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IN THE HIGH COURT OF ALLAHABAD
G. D. DUBEY, G. S. N. TRIPATHI
TRIVENI STRUCTURALS LTD - Appellant
Versus
NEWAGE ENTERPRISES, ALLAHABAD - Respondents
F. A. F. O. 979 Of 1992
Decided On : 09/18/1992
SPECIFIC RELIEF ACT, 1963 - SECTION 14, 41 - CODE OF CIVIL PROCEDURE, 1908 - ORDER 39, RULES 2, 3 - INJUNCTION - CONTRACT FOR CONSTRUCTION OF BUILDING - ENFORCEABILITY - CONDITIONS - BALANCE OF CONVENIENCE - IRREPARABLE LOSS - GRANT OF EX PARTE INJUNCTION - REASONS TO BE RECORDED - MANDATORY REQUIREMENT.
Fact of the Case:
The appellant, a contractor, entered into a contract with the National Thermal Power Corporation (NTPC) to raise a micro-wave tower at Noida. The appellant invited tenders for foundation work, and the respondent's tender was accepted. The parties exchanged a series of letters regarding the commencement of work, mobilization of manpower and materials, and payment schedules. The respondent claimed that the appellant had not supplied the necessary materials and had not made timely payments, while the appellant alleged that the respondent had not mobilized its resources and had not started the work as per the agreed schedule. The respondent filed a suit seeking a permanent injunction to restrain the appellant from cancelling the contract and to compel the appellant to perform its obligations under the contract.
Finding of the Court:
The court held that the contract between the parties was not specifically enforceable under Section 14 of the Specific Relief Act, 1963, as it involved technicalities and engineering specialities that could not be supervised by the court. The court also held that the respondent could not claim a temporary injunction under Rule 2 of Order 39 of the Code of Civil Procedure, 1908, as it could not get a permanent injunction under Sections 38 and 41 of the Specific Relief Act, 1963. The court further held that the balance of convenience did not lie in favor of the respondent, as the appellant was duty-bound to deliver the micro-wave tower to NTPC within the stipulated time frame and any delay would have national implications.
Issues: 1. Whether the contract between the parties was specifically enforceable under Section 14 of the Specific Relief Act, 1963? 2. Whether the respondent could claim a temporary injunction under Rule 2 of Order 39 of the Code of Civil Procedure, 1908? 3. Whether the balance of convenience lay in favor of the respondent?
Ratio Decidendi: 1. The court held that the contract between the parties was not specifically enforceable under Section 14 of the Specific Relief Act, 1963, as it involved technicalities and engineering specialities that could not be supervised by the court. The court relied on clauses (a) and (b) of Sub-Section (1) and the proviso to Sub-Sec. 3 (c) of Section 14 of the Act, which provide that a contract cannot be specifically enforced if it runs into minute or numerous details, is dependent on the personal qualifications or volition of the parties, or involves the performance of a continuous duty which the court cannot supervise. 2. The court held that the respondent could not claim a temporary injunction under Rule 2 of Order 39 of the Code of Civil Procedure, 1908, as it could not get a permanent injunction under Sections 38 and 41 of the Specific Relief Act, 1963. The court relied on the proviso to Rule 2 of Order 39 of the Code of Civil Procedure, which provides that no temporary injunction shall be granted where no perpetual injunction could be granted under Sections 38 and 41 of the Specific Relief Act, 1963. 3. The court held that the balance of convenience did not lie in favor of the respondent, as the appellant was duty-bound to deliver the micro-wave tower to NTPC within the stipulated time frame and any delay would have national implications. The court noted that the respondent was only a subcontractor and that its default could adversely affect the terms of the main contract between the appellant and NTPC.
Final Decision: The court allowed the appeal, set aside the order of the lower court, and rejected the respondent's application for a temporary injunction.
( 1 ) THIS appeal arises from an order of Civil Judge, Allahabad issuing an ad-interim injunction before issuing notice to the appellant, asking the appellant and respondent to maintain status quo on the spot and not to proceed with further commencment of the work on spot till 24-8-1992. From the annexures to the application for staying the order of the trial Court it transpires that at the first instance the above order was extended up to 26-8-1992 and thereafter on 26-8-1992 it has been extended to 4-11-1992.
( 2 ) ADMITTEDLY the appellant had taken a contract from the National Thermal Power Corporation (NTPC in brief hereinafter) for raising a micro-wave tower at Noida district Ghaziabad. The appellant had invited tender for foundation work and the respondents tender was accepted. From the papers annexed to the affidavit, counter-affidavit and rejoinder affidavit it transpires that a series of letters were exchanged between the parties. Annexure No. 4 of counter-affidavit indicatesthat on 13-2-1992 the appellant indicated their acceptance of the tender of the respondent. The respondent informed through a letter dated 27/04/1992 (C. A. 5) that they were ready to start the work and asked the appellant to handover the lay out of the site. On 5-5-1992 the appellant informed the respondent that their engineer will be available on site for laying down the site. The respondent were also asked to mobilise their man-power, tools etc. at the spot. On 17-5-1991 another letter was written to the respondent by the appellant that the work had not started despite the request of the engineer of the appellant to start the foundation work on 12-5-1992. On 18-5-1992 the appellant had issued a time schedule for the work. According to this time schedule mobilisation of the site was to be completed by first week of the May. On 25-5-1992 the appellant had written to the respondent that the time schedule had been handed over to the respondents officer and they were asked to mobilise and start excavation work within 7 days starting from 25-5-1992. On 4-6-1992 the respondent wrote to the appellant that the site has been mobilised and the excavation has been completed by 4-6-1992. After excavation, the respondent wrote to the appellant for making running payments. On 22-7-1992, the appellant categorically stated that the appellant was not entitled to the running payments. However, Rs. 15,000. 00 was released for payment to the respondent. It appears from the papers on record that on 28-7-1992, the parties agreed to a fresh schedule of work. The minutes of meeting is Annexure 5 to the affidavit of the appellant. The respondent was clearly informed that he had not brought any materials etc. till 3-8-1992 and he was directed to complete lean concreting by 5-8-1992. Annexure "6" also indicates that the appellant had informed the respondent that it had not started the work at the site. The respondent was specifically informed that it was going to get the work complete through other agency. Thereafter, the respondent filed the suit before the lower court, copy of which is Annexure "8".
( 3 ) LETTERS dated 24/06/1992 and 4/07/1992 (Annexure "ca-1" and "ca-2") are letters of the respondent to the Chief Engineer of the appellant. In these letters, they have indicated the revised rates of concreting at the present market position of metal and sand.
( 4 ) ON the above facts, it was argued that the respondent had no intention to start the work. The respondent Company was interested in getting the rates revised and that is why the letters dated 24-6-1992 and 4-7-1992 (Annexures "ca-1" and "ca-2") were written to the appellant. It was argued that the appellant was bound by a contract with N. T. P. C. to deliver the micro-wave tower to the N. T. P. C. by November, 1992. If the work assigned to the respondent was not completed in a short time, they would not be able to perform their part of the contract. Instead of completing the work, the respondent
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