JUDGMENT
S.D. Pandit, J.
(1) This application is filed by the plaintiff under Order Xxxix Rules 1 & 2 of the Code of Civil Procedure to get an order of ad-interim injunction.
(2) Defendant is the owner of property bearing No.A-10, Lajpat Nagar-III, New Delhi, ad-measuring 427.70 sq.yds. This property was originally belonging to her husband Shri D.N. Khanna and she became the owner of the same on the strength of the Will dated 4.11.1994. The said house was a very old house and in a very dilapidated condition and was also not properly kept. In these circumstances the defendant wanted to reconstruct the said house as a modern building after demolishing the existing old structure. But, unfortunately, defendant had no funds to do so.
(3) Plaintiff has come before the Court with the case that in the beginning of November 1993 defendant, accompanied by her son, Shri K.L. Khanna, approached the plaintiff for the construction of the new building in place of her old house and, thereafter, initially a document of Memorandum of Understanding was executed between the parties on 23.11.1993 and on the same date again the document of Collaboration Agreement was executed between the plaintiff and defendant. It is further alleged by the plaintiff that the plaintiff was all along ready and willing to perform his part of the said Collaboration Agreement but in spite of the same the defendant issued a notice on 2.11.1995 and terminated the said Collaboration Agreement between plaintiff and herself. Therefore, plaintiff has come before the Court seeking the specific performance of the Collaboration Agreement.
(4) Alongwith the suit plaintiff has filed IA.590/96 and by this interim application plaintiff wants this Court to issue an ad-interim injunction against the defendant to restrain her from entering into any other collaboration agreement with anybody else and raising the new construction on her property.
(5) Defendant has appeared and has contested the claim of the plaintiff by filing the reply. It is contended by the defendant that by misleading her the plaintiff has obtained two documents titled as Memorandum of Understanding and Collaboration Agreement on 23.11.1993. She further contends that the said two documents are contradictory. They are vague, ambiguous and uncertain and they were obtained from her only in order to defraud her. She further contended that plaintiff was not at all ready and willing to perform his part of the contract. As a matter of fact, plaintiff had given up his rights in favour of one Neelkanth Constructions and as the plaintiff was not in a position to carry out the work in question she had not taken any steps to carry out the work in question. Therefore, in these circumstances, she was forced to terminate the contract. She further contended that if the nature of transaction between the plaintiff and the defendant is taken into consideration, no specific performance of the contract could be granted. It is further contended that the defendant has already entered into a contract of collaboration with one Ajit Singh and another and they have started the work of demolishing the old building. Therefore, in these circumstances, plaintiff is not entitled to get not only specific performance of the agreement in question but also not entitled to get any ad-interim injunction and the plaintiff is, at the most, entitled to claim and get damages for which has claimed for in his plaint.
(6) At the time of arguments, learned counsel for the plaintiff has vehemently urged before me that the agreement in question is an agreement for sale of immoveable property. Consequently, in view of the provisions of Section 10 of the Specific Relief Act the plaintiff is entitled to get the specific performance of the contract and in the circumstances of the case this Court should issue an ad-interim injunction restraining raising of any construction on the property in question.
(7) As against this, it is contended on behalf of the defendant that the transaction between the parties was never a transaction to sell any immoveable property and it was only a transaction for construction of a new building and no specific performance of the same could be granted and the plaintiff is not entitled to get the ad-interim injunction sought for. Therefore, in these circumstances, it is necessary for me to consider, prima facie, what is the nature of the transaction between the plaintiff and the defendant.
(8) It is true that when I am going to consider this aspect of the matter it will be amounting to deciding the substantial relief sought by the plaintiff in the suit. Generally, if while deciding an interlocutory application the Court has to decide the substantial question in the suit itself then the Court should avoid doing so. But that does not mean that no discretion lies with the Court in considering the question which would amount to deciding the substantial claim involved in the suit. If the circumstances of the case are such that the Court has to consider the substantial issue involved in the suit then the Court cannot avoid to decide the same in deciding the interlocutory application as that would be amounting to misuse of the discretion lying with the Court. Therefore, in my opinion, it is necessary for me to decide prima facie what is the real nature of the transaction between the parties though that would amount to substantially deciding the suit claim. I am supported in this view of mine by the decision of the Calcutta High Court in the case of Indian Cable Company Limited Vs. Smt. Sumitra Chakraborty wherein the following principles are laid down: “If a Court is called upon to grant any relief on any interlocutory application which when granted would mean granting substantially the relief claimed in the suit, the court will be very slow and circumspect in the matter of granting any such prayer. It is indeed true that such a relief should be granted only in exceptional cases. Though exercise of such a discretion should be limited to rate and exceptional cask at the same time no court should think that in law there is any absolute bar to the court granting such a relief. In deserving cases, the court should not hesitate to come in aid of a litigant and uphold the cause of justice by granting such a relief.”
(9) In order to find out what is the nature of transaction between the parties it is necessary to consider the pleadings of the parties. In para Nos.3 & 4 of the plaint, plaintiff has averred as under:
3.That the house is old and is very badly constructed and kept. It was constructed when the value of the properties in the locality were negligible. It was unproductive in the hands of the defendant. She wanted to construct a modern building on the plot after demolishing the old structure, the defendant, however, had no funds.
4.that in the beginning of November, 1993, the defendant accompanied with her son, Shri K.L. Khanna, approached the plaintiff and represented that she as the owner of the aforesaid house bearing No.A-10, Lajpat Nagar-III, New Delhi and that since she was not getting any appreciable or significant yield from the said house, she was interested in getting the present/existing structure demolished and, in its place, a new building to be erected comprising of basement, ground floor, first floor and second floor, i.e. three-storeyed building so. that she could earn good return from the said house. She further represented that in case the plaintiff, who is a developer and a builder, agreed to construct a house consisting of 3- storeyed building with a basement in the said property at his cost and expense, she would be willing and agreeable to share the constructed building in equal shares and the terms of the collaboration agreement could be settled between them. Upon the said representations, the plaintiff agreed to negotiate the terms on which he could agree to construct the building. On 23.11.1993, the terms were settled and a Memorandum of Understanding was executed between the parties incorporating the terms and conditions agreed upon between the parties for constructing a new building on the aforesaid property after demolition of the existing structure. The parties, however, agreed that a proper collaboration agreement would be executed between the parties and on its execution, the initial payment of Rs.1 lakh as agreed upon would be made by the plaintiff to the defendant.”
(10) If the above para Nos.3 & 4 are read together then it would be quite clear that it is the case of the plaintiff himself in his claim that the defendant wanted to demolish her old badly kept house and to construct a modern building on her plot but she was not having sufficient funds to do so. Thus, in the plaint itself the plaintiff has admitted that the defendant wanted .to raise new construction and she was short of funds and because of the shortage of funds she had approached the plaintiff. If the pleadings of the plaintiff in para Nos.3 & 4 are read carefully it would also be quite clear that even the plaintiff does not allege in his plaint that the defendant wanted to sell any portion of her property but she wanted to raise new construction on her property with the funds of other person. As the defendant was short of funds and as she wanted to repay the funds taken from the other person, i.e. the plaintiff she had entered into the transaction in question. Therefore, the transaction in question is a transaction for building a new modern house and as the construction cost was to be borne by the plaintiff the defendant had agreed to certain terms mentioned in the document with a view to repay the amount claimed by the plaintiff.
(11) Defendant has, no doubt, agreed to give her consent for transferring of the portion of the new building at the instance of the plaintiff in favour of third persons whenever the plaintiff was going to transfer the built up portion to third persons so as to raise the funds in order to appropriate them towards the amount spent by the plaintiff. But that does not mean that the plaintiff had entered into an agreement to sell half of her property as has been vehemently urged before me by learned counsel for the plaintiff. Even the prayer clause of the plaintiff or if the whole pleading of the plaintiff is read then it would be quite clear that there is no specific claim by the plaintiff anywhere that there was an agreement to sell by the defendant of the portion of her property in his favour and that he wanted the specific performance of the said agreement. Even if we turn to the contents of the documents, viz. Memorandum of Understanding and the Collaboration Agreement dated 23.11.1993 it would be quite clear that what has been agreed by the plaintiff in the said document was an arrangement regarding the reimbursement to be made by the defendant for the amount which he was to incur in raising the construction on the plot of the defendant. Merely because in the said Memorandum of Understanding as well as in the Collaboration Agreement there are terms by which the defendant has agreed that she would give half of the portion of the construction building to the plaintiff on his constructing the same with his money that agreement would not be an agreement to sell of an immoveable property but it will only be an agreement by which she had agreed to reimburse the plaintiff for the amount spent by him.
(12) Once I have found that the real nature of the transaction between the parties was only a transaction of agreement to construct a building, then there is no question of considering the transaction as a transaction for specific performance of immoveable property. No doubt, learned counsel for the plaintiff has urged before me that in view of the provisions of Section 14(3) of the Specific Relief Act the specific performance of the contract in question could be granted. Section 14 mentions in the beginning in sub-para (1) that a contract for the non-performance of which compensation in money is an adequate relief there could not be any specific performance. No doubt, to this provision in sub-section (1) sub-section (3) of Section 14 gives exception. At the outset it must be said that the plaintiff is a builder and constructor and when he has entered into a contract to construct a building then it is not at all possible to hold that non- performance of his contract could not be adequately compensated in money. Apart from this even if we turn to sub-section (3) of Section 14 in case of a building contract the three provisos supplied to sub-section (3) of Section 14 must be fulfillled. If those provisions are taken into consideration then it would be quite clear that in case if a builder or contractor is put in possession of the property by the person entering into a contract to raise a building and if the contractor fails to raise construction, then the person entering into the contract, i.e. the owner of the land can seek specific performance. The claim of a person who wants the construction of a building and the claim of a contractor who wants to construct are to different and distinct claims. They could not be said to be equal claims. Because when a person wants the construction of a building his interest is quite different from the interest of the constructor. The interest of a constructor is only profit making. Therefore, even a person who enters into a contract with a constructor to raise a building and puts the constructor in possession of the land and the constructor fails to fulfill the terms of the contract, the person, i.e. the owner of the land can come before the Court for getting the specific performance of the contract. But it does not necessarily mean that the constructor can also come and force to continue the contract with him.
(13) Learned counsel for the plaintiff has cited before me the case of Mayor, Aldermen and Burgesses of Wolverhampton Vs. Emmons [1901 (1) Queen’s Bench 515 and has put reliance of the following observations at page 524 by Romer J.: “There is no doubt that as a general rule the Court will not enforce specific performance of a building contract, but an exception from the rule has been recognised. It has, I think, for some time been held that, in order to bring himself within that exception, a plaintiff must establish three things. The first is that the building work, of which he seeks to enforce the performance, is defined by the contract; that is to say, that the particulars of the work are so far definitely ascertained that the Court can sufficiently see what is the exact nature of the work of which it is asked to order the performance. The second is that the plaintiff has a substantial interest in having the contract performed, which is of such a nature that he cannot adequately be compensated for breach of the contract by damages, the third is that the defendant has by the contract obtained possession of land on which the work is contracted to be done.”
(14) If the above observations of Romar J. and the facts of that case are considered then it would be quite clear that in that case the owner of the land had put the constructor in possession of the land. There was an agreement between the parties regarding the approval of plans and material and the prices of the material were going up day by day and the plaintiff was more in need of the buildings than in need of money. Therefore, in those circumstances, in that case the specific performance of the contract was granted. But that case is not applicable to the facts before me.
(15) DEFENDANT’S contention as regards the contract between the parties is that the contract between the parties is vague and uncertain. Admittedly, the plaintiff has entered into a contract with the defendant and on the same day, i.e. on 23.11.1993 two documents are obtained by the plaintiff from the defendant. In the first Memorandum of Understanding the plaintiff had taken up the contract of constructing a building at his own cost and in lieu of the said construction he was to get half portion of the constructed building and he was also to pay additional amount of Rs.15,00,000.00 to the defendant. Whereas, in the collaboration agreement there are merely other details as to how the construction was to be carried out and how the plaintiff was to be given half portion of the property but instead of the amount of Rs.15,00,000.00 the defendant was to get only Rs.7,00,000.00 . It is very pertinent to note that in the plaint plaintiff has not at all explained or stated as to how this ambiguity regarding the payment of money is appearing in the two documents. No doubt, counsel for the plaintiff urged before me at the time of arguments that as the defendant wanted better construction and as the plaintiff was to pay for the conversion of the leasehold property which was to come to her share, there was reduction in the amount. But if the two documents are read together it is very difficult to hold that by the second document the plaintiff had agreed to give any better construction. The second document is only giving more details of the construction and by reading both the document it is not at all possible to hold prima facie that by the second document plaintiff had agreed to give better and superior construction than to which he had agreed in the first document. Similarly, by reading both the documents it is also not possible to hold that in the first document there was no agreement regarding payment of the conversion charges for the portion which was to come to the share of the defendant.
(16) If the document of Collaboration Agreement dated 23.11.1993 is read carefully then it would be quite clear that in the said document there is no mention as to on what date the defendant was to hand-over possession of the property to the plaintiff. If the said document is read carefully then it would be quite clear that there is a vacant place as regards the date on which the defendant was to put plaintiff in possession of the property. When the plaintiff was to raise the construction there must be an agreement between the parties that the plaintiff was to be put in possession on a particular date. This agreement of the year 1993 is not at all executed till November 1995 in any manner. In the natural course of conduct, plaintiff would have issued notices or written letters to the defendant asking her to hand over the possession of the house. When there is no agreement between the parties as to on what date the possession was to be given to the plaintiff the said agreement becomes uncertain. No doubt in the agreement it has been mentioned that the plaintiff was to complete the construction within 12 months from the date of handing over the possession of the property and in case he failed to complete the construction within 12 months then he would also have to pay penalty at the rate of Rs.500.00 per day. But merely because there is that agreement between the parties it could not be said that there was agreement between the parties as to on what date the plaintiff was to be put in possession of the property in question by the defendant.
(17) It must be further mentioned here that if the collaboration agreement is read then it would be quite clear that in the agreement though the rooms are mentioned their measurements are not given. Similarly, no plans are attached to the collaboration agreement in question. Similarly, while giving the fixtures which are mentioned in Annexure ‘A’ to the said collaboration agreement it has not been specified as to how many fixtures were to be in different rooms. Even while mentioning the description of the room or number of rooms what has been mentioned is about the giving of the rooms to the defendant in her half portion but there is no mention as to what rooms were to be built in the portion which was to go to the share of the defendant.
(18) It must be further mentioned that in the collaboration agreement it is not also mentioned as on what date the plans were to be prepared by the plaintiff and when they were to be submitted to the public authorities for getting their approval. Alongwith the above contents of the collaboration agreement the conduct of the plaintiff will have to be taken into consideration in order to see as to whether the plaintiff is to be granted the specific permance of the contract in question and to get the ad in trim injunction, as sought for. At the cost of repetition it must be stated that plaintiff has not issued any notice or any letter calling upon the defendant to put him in possession of the property so as to perform his part of the contract. Plaintiff has not entered into transaction with anybody for the sale of the portion of the property which was to come to his share on the construction though the collaboration agreement between the parties says that he was entitled to enter into such transaction and the defendant was to join him in executing the said trnsaction. As the plaintiff has not entered into transaction with anybody else it could not be said that any third party interest is involved in the case. At the cost of repetition it must be stated that plaintiff is only a builder and his interest in the contract would only be that of profiting, i.e. earning money from the transaction in question.
(19) Admittedly, the defendant has terminated the contract in question with the plaintiff by issuing a notice on 2.11.1995. It is alleged by the defendant that plaintiff was not ready to perform his part of the contract and he had entered into a transaction with Neelkanth Construction of transferring the rights under this contract, contrary to the terms of the collaboration agreement between the parties. As against this, no doubt, it is the contention of the plaintiff that he was ready and willing to perform his part of the contract. He also denies of having entered into any transaction with Neelkanth Construction. But at this juncture it is not necessary for me to go into this controversy between the parties. Even assuming that plaintiff was ready and willing to perform his part of the contract, in view of the nature of transaction between the parties and the position of the plaintiff as well as the conduct of the plaintiff I hold that plaintiffs case is governed by Section 14(l)(a) of the Specific Relief Act.
(20) Defendant has already entered into a contract with third person, viz. one Ajit Singh and Mrs. Mangat Kaur, and put them in possession of the property. They have already demolished the old construction. If that position is taken into consideration then it would be quite clear that third party interest is already involved in this case. Therefore, balance of convenience lies more in favour of the defendant than the plaintiff. Learned counsel for the plaintiff vehemently urged before me that as per the claim of the defendant that transaction with a third person has taken place on 15.11.1995 and the position that plaintiff has filed S.2673/95 on 15.11.1995, the defendant should not be permitted to raise any construction on the same. Plaintiff himself has admitted that the building standing on the suit property was in a very dilapidated condition and it was also badly maintained and the defendant wanted new and modern construction and plaintiff had entered into transaction in November 1993 and till November 1995 he was not even pressing the defendant to put him in possession of the property so as to start the construction work. the final decision of this suit is not likely to take place within 5/6 years in view of the pendency of the suits in this Court. The defendant has already entered into a transaction with third person, a builder and has also put the builder in possession of the property, the .plaintiff being merely a constructor and has entered into a transaction of constructing the building, it could not be said that by allowing the defendant to raise the construction in question any irreparable loss or injury would be caused to the plaintiff. At this juncture, it is not necessary for me to go into the question as to whether the transaction between the defendant and the third party alleged to have taken place on 15.11.1995 is hit by the provisions of Section 52 of the Transfer of Property Act or not. If the defendant and the third party are taking the risk then they will face the consequences of the same but the balance of convenience does not lie in favour of the plaintiff so as to restrain the defendant, who is without the construction of the building, for years to come. As against this, if the injunction is not granted the plaintiff will get the monetary benefit if he ultimately happens to succeed in the suit.
(21) Therefore, in view of the above discussion I hold that this is not a fit case for using my discretion for granting ad-interim injunction in favour of the plaintiff in view of my finding that the transaction between the parties was purely a transaction of construction and that plaintiff could be adequately compensated by money decree.
(22) I, therefore, reject this interim application, viz. IA.590/96 with no order as to costs.