TMI Blog2006 (2) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... n Annexure 'A' hereto; c) A decree directing the defendants and each of them to specifically perform and/or comply their part of the agreement mentioned in paragraph 5 hereinabove; d) Alternatively, a decree directing the defendant and each of them to perform and/or comply their part of the agreement as recorded in Annexure 'A' hereof; e) If default is committed by the defendants or any of them in complying with their obligations in terms of the agreement mentioned in the plaint, the Registrar of this learned Court be directed to sign, execute and register such paper document and/or deed as may be necessary or expedient for the purpose of specifically performing the said agreement; f) Permanent injunction restraining the defendants and each of them from dealing and/or disposing of the said suit property in any manner whatsoever; g) Receiver; h) Costs of, and incidental to, the suit be paid by the defendants; i) Such further order/orders as Your Honour may deem fit and proper. 3. The case made out by the plaintiffs may be summarised thus: (a) The plaintiffs are engaged in construction and development of building projects. In the year 1990, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irrevocable. (vi) Pursuant to the said agreement defendant No. 2 had also granted another Power-of-Attorney dated 15th January, 1995 in favour of the plaintiffs, which was also irrevocable. (vii) Thereafter an agreement recording the aforesaid terms and conditions of development of the suit property was drafted and the same was approved by the defendants sometime in the year 1997. But, in spite of repeated requests and demands, the defendants have failed, neglected and refused to sign the said agreement till date. The plaintiffs had also paid a sum of ₹ 30,00,000/- to defendant No. 1 as part security payable by the plaintiffs under the said agreement. (viii) Pursuant to the said agreement, the plaintiffs had also taken step for negotiation with Balmer Lawrie and Company and concluded a deal to have the two flats occupied by it vacated on the terms and conditions mutually agreed upon. The plaintiffs had finalised other flat vacated by Associated Metal Works and other tenant at a consideration and paid an advance sum. The plaintiffs had also got Soil Test Certificate from Urban Land Ceiling Clearance and Fire Service Clearance at their own cost and also appointed Archi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in such a case, it was the duty of the learned Trial Judge to pass an order of ad Interim injunction. 8. Mr. Saktinath Mukherjee, the learned Senior Advocate appearing on behalf of the respondents has opposed the aforesaid contentions advanced by Mr. Roy Chowdhury and has contended that even at this stage if we accept all the averments made in the plaint and in the application for injunction to be true, the relief of specific performance of contract cannot be granted in favour of the plaintiffs in view of the embargo created by Section 14(3)(c) of the Specific Relief Act and thus, there is no prima facie case to have an ad interim order of injunction. Mr. Mukherjee further contends that if prima facie case is not established, the question of balance of convenience and inconvenience and that of causing irreparable loss and injury to the plaintiffs are inconsequential. He, therefore, prays for dismissal of the appeal. 9. Therefore, the only question that arises for consideration in this appeal is whether on the basis of averments made in the plaint and in the application for injunction, the learned Trial Judge was justified in refusing to grant an ad interim order of injunct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions are fulfilled, namely: (i) the building or other work is described in the contract in terms of sufficiently precise to enable the Court to determine the exact nature of the building or work; (ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief, and (iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed. 11. From the provisions contained in Section 14(3)(c) of the Act, it is clear that a suit for specific performance of a development agreement at the instance of a developer is clearly hit by the provisions contained therein. However, a suit for specific performance of such agreement at the instance of the owner of the building would be maintainable if possession is already handed over to developer and Clauses (i) and (ii) of Section 14(3)(c) are complied with. 12. In the case before us, the suit is at the instance of the developer and as such, the formality required under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission of Mr. Roy Chowdhury that a so-called irrevocable Power-of-Attorney cannot be revoked in any circumstances. By virtue of such Power-of-Attorney if an owner of the building gives agency to a person to act on his behalf, the contract by itself is determinable at any point of time. The concept of irrevocable Power-of-Attorney thereby conferring agency for all time to come is unknown in jurisprudence unless such power is coupled with an interest, meaning thereby, the conferment of power to do some act conveyed to an agent along with an interest in the subject-matter of the power. When such power coupled with an interest is given, the holder of such power does not hold the same for the benefit of the principal but for his own benefit and for the above reason, such authority is not recognised as true agency power and is termed as proprietary power . In the case before us, no such propriety power has been given to the developer. Section 202 of the Contract Act recognises such propriety power and as provided in Section 203 thereof, except in the cases covered by Section 202, all other agencies are revocable at the instance of the principal. After going through the Power-of- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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