M/S.

JULIEN EDUCATIONAL TRUST

v.
SOURENDRA KUMAR ROY & ORS.
(Civil appeal No. 8081-8082 of 2009)
DECEMBER 02, 2009
[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]
[2009] 15 (ADDL.) S.C.R. 1260
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The following Order of the Court was delivered

ORDER

1. Leave granted.

2. The appellant herein, Julien Educational Trust, claims to be a

benevolent trust created by a registered Deed of Trust dated 30.07.1970 for
the purpose of encouraging education and other allied activities. It claims to
be registered under Section 12A of the Income Tax Act, 1961, and has its
registered office at 35E, Elgin Road, P.S. Bhowanipore, Kolkata-700020. The
appellant runs a reputed school, known as Julien Day School, at premises
No. 4, Umananda Road and 35E, Elgin Road, P.S. Bhowanipore, Kolkata-
700020, which are two adjacent premises. The respondents are the joint
owners of 15 Cottahs 8 Chittaks 29 square feet of land, including a three-
storied old dilapidated structure and garage and outhouses constructed
thereon, being premises No. 3/1, Heysham Road, Police Station
Bhowanipore, Kolkata.

3. Since the said land was adjacent to the school premises, the appellant
Trust was interested in purchasing the same for the purpose of expansion of
the school. Pursuant thereto, the appellant Trust entered into negotiations
with the Respondents for purchase of the property, which was orally
accepted by the Respondents jointly and serverally and the parties agreed
that the sale transactions would be completed in the follwing manner:–
 “(i) That the defendants will sell the suit property and the plaintiff shall
purchase the same on a total consideration price of Rs.
4,15,00,000/- (Rupees Four Crores fifteen Lakhs only).

(ii) That the defendant No. 1 shall get a sum of Rs. 1,55,00,000/-
(Rupees One Crore and fifty five lakhs) only towards the full and
final consideration price for sale of his undivided 1/3rd share in the
suit property upon execution and registration of the Deed of
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Conveyance in respect of his undivided share in the suit property.

(iii) That the defendant Nos. 2 and 3 shall jointly get a sum of Rs.
1,30,00,000/- (Rupees On Crore and Thirty Lakhs) only towards the
full and final consideration price for sale of their undivided 1/3rd
share in the suit property upon execution and registration of Deed of
Conveyance in respect of their undivided share in the suit property.

(iv) That the defendant Nos. 4,5 and 6 shall jointly get a sum of Rs.
78,00,000/- (Rupees Sevently eight Lakhs) only towards the full and
final consideration price for sale of their undivided 3/15th share in
the suit property upon execution and registration of Deed of
Conveyance in respect of their undivided share in the suit property.

(v) That the defendant Nos. 7 and 8 shall jointly get a sum of Rs.
52,00,000/- (Rupees fifty two lakhs) only towards the full and final
consideration price for sale of their undivided 2/15th share in the
suit property upon execution and registration of Deed of
Conveyance in respect of their undivided share in suit property.”

4. It appears that on account of an interim order of status-quo passed in a

First Appeal filed by one of the co-sharers, no written agreement for sale was
extent where the Respondents made over certified copies of their title deeds
to the appellant Trust in order to establish their right, title and interest over the
suit property. Thereafter, in terms of the oral agreement which had been
finalised between the parties, separate draft Deeds of Conveyance were sent
 by the appellant to the respondents in resepect of their undivided shares in
the suit property for their approval. It also appears that it was the further case
of the appellant that they had been informed by the respondents jointly and
severally that when the appellant was ready with the consideration amount,
appropriate steps would be taken to get the order of status quo vacated to
enable the parties to complete the transaction by executing and registering
the several Deeds of Conveyance, drafts whereof had already been
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forwarded to the respondents. It is on such account that the order of status

quo was vacated by the Court of 8th Civil Judge (Senior Division) at Alipore
by his order No. 205 dated 7th June, 2006.

5. The appellant also applied to the Inspector General and Commissioner

of Stamp Revenue, West Bengal, on 21st June, 2006, for exemption from
payment of stamp duty in registering the Deeds of Conveyance in respect of
the suit property. According to the appellant, the respondent No.1 approved
the draft Deed of Conveyance sent to him by putting his signatures thereon,
subject to some rectifications made by him in the said draft. Thereafter, the
final Deed of Conveyance in respect of the share of the Respondent No.1
was engrossed on stamp paper on 22nd June, 2006, but the said respondent
did not execute and register the same on the plea that in order to avoid
controversies amongst all the co-sharers, all the deeds of conveyance should
be executed simultaneously. Soon thereafter, the defendant Nos. 2 to 6 also
approved their respective draft Deeds of Conveyance which were also
engrossed on stamp paper, but again the same could not be executed and
registered as the respondent Nos. 7 and 8 delayed giving their approval to
the draft Coneyance Deeds sent to them.

6. On the other hand, the appellant Trust came to learn in the second
week of January, 2007, that the respondents were preparing to sell the suit
property to third parties. The appellant, thereupon, filed an application under
Section 144 (2) of the Code of Criminal Procedure before the First Executive
Magistrate, at Alipore, being M.P. Case No. 82 of 2007, where an order was
 passed on 17th January, 2007 directing the Officer-in-Charge of the Police
Station to see that no untoward incident was perpetrated by the respondents
on the suit premises. In addition to the above, the appellant also filed a suit
for specific performance, being Title Suit No. 10 of 2007, in the Court of the
4th Civil Judge (Senior Division) at Alipore, District 24 Parganas (South),
West Bengal, inter alia, for the following reliefs:

“(a) a Decree of Specific Performance of the Agreement for sale between

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the Plaintiff and Defendants and added Defendants by directing the

Defendants and added Defendants to execute registered Deed of
Conveyance in respect of the suit schedule property.

(b) a Decree of possession of the suit property.”

7. In the said suit, the appellant filed an application under Order 39 Rules
1 and 2 read with Section 151 of the Code of Civil Procedure for an order of
injunction to restrain the defenants/respondent from selling, encumbering
and/or otherwise alienating and/or changing the nature and character of the
suit schedule property during the pendency of the suit. An ad-interim order on
the said terms was prayed for which was refused by the trial Court. Against
such refusal, the appellant preferred appeal in the High Court, being FMAT
No. 490 of 2007. Initially, on 9th March, 2007, the High Court passed an ad-
interim order of injunction against the Respondent Nos. 1 to 8. Subsequently,
on being informed by the said respondents that the suit properties had been
transferred to the Respondent Nos. 9 to 11 by registered Deeds of
Conveyance dated 11th December, 2007, and 3rd January, 2008, the
Division Bench upon holding that the order of injunction had become
infructuous against the said respondents, vacated the same.

8. Thereafter, the plaint was sought to be amended by adding the

Respondent the Respondent Nos. 9 to 11 as parties and a fresh application
was made on behalf of the appellant to restrain the said added respondents
from alienating, encumbering and/or changing the nature and character of the
 suit property. Simultaneously, an application was filed by the added
respondents under Order 7 Rule 11 of the Code of Civil Procedure, which
came to be dismissed, while the application of the appellant Trust under
Order 39 Rules 1 and 2 CPC was allowed on contest on 16th January, 2008,
against which an appeal was preferred by the respondents on 15th May,
2008. In appeal, the High Court set aside the order of injunction passed by
the Trial Court with the result that the suit for specific performance filed by the
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appellant was rendered practically infructuous. This appeal has been filed
against the order of the High Court setting aside the order of injunctions
passed by the Trial Court.

9. Appearing for the appellant Turst, Mr. Pradip Kumar Ghosh, learned
Senior Advocate, submitted that Division Bench of the High Court had erred
in holding that the appellant had failed to prove the existence of a concluded
contract which was capable of being specifically enforced. Mr. Ghosh
submitted that taking advantage of the order of status quo which had been
passed upon an appeal filed by one of the co-sharers, the respondents had
persuaded the appellant Trust not to insist upon a written agreement of the
terms agreed upon for sale of the suit property. However, enough material
had been produced before the Court to establish the case of the appellant
that an oral agreement for sale had been arrived at and finalised between the
parties. Mr. Ghosh urged that pursuant to the finalisation of the terms and
conditions of the sale, draft deeds of conveyance were prepared in respect of
each co-sharer and sent by the appellant Trust to the said respondents for
approval. Except for the Respondent Nos.7 and 8, the other Respondent Nos.
1 to 6 had duly approved and consented to the draft which had been sent to
them. As a result whereof, the same were engrossed on stamp paper for the
purose of execution and registration. Although, the Deed of Conveyance of
the Respondent No.1 was finalised first, he did not execute and register the
same on the plea that the Deeds of Conveyance of all the co-sharers should
be executed and registered simultaneously. However, because of the failure
 of the Respondent Nos.7 and 8 to return the approved drafts, the sale deeds
were not executed, and, on the other hand, the appellant came to learn that
the Respondents were planning to sell the property to the third parties.

10. Mr. Ghosh urged that all the steps that were required to be taken for
the completion of the sale transaction had been taken by the appellant, but it
was because of the avoidence of the respondents that ultimately the sale
deeds were not executed, although, they had been approved and were ready
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for execution and registration Mr. Ghosh urged that on the basis of the
evidence on record, a prima facia case had been made out to go to trial and if
the nature and character of the suit properties were allowed to be altered
during the pendency of the suit, the very purpose for which the appellant had
filed the suit for specifi performance would be rendered nugatory. Mr. Ghosh
emphasized that unless specific orders were passed to restrain the
respondents, and in particular Respondeent Nos. 9 to 11, from altering the
nature and character of the suit property, including the erection of
constructions thereupon, the appellant Trust would suffer irreparable loss and
injury which, in this particular case, could not be compensated in terms of
money.

11. Mr. R.F. Nariman, learned Senior Advocate, who appeared for the
subsequent purchasers and later on impleaded as Respondent Nos. 9 to 11,
submitted that at this stage of the proceedings, in the absence of any
evidence of would not be possible for this Court to arrive at a conclusion that
a concluded contract had been arrived at between the parties, particularly
when the case mde out on behalf of the appellant that the draft deeds of
converyance had been approved by the respondents, was strongly disputed.
Mr. Nariman urged that till such time as it was not established that the
handwriting and the signatures on the draft were those of the respondents, no
reliance could be placed on them. Mr. Nariman urged that had there been any
agreement between the appellant and the Respondent Nos. 1 to 8, there
would have been evidence of at least some amount being paid by way of
 earnest money. In this case, however, there is no evidence that even a single
farthing was paid by the appellant Trust to the respondents in pursuance of
the proposed agreement for sale.

12. Apart from the above, Mr. Nariman also submitted that even the
balance of convenience and inconvenience lay in favour of the respondents
since if an order of injunction was passed, as prayed for by the appellant, the
respondents would not be albe to utilise the land which they had purchsed till
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the disposal of the suit. On the other hand, if ultimately the appellant
succeeded, it could always be compensated in terms of money.

13. Mr. Kalyan Bandopadhyaya, learned Senior Advocate appearing for

the Respondent Nos. 1 to 8, adopted the stand taken by Mr. Nariman and
added that the appellant Trust had shown no interest in purchasing the suit
property since at no point of time had shown their readiness and willingness
to complete the sale transcation. The appellant Trust neither paid any amount
by way of earnest money nor had it ever intended to do so. As a result, it did
not lie in the mouth of the appellant Trust to seek a decree for specific
performance when it had failed to take any positive steps in that regard.

14. Since the suit for specific performance is pending before the trial
Court, we can consider the materials before us and the arguments advanced
only for the limited purpose of deciding the question of granting interim orders
during the pendency of the suit.

15. We are satisfied from the materials on record that a prima facie case
has been made out by the appellant Trust as to the argeement for sale which
has to go to trial. Whether there was a concluded contract or not between the
appellant Trust and the Respondent Nos. 1 to 8 is a matter of evidence and
can ony be gone into during the trial of the suit. This brings us to the all
important question as to whether the balance of convenience and
inconvenience lay in favour of the grant of an interim order of injunction in
 favour of the appellant Trust and as to whether the appellant Trust would
suffer irreparable loss and injury, if no such interim order was passed.

16. Although, it has been submitted by Mr. Nariman as well as Mr.

Bandopadhyaya that loss, if any, to the appellant Trust could be
compensated in terms of money, the said submission does not appear to hold
good in the instant case. Equally important is the question of balance of
convenience and inconvenience since the principal object of the appellant
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Trust in wanting to acquire the suit property was to extend its school unit at
Kolkata. If the suit property is allowed to be commercially exploited by raising
multi-storyed structures thereupon, the entire object of the suit filed by the
appellant Trust will be rendered meaningless and the purpose for which the
suit been filed would be completely defeated.

17. In such circumstances, we are of the view that this is one such case
where an interim order is required to be passed to maintain the status quo of
the suit for specific performance filed by the appellant Trust, but at the same
time appropriate directions should also be given so that the suit is disposed of
expeditiously. At this stage, it would not be appropriate on our part to express
any further opinion on the merits and demerits of the suits.

18. Having found a prima facie case in favour of the appellant Trust, it is
our view that in the light of the principles of balance of convenience and
inconvenience, interim relief should be granted to the appellant Trust.
Accordingly, we allow the appeals and set aside the order of the High Court
and direct that the respondents shall not alienate or encumber the suit
property or change the nature and character thereof till the disposal of the suit
for specific performance filed by the appellant Trust.

19. Having regard to the peculiar facts of the case, we would also request
the Trial Court to dispose of the suit as early as possible, but positively within
one year from the date of communication of this order. No unnecessary
 adjournments will be sought for or granted, so that the suit is disposed of
within the stipulated period.

20. We also make it clear that the observations made in this judgment
have been made only for the purpose of disposal of the application for interim
orders and should not influence the Trial Court in deciding the suit.

21. There will be no order as to costs.

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