2008 in terms of the covenants contained in the Letter of Intent dated 21st August, 2008.
3. The case of the plaintiffs is that in the month of August, 2008 the plaintiffs were approached by the defendant through one property dealer for taking the suit premises on rent. After negotiations between the parties, the defendant agreed to take the suit premises on rent and thereby issued a Letter of Intent dated 21st August, 2008 which is duly signed by the plaintiffs and the defendant for a period of five years at a monthly rent of Rs. 3,45,342/- i.e. @ Rs. 150/- per sq. ft. + service tax.
4. After issuing the Letter of Intent as aforesaid, the defendant paid two months rent i.e. Rs. 6,90,684/- in favour of the plaintiffs which was adjusted towards the security deposit. The exit Clause provided three months notice after the expiry of 24 months locking period from the effective period i.e. 1st October, 2008.
5. The plaintiffs contended that in view of the Letter of Intent, they completed the interior work which was under progress and made all necessary changes as per the requirement of the defendant and in the said process, they incurred about Rs. 20 lakhs expense for the same. On 5th September, 2008 a Lease Deed on the stamp paper of Rs. 66,000/-was duly executed between the parties. The plaintiffs handed over the possession of the suit premises to the defendant on 1st October, 2008 and thereafter the defendant started paying rent to the plaintiffs in terms of the said Lease Deed.
6. The plaintiffs requested the defendant a number of times to complete its part of the obligation by registering the said Lease Deed in terms of covenants i.e. Clause 8(vii) but on one pretext or the other, the defendant failed and neglected to do so. Therefore, the present suit was filed by the plaintiffs against the defendant.
7. As per the relief prayed for registration of the Lease Deed dated 5th September, 2008 in the suit, the plaintiffs have also filed an application under Order 39 Rules 1 & 2 CPC being I.A. No. 3331/2009 and ex parte ad interim injunction was issued on 13th March, 2009 directing that the defendant shall continue to act upon the terms and conditions contained in proposed Lease Deed dated 5th September, 2008.
8. The defendant filed its written statement as well as an application being I.A. No. 6232/2009, under Order VII Rule 11 r/w Section 151 CPC and another application being I.A. No. 6237/2009 under Order 39 Rule 4 CPC for vacation of the abovementioned ex-parte interim injunction.
9. The main contention of the defendant is that the suit filed by the plaintiffs for injunction is specifically barred under Section 14(1)(c) r/w Section 41(h) of Specific Relief Act, 1963. It has been contended that the Lease Deed provides a termination Clause and any such contract which is by its nature determinable cannot be specifically enforced under Section 14(1)(c) of Specific Relief Act, 1963.
10. It has been further contended by the learned Counsel for the defendant that the Lease Deed provides for the amount of rent as well as for the interest to be charged in case of any delay or breach or non-performance of any terms and conditions of the lease deed, therefore, compensation can be claimed in case of default and is an adequate relief. Therefore, no injunction can be granted in view of Section 41(h) of the Specific Relief Act, 1963.
11. Learned Counsel for the defendant has also argued that the suit filed by the plaintiffs is further not maintainable as there is a proper and equally efficacious remedy available under various provisions of Registration Act, 1908 for registration of a lease deed incase the party which is the executant of the document refuses to register it by having recourse to the provisions of Section 73 of Registration Act, 1908 which is a condition precedent for institution of such suit. No relief as claimed by the plaintiffs in their suit can be passed.
12. In support of his contentions, learned Counsel for the defendant has referred various provisions of the Registration Act. It has been further argued by the learned Counsel for the defendant that since the present suit is merely a suit for mandatory injunction, it is not maintainable and the plaintiffs are not entitled to the relief claimed for.
13. Lastly, the learned Counsel for the defendant has argued that the plaint is also liable to be rejected as the suit property is situated in Gurgaon which is outside the jurisdiction of this Court and the same is liable to be rejected under Order VII Rule 11 CPC for want of territorial jurisdiction in view of the provisions of Section 16(d) of Code of Civil Procedure.
14. In view of the above mentioned facts and circumstances, the questions for determination by this Court in order to decide the three pending applications are summarized as under:
i) Whether the suit for mandatory injunction or direction to get the lease deed dated 5th September, 2008 registered is maintainable?
ii) Whether the suit filed by the plaintiffs for injunction is specifically barred under Section 14(1)(c) read with Section 41(h) of the Specific Relief Act in view of the fact that the lease deed contains a termination Clause and as such is a contract which is by its nature determinable under the Specific Relief Act?
15. The main contention of the learned Counsel for the plaintiffs is that the defendant acted contrary to Clause 8(vii) of the Lease Deed and has not come forward to register the said Lease Deed in view of the said clause, therefore, the present suit has been filed by the plaintiffs for mandatory injunction to pass the order against the defendant to register the Lease Deed dated 5th September, 2008.
16. Learned Counsel for the plaintiffs has argued that the provisions of Registration Act referred by the Counsel for defendant are not attracted in the present matter as for the purpose of registration of the lease deed, the presence of both the parties i.e. executants are necessary. Since the defendant has refused to register the document, this Court is empowered to pass the orders in this regard as prayed for.
17. The other submission of the learned Counsel for the plaintiffs is that since the defendant has breached the contract between the parties, therefore, the plaintiffs are entitled for the relief claimed for in the plaint as well as for injunction.
18. It is also necessary to look at Section 73 of the Registration Act which reads as under:
Section 73. Application to Registrar where Sub-Registrar refuses to register on ground of denial of execution
73. Application to Registrar where Sub-Registrar refuses to register on ground of denial of execution.-
(1) When a Sub-Registrar has refused to register a document on the ground that any person by whom it purports to be executed, or his representative or assign, denies its execution, any person claiming under such document, or his representative, assign or agent authorized as aforesaid, may, within thirty days after the making of the order of refusal, apply to the Registrar to whom such Sub-Registrar is subordinate in order to establish his right to have the document registered.
(2) Such application shall be in writing and shall be accompanied by a copy of the reasons recorded under Section 71, and the statements in the application shall be verified by the applicant in manner required by law for the verification of plaints.
19. No evidence has been placed on record to show that the plaintiffs have asked the defendant in writing within the prescribed time to register the lease deed. In Para 10 of the plaint, it is mentioned that the plaintiffs wrote an e-mail dated 27th February, 2009 requesting the defendant to register the lease deed although in Para 9, it is stated that the plaintiffs requested the defendant many times to complete its part of the obligation by registering the above lease deed in terms of covenants contained in Para 8(vii) of the agreement.
20. The defendant has specifically denied the statement made in para-9 of the plaint. The defendant has argued that the lease deed is dated 5th September, 2008 and the e-mail was sent by the defendant on 27th February, 2009 which is after the expiry of prescribed period, therefore, the suit filed by the plaintiffs for mandatory injunction is not maintainable.
21. Prima facie, this Court is not impressed with the submission of the learned Counsel for the plaintiffs that the provisions of Section 73 of the Registration Act are not attracted in the present case for the purpose of registration of lease deed.
22. As far as rejection of the plaint is concerned, the defendant has filed IA No. 6232/2009 under Order VII Rule 11 CPC contending that the suit is not maintainable. It is well settled law that at the time of considering such an application, the court has only to examine averments made in the plaint.
23. Admittedly, there are positive averments appearing in para 9 of the plaint that the plaintiffs have requested the defendant many times to complete its part of the obligation for registering the lease deed which has been denied by the defendant, hence under this situation, the plaint cannot be rejected. The said statement of fact is yet to be examined at the appropriate stage of the case, thus, the prayer made in the application of the defendant under Order VII Rule 11 cannot be granted and the same is rejected.
24. Dealing with the next submission of the defendant, it is well settled law that when a contract is determinable by the parties, the same cannot be treated as a contract as is referred in Clause (c) to Sub-section 1 of Section 14 of the Specific Relief Act which is by its nature determinable. Clause (c) of Sub-section 1 of Section 14 states that a contract which is by its nature determinable cannot be specifically enforced. If it is found that a contract is by its very nature determinable, the same is not only unenforceable, but in addition, in respect of such a contract no injunction can be granted in view of Section 41(h) of the Specific Relief Act. This is a mandate of law.
25. In the case of Techno Construction and Anr. v. Kunj Vihar Co-operative Group Housing Society Ltd. : 2005 (81) DRJ 233 it was held as under:
9. ...The first question requiring consideration is, whether the contract for construction of building can be ordered to be specifically enforced? Section 14(1)(a) of the Specific Relief Act, 1963 provides hat a contract for non-performance, of which compensation in money is adequate relief, cannot be specifically enforced. In a suit for enforcement of contract for construction of a building, the party seeking specific performance of the contract has to satisfy three conditions, contained in proviso to Clause (c) of Sub-section (3) of Section 14. These are (i) the building or other work is described in the contract in sufficiently precise terms to enable the court to determine the exact nature of the building or work. (ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contact is not an adequate relief; and (iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed. In short, before a construction contract can be ordered to be enforced, it has to be held that compensation in money is not the adequate relief. It cannot be disputed that where a contract which cannot be enforced by a decree for specific performance, the same cannot be negatively enforced by issue of an injunction.
26. In the case of Usha Sales Ltd. v. Aruna Gupta : ILR (1988) 1 Del 103 it was held as under:
The right of the statutory tenant flows not from a contract but from a statute. The question is not whether an injunction can be granted to specifically perform a term of a contract or not and the provisions of Sections 14, 16 and 41 of the Specific Relief Act have therefore no relevance of application. The statutory tenant enforces his right under the statute and not under the contract. Sections 14 and 16 of the Specific Relief Act, 1963 pertain to the specific enforcibility of a contract and not of a statutory right. Section 41(e) on which reliance has been placed by the defendants also talks of a contract. There is no bar with regard to the enforcement of such right to property and, particularly, such right flowing from a statute. (Paras 14 & 15)
27. In the case of B.S.M. Contractors Pvt. Ltd. v. Rajasthan State Bridge & Construction Corporation Ltd. and Anr. : AIR 1999 Delhi 117 it was held as under:
9. On a consideration of the facts and circumstances of the case, I am of the opinion that a building contract of the instant nature cannot be specifically enforced by granting interim relief under Section 9 of the Act. If there is a breach of such a contract, the appropriate remedy is to compensate the party damnified in damages. That apart, the granting of an injunction in favour of the petitioner will further delay the construction work considered very urgent by the respondent No. 3. Thus, the balance of convenience also swings against the grant of injunction sought by the petitioner.
28. From the above discussion, it becomes clear that where a contract is not specifically enforceable as per the Clauses stipulated under Section 14 of the Specific Relief Act, an interim order in the form of injunction qua such a contract cannot be passed enforcing negatively.
29. I agree with the contention of the defendant that the plaintiffs are not entitled to an injunction in view of the fact that the lease deed provides a determination Clause and the same is determinable by nature and, therefore, cannot be specifically enforced. The plaintiffs are not entitled to an injunction as prayed for because of the reason that in case there is a breach for non performance of any term and condition of the lease deed, compensation can be claimed which is an adequate remedy and no injunction can be granted in view of Section 41(h) of the Specific Relief Act.
30. The application of the defendant under Order XXXIX Rule 4 CPC being I.A. No. 6237/09 is allowed. The ex parte ad interim injunction dated 13th March, 2009 is vacated. In view of the above, the plaintiffs application under Order XXXIX Rules 1 & 2 being I.A. No. 3331/09 is dismissed. There will be no order as to costs.
CS(OS) No. 480/09
31. Parties are granted 8 weeks time to file the original documents, if any. List the matter before the Joint Registrar on 21st December 2009 for admission/denial of the documents.