SAMIR NARAIN BHOJWANI versus M/S. AURORA PROPERTIES AND INVESTMENTS AND ANR.

Citation: [2018] 10 S.C.R. 50 · Decided: 21-08-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 10 S.C.R.
SAMIR NARAIN BHOJWANI
v.
M/S. AURORA PROPERTIES AND INVESTMENTS AND ANR.
(Civil Appeal No. 7079 of 2018)
AUGUST 21, 2018
[DIPAK MISRA, CJI,  A. M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
Injunction: Interlocutory mandatory injunction – When can
be granted – Principle of moulding relief – Invocation of – On
facts, respondent no.1 appointed as developer for developing the
suit property – Thereafter, under an agreement, respondent no.1
transferred the benefits of development rights in the suit property
to respondent no.2 – Subsequently, execution of development
agreement by respondent no.2 with the appellant whereunder
appellant would be entitled to 55% of the total area available for
sale buildings and car parking and respondent no.2 retained 45%
of the total area – Dispute during the construction of the building –
Suit for specific performance by respondent no.1 against appellant
and respondent no.2 – Order of mandatory interlocutory
injunction by both the High Court directing the appellant to hand
over 8 flats along with 16 parking spaces to respondent no. 1 – On
appeal, held: Interim mandatory injunction can be passed only when
circumstances are clear and prima facie material clearly justify a
finding that status quo has been altered by one of the parties to the
litigation and the interest of justice demanded that status quo ante
be restored by way of an interim mandatory injunction – On facts,
both High Court erred in invoking the principle of moulding of
relief so also the exercise of power to grant mandatory order at an
interlocutory stage – Mandatory order at interlocutory stage was
in excess of jurisdiction – Such order at an interlocutory stage
cannot be countenanced – High Court was swayed away by the
consent agreement between the respondents inter partes to which
the appellant was not a party – Appellant could not be bound by
the arrangement agreed upon between the respondents inter se but
only by the agreement entered with respondent No.2 and at best the
tripartite agreement – Appellant could not be directed to hand over
   [2018] 10 S.C.R. 50
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8 additional flats and 16 parking spaces to respondent No.1 with
whom the appellant had no independent agreement in that regard –
Complying with the directions would result in bestowing advantage
on respondent No.2 who failed to discharge its obligation under
the agreement with the appellant – Thus, the order passed by the
High Court is set aside.
Principle of moulding relief and interlocutory mandatory
injunction – Difference between – Held: Principle of moulding of
relief can be resorted to at the time of consideration of final relief
in the main suit and not at an interlocutory stage – Interlocutory
mandatory injunction can be granted only to restore the status quo
and not to establish a new set of things differing from the state
which existed on the date when the suit was instituted.
Allowing the appeal, the Court
HELD: 1.1 The High Court disregarded that the Settlement
Agreement and the Consent Terms have been entered into
between the respondent No.1/plaintiff and respondent
No.2/defendant No.1 inter partes. That could not be thrust upon
the appellant/defendant No.2 who had executed a separate
agreement with respondent No.2/defendant No.1. The appellant
could be bound only by the agreement dated 10th  March, 2003 in
his favour and executed by him. Admittedly, the said agreement
is the subject matter of arbitration proceedings, inter alia because
respondent No.2 had failed to discharge its obligation thereunder.
The appellant has already parted with the possession of flats to
respondent No.2 in furtherance of agreement dated 10th March,
2003 and respondent No.1/plaintiff could be accommodated only
against those flats. Asking the appellant to hand over additional
8 flats and 16 parking spaces by way of mandatory order, would
be to superimpose the liability of respondent No.2/defendant No.1
on the appellant for discharging its obligation qua respondent
No.1/plaintiff in relation to the agreement entered between them
and including Settlement Agreement and Consent Terms to which
the appellant is not a party. [Para 23] [65-B-E]
1.2 That apart, the Single Judge as well as the Division
Bench have committed fundamental error in applying the
principle of moulding of relief which could at best be resorted to
SAMIR NARAIN BHOJWANI v. M/S. AURORA PROPERTIES
AND INVESTMENTS
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SUP

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