Full Text
Date of Decision: 23rd January, 2020
CPC), 9963/2019 (u/O II R-2 CPC), 9964/2019 (u/O XXXVIII
R-5 CPC), 16584/2019 (of D-3 u/S 14 of IBC), 16586/2019 (of D-
1,2&4 u/O VII R-11 CPC) & 16589/2019 (of D-1,2&4 u/O
XXXIX R-4 CPC)
CATALYST TRUSTEESHIP PRIVATE LIMITED..... Plaintiff
Through: Mr. Tanmay Mehta, Mr. Atul Sharma, Ms. Arveena Sharma and
Mr. Kamal Gupta, Advs.
Through: Mr. Sandeep Sethi, Sr. Adv. with Mr. Gaurav Mitra, Ms. Manmeet Kaur, Mr. Yashvardhan Bandi, Mr. Raghuveer Kapur and Mr. Adit Singh, Advs.
JUDGMENT
1. The plaintiff has sued defendants No.1 to 5, namely (i) Nayan N. Raheja, (ii) Navin M. Raheja, (iii) Raheja Developers Ltd., (iv) Marvel Woods Private Ltd. and (v) Riyasat Towers Private Ltd., for permanent injunction, to restrain (a) defendants No.1 to 3 from selling, transferring or creating third party interest in their movable and immovable properties including commercial space forming part of a project having both residential units and commercial spaces, located at Kathputli, Patel Nagar, New Delhi; (b) defendant No.4 from selling, transferring or creating third party interest in respect of any part or portion of plot admeasuring 117 Kanal 32 Marla equivalent to 14.82 acres in Village Mandkola Tehsil 2020:DHC:494 Hathin District Palwal in the State of Haryana; (c) defendants No.1 and 2 from leaving the territorial jurisdiction of this Court; and, (d) officials/directors of defendants No.3&4 from leaving the territorial jurisdiction of this Court, all till the entire amount outstanding to the plaintiff is realised. Relief of directing the defendants No.1 to 4 to disclose the details of their properties/assets and to furnish security for an amount equivalent to Rs.217,77,00,000/- claimed to be outstanding to the plaintiff as on 30th April, 2019, is also sought. The defendant No.5 is impleaded as a proforma defendant.
2. It is the case of the plaintiff in the plaint, (i) that the defendant No.5, engaged the in the construction business, to augment its financial resources, issued 2600 secured, redeemable, non-convertible debentures and appointed the plaintiff to act as trustee for the holders of the debentures; (ii) that the defendants No.1&2, to secure the debenture holders, furnished their personal guarantees and the defendant No.3 furnished a corporate guarantee, in favour of the plaintiff; (iii) that the defendant No.4 mortgaged the land aforesaid in Palwal, Haryana to secure the debenture holders; (iv) that as per the terms of the issue of debentures, the defendant No.5 was required to pay interest and other dues to the debenture holders; (v) that the defendant No.5 failed to maintain financial discipline and committed defaults in performance of the terms and conditions of the Debenture Trust Deeds; (vi) that the plaintiff as the debenture trustee for the benefit of the debenture holders issued a default notice dated 2nd May, 2019 and called upon the defendant No.5 to redeem the debentures and to pay the entire amount of the debentures amounting to Rs.217,77,00,000/- due as on 30th April, 2019, together with further interest; (vii) that the said letter was also issued to the defendants No.1 to 4 as guarantors/mortgagors; (viii) that the defendant No.5 failed to regularise the payments and further notices were issued by the plaintiff in this context including for invocation of guarantees and for redemption of mortgage; (ix) that notices under Section 13(2) of The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act) were also issued to the defendants stating that on failure of the defendants to comply with the said notices, the plaintiff shall be constrained to initiate action under Section 13(4) of the SARFAESI Act; (x) that the defendants No.1 to 4 are liable to immediately pay the dues of the plaintiff/debenture holders; (xi) that the defendants No.3 to 5, instead of complying with their obligations of payment of dues, filed a suit before the Civil Judge, Gurugram; (xii) that the dispute in the said suit is essentially between the defendants No.3 &5;
(xiii) that the plaintiff has repeatedly reminded the defendants No.1 to 4 of their undertaking under the Debenture Deeds, that they shall not sell, transfer, encumber their assets without prior approval of the plaintiff but the defendants have neglected doing the same also; (xiv) that an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) has also been filed by the plaintiff against the defendant No.5 for commencement of insolvency resolution process against the defendant No.5; (xv) that the guarantees furnished by the defendants No.1 to 3 and mortgages provided by the defendants No.3&4 constitute material security for payment of the dues of the plaintiff/debenture holders in respect of the debentures; (xvi) that availability of assets with the guarantors and mortgagors is of utmost importance for effective enforcement of rights under the guarantee and mortgage agreements/documents; (xvii) that the defendants No.3&4, under the documents executed by them in favour of the plaintiff, have specifically agreed and undertaken not to transfer or create third party interest in their assets; (xviii) that the plaintiff apprehends that the defendants No.1 to 4, to avoid their liabilities and to frustrate the process of law for enforcement of its rights and securities, would transfer or dispose off their assets, thereby jeopardising the interest of the plaintiff/debenture holders and in which event the plaintiff/debenture holders will suffer irreparable loss and injury; it is therefore necessary to protect the rights and entitlements of the plaintiff/debenture holders against defendants No.1 to 4, by restraining the defendants No.1 to 4, as sought;
(xix) that the plaintiff, as on date is not claiming any recovery or enforcement of rights with respect to the mortgaged property, as the plaintiff has already initiated appropriate proceedings under Section 7 of the IBC against the defendant No.5 and under Section 13(2) of the SARFAESI Act against the defendants No.3 to 5 and it is necessary that till the culmination of those proceedings, the defendants are restrained, as sought; and, (xx) that the Debt Recovery Tribunal (DRT) and the National Company Law Tribunal (NCLT) do not have jurisdiction to grant the injunction sought.
3. The suit along with the applications for interim relief, attachment before judgment and under Order II Rule 2 of the Code of Civil Procedure, 1908 (CPC), came up before this Court first on 25th July, 2019 when inter alia the following order was passed: “6. I have enquired from the senior counsel for the plaintiff, whether such a suit for injunction simplicitor lies. It is felt that the injunction sought has to be in an appropriate proceeding for realization of monies and separate proceedings, one for injunction and the other for realization of the amounts due, cannot be initiated.
7. The senior counsel for the plaintiff states that proceedings under the Insolvency & Bankruptcy Code, 2016 have already been initiated against defendant no.5 Riyasat Towers Pvt. Ltd. and no relief in this suit is claimed against the defendant no.5. However, with respect to defendants no. 1 to 4, it is stated that proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) have been initiated and on mere initiation whereof, there is no restraint against the defendants no. 1 to 4 from dealing with their properties. It is further stated that the personal guarantee/s furnished are with respect to the specified property but under the deeds executed, the said defendants have agreed not to alienate any other property till the guarantee stands.
8. On enquiry, it is informed that the notice under Section 13(2) of the SARFAESI Act was issued on 19th May, 2019.
9. No satisfactory reply is forthcoming as to why proceedings under Section 13(4) have not been initiated as yet and which if had been initiated, would have obviated the need for filing this suit.
10. I have also enquired from the senior counsel for the plaintiff, the entitlement in law of the plaintiff as a debenture trustee to sue inasmuch as the cause of action, if any, appears to be of the debenture holder.
11. The senior counsel for the plaintiff besides drawing attention to the provisions of the Debenture Trust Deed entitling the plaintiff as debenture trustee to sue, has also drawn attention to Section 71(6) of the Companies Act, 2013 which mandates the debenture trustee to take steps to protect the interest of the debenture-holders and redress their grievances in accordance with such rules as may be prescribed.
12. It needs consideration, whether owing to Section 71(6) supra a debenture holder is barred from taking proceedings against the company issuing debentures or has to rely only on the debenture trustee to initiate such proceedings.
13. Issue summons of the suit and notice of the application for interim relief to the defendants by all modes including dasti and electronic returnable on 30th August, 2019.
14. Till further orders, the defendants no. 1 to 4 are restrained from alienating, encumbering or parting with possession of their movable or immovable assets and the defendants are further directed to maintain status quo in respect of movable and immovable assets held by them.
4. The counsel for all the defendants, save defendant No.3, appeared before this Court on 30th August, 2019. On that date, it was informed that the NCLT, after 25th July, 2019, had declared a moratorium with respect to the defendant No.3 under Section 14 of the IBC and appointed an Interim Resolution Professional (IRP); however the National Company Law Appellate Tribunal (NCLAT), vide order dated 27th August, 2019 had stayed further proceedings by the IRP.
5. The defendants No.1,2&4 filed IA No.16586/2019 under Order VII Rule 11 of the CPC, pleading (a) that the suit claim is barred by Sections 34 & 35 of the SARFAESI Act which bar the jurisdiction of the Civil Court with respect to any matter in which DRT/Debt Recovery Appellate Tribunal (DRAT) have jurisdiction; (b) that the plaintiff as a debenture trustee is a „secured creditor‟ in terms of Section 2(zd) of the SARFAESI Act and whereunder jurisdiction is vested solely with the DRT/DRAT, to the exclusion of this Court; (c) that Section 34 of the SARFAESI Act bars the grant of injunction by a Court in respect of any action taken in pursuance of the power under the Act; (d) that the plaintiff having invoked the provisions of the SARFAESI Act and having taken benefit of the provisions for enforcement of security interest under Section 13, as a „secured creditor‟, is legally barred from initiating or continuing any suit or proceeding in a Civil Court and is estopped from doing so; (e) that all questions relating to secured assets are required to be decided by the DRT or DRAT; (f) that even otherwise, law does not permit grant of injunction when no successive or consequential relief is sought; (g) that by way of the present suit, the defendants No.1 to 4 are sought to be restrained from dealing with their assets till realisation by the plaintiff of its dues; this amounts to an indefinite injunction and such a position is manifestly untenable in law; (h) that no recovery is being sought in the present matter; recovery is being sought under Section 7 of the IBC and only from the defendant no.5; (i) that the relief obtained ex-parte on 25th July, 2019 is in fact the final relief claimed in the suit; and, (j) that the requisite court fees has not been paid on the plaint.
6. The aforesaid application being IA No.16586/2019 under Order VII Rule 11 of the CPC came up before this Court on 26th November, 2019, when on request of the counsel for the plaintiff, hearing thereof was adjourned to 15th January, 2020, when the senior counsel for the plaintiff and the senior counsel for the defendants No.1,2&4 were heard and suit posted for today for further hearing.
7. The counsels have been further heard.
8. Though during the hearings on 26th November, 2019 and 15th January, 2020, the senior counsel for the defendants No.1,2&4 had argued for rejection of the plaint also on the grounds of (i) the jurisdiction of this Court being barred by Sections 34 & 35 of the SARFAESI Act; (ii) the plaintiff being a secured creditor, the jurisdiction for recovery of its dues/enforcement of its interest vested exclusively with the DRT/DRAT to the exclusion of the jurisdiction of this Court; and, (iii) the plaintiff having admittedly issued notices under Section 13(2) of the SARFAESI Act, being legally barred from initiating or continuing any suit or proceeding in a Civil Court, but during the hearing today, the senior counsel for the defendants No.1,2&4 has confined his arguments on the rejection sought of the plaint to the ground of, the suit for injunction simplicitor being not maintainable and being barred by Section 41(h) of the Specific Relief Act, 1963. Thus, the need to record the arguments earlier made by the counsels with respect to the grounds of rejection which have not been pressed, is not felt.
9. As far as the query made by this Court from the senior counsel for the plaintiff on 25th July, 2019, when the suit had first come up before this Court, of the entitlement of the plaintiff as a debenture trustee to maintain the suit, the senior counsel for the defendants No.1,2&4, on enquiry states that the said defendants are not seeking rejection of the plaint on the said ground either. Since the defendants have not contested the locus of the plaintiff as a debenture trustee to maintain the suit, I do not deem it appropriate to delve into the said aspect either.
10. The senior counsel for the defendants No.1,2&4 has argued, (i) that Section 41(h) of the Specific Relief Act bars the grant of injunction when equally efficacious relief can certainly be obtained by any other usual mode of proceeding; (ii) that the claim of the plaintiff is of monies being due from the defendants No.1 to 4 to the plaintiff; the usual mode of proceeding when monies are due from the defendants No.1 to 4 to the plaintiff, is to sue for recovery of money; (iii) that the same is not only an equally efficacious relief but a more efficacious relief which can be obtained by the plaintiff; the relief claimed by the plaintiff of permanent injunction to restrain the defendants No.1 to 4 from dealing with their properties, would not get the plaintiff its monies; (iv) that this Court in Bharat Heavy Electricals Ltd. Vs. DPC Engineering Project Pvt. Ltd. (2011) 184 DLT 292 examined the issue, whether an injunction, which effectively directs payment, can be issued by the Court although disputes concerning that issue were pending and observed (a) that in order to claim an amount if a person is allowed to seek an injunction instead of filing a suit for recovery, then no suit for recovery need ever have to be filed and every suit of recovery will be filed as a suit for injunction directing payment without requiring ad valorem court fees to be paid; (b) that such relief of injunction is impermissible by virtue of Section 41(h) of the Specific Relief Act; and,
(c) that when no final injunction can be granted, surely an interim injunction cannot be granted; what cannot be finally claimed, cannot also be claimed by way of an interim order; (v) that the plaintiff, without seeking the relief of recovery of money, cannot seek an injunction; (vi) that the plaintiff may never claim recovery of money but cause damage to the defendants No.1 to 4 by prohibiting them from dealing with their properties; (vii) reliance is also placed on State of Haryana Vs. Dr. Prem Singh Mann 1996 SCC OnLine P&H 1324 holding that the equally efficacious remedy of suing for recovery of money being available, owing to the bar of Section 41(h) of the Specific Relief Act, a suit for mandatory injunction seeking a direction to the State Government to pay amounts to the plaintiff, does not lie; (viii) reliance is also placed on the judgment dated 29th May, 2019 of the High Court of Punjab and Haryana in Civil Revision No.518/2017 (O&M) titled Spectrum Life Medical Device Private Limited Vs. EMC Super Speciality Hospital Private Limited, also holding that when an efficacious remedy in the form of a suit for recovery of money is available to the plaintiff, suit for permanent injunction to restrain the creditors of the defendants from releasing monies due to the defendants and restraining the defendants from encashing the cheques already received, was not maintainable; (ix) that the liability of defendants is joint and several and making of a claim by the plaintiff against the defendants No.1,2&4 is not dependent upon the ability of the plaintiff to make a claim against the other defendants or defendant No.5, which is under insolvency resolution process; the plaintiff can sue defendants No.1,2&4 without suing defendant No.5; (x) that the debt, insofar as against defendants No.1,2&4, stands crystallised and cause of action if any for recovery of money has accrued to the plaintiff; (xi) that there is no principle of splitting up of claims; and, (xii) restraining the defendants, as has already been done vide order dated 25th July, 2019, is causing civil death of the defendants.
11. The counsel for the plaintiff has argued that the plaintiff is not seeking to restrain the defendants from dealing with their assets and properties in perpetuity, while not taking any steps against the defendants for recovery of money due from the defendants to the plaintiff. It is contended that injunction may be granted till 14th May, 2022 i.e. till the time the plaintiff will be within the limitation available for taking action for recovery of money; alternatively it is stated that injunction may be granted till expiry of 330 days from the date when the insolvency proceedings were initiated against the defendant No.5 i.e. till 17th September, 2020. It is argued that public monies are at stake and till the outcome of the IBC proceedings initiated with respect to the defendant No.5 is known, the plaintiff does not want to spend huge amount of money on court fees which will be required to be paid for initiating an action for recovery of the sum of Rs.217,77,00,000/- due as on 30th April, 2019. It is contended that it will amount to wastage of public money on court fees.
12. The counsel for the plaintiff further argued that the plaintiff is only seeking to enforce a negative covenant and which is permitted vide Section 42 of the Specific Relief Act. Attention is drawn to page 234 of Part III-A, Volume II file, being a Guarantee Agreement dated 18th April, 2017 executed by defendants No.1&2 in favour of the plaintiff and Clause 4.[1] whereof is as under: “4.[1] The Guarantors shall not transfer, mortgage or create any charge in any manner howsoever on any of their respective assets, properties etc.. The particulars of the movable and immovable properties owned by the Guarantors as on date of this Guarantee have been provided in Schedule-1 hereto. The Guarantors undertake to notify the Debenture Trustee, in writing, the particulars of immovable and movable properties acquired or inherited by them within a reasonable time, so long as the Guarantee remains in force. The Guarantors shall within three (6) months from the date of close of every financial year, provide the net worth certificate alongwith the list of immovable and movable properties owned by the Guarantors to the Debenture Trustee;” It is argued that the injunction sought is merely in enforcement of the contract of the defendants No.1&2 with the plaintiff. It is contended that the remedy of suing for recovery of the amounts due, though available to the plaintiff, is not an efficacious remedy, inasmuch as, after 330 days of commencement of the insolvency proceedings with respect to defendant No.5, the plaintiff may be left with a much smaller claim than today, against the defendants No.1,2&4.
13. On enquiry, it was informed that the plaintiff is a part of the Committee of Creditors constituted with respect to defendant No.5 and has already presented its claim against the defendant No.5 in the insolvency proceedings.
14. The counsel for the plaintiff has further argued that Order II Rule 2 of the CPC is not attracted because the cause of action is different and IA No.9963/2019 under Order II Rule 2 of the CPC has been filed by way of abundant caution. Reliance in this regard is placed on S. Nazeer Ahmed Vs. State Bank of Mysore (2007) 11 SCC 75 holding that in respect of a suit in enforcement of a mortgage, the bar under Order II has been kept out by Order XXXIV Rules 14&15 of the CPC. Reliance is also placed on ELGI Finance Ltd. Vs. Essrope Mills Ltd. 2006 SCC OnLine Mad 536 holding that a suit by the person who has given equipment on hire purchase against the person to whom the equipment has been given, to restrain the defendant from preventing the plaintiff from repossessing the equipment, on default in payment being made, was not barred by Section 22(1) of the then Sick Industrial Companies (Special Provisions) Act, 1985 because the ownership of the hired equipment remained of the plaintiff and hence the proceedings in the suit did not fall within the scope of Section 22(1) of the Act. Lastly, it is argued that the remedy of suing for recovery of money is not efficacious because after the culmination of IBC proceedings with respect to the defendant No.5, the plaintiff may not be required to sue for the entire amount which is due.
15. The senior counsel for the defendants No.1,2&4 has in rejoinder contended that merely because court fees will have to be paid does not make the proceeding any less efficacious. It is argued that even the Government of India has to pay court fees and so the argument of “public money” is not a legal argument. Lastly, it is contended that the reliance placed on ELGI Finance Ltd. supra is misconceived.
16. I have considered the rival contentions.
17. The factual scenario in short is that, though the plaintiff has become entitled to recover its dues from the defendants No.1 to 4 as guarantors of the money advanced to the defendant No.5 but is not wanting to immediately sue for recovery of the said dues. The plaintiff wants to await the outcome of the insolvency proceedings qua the defendant No.5 i.e. if the defendant No.5 is ordered to be wound up or sold, to first see how much, on liquidation or sale of the defendant No.5, falls to the share of the plaintiff; and to thereafter only, sue the defendants No.1 to 4 for the balance due. The plaintiff however, in the meanwhile, wants this Court to restrain the defendants No.1 to 4 from dealing with their assets from which amount due from them can be recovered. The only reason given by the plaintiff for not suing for recovery of monies immediately is monetary i.e. the plaintiff would be required to pay court fees on the entire sum due, when during the pendency of the suit, the plaintiff may recover some part of the said claim in liquidation of defendant No.5.
18. The question is, whether the plaintiff is entitled to do so.
19. In my opinion, the plaintiff is not entitled to do so. My reasons are as under: (A) In a suit for permanent injunction to restrain the defendants No.1 to 4 from alienating their assets and on the strength whereof the plaintiff accepted the guarantees furnished by defendants No.1 to 4, it will be open to the defendants to contend (i) that they had not stood as guarantors and/or mortgagors for the amount due; and/or (ii) that the amount claimed to be due is not due from the defendant No.5 to the plaintiff, to be due from the defendants No.1 to 4 as guarantors of defendant No.5 to the plaintiff; and/or (iii) that the plaintiff for any other reason, is not entitled to recover the amounts from the defendants No.1 to 4. The said defences once raised will have to be adjudicated and without which adjudication permanent injunction sought cannot be granted. The adjudication will be in the nature of determining the right of the plaintiff under the documents claimed to be executed by the defendants No.1 to 4. (B) The aforesaid determination would be akin to determination of title to immovable property and in relation to which the Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (2008) 4 SCC 594 has held that where a cloud is raised over the plaintiff‟s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy; where the plaintiff‟s title is not in dispute or under a cloud but he is out of possession, he has to sue for possession with a consequential injunction; where there is merely an interference with plaintiff‟s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor; however a suit for injunction simplicitor is concerned only with possession and the issue of title will then normally not be directly and substantially in issue; the prayer for injunction will be decided with reference to the finding on possession; in case of vacant sites, the issue of title may directly and substantially arise for consideration as without a finding thereon, it will not be possible to decide the issue of possession; but a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title; even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction; only if the matter involved is simple and straightforward, the Court may decide upon the issue regarding title, even in a suit for injunction—but such cases are the exemption to the normal rule that question of title will not be decided in a suit for mere injunction.
(C) The plaintiff herein by filing a suit for injunction simplicitor is in fact seeking determination of its claim against the defendants No.1 to 4 and which endeavour of the plaintiff is in the teeth of Anathula Sudhakar supra and it is best that such an endeavour is nipped in the bud instead of taking up the limited resources of this Court, when the law in this regard is clear.
(D) Invocation of Section 42 of the Specific Relief Act on behalf of the plaintiff, in my view, is totally misconceived. For Section 42 to be applied, (i) the contract must comprise an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act; and, (ii) the Court should be unable to compel specific performance of the affirmative agreement. It is only then that an injunction to perform the negative agreement is permitted. Here, the counsel for the plaintiff has not even argued that the Court is unable to compel specific performance of the affirmative agreement. The affirmative agreement is the agreement of the defendants No.1 to 4 standing guarantee for the dues of the defendant No.5. The counsel for the plaintiff admits that the plaintiff is in a position to recover the money and is not doing so only to first find out how much it gets in the event of liquidation or sale of defendant No.5 and is waiting to sue for recovery from defendants No.1 to 4 of the balance amount, only to save on court fees. Such planning is of the volition of the plaintiff and not owing to any inability of the Court. Even otherwise with respect to Section 42 of the Specific Relief Act, I have in Yogesh Radhakrishnan Vs. Media Networks & Distribution (India) Ltd. (2013) 201 DLT 773 and Times Internet Limited Vs. ALT Digital Media Entertainment Limited MANU/DE/2743/2019 held, (i) that the negative covenant, enforcement whereof is provided for in Section 42 has to be distinct from the agreement which is found to be not enforceable; (ii) that Section 42 provides for a situation where even though agreement may be found to be specifically not enforceable but the defendant has separately agreed not to do a certain act and permits grant of an injunction restraining the defendant from doing that act; (iii) that Section 42 cannot be interpreted as making the agreement which is non-enforceable, enforceable; (iv) that if Section 42 were to be read in such a manner, it would amount to making contracts specifically enforceable, notwithstanding the provisions of the Specific Relief Act; and, (v) that Section 42 will have no application where the positive and negative covenants have the same effect. The agreement of the defendants no.1 to 4 with the plaintiff, not to deal with their assets is only to enable the plaintiff to recover dues under the guarantee/mortgage furnished by defendants no.1 to 4 and to the same effect and is not separate from the agreement of guarantee/mortgage. (E) The purpose of Section 41(h) of the Specific Relief Act is to prevent multiplicity of proceedings. I have hereinabove already held that the claim of the plaintiff for injunction simplicitor would require determination of the same issue which would arise in a suit for recovery of money, which according to the plaintiff also have fallen due from the defendants No.1 to 4 to the plaintiff. However, such determination carried out in this suit for injunction would not get the plaintiff its monies and the plaintiff, even after succeeding in this suit, would have to file a suit for recovery of money and in which suit the same determination would be required, leading to multiplicity of proceedings and to prevent which the Legislature has incorporated Section 41(h) in the Specific Relief Act. The grant of a relief of injunction, in any case, is discretionary in nature and the Court will not lean towards exercising discretion in favour of a plaintiff in entertaining a suit for injunction simplicitor, when equally efficacious remedy can certainly be obtained by the usual mode of suing for recovery of money and when the Legislature has prohibited grant of injunction. Exercise of discretion by the Courts on such pleas as urged by the counsel for the plaintiff also, has led to an uncertainty in law and chance being taken by litigants and counsels to institute suits expressly barred by law, in an attempt to prevail over the discretion of the Court. However, as stated, exercise of such discretion contrary to the legislative mandate is not only not permitted in law but results in a situation where no opinion on law can be given with certainty, leading to increase in litigation and in turn leading to the country being perceived as a litigious State where no legal opinion can be given and outcome of a litigation cannot be predicted with certainty. (F) I had during the hearing invited attention of the counsels to the judgments holding that a suit for permanent injunction filed to restrain the seller from selling the property agreed to be sold to another, filed after the cause of action for the relief of specific performance of the agreement to sell had accrued, bars the subsequent suit for permanent injunction. Reference in this regard may be made to Kamal Kishore Saboo Vs. Nawabzada Humayun Kamal Hasan Khan (2001) 90 DLT 45 (DB). Perhaps worried therefrom, the counsel for the plaintiff hastened to remind of the pending application being IA No.9963/2019 under Order II Rule 2 of the CPC and contended that even if holding the suit to be not maintainable, it be clarified that the plaintiff would be entitled to take appropriate remedy in law. (G) The plaintiff however need not worry on this account. I have in Rohit Kumar Vs. A.S. Chugh (2008) 155 DLT 424 held that a suit for permanent injunction to restrain the seller from selling the property, filed after the cause of action for seeking specific performance of the agreement to sell has accrued, is barred by Section 41(h) of the Specific Relief Act and being so barred, mere filing thereof cannot bar the subsequent filing of the suit for specific performance. Supreme Court also, in Rathnavathi Vs. Kavita Ganashamdas (2015) 5 SCC 223 has held that the cause of action for a suit for permanent injunction is different from cause of action for a suit for specific performance and thus filing of a suit for permanent injunction cannot bar a subsequent suit for specific performance. Thus, the filing of this suit and rejection thereof as not maintainable would not come in the way of the plaintiff suing the defendants No.1 to 4 for recovery of money. (H) With respect to Section 41(h) of the Specific Relief Act, (i) in Sunil Kumar Vs. Ram Parkash (1988) 2 SCC 77, a suit by a coparcener for permanent injunction to restrain the Karta of a Joint Hindu Family from alienating joint Hindu property in pursuance to a sale agreement with a third party, was held to be not maintainable, in view of the efficacious remedy available of getting the sale set aside and recovering possession of the property; (ii) in Reckit Benckiser (India) Limited Vs. Naga Limited (2003) 104 DLT 490, a suit for permanent injunction to restrain disparagement was held to be not maintainable in view of the alternate remedy available of approaching the then Monopolies and Restrictive Trade Practices (MRTP) Commission; it was also held that no claim for damages, being the preliminary and substantive relief, having been made in the suit, injunction would be barred; (iii) in Geetanjali Nursing Home (P) Ltd. Vs. Dr. Dileep Makhija (2003) 107 DLT 180, a mere suit for injunction to restrain the defendant from entering the property without suing for recovery of possession, was held to be barred by Section 41(h) of the Specific Relief Act; (iv) in B.L. Malhotra Vs. DDA (2009) 164 DLT 86, a mere suit for permanent injunction to restrain the Delhi Development Authority (DDA) from cancelling the lease of the property was held to be not maintainable in view of the alternate remedy available of impugning the action of DDA of cancelling the lease.
20. The suit thus fails and is held to be not maintainable.
21. The counsel for the plaintiff seeks extension of interim order already in force, to enable the plaintiff to take appropriate steps.
22. Thus, while dismissing the suit as not maintainable, it is clarified that the plaintiff shall be entitled to sue on the facts pleaded, for the appropriate relief to which it may be entitled and the interim order in force is extended for a period of 15 days from today (since the order after correction is being released on 26th February, 2020), it is clarified that the interim order dated 25th July, 2019 shall continue in force till 13th March, 2020, whereafter it will automatically lapse.
23. The plaintiff to pay costs of the suit to the defendants No.1 to 4 with legal fees and expenses assessed at Rs.[8] lacs. Decree sheet be drawn up.