Holding

A higher court cannot disturb concurrent findings of lower courts rejecting an injunction unless those findings are perverse or arbitrary; in this case, the findings were sound and the balance of convenience opposed an injunction, so the appeals were dismissed.

Summary

ECE Industries Ltd., the plaintiff‑appellant, entered into a Development Agreement with S.P. Real Estate Developers for the construction of 1,800 apartments on a land parcel in Hyderabad. The respondents allegedly breached the agreement but proceeded with substantial construction, investing crores of rupees, and later deposited the full contract amount. The plaintiff sought injunctions under Order 39 Rule 1 & 2 read with Section 151 of the CPC to restrain further construction and alienation of the property. Both the trial court and the High Court, after examining an Advocate Commissioner’s report, found that substantial construction had already been completed and consequently refused the injunction, though the High Court modified some procedural directions. The Supreme Court held that when two lower courts concurrently reject an injunction, a higher court may interfere only if those findings are perverse or arbitrary; here they were not, and the balance of convenience lay against granting an injunction. Accordingly, the appeals were dismissed, leaving the lower courts' orders intact.

Issues considered

When can a higher court interfere with concurrent findings of lower courts rejecting an injunction?
Whether an injunction should be granted when substantial construction has been completed and the plaintiff has received the contract amount?
How does the balance of convenience affect the grant of an injunction under Order 39 and Section 151 CPC?

Legislation cited

Code of Civil Procedure, 1908s. Order 39 Rule 1, s. Order 39 Rule 2, s. Section 151

Subjects

injunctionOrder 39Section 151balance of convenienceconcurrent findingsperverse findingscivil appealdevelopment agreementpossession suitconstruction

Judgment

.'W
[2009] 12 S.C.R. 566

A ECE INDUSTRIES LIMITED t ~

v.
S.P. REAL ESTATE DEVE!.,.OPERS P. LTD. & ANR.
(Civil Appeal Nos. 5127=5128 of 2009)

AUGUST 6, 2009
8
[TARUN CHATTERJEE AND R.M. LODHA, JJ.]

Code of Civil Procedure, 1908 - 0. 39 r. 1 and 2, s. 151
- Application for injunction under - Rejection by two courts
.., .
c concurrently - Interference with - Held: Third court can
interfere with the concurrent findings only when findings are
perverse or arbitrary - On facts, courts below refused to grant
injunction in favour of appellant from making any further
construction in suit property - Findings of High Court and trial
D court as also report of Advocate Commissioner appointed by
Supreme Court were to the effect that substantial construction
has already bee1 made by respondent for which crores of
. ,

rupees have been spent - Respondent has deposited the
entire agreement amount though belatedly - Appellant will
E not suffer any substantial injury and balance of convenience
lies against granting order of injunction - Thus, order of courts
below justified - However, respondent would not claim
equities over construction made. ._ '

In these appeals, thei order of High Court upholding
F the order of the triii\I court whereby it refused to grant the
order of injunction restraining the respondent from
making further construction in the suit property, is under
challenge.

G Dismissing the i'lppeals, the Court .,.
HELD: 1.1. When two courts concurrently reject the
application for injunction, it would not be open for the
....
third court to interf@re with the said concurrent findings
H 566
EGE INDUSTRIES LTD. v. S.P. REAL ESTATE 567
DEVELOPERS P.LTD .
., . -+
until and unless it is brought to the notice of the third A
court that such findings are perverse or arbitrary; [Para
12) [576-A-!3]

1.2. As regard the construction on the suit property,
the trial court came to the finding that as per the report B
of the commissioner and also as per the photographs
produced that major construction work was undertaken
and completed, and it must have required the respondent
1+ to invest crores of rupees. High Court came to the finding
that the defendants/respondents have already taken over
possession and made substantial construction. These C
are the two concurrent findings of fact arrived at by the
High Court as well as by the trial court on the question
of extent of construction on the suit property. [Para 12]
[576-E-F]
D
1.3. In order to be satisfied on the question of
construction in the suit property, Advocate
Commissioner was appointed by this Court. A perusal of
the report shows that out of 1800 flats to be constructed
in the suit property in 8 Blocks, only in 295 apartments E
in the Triangular area, work has not been started,
whereas in the rest 1,555 apartments in 5 Blocks, work.
is in progress at various stages. It is evident from the
report that substantial progress has been made in the
matter of construction on the suit property. Therefore, in
F
view of the concurrent findings of the courts below and
also from the findings arrived at by the Advocate
Commissioner appointed by this Court in his report, it is
held that substantial construction has been made. [Paras
13, 15 and 17] [576-D; 577-G-H; 578-A, E-F]
G
1.4. The Development Agreement-cum-General
Power of Attorney was entered into by the defendants/
respondents with the plaintiff-appellant and as per the
terms and conditions, parties agreed that a sum of Rs.
13.50 crores had to be paid besides 16.72 crores for the H
568 SUPREME COURT REPORTS [2009] 12 S.C.R.

A service of consultancy and Rs. 28,36,175/- was the cost, +•
which comes to Rs. 30.50 crores. It was further agreed
that it was only after the payment of the amount agreed
upon, necessary documents were to be executed. Under
the Agreement, the defendants/respondents had to
8 furnish bank guarantee in regard to the amount stated to
have been paid in four cheques. It is true that the
respondents, after paying the first installments had failed
to pay the other installments payable within the time
specified, under the agreement, but it is an admitted
C position that although, the deposits were belatedly made
but the entire amount under the Agreement has already
been deposited and in compliance with the Agreement,
a Bank Guarantee has also been furnished. [Para 18)
[578-G-H; 579-A-E]

D 1.5. Substantial construction has been made on the ....
suit property in respect of which crores of money have
been invested by the defendants/respondents and since
the defendants/respondents have already paid/deposited
the amount payable in terms of the agreement, although
E belatedly, to the plaintiff/appellant, the plaintiff-appellant
will not suffer any substantial injury if the construction
work is not stopped by an order of injunction. The Court 1 •
will not, as a matter of course, pass an order of injunction
against the other party restraining the other party from
F raising any construction on the suit property till the
disposal of the suit. If ultimately, the suit filed by the
plaintiff-appellant is decreed, he can be compensated in
damages or the defendants/respondents may be directed
to pull down the construction and deliver vacant
G possession to the appellant when no equity can be
claimed for such construction by the respondents. On
the other hand, if at this stage, an order of injunction is
granted against the defendants/respondents from
proceeding with further construction in the suit property,
H it will undoubtedly destroy the constructions already
ECE INDUSTRIES LTD. v. S.P. REAL ESTATE 569
DEVELOPERS P.LTD.
• 1 made by the defendants/respondents and the A
defendants/respondents will suffer irreparable loss and
injury for not allowing them to make construction on the
suit property. That apart, the entire amount payable by
the defendants/respondents having been paid/deposited
in favour of the plaintiff/appellant, there is no reason to B
pass an order of injunction against the defendants/
respondents when the plaintiff/appellant would not face
substantial injury for permitting the defendants/
' + respondents to proceed with the construction in the suit
property. [Para 19] [579-E-H; 580-A-E] c
1.6. The balance of convenience lies against granting
an order of injunction, which, if granted, will substantially
and irreparably injure and prejudice the defendants/
respondents. The High Court was fully justified in
upholding the order of the trial court refusing to grant any D
order of injunction in favour of the plaintiff/appellant.
[Para 20] [580-F-G]

1.7. When the High Court as well as the trial court had
refused to grant injunction in favour of appellant based E
on consideration of materials on record and after
considering the balance of convenience and
inconvenience of the parties and when such findings of
the High C()Urt as well as of the trial court does not suffer
from any perversity or arbitrariness, it is not open to F
interfere with such order of the High Court as well as of
the trial court. [Para 21] [580-G-H; 581-A]

1.8. The trial court, while refusing to grant injunction
in favour of the plaintiff/appellant gave certain directions
to the defendants/respondents. Clause Nos. 1 and 2 as G
regard depositing the balance value of the property; and
to furnish bank guarantee for the value of the unrealized
post dated cheques need not remain as they have
already been complied with by the defendants/
H
570 SUPREME COURT REPORTS [2009] 12 S.C.R.

A respondents. Clause No. 3 that the defendants/
I "
respondents shall not claim equities over the
construction made in the suit property and they would
be bound by the decision in the suit, shall remain.
Furthermore, the defendants/respondents, as directed by
B the trial court, shall furnish particulars of the prospective
buyers of the residential units In advance to the
Competent Authority/Urban Land Celling. [Para 22] [581·
8-D]

C CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5127-5128 '>f 2009.

From the Judgment & Order dated 27.04.2009 of the High
Court of Judicature Andhra Pradesh at Hyderabad in Civil
Miscellaneous Appeal Nos. 1297, 1298 of 2008.
D
R.F. Nariman, Dr. A.M. Singhvi, Akhil Sibal, Ajay
' '
Bhargava, Vanita Bhargava (for M/s. Khaitan & Co.) Ananga
Bhattcharyya, J. Mohan Reddy, Bupender Mahendra, Aribam
Guneshwar Sharma, G. Ramakrishna Prasad for the appearing
E parties.

The Judgment of the Court was delivered by

TARUN CHATTERJEE, J. 1. Leave granted.

F 2. These two appeals have been filed from a common
order passed by the High Court of Andhra Pradesh at
Hyderabad, by which the High Court had affirmed an order of
the Second Additional City Civil Judge at Hyderabad, disposing
of an application for injunction filed at the instance of the
plaintiff-appellant on two applications for injunction in a suit for
G recovery of possession and damages. The plaintiff/appellant
alleged in their plaint that they are the owner of 67,824.50 sq.
yards of land, situated at Borabanda, Fathenagar, Ashok Marg, •
Hyderabad (hereinafter referred to as the suit property). The
plaintiff-appellant as well as the defendants/respondents
H executed a Development Agreement cum Power of Attorney
ECE INDUSTRIES LTD. v. S.P. REAL ESTATE 571
DEVELOPERS P.LTD. [TARUN CHATTERJEE, J.]
on 21st of September, 2007. Under the said Agreement, the A
-( 1
defendants/respondents agreed to pay an aggregate sum of
Rs. 30.50 crores in the following manner :-

(i) Rs. 13.50 crores by way of non-refundable amount.

(ii) Rs. 16. 72 crores for utilizing the consultations, advice B
and services of the petitioner over the suit property along
with service tax o the said amount for which invoices had
been raised by the plaintiff/appellant.
~ __,
(iii) Rs. 28,36,525/- towards the cost of land. c
3. It is the case of the plaintiff-appellant that since the
defendants/respondents had acted in breach of the agreement,
the same was duly terminated. Some of the breaches of the
agreement in question, as alleged by the plaintiff/appellant, are
as follows :- D
f "
(i) The respondent No. 1 issued 12 post dated
cheques for a total sum of Rs. 16. 72 crores - 11
post dated cheqeus for Rs. 1.40 crores each and
one post-dated cheque for a sum of Rs. 1.32. E
Crores.

( (ii) The respondent did not furnish a Bank Guarantee
f I
for the amqunt of Rs. 16.72 crores and also did not
pay the service tax payable on the said. amount. \
F
(iii) Out of the 12 post dated cheques given by the
Respondent. 2-cheques were· honoured~ 4 of Rs. 1.4
crores each were dishonoured on presentation and
balance cheques were not presented.
,. G
)(
(iv) The respondent no. 1 did not carry out construction
in accordance with the sanctioned scheme.

(v) The respondents entered into agreement with third
parties without furnishing any details thereof.
H
572 SUPREME COURT REPORTS [2009] 12 S.C.R.

A (vi) The respondents were selling dwelling units to
I '
persons who cannot be termed as members of the
weaker sections of thE? society."

4. Since the agreement was terminable and when it was
found by the plaintiff-appellant that the defendants/respondents
8
were proceeding to change the nature and character of the suit
property, a suit has been filed by the plaintiff/appellant for
recovery of possession and damages.

5. In the aforesaid suit, two applications for injunction under
C Order 39 Rule 1 and 2 read with Section 151 of the Code of
Civil Procedure were filed by the plaintiff-appellant. In one
application, the main relief that was claimed by the plaintiff-
appellant was to restrain the defendants/respondents from
alienating or transferring the suit property including the structures
D coming up thereon and in the other, for injunction over the suit
property from changing the nature and character thereof
pending disposal of the suit.

6. While dealing with the applications for injunction, the
E Second Additional City Civil Judge at Hyderabad had
appointed an Advocate Commissioner to find out the extent of
construction raised by the defendants/respondents in the suit
property as the plaintiff-appellant sought to contend that there
was no construction at all in the suit property. The Advocate
Commissioner appointed by the trial Court submitted his
F report, which is already on record. While deciding the
applications for injunction, the said report was taken into
consideration by the trial Court and after hearing the learned
counsel for the parties, the trial Court was prim a facie satisfied
that substantial construction was undertaken and completed by
G the defendants/respondents, which had required them to invest
crores of rupees. The trial Court, considering this fact that
substantial construction was completed, refused to grant an
order of injunction in favour of the plaintiff-appellant from making
any further construction in the suit property but the applications
H
ECE INDUSTRIES LTD. v. S.P. REAL ESTATE 573
DEVELOPERS P.LTD. [TARUN CHATTERJEE, J.]
.. t for injunction were, however, disposed of with the following A
conditions :-

"(1) That the defendants/respondents shall deposit the
balance value of the property, which comes to around Rs.
28,00,0001- into Court within one month. B
(2) That it shall furnish bank guarantee for the value of the
unrealized post dated cheques, and pay/deposit the value
j
of four cheques, which were dishonoured, within one
'1
month from today.
c
(3) That the defendants/respondents shall not claim "
equities over the construction made in the land and they
are bound by the decision in the suit. The Defendants/
respondents shall furnish the particulars of the prospective
buyers of the residential units in advance to the Competent D
~· ~ Authority/Urban Land Ceiling, and it must be made clear
to the prospective buyers that their purchases are subject
to the result of the suit by making a 'specific recital' in the
agreement of sale or sale deed, as th·e case may be,"

7. Aggrieved by the order of the trial Court, two appeals E
were preferred by the plaintiff/appellant before the High Court
. )
1
of Andhra Pradesh at Hyderabad, which by the impugned
order, had affirmed the order of the trial Court on the question
of construction in the suit property, but set aside the directions
given by the trial Court so far as Clause Nos. 1 and 2, as F
mentioned above, are concerned in the order of the trial Court.
It is these concurrent orders, which are now under challenge
before us in these appeals.

- 8. At the time of admission of this matter, caveat had
,-already been filed by the defendants/respondents. In that view
of the matter, we fixed the hearing of the matter on 22nd of July,
2009. While hearing the petitions on merits, Mr. R. F Nariman,
G

learned senior counsel appearing for the plaintiff/appellant,
invited us to the report of the Advocate Commissioner and after
H
574 SUPREME COURT REPORTS (2009] 12 S.C.R.

A taking us through the same, sought to contend that in fact, no ••
construction has been made by the defendants/respondents
and, therefore, in view of the admitted fact that the agreement,
having been already cancelled, the defendants/respondents
cannot be permitted to proceed with the construction on the suit
B property and the application for injunction, therefore, must be
allowed. On the other hand, Dr. A. M. Singhvi, learned senior
counsel appearing for the defendants/respondents also took us
to the report of the Advocate Commissioner and other
materials on record and at the same time, also had produced
,. .
c recent photographs, which were not produced in the Courts
below and contended that the High Court was fully justified in
affirming the orders of the trial Court inter alia holding prima
facie that a substantial construction has already been made in
the suit property, for which the defendants/respondents have
0 invested huge sum of money and in that view of the matter, the
question of grant of injunction at this stage could not arise at ) '
all.

9. After hearing the learned senior counsel for the parties
and after going through the Advocate Commissioner's report
E and the impugned order of the High Court as well as of the trial
Court, application for injunction and counter filed to the same,
we were of the prima facie view that before deciding these . ;

appeals finally on merits, it would be for ends of justice to find
out the actual position of the suit property and for that reason,
F we appointed an Advocate Commissioner from this Court by
our Order dated 23rd of July, 2009, who would inspect the suit
property and submit a report by 27th of July, 2009 on the
following points :-

(i) Whether constructions have been made on the
G
different blocks of the suit property and how many * -
blocks are still remaining vacant ?

(ii) · If constructions have been made, what is the nature
and extent of such constructions ?
H
ECE INDUSTRIES LTD. v. S.P. REAL ESTATE 575
DEVELOPERS P.LTD. [TARUN CHATIERJEE, J.]

i 1
(iii) Whether such constructions can be said to be A
substantial constructions or not ;

(iv) Whether constructions have been completed in
some blocks of the suit property and the flats
constructed in such blocks are ready for use and
B
occupation ;

(v) · Also to see the local features.

• -f 10. Accordingly, the learned Advocate Commissioner
visited the spot and submitted his report, which was also taken c
up for consideration along with the main matter. The report of
the Advocate Commissioner may be kept on record.

11. On behalf of the plaintiff-appellant, Mr. Nariman, learned
senior counsel, submitted that even from the report submitted
D
by the Advocate Commissioner appointed by this Court, it
~ '>(
would be clear that substantial construction has not been made
in the suit property, whereas Dr. Singhvi, learned senior
counsel, also has drawn our attention to the report of the
Advocate Commissioner of this Court and submitted that there
cannot be any doubt that a substantial construction has already E
been made by the defendants/respondents, for which a huge
sum of money has already been invested. On the question of
I I
extent of construction made by the defendants/respondents in
the suit property, we have, therefore, considered the findings
of the High Court as well as of the trial Court and also the report F
submitted by the learned Advocate Commissioner in this Court.
The High Court as well as the trial Court concurrently found, after
going through the report of the Advocate Commissioner, which
was appointed by the trial Court, that substantial construction
has already been made in the suit property. Since no objection G
_.,..
was raised by either of the parties to the report of the learned
Advocate Com·missioner, we accept the same without any
objection and direct that the same may be kept on record.

12. It is well settled now by catena of decisions of this
H
576 SUPREME COURT REPORTS [2009] 12 S.C.R.

A Court that when·two Courts concurrently rejected the application
for injunction, it would not be open for the third Court to interfere
with the said concurrent findings until and unless it is brought
to the notice of the third Court that such findings are perverse
or arbitrary. So far as the findings of the trial Court regarding
B construction on the suit property is concerned, let us look into
its said findings on the question of construction, which are as
follows :-

"In the light of the above circumstances, I find that, already
as per the report of the commissioner and also as per
c the photographs produced by him, major construction
work was undertaken and completed, it must have
required the respondent to invest crores of rupees."

13. So far as the findings of the High Court on the question
D of extent of construction is concerned, it is also the finding of
the High Court that the defendants/respondents have already ••
taken over possession and made substantial construction, as
would be evident from the record and also from the report of
the Advocate Commissioner, who was appointed by the trial
E Court. These are the two concurrent findings of fact arrived at
by the High Court as well as by the trial Court on the question
of extent of construction on the suit property. Still, in order to
be satisfied on the question of construction in the suit property, I '
as noted herinearlier, we appointed an Advocate
F Commissioner, who submitted its report.

14. We have carefully examined the report of the Advocate
Commissioner appointed by us, from which, following points
may be noted :

G "4. The Defendants/respondents' Counsel had supplied the
layout of the site plan of the project. Principally, the entire
project is divided into 8 Blocks. The plan for construction
of 8 Blocks is approved by the authorities. A photocopy
of the approved site plan of the project is annexed as
H
ECE INDUSTRIES LTD. v. S.P. REAL ESTATE 577
DEVELOPERS P.LTD. [TARUN CHATTERJEE, J.]

Annexure C-2. Each Block is divided into various Rows. A
There is no evennes\) in the number of Rows for each
Block. Some Blocks have more Rows and some Blocks
have less Rows. The Blocks are numbered in the site plan
attached herewith as Annexure C-3. For better
understanding and for better description of the areas in the B
Blocks, I had given numbers for the Rows in each Block
separately in the site plan. The layout is as under :

1. Block- I 2 Rows (60 Apartments) 295
2. Block - II 2 Rows (150 Apartments) Apartments c
in the

3. Block-Ill 2 Rows (85 Apartments) Triangular
area. Work
has not been
D
started.

4. Block- IV 6 Rows (330 Apartments)
5. Block-V 7 Rows (385 Apartments) 1,555
E
6. Block-VI 2 Rows (240 Apartments) Apartments

7. Block-VII 6 Rows (300 Apartments) in the

8. Block-VIII • 6 Rows (300 Apartments) Rectangular
area. Work in F
progress at
various stages.

5. It is stated that each Block will have ground floor (car
park) + 5 floors."
G
15. A perusal of the report of the learned Advocate
Commissioner therefore shows that out of 1800 flats to be
constructed in the suit property in 8 Blocks, only in 295
apartments in the Triangular area, work has not been started,
H
578 SUPREME COURT REPORTS [2009] 12 S.C.R.

A whereas in the rest 1,555 apartments in 5 Blocks, work is in ••
progress at various stages. Therefore, it is evident from the
perusal of the report of the Advocate Commissioner filed in this
Court that substantial progress has been made in the matter
of construction on the suit property as it is evident that such
B substantial construction has been completed at least 50% in
the rectangular pieces of the suit property whereas work for
Blocks IV to VIII are going on except Row Nos. 3 to 6 in Block
No. VII where there is a mound of soil to a height of about 2
floors and also boulders of granite rock cut into rectangular
,,.
'
c pieces of identical sizes lying in the area. It is also found from
the report that the constructions have been completed in Row
Nos. 1 and 2 in Block No. VIII.

16. Apart from that, 98% of the work is also completed on
1st, 2nd and 3rd floors of Row Nos. 1 and 2 of Block No. VIII.
D Since the roads have not been laid and the parking has not
been made available, according to the learned Advocate
r • --
Commissioner, the purchasers would not be in a position to
occupy the flats. So far as other Blocks are concerned, the
learned Advocate Commissioner was of the view that huge
E construction activity on a war-footing basis is under-way in
respect of the disputed area which includes Blocks- IV to VIII.
;
17. Therefore, in view of the concurrent findings of the. '
Courts below and also from the findings arrived at by the
Advocate Commissioner appointed by this Court in his report,
F
we cannot but hold that substantial construction has been made
and therefore, the submission of Mr. Nariman that substantial
construction has not been made, cannot be accepted.

18. Keeping this in mind, let us now proceed to consider
G whether substantial injury would be faced by the plaintiff- ,,.
appellant in the event an order of injunction is not granted to
them. As noted hereinearlier, the Development Agreement-cum-
General Power of Attorney was entered into by the defendants/
respondents with the plaintiff-appellant and as per the terms
H
ECE INDUSTRIES LTD. v. S.P. REAL ESTATE 579
DEVELOPERS P.LTD. [TARUN CHATTERJEE, J.]
~ .. and conditions, parties agreed that a sum of Rs. 13.50 crores A
had to be paid besides 16. 72 crores for the service of
-· consultancy and Rs. 28,36, 175/- was the cost, which comes to
Rs. 30.50 Crores. It was further agreed that it was only after
the payment of the amount agreed upon, necessary documents
were to be executed. That apart, under the Agreement, the B
defendants/respondents ~ad to furnish bank guarantee in
regard to the amount stated to have been paid in four cheques.
In the plaint as well as in the application for injunction, it was
' -+ alleged by the plaintiff-appellant that the defendants/
respondents, after paying first installment, had failed to pay the c
balance installments as agreed upon by them because of an
' the
order of injunction obtained by the plaintiff/appellant'agajnst
defendants/respondents in a writ petition filed by therlj in the
High Court of Andhra Pradesh at Hyderabad. It is true that the
defendants/respondents, after paying the first installment, had
., D
~
failed to pay the other installments payable within the time
specified, under the Agreement, but it is an admitted position
that although, the deposits were belatedly made but the entire
amount under the Agreement has already been deposited and
in compliance with the Agreef!1ent, a Bank Guarantee has also
been furnished. E

19. Such being the state of affairs, i.e. substantial
I
• construction has been made on the suit property in respect of
which crores of money have been invested by the defendants/
respondents and since the defendants/respondents have F
/ already paid/deposited the amount payable in terms of the
agreement, although belatedly, to the plaintiff/appellant, we do
not think that the plaintiff-appellant will suffer any substantial injury
if the construction work is not stopped by an order ot injunction.
1'
It is well settled that when construction has been made on a G
land, which is of considerable magnitude, and when the plaintiff
shall not face any substantial injury, if no order of injunction is
granted because of payment/deposit of the entire amount
payable by the defendant to the plaintiff under the Agreement,
H
580 SUPREME COURT REPORTS [2009] 12 S.C.R.

A though belatedly, we are of the view that the Court will not, as ••
a matter of course, pass an order of injunction against the other
party restraining the other party from raising any construction
on the suit property till the disposal of the suit. If ultimately, the
suit filed by the plaintiff-appellant is decreed, he can be
8 compensated in damages or the defendants/respondents may
be directed to pull down the construction and deliver vacant
possession to the plaintiff/appellant when no equity can be
claimed for such construction by the defendants/respondents.
+ •
On the other hand, in our view, if at this stage, an order of
c injunction is granted against the defendants/respondents from
proceeding with further construction in the suit property, it will
undoubtedly destroy the constructions already made by the
defendants/respondents and the defendants/respondents will
suffer irreparable loss and injury for not allowing them to make
construction on the suit property. That apart, in view of our
D • •
discussions made hereinabove, the entire amount payable by
the defendants/respondents having been paid/deposited in
favour of the plaintiff/appellant, there is no reason to pass an
order of injunction against the defendants/respondents when the
plaintiff/appellant would not face substantial injury for permitting
E the defendants/respondents to proceed with the construction in
the suit property.
• ,
20. Accordingly, in view of our discussions made
hereinabove, we are, therefore, of the view that the balance of
F convenience lies against granting an order of injunction, which,
if granted, will substantially and irreparably injure and prejudice
the defendants/respondents. For the reasons aforesaid, we are,
therefore, of the view that the High Court was fully justified in
affirming the order of the trial Court refusing to grant any order
G of injunction in favour of the plaintiff/appellant. '1"

21. That apart, in our view, when the High Court as well
as the trial Court had refused to grant injunction in favour of the
plaintiff/appellant based on consideration of materials on record

H
ECE INDUSTRIES LTD. v. S.P. REAL ESTATE 581
DEVELOPERS P.LTD. [TARUN CHATTERJEE, J.]

" -I and after considering the balance of convenience and A
inconvenience of the parties and when such findings of the High
Court as well as of the trial Court do not suffer from any
"'' perversity or arbitrariness, it is not open for this court to interfere
with such order of the High Court as well as of the trial Court.
B
22. However, there is one another aspect of the matter.
As noted hereinearlier, the trial Court, while refusing to grant
injunction in favour of the plaintiff/appellant, has given certain
; -i directions to the defendants/respondents, which have already
been noted hereinearlier. In view of the fact that the Clause Nos.
1 and 2 have already been complied with by the defendants/ c
respondents, those clauses need not remain. So far as Clause
No. 3 is concerned, it appears to us that the said clause should
remain, that is to say, the defendants/respondents shall not
claim equities over the construction made in the suit property

, - and they would be bound by the decision in the suit. D
Furthermore, the defendants/respondents, as directed by the
trial Court, shall furnish particulars of the prospective buyers of
the residential units in advance to the Competent Authority/
. Urban Land Ceiling as it must be made clear to the prospective
buyers that their purchases are subject to the result of the suit E
by making a 'specific recital' in the agreement of sale or sale
deed, as the case may be.
;. •
23. In view of our disi::ussions made hereinabove, we do
not find any merit in these appeals. F
· 24. We, however, make it clear that whatever observations
we have made while deciding these two appeals, would not
stand in the way of the Courts below from deciding the merits
of the suit and it is also made clear that the trial Court shall not
-r be influenced by any of the observations or findings made in G
this order or of the High Court, while deciding the application
,.. for injunction.

25. Considering the facts and circumstances of the present
case, we direct the trial Court to dispose of the suit at an early H
582 SUPREME COURT REPORTS [2009] 12 S.C.R.

A date, preferably within six months from the date of filing the •
written statement by the defendants/respondents. The
defendants/respondents are directed to file their written
statement within four weeks from this date, if not filed in the -
meantime.
B
26. The appeals are thus dismissed. There will be no order
as to costs.

N.J. Appeals dismissed.

-.

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