In a suit for specific performance of an agreement for sale of immovable property, the balance of convenience lies in favour of granting the injunction as non-granting would cause irreparable loss and injury.

Harish Tandon, J.

These two revisional applications have been preferred against the self same order and as such are taken up together to avoid prolixity of repetition.

2. The petitioner, being the plaintiff, has challenged the judgment and order dated 11th September, 2012 passed in Misc.Appeal No.09 of 2012 by the District Judge, Andaman and Nicobar Islands by which an application for injunction is rejected.

3. Shorn of unnecessary details, the petitioner filed Other Suit No.63 of 2012 against the opposite parties seeking for a decree for specific performance of an agreement for sale of immovable property with an alternate prayer to refund the money paid as and by way of earnest money together with interest at the rate of 18 per centum.

4. The opposite parties are the directors of the M/s Andaman and Nicobar Fish Processing Project (P) Limited and were carrying out the business activities from survey No.96/3, measuring an area of 1.7970 hectares of land situated at Dhanikhari village under Ferrargunj Tehsil, South Andaman District. For running the said business, the opposite parties approached the Bank for the loan, but, because of the loss suffered by them, they could not pay the loan assessed to the tune of Rs.60 lakhs.

5. The opposite parties intended to sell, transfer and dispose of the property comprising the said business and approached the plaintiff who agreed to purchase the same at a consideration of rupees one crore. A formal agreement was executed on 31st October, 2011 between the plaintiff-petitioner and the opposite parties. A sum of Rs.60 lakhs which was due and payable to the bank by the opposite parties were paid by the petitioner and further sum of Rs.5 lakhs was paid in cash. The aforesaid payment of Rs.65 lakhs was duly acknowledged and admitted by the opposite parties in the said agreement. The balance consideration of Rs.35 lakhs was agreed to be paid at the time of execution of the power of attorney before the Sub Registrar.

6. Clause (3) of the said agreement postulates that the possession of the said property shall be handed over by the opposite parties on the date of execution of an agreement or the execution the power of attorney in favour of the petitioner.

7. According to the petitioner, the possession was handed over to him upon execution of the said agreement by the opposite parties. Since the opposite parties were contemplating to sell the said property to a third party and refused to execute the deed of conveyance/ sale deed in favour of the petitioner, the said suit has been instituted.

8. An application for injunction has also been taken out in the said suit by the petitioner for an order restraining the opposite parties to maintain the status quo in respect of nature, character and possession of the scheduled property.

9. The Trial Court granted an exparte order of an injunction restraining the opposite parties from alienating, transferring and encumbering the property to a third party. The opposite parties contested the said injunction application by filing objection and it is contended that the said agreement is not an enforceable contract. It is further contended that the said agreement was rescinded and/or terminated and the opposite parties refunded a sum of Rs.4 lakhs by way of a deposit in the account of the petitioner.

10. According to the opposite parties, after acceptance of the said sum of Rs.4 lakhs, the petitioner has accepted the termination/cancellation of the said agreement and as such cannot seek for a decree for specific performance of an agreement. However, another defence was taken in the written objection by the opposite parties that the factum of the termination/cancellation of the agreement and having received a sum of Rs.4 lakhs has been grossly suppressed by the petitioner and as such is not entitled to get the injunction as prayed for.

11. It is to be recorded herein that, although the application for injunction does not contain a prayer restraining the oppo