LexECE INDUSTRIES LIMITED versus S.P. REAL ESTATE DEVELOPERS P. LTD. & ANR.
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.'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) 8 AUGUST 6, 2009 [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. ._ ' F In these appeals, thei order of High Court upholding 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 ., . -+ 1+ EGE INDUSTRIES LTD. v. S.P. REAL ESTATE 567 DEVELOPERS P.L TD . 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 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] 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 D 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 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] 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 constructi
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