A plaintiff must demonstrate continued readiness and willingness to perform a contract during the pendency of a suit for specific performance; failure to do so justifies vacating an interim injunction.

JUDGMENT :

Manish Pitale, J.

The question that arises for consideration in this application filed on behalf of the defendant No.1A is as to whether events, that occurred subsequent to order dated 15.06.2015 granting interim injunction in favour of the plaintiff, justify this Court exercising power under Order XXXIX, Rule 4 of the Code of Civil Procedure, 1908 (C.P.C.) to vacate the injunction. The applicant has raised various grounds while praying for vacating the order of interim injunction, but the thrust of the arguments on behalf of the applicant / defendant No.1A is that, the plaintiff has failed to show continued readiness and willingness to perform its part of the development agreement. It is alleged that after obtaining the interim injunction from this Court, the plaintiff has done nothing, as a result of which, there is no activity towards development of the suit property and the defendant No.1A is stuck with the plaintiff in the very same situation in which the suit property was lying as on 15.06.2015, when the interim injunction was granted.

2. Defendant No.1A claims that even after obtaining the aforesaid interim injunction on the basis that the termination of the development agreement by the original defendant No.1 was prima facie unsustainable, as also on the basis that the plaintiff was ready and willing to perform its part under the development agreement, not a single step was taken in furtherance of such alleged readiness and willingness. Reliance is placed on events that have occurred subsequent to 15.06.2015 with documents in support thereof, to claim that this Court ought to exercise power under Order XXXIX, Rule 4 of the C.P.C. to vacate the interim injunction.

3. The plaintiff has opposed the said contentions of defendant No.1A and it is alleged that the development work came to a standstill because of multifarious litigations and proceedings initiated by the defendant No.1A. It is alleged that the defendant No.1A was instrumental in the Maharashtra Housing and Area Development Authority (MHADA) not entertaining applications filed on behalf of the plaintiff to take forward the development work. It was submitted that all the grounds raised in the present application are unsustainable, particularly because an earlier application for vacating the interim injunction met with failure.

4. In order to consider the rival submissions, it would be appropriate to refer to the relevant sequence of events, leading up to filing of the present application.

5. The original defendant No.1 had filed Suit No.224 of 1961 against other members of his family for partition of the ancestral properties. On 21.07.1967, the original defendant No.1 was appointed as Receiver in the aforesaid suit bearing Suit No.224 of 1961 with all powers for management of the suit property. In the course of management of the said suit property including the property, which is the subject matter of the present suit, no objection certificate (NOC) was obtained from MHADA with Floor Space Index (FSI) of 2.5. In that light, the original defendant No.1, as the Receiver submitted a report on 27.03.2002 in the aforesaid suit seeking permission to redevelop the suit property and such permission was granted by an order dated 10.04.2002.

6. On 21.05.2002, the original defendant No.1 executed a Memorandum of Understanding (MoU) with Nitin Karambelkar, who according to the defendant No.1A, essentially owns and controls the plaintiff company. A power of attorney dated 22.05.2002 was executed by the original defendant No.1 in favour of the said Nitin Karambelkar for undertaking activities in respect of redevelopment of the property. On 16.12.2003, a development agreement was executed between the original defendant No.1 and the plaintiff, with the time period for completion of redevelopment being stipulated in the agreement. Thereafter, supplementary agreement, as also a further agreement of the same date came to be executed between the parties.

7. On 08.12.2006, the Mun