Case Note & Summary
The appellant, Sports and Leisure Apparel Ltd., was the original plaintiff in a suit for specific performance. The plaintiff had been in occupation of two shops at Crossroad Mall under a lease from defendant No.6, initially for three years, extended by an agreement dated 25th August 2002 for a further nine years, thus entitling it to remain until 26th August 2012. Defendant No.6 entered into a development agreement with defendant Nos.1 to 5. The plaintiff claimed that under an agreement with defendant No.6, it received Rs.1,25,00,000 as compensation and return of a bank guarantee of Rs.5 lakhs for vacating the shops, and in return, it was to be allotted two shops in the new complex being constructed by defendant Nos.1 to 5. The plaintiff filed Suit No.1241 of 2009 for specific performance of this alleged agreement and took out Notice of Motion No.1828 of 2009 seeking an interim injunction to restrain defendant Nos.1 to 5 from parting with or creating third-party rights over the shops. The learned Single Judge dismissed the notice of motion, finding no prima facie case for specific performance. The plaintiff appealed. The Division Bench of the Bombay High Court, comprising Chief Justice Anil R. Dave and Justice S.C. Dharmadhikari, heard the appeal. The court noted that the plaintiff had admittedly received Rs.1,25,00,000 as compensation and the bank guarantee was returned. The court observed that there was no agreement in writing or any memorandum evidencing the alleged right to two shops in the new complex. The plaintiff's case was based solely on oral assertions. The court held that without any agreement, the plaintiff could not establish a prima facie case for specific performance, and the balance of convenience was not in its favor. Consequently, the appeal was dismissed, and the order of the learned Single Judge was upheld.
Headnote
A) Specific Relief Act, 1963 - Section 10 - Prima Facie Case for Specific Performance - Plaintiff claimed right to two shops in new complex after vacating old shops for compensation - No written agreement or memorandum evidencing such right - Court held that without any agreement, no prima facie case for specific performance exists - Interim injunction rightly refused (Paras 8-10).
Issue of Consideration
Whether the plaintiff company had a prima facie case for specific performance of an alleged agreement to allot two shops in a new complex, warranting an interim injunction against the defendants.
Final Decision
The appeal is dismissed. The order of the learned Single Judge dated 3rd July 2009 dismissing Notice of Motion No. 1828 of 2009 is upheld.
Law Points
- Specific performance
- Prima facie case
- Injunction
- Agreement to sell
- Compensation
Case Details
2010 LawText (BOM) (03) 43
APPEAL NO. 346 OF 2009 IN NOTICE OF MOTION NO. 1828 OF 2009 IN SUIT NO. 1241 OF 2009
ANIL R. DAVE, C.J., S.C. DHARMADHIKARI, J.
Mr. G.S. Patel i/b L.C. Tolat & Co. for the Appellants, Mr. Virag Tulzapurkar, Senior Advocate, with Mr.Vineet Naik, Ms.Hemangi Abhyankar i/b Naik, Naik & Co. for Respondent Nos.1 to 5
Sports and Leisure Apparel Ltd.
Bansi Mall Management Co. Pvt. Ltd. and others
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil appeal against dismissal of notice of motion for interim injunction in a suit for specific performance.
Remedy Sought
The appellant (plaintiff) sought an interim injunction restraining respondent Nos.1 to 5 from parting with or creating third-party rights over two shops in a new complex.
Filing Reason
The appellant claimed a right to two shops in the new complex based on an alleged agreement after vacating old shops for compensation.
Previous Decisions
The learned Single Judge dismissed the Notice of Motion No. 1828 of 2009 on 3rd July 2009, finding no prima facie case for specific performance.
Issues
Whether the plaintiff had a prima facie case for specific performance of an alleged agreement to allot two shops in a new complex.
Whether the plaintiff was entitled to an interim injunction restraining the defendants from dealing with the shops.
Submissions/Arguments
The appellant argued that it had a right to two shops in the new complex based on an agreement with defendant No.6.
The respondents contended that there was no agreement in writing and the plaintiff had accepted compensation and vacated the premises, extinguishing any rights.
Ratio Decidendi
For a claim of specific performance, there must be an agreement in writing or at least some memorandum evidencing the terms. Mere receipt of compensation and vacating premises does not create a right to specific performance without an agreement. The plaintiff failed to establish a prima facie case, and the balance of convenience was not in its favor.
Judgment Excerpts
Looking to the facts of the case, we find that the Plaintiff Company had been admittedly paid a sum of Rs.1,25,00,000/ by way of compensation and had been returned the Bank Guarantee which was to the tune of Rs.5 lakhs in consideration of the Plaintiff Company vacating the shops in question.
The case of the Plaintiff Company in the Notice of Motion, praying for an injunction restraining Defendant Nos.1 to 5 from parting with the shops in question or for not creating any third party right in the shops in question was not accepted for the reason that there was no agreement with regard to...
Procedural History
The plaintiff filed Suit No.1241 of 2009 for specific performance and took out Notice of Motion No.1828 of 2009 for interim injunction. The learned Single Judge dismissed the notice of motion on 3rd July 2009. The plaintiff appealed to the Division Bench, which heard the appeal on 16th February 2010 and pronounced judgment on 23rd March 2010, dismissing the appeal.
Acts & Sections
- Specific Relief Act, 1963: Section 10
