What is meant by injunction? What are various kinds on injunctions?

Ans: Injunction is granted to prevent the breach of an obligation existing in favour of the plaintiff and against the defendant. The term obligation means a duty enforceable by law.  They can be classified into following kinds:

Basing on Nature: (a) Prohibitory   (b) Mandatory

Basing on time:     (a) Permanent or Perpetual     (b) Temporary

Other:                     Inherent Jurisdicton to grant Injunction.

Prohibitory Injunction: If an injunction prohibits the commission or continuance of an act it is known as prohibitory injunction.

Mandatory Injunction:  If an injunction prohibits the defendant to do a particular act and compel him to restore things to former condition or to do require acts.

Permanent or Perpetual: It is granted after the trial and forms part of the decree holding good without any time limit.It is governed by Specific relief Act,1963.

Temporary Injunction: It is an injunction granted to preserve the status quo pending trial and judgement. They are governed by O.39 R 1 and 2 C.P.C 1908.

(3) Inherent Jurisdicton to grant Injunction

What are the grounds for granting Permanent Injunction?

Ans: It is dealt u/S.38 of Specific Relief Act.The conditions are like this. Injunction is granted to prevent the breach of obligation existing in favour of the plaintiff and against the defendant. The term obligation means a duty enforceable by law.

Additional conditions: 1) There  exists no standard to ascertain the actual damage caused, or likely to be caused, by the invasion.

2) If  the invasion is such that compensation in money would not be affordable relief;

3) Injunction is necessary to prevent multiplicity of proceedings.

When Permanent Injunction shall not be granted?

Ans: S.41 says when Injunction shall not be granted. An injunction cannot be granted:-

(a) To restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restrain is necessary to prevent a multiplicity of proceedings.

(b) To restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought.

(c) To restrain any person from applying to any legislative body.

(d) To restrain any person from instituting or prosecuting any proceeding in a criminal matter.

(e) To prevent the breach of a contract the performance of which would not be specifically enforced.

(f) To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will  be a nuisance.

(g) To prevent a continuing breach in which the plaintiff has acquiesced;

(h) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

(i) When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court.

(j) When the plaintiff has a no personal interest in the matter. S.42:

If the contract consists of positive agreement and negative agreement, merely because court enforce positive agreement it doesn’t bar the court to enforce the specific performance of negative agreement.  However, plaintiff has to perform his part of contract so far as it is binding on him.

What are the grounds for granting Temporary Injunction? 

Ans: As per O.39 rule.1 CPC Temporary Injunction can be granted for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit.

It can be granted even against the plaintiff, if the Property in dispute is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree. As per Rule 2, the court can grant Temporary injunction restraining the defendant from repetition or committing continuance breach of contract or other injury provided suit is filed for such purpose.

Remedy available in the event of violation: As per Rule 2A: If there is disobedience or breach of order granted rule.1 & 2, the court may order attachment of property and may also order such person to be detained in civil prison for a term not exceeding three months.

The attachment made under this order shall not be in force for more than one year. If the disobedience or breach continues, the property attached may be sold and out of the proceeds, the court may award such compensation to injured party and balance to the party entitled.

What are the basic principles governing grant of temporary injunction? Elaborate.

Ans: The main object of granting temporary injuction is to protect the interests of the parties pending disposal of the suit.  Principles for granting or refusing to grant are:

1) Prima facie Case        2) Balance of Convenience       3) Irreparable loss

1) Prima facie case: The Petetioner has to make out a prima facie case. The Injunction petition allegations shall establilsh that act complained is a violation of right or is atleast an act which if carried into effect will necessarily result in violation of right.

2) Balance of Convenience: It means upon measuring convenience and inconvenience of the parties and the same may be equated with what had been left out after weighing the primafacie case of both sides.

3) Irreparable Injury: The petetioner will suffer irreparable injury in the event of non-granting injunction. Irreparable injury is one which is substantial which cannot be remedied by damages.

4) Conduct of the petitioner: Injunction being equitable and discretionary relief conduct is an important factor to be seen. The conduct can assessed from the facts like lack of bonafides, fraud, misrepresenation, suppression of material facts, acquiescence or delay.

Explain that when injunction can be granted to restain encashment of unconditional bank guarntee? 

Ans: The act of court shall not hamper free flow of financial transaction especially connected to the bank. Hence, generally, court should not interfere by way of injunction to prevent the beneficiary of a bank guarantee from enforcing the same. However, this principle cannot be extended to protect an unscruplous seller when there is a fradulent transaction and if fraud is pleaded and proved primafacie, temporary injunction can be granted in such a case.

Explain whether a mandatory injunction can be granted on an interlocutory application?

Ans: Mandatory Injunction is defined as an order requiring the defendant to do some positive act for the purpose of putting an end to wrongful state of things created by him or otherwise in fulfillement of his legal obligations.

Example: An order to pull down a building which he has created to the obstruction of the plantiff’s right etc.,

According to O.39 R1 and 2 R/W CPC the court has power to pass an order even in mandatory form if it is necessary to preserve the suit property from being destroyed or if such order is required to maintain status quo. If a mandatory injunction is granted at all on a interlocutory applicatioin, it is granted only to restore the status quo and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted. It was held by court in Nandan Pictiurews v/s Art Picturesd Ltd and others AIR 1956 CAL.  The court should exercise this power sparingly and with due care and caution.

Whether court has inherent powers to grant injunction?

Ans: Yes.  The inherent powers u/S.151 CPC can be exercised only in the absence of express provision under the Code.  As S.94 empowers the court to grant temporary injunction only in circumstances covered under O.39 CPC, the court can grant Temporary Injunction under inherent powers in those circumstances which are not covered under O.39 CPC. The party has a no right to insist the court to exercise the inherent jurisdiction and the courts exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. Monhar lal Chopra v/s Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC532.

What is meant by Specific Performance?

Ans: The term specific performance means demanding to do what was actually promised by the defendant.

Whether relief of Specific performance can be refused even though plaintiff could successfully establish his right under the contract?

Ans: S.20 says court refuse to grant decree for Specific performance even though plaintiff could successfully establish his right under the contract.  Thus relief of Specific performance is discretionary in nature. However, this discretion shall be exercised basing on well recognised principles and polices. They are:

1. If contract is specifically enforced it gives unfair advantage to the plaintiff over the defendant.
2. That the non-performance of the contract doesn’t involve any hardship to the plaintiff and whereas it cases hardship to the defendant.
3. It is inequitable to enforce specific performance.

What are the essential allegations to seek decree for Specific Performance?

Ans: The relief of Specific Performance is a discretionary and equitable one. The conditions to seek specific performance of contract are laid down S.10 of the Specific Relief Act, 1963.  They are: There exists no standard to ascertain the actual damage caused by the non-performance of the act agreed to be done or that the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.

Explanation: If the breach is relating to transfer of immovable property court shall presume that compensation in money is not adequate relief.  Similarly in case of movable property which is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market. Further, if the property is held by the defendant as the agent or trustee of the plaintiff.

Readiness and Willingness:  Regarding explanation (ii) of Cl.(c) of section 16, the position is settled that the plaintiff should not only aver but also to prove his continuous readiness and willingness to perform his part of contract at all material times, right from date of contract till the date  of decree/execution of sale deed.  Some courts are of the opinion that this should be specifically pleaded in the plaint.

What are the grounds to refuse relief of Specific Performance?

Ans: The relief of Specific Performance is a discretionary and equitable one. The conditions to refuse specific performance of contract are laid down S.14 of the Specific Relief Act, 1963.  They are: A contract for the non-performance of which compensation in money is an adequate relief; A contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or violation of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; A contract which is in its nature determinable; A contract the performance of which involves the performance of a continuous duty which the court cannot supervise.

Whether relief of Specific Performance can be refused on personal grounds?

Ans: Yes, they are listed under S.16 of the Act. They are:

1. Plaintiff is not entitled for compensation for breach of the contract.
2. Plaintiff is incapable of performing his part of the contract.
3. Plaintiff is incapable for performing a part of the contract.
4. Plaintiff violates any essential term of the contract which has to be performed by him.
5. If plaintiff commits fraud.
6. Plaintiff wilfully act in variance or in subversion of the relation intended to be established by the contract.
7. That the party who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms, the performance of which has been prevented or waived by the defendant.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           Whether Specific performance can be sought even though plaintiff has no title to the property?

Ans: Yes, as per S.13 of the Act says even though the property is purchased from the person who has no title or defective title, the buyer has following rights:

1. If the seller acquires title in the manner and mode dealt u/S.43 of the Transfer of Property Act, the buyer can compel the seller to execute the sale deed.
2. If the concurrence or consent of some other is necessary for validating the title, the buyer can compel the seller to obtain the concurrence of those persons upon such request by the vendor those persons shall give their concurrence.
3. If the vendor professes to transfer unencumbered property but it turns out to be encumbered property and mortgage amount is less that the purchase money the buyer can compel the seller to redeem the mortgagee and get a valid discharge.

4. If the seller files a suit for specific performance but it was dismissed due to lack of title or imperfect title, the buyer has a right to seek for return of any deposit he had made along with interest.

What is the time limitation for filing suit for Specific performance?

Ans: Article.54 of the Limitation Act sets out the time period for filing suit for specific performance. The date of limitation shall be counted from the date on which the defendant refused to perform his part of contract. It is a settled proposition of law that before initiating suit for specific performance written notice shall be given to defendant demanding his performance.   If time is not specified for performance o of the contract, it can be performed within the reasonable time (S.46 Contract Act).

If the parties specify the time period and there is an intention is that it must be performed within the time frame and same is also evident from the terms of the contract that contract is known as time is the essence of the contract (S.55 Contract Act). Generally, it is presumed that contract to transfer of immovable property time is the essence of contract. If time is essence of contract non-performance within the stipulate time make the contract voidable one.

The time limitation for permanent injunction is three years. The three years period counted from the date of threat to the right of the plaintiff fear of invasion to the right of the plaintiff.