AI Drafter 
TaxTMI 
TaxTMI 
2020 (1) TMI 1281
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....e referred to by their respective position in the Civil Suit, for the sake of convenience. 2. The plaintiff filed the two suits for declaration and specific performance against the defendant sister concerns with regard to a total area of 19,685 square meters of lands situated in Village Wadiwadi, Subhanpura, District Vadodara in Gujarat. The plaintiff contended that there existed a concluded contract with the defendants after negotiations for sale of the suit lands for a total sum of Rs. 31,81,73,076/- and 58,26,86,984/- respectively. The plaintiff had duly communicated its acceptance of the final draft memorandum of understanding (MoU) dated 30.03.2018. Only the formal execution of contract documents remained as a formality. A sum of Rs. 2.16 crores had also been paid as advance. The plaintiff was ready and willing with the balance amount. Alternately, it was claimed that there existed a concluded oral contract between the parties. The Defendants had surreptitiously entered into a registered agreement for sale with defendant no.2 on 31.03.2018 and thus the suit and prayer for injunction. 3. The Principal Civil Judge by order dated 18.02.2019 held that by inference the terms ....
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....eared the Income Tax dues of the sister concerns on 30.03.2018 to the extent of Rs. 17.69 crores and Rs. 2.20 crores respectively enabling lifting of the attachment orders for the lands by the Income Tax department on 26.04.2018 followed by further payments by defendant no.2 aggregating Rs. 45.84 crores till 16.01.2019. A sum of Rs. 36.20 crores, from the sale proceeds has already been utilized by the defendants towards payment of other statutory liabilities and employee related liabilities etc. It was therefore a bona fide action. The plaintiff's e-mail of acceptance of the draft MoU dated 30.03.2018 as claimed, was not sent by it on 31.03.2018 at 07.43 AM but was received by the defendant on 31.03.2018 at 01.13 PM. 7. Despite the full awareness and knowledge as far back as 30.03.2018 and refund through RTGS of Rs. 2.16 crores on 31.03.2018 itself, the plaintiff published a public notice only on 03.04.2018 advising all concerned not to deal with the property which was duly replied and refuted by another public notice dated 04.04.2018 published by the defendants. The cause of action in the suit is based on the email dated 30.03.2018 coupled with the public notice dated 03.04.201....
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....of the advance of Rs. 2.16 crores the same day followed by a public notice. 11. The hurried manner in which the defendants proceeded to finalise the deal on 30.03.2018 itself, manifests the desire of the defendants to cause harm to the plaintiff. Defendant no.2 cannot claim to be a bona fide purchaser as it was all along aware of the negotiations taking place between the plaintiff and the defendant sister concerns and that it was at a very advanced stage. 12. Dr. Singhvi framed the question, whether concurrent findings of the Special Civil Judge and the High Court by two detailed well considered orders were such as to warrant interference so as to dissipate the substratum of the suit. In support of his submissions, Dr. Singhvi relied on Wander Ltd. and another vs. Antox India P. Ltd., 1990 Suppl. SCC 727, Brij Mohan and others vs. Sugra Begum and ors., (1990) 4 SCC 147, Motilal Jain vs. Ramdasi Devi (Smt.) and ors., (2000) 6 SCC 420, Moharwal Khewaji Trust (Regd.), Faridkot vs. Baldev Dass, (2004) 8 SCC 488, and Aloka Bose vs. Parmatma Devi and ors., (2009) 2 SCC 582. 13. On the aspect of the delay in institution of the suit, relying on Mademsetty Satyanarayana vs. G. Yell....
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....aterial 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." 17. The negotiations between the plaintiff and the defendant is reflected in approximately 17 e-mails exchanged between them commencing from December 2017 to 31.03.2018. The file size of the attachment to the mails has varied from 48-50-52-48-57-56 KBs indicating suggestions and corrections from time to time. The WhatsApp mess....
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....an 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 subject-matter 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 afore....
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....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 well-settled 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 mu....