Rajas Pathak

Roll no.: T-284

Semester I

End terms

Contracts-1

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1.

Consideration has been defined under section 2(d) of the Indian Contract Act, 1872. According
to this section, when at the desire of the promisor, promisee or any other person has done or
abstained from doing or does or abstains from doing or promises to do or to abstain from doing
something, such act or abstinence, or promise is called a consideration for the promise.

Hence, it is evident that as long as the consideration is furnished, the person who furnishes it is
immaterial. However, this position has not been held by the English law.

Following is the trajectory of cases to understand the position of English law with regards to the
doctrine of privity.

One of the earliest cases was Dutton v. Poole (1667)

This case involved three entities: a father, his son and his daughter. The father wanted to get his
daughter married and intended to sell a wood he possessed for the same. The son promised his
father that if he forbore to sell at his request, he would pay his sister 1000 pounds. The father
performed his part of the promise but the son did not pay the amount. The daughter sued the son
to recover the amount.

It is evident that the promise was between the son and his father. Additionally, it was the father
who furnished the consideration himself by abstaining from selling the wood. The daughter who
was the plaintiff was neither privy to the contract, nor interested in the consideration. However, it
is clear that the ultimate object of the contract was for the benefit of the plaintiff. The court held
that it would be highly unjust to deprive the sister of her benefits and accordingly held the son
liable.

About two centuries later, in Tweddle v. Attkinson (1861), the court refused to follow this
particular application of law as in the aforementioned case.

In this case, the plaintiff was to marry the daughter of G. As a consideration for the marriage, the
plaintiff’s father and G entered into an agreement by which it was agreed to pay the plaintiff a
certain sum of money. Even after the marriage, G refused to perform his part of the promise. The
plaintiff thus sued G.

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Justice Whitman strictly applied the doctrine of privity and said that no stranger to the
consideration can take advantage of a contract, although made for his own benefit. The contract
was ultimately made for the benefit of the plaintiff, but he was not privy to it. Hence, he could
not sue G because of the doctrine of privity to contract.

The settled principle in Dutton v. Poole, that a person not privy to the contract, could sue a party
to the contract if the contract was made for the third person’s benefit, was contradicted by this
judgment.

The doctrine of privity was upheld by the English court in Dunlop Pneumatic Tyre Co v.
Selfridge & Co Ltd.

In this particular case, Dunlop Pneumatic Tyre Co (DPC) sold certain goods to Dew & Co. One
of the terms in their agreement was that Dew and Co. could not sell the goods below their listing
price, and if they sold the goods to any other entity, they had to enter into a similar agreement.
Dew and Co sold the goods to Selfridge and Co. Ltd. and entered into an agreement to not let
Selfridge and co sell the goods below the list price. However, Selfridge and Co sold the goods
below the list price and hence breached the contract.

Lord Viscount Haldane made certain observations in this case and these observations went on to
become the fundamental propositions of English law. They are:

1. Consideration must move from the promisee only. If it is furnished by any person other
than the promisee himself, the promisee becomes a stranger to the consideration and loses
his power to enforce the contract.
2. Even if a contract is made for the benefit of a certain person, he cannot enforce it unless
he is a party to the contract. He cannot claim any rights under such a contract as he is a
stranger to it.

Over the course of a century, the doctrine of privity of contract was ingrained in the English
Common Law system. This doctrine was interpreted as a stranger to contract not being permitted
to sue. However, the observations made by the Law Revision Committee in 1937 are important
to note. It criticized the doctrine and recommended that this should not be applied in future cases.

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The Sixth Interim Report stated that when a contract confers benefits on a third party not privy to
the contract, the third party should be permitted to sue the promisor for breach of contract. On
the other hand, it also provided for the promisor to use any defense against the third party as he
could have used against the promisee.

Lord Justice Denning also criticized the rule in subsequent cases. One of his judgments in
Beswick v. Beswick, 1967 also goes against the doctrine of privity to contract.

In this case, there was a certain coal merchant, B. He entered into an agreement with D, his
assistant, to transfer his coal business to D. There was a term in the agreement which stated that
B had to employ D as a consultant for the rest of his life and pay 5 pounds to B’s wife every
week after B’s death. After the demise of B, D made the payment of only one installment of 5
pounds. B’s wife, who wasn’t privy to the contract between B and D, sued D for breach of
contract.

Lord Justice Denning held that when a contract intends to put a third person into an advantage,
and when the third person has a legitimate interest to enforce it, he could enforce it against the
promisor. This can be done jointly with the contracting party, or even by adding him as a
defendant if he refuses to jointly sue. Thus, Lord Justice Denning upheld the legal interest and
right of the third person, arising through the contract.

However, the House of Lords did not approve of the approach laid down by Lord Denning. They
held the breach of contract, enforceable by B’s wife on different grounds. Lord Reid mentioned
that B’s wife could not sue D on the basis of no existence of the doctrine of privity to contract.
However, she could sue in the capacity of the administratrix of her husband’s estate.

The House of Lords, even in further cases opined that doctrines and principles such as that of
privity could not be abrogated simply by the discretion of the judiciary. However, such a
fundamental change in law required the sanction of the legislature.

We can thus infer the trajectory of the application of doctrine of privity to be lenient in the very
beginning (Dunlop v. Poole) and strict and rigid in the later stages (Dunlop Pneumatic Tyre v.
Selfridge and Co., Tweddle v. Attkinson). The current position as held in Beswick v. Beswick
shows that the doctrine of privity has been subject to criticism, and judges are refusing to apply it
to cases at hand.

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______________________________________________________________________________

2.

A]

Material facts:

Two persons enter into an agreement for sale of paddy. They agree to fix the payment and
delivery dates from time to time as and when the need arises.

Issue:

Whether the agreement between the two persons is valid or would it be void due to uncertainty?

Relevant statutory provision:

Section 29 of the Indian Contract Act, 1872 talks about agreements that are void for uncertainty.
This section says that agreements which are uncertain, or capable of being made certain, are
void.

Relevant case Law:

May & Butcher Ltd. v. R

Two people entered into an agreement for the sale of tentage. The agreement mentioned that the
price, dates of payment and the manner of delivery shall be agreed upon from time to time.

Judgment:

The agreement for the sale of tentage was held to be void for uncertainty. Lord Buckmaster put
forth his observations pertaining to this case. He said that it was a well-established principle that
an agreement between two parties, some critical part of the contract matter of which is left
undecided, is no contract. It is not open to the parties to agree that they will agree in the future
upon a provision which is vital to the arrangement between the two parties, and has not yet been
determined. He also stated that ‘a good contract’ and a ‘concluded bargain’ is one in which
everything is already settled and nothing is left to be decided by any agreement between the
parties

Analysis:

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As the material facts of the relevant case law and the agreement between X and Y for the sale of
paddy are the same, we can use the same principle of the explained case to determine the validity
of the latter. The agreement between X and Y would be void due to uncertainty. The payment
and delivery dates are vital in the context of the basic elements of the contract, and hence can’t
be left undecided. Going by the interpretation of Lord Buckmaster, there is no concluded
contract as the parties have left a critical part of the contract matter uncertain, and to be decided
by a further agreement.

Conclusion:
After drawing a parallel between the case in question and the relevant case law cited, we can
conclude that the agreement between X and Y would attract section 29 of the Indian Contract
Act, and would accordingly be void due to uncertainty.

B]

Facts:

A person, P gives his car to a minor Q for taking a vacation trip. Instead, Q uses the car for
racing and damages the car. P sues Q, but Q disclaims liability under the contract on the basis of
the fact that he is a minor.

Issue:

Whether Q can disclaim liability by using the defense of he being a minor?

Relevant statutory provision:

Section 11 of the Indian Contract Act, 1872 which talks about competence to contract. It states
that every person is competent to contract who is of the age of majority according to the law he
is subject, and who is of sound mind and is not disqualified from contracting by any law to
which he is subject.

Relevant case law:

Burnard v. Haggis, 1863

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In this particular case, the defendant was an infant. He hired a horse stating that he did not want
the horse for jumping. On receiving it, he let it to a friend, who used it for jumping. The horse
fell and was injured.

Judgment:

The infant defendant was held liable on the ground that the act which resulted in the injury of the
horse was beyond what was contemplated in the contract. It was held that when a tort which is
independent of the contract is committed, the infant will not be absolved from liability. An
observation as made in Leslie v. Sheill by Lord Justice Kennedy holds relevance here. An infant
cannot be sued for a wrong when the cause of action is ex contractu (directly connected with the
contract, or of such nature that it would be an indirect way of enforcing the contract). However,
if an infant’s act goes out of the scope of the contract, in the sense that if such an act is
committed which is not contemplated by the contract, the infant will be held liable. The liability
would arise notwithstanding the fact that the action was related to the subject matter of the
contract.

Analysis:

The vital fact of the infant committing an act not contemplated by the contract is common to
Burnard v. Haggis and the agreement between P and Q. Q surpassed the scope of the contract to
perform an act which was not ex contractu. Hence, on applying the reasoning provided in the
case above, we deduce that Q can be held liable in tort for committing the wrongful act.

Conclusion:

I would suggest P that Q can be held liable on the basis of the principle of liability arising in tort
when the act is beyond the contemplation of the contract.

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4.

A]

Facts:

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X and Y, a married couple were undergoing divorce proceedings. X had an accident, got
admitted in the hospital and developed feelings for the attending nurse, Z and asked her to marry
him. Z agreed. The court then allowed divorce of X and Y. X then marries G instead of Z. Z sued
X for breach of contract. X contends that the agreement between him and Z would be void due to
immorality resulting from the interference with marriage between X and Y.

Issue:

Whether the contract between X and Z is valid or void due to immorality?

Relevant statutory provision:

Section 23 of the Indian Contract Act, 1872 talks about considerations and objects that are
lawful, and those which are not. Immorality, or opposition to public policy is one such ground
due to which an agreement can be said to be void.

Relevant case law:

Fender v. John Mildmay

The defendant, a married man met a nurse at a nursing home. He told her about his unhappy
marital life and asked him if he would marry her, if he divorced his wife. The nurse consented
and they committed adultery. The wife of the defendant filed for divorce, citing adultery.
Accordingly, a decree nisi was pronounced. The defendant promised the nurse to marry her as
soon as the decree was made absolute. However, he married another woman and the plaintiff
sued the defendant.

Judgment:

The court denied the claim of the plaintiff on grounds of immorality. However, she was entitled
to recover. The court stated that that the interference of the nurse with the marital status was
immoral, but the agreement made after the decree nisi had no element of mischief to it.

Analysis:

A contour can be drawn from the case of Fender v. John Mildmay to that between X and Z, as
the facts of the two cases seem to be similar. In the present case between X and Z, the agreement

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to marry was entered into before the divorce actually took place. This agreement can be said to
be immoral in nature as it interfered with the marital status of X, who was married.

Conclusion:

The agreement between X and Z would attract Section 23 and would thus be void on the grounds
of immorality of object. Contentions of X will hold true.

B]

Facts:

M has borrowed a sum of money from ABC, Inc. When asked for security to cover the loan, M
asks her daughter N to provide the security. N takes the advice of X, the solicitor of ABC Inc.,
and provides security based on that. N later wants to invalidate the contract.

Issue:

Whether the agreement between N and ABC Inc. is voidable at the option of N due to undue
influence?

Relevant statutory provision:

Section 16 of the Indian Contract act, 1872 talks about undue influence. Where the relations
subsisting between the parties are such that one of the parties is in a position to dominate the will
of the other, and uses the position to gain an unfair advantage, the contract is said to be induced
by undue influence. The relevant provision in this context is Section 16(2)(b), which states that a
person is deemed to have a position to dominate the will of the other person where he holds a
real or apparent authority over the other, or where he stands in a fiduciary relation to the other.

Relevant case law:

Lancashire Loans Ltd. v. Black

The defendant, a married girl of full age gave a security for the loan which her mother took from
a company. She only advised the solicitor of the company before granting the security.

Judgment:

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Lord Justice Scrutton observed that there can be certain defined relations, wherein undue
influence is presumed. It is sufficient that the existence of a such a relation is proven. The
defined relations may be of a parent and a young child, a solicitor and client, a religious superior
and inferior, etc. In such a situation, the burden of proof is on the person who is presumed to
have an undue influence over the other. In this case, the court found that the defendant was under
the influence of her mother. Accordingly, the agreement was held to be voidable at the option of
the defendant.

Analysis:

The judgment given in Lancashire Loans Ltd. v. Black can be applied to the case of N and ABC
Inc. Undue influence can be presumed in such a case because of the existence of a parent-child
relationship as already explained in the case above. The mother can be said to be in a position to
dominate the will of N and would be presumed to have done so.

Conclusion:

The agreement would be held voidable at the option of N unless her mother proves that she had
no undue influence on N. the burden of proof is hence on the mother, not N.

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5.

Section 27 of the Indian Contract Act, 1872 talks about agreements in restrain to trade. It says
that every agreement which restrains a person from exercising a lawful profession, trade or
business of any kind, is to that extent void.

The Constitution of India protects the freedom of trade and commerce under Article 19(1)(g). It
has been given the status of a fundamental right, and the legislature cannot take it away by
passing any law infringing upon it. Similarly, no contract can violate the right either.

Following is a case law, which elucidates the position of Indian courts around the year 1874.

Madhub Chander v. Raj Coomar, 1874

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In this case, the two parties to the suit were rival shopkeepers operating in the same locality. The
defendant agreed to pay the plaintiff a certain sum of money, if he stopped operating in that
locality. The plaintiff adhered to the promise, but the defendant refused to make the payment.

The plaintiff sued the defendant demanding breach of contract. His contention was that the
agreement restricted trade only partially. He was allowed to operate anywhere apart from the
locality, and a partial restraint doesn’t render a contract void as in English law. However, Justice
couch held the agreement to be void and stated that ‘restrained from exercising a lawful
profession, trade or business’ also applies to partial restrictions. He reasoned that Section 28,
while talking about restraint on legal proceedings mentioned the word absolutely, however it was
absent in Section 27. He thus concluded that Section 27 not only attracted agreements in total
restraint of trade, but also those who partially restricted the freedom to trade. On these bases, the
contract between the two shopkeepers was held to be void.

This case suggests the strict approach of the Indian Courts of holding any agreement in partial or
absolute restraint of trade, void.

Following is an English case law which depicts the development of the rule of restraint on trade
in the English context.

Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Co.

This case was related to the sale of goodwill, of an inventor and manufacturer of guns and
ammunitions. The agreement had certain terms:

1. The purchaser could not practice the same trade for the next 25 years.
2. The purchaser would not engage in any business competing with the business carried on
by the manufacturer.

Later, the purchaser went beyond these terms and made an agreement with another manufacturer
of guns and ammunition. The former company made contentions for restraining him from
making the next agreement.

The court held that the first term was reasonable and it was necessary to protect the interests of
the manufacturer. However, the second condition which put a restraint on trade was held to be
unreasonable. Lord Macnaghten observed that it is in public interest that every person is allowed

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to practice his trade freely. Any interference with the liberty of an individual in terms of trading
are contrary to public policy.

However, the judge also noted that there can exist certain reasonable restrictions on trade, which
should be reasonable from the point of view of the parties involved as well as the public interest.
Such restrictions are to be framed in such a manner, that neither the protection to the party in
whose favor it is imposed is compromised, nor is it harmful in terms of public policy.

We can thus infer that the basic underlying principle with respect to restrain on trade seems to be
common to Indian and English law. All agreements in restrain of trade, partial or absolute will be
held void. However, as noted by Lord Macnaghten in the Nordenfelt case, English law does give
room for certain exceptions to this rule. These exceptions should impose restrictions which are
reasonable in nature, the term reasonable to be interpreted with respect to the changing
conditions.

Lord Wilberforce’s observation in the case of Esso Petroleum Co Ltd. v. Harper’s Garage is
that the classification of agreements in restraint of trade should remain flexible. The categories
can never be closed so as to not allow any further changes.

Esso Co entered into an agreement with two garages, binding one for 21 years and the other for
4.5 years. During this period, the garages had to buy the whole of their requirements from Esso.
The garage which was bound for 21 years was also mortgaged to Esso, for a loan to be repaid in
those 21 years and not earlier. The House of lords held the period of 21 years to be unreasonable,
and thus attracted the doctrine of restraint. The agreement with this specific garage was held
void, but the one with which was bound or 4.5 years was valid.

Indian law, has however identified a few exceptions to the rule of all restraints of trade being
void. They can be classified as A. Through statutory exceptions and B. Through judicial
interpretations

Statutory exceptions include two prominent provisions:

1. Sale of goodwill:

This is the only direct exception which is mentioned in Section 27. The exception states that a
person who sells the goodwill of a business, he may reach an agreement with the purchaser to

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refrain from carrying on a similar business within specified local limits so long as the seller
operates his own business therein. This exception is subject to reasonability of the nature of the
business as interpreted by the courts.

The case of Ann Trego v. George Stratford Hunt, 1896 was a one which included the sale of
goodwill. The court noted the importance of goodwill, saying that it is the very sap and life of a
business. The business would make very less or no profits without such a goodwill. Emphasizing
on the its importance, the court said that it is the entire advantage of the reputation and
connections of the firm, which might be gained by putting in tremendous efforts and expending
loads of money.

In Crutwell v. Lye, 1810 the court observed that the goodwill which is sold to a purchaser
depicts the probability that the old customer will resort to the old place.

2. Some provisions in the partnership act, too provide for restraints on trade of some sorts.
These restrictions should be reasonable and the details of the restraint should be clarified.

Exceptions formed from the interpretation of laws by the judiciary can be as follows:

1. Trade Combinations:

The case of Kores Mfg Co Ltd v. Kolok Mfg Co Ltd, 1959 lays down reasonability of the
restraint clause.

Two companies, manufacturing similar products were operating in such a manner that the
employees were likely to possess trade secrets and the confidential information of the other
company. Both the companies agreed to not employ any person who had been a part of the other
company during the period of five years, without the consent of the other company.

The agreement was held to void because of restraint of trade. The court reasoned that the
agreement made no classification between classes of employees, the tenure they worked for, the
position they held, their integrity with regards to trade secrets, etc. and equated all the employees
to those who possessed confidential information. The court found this ban to be unreasonable,
and held that such an agreement should be void.

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 2. Exclusive dealing agreements:

Gujarat Bottling Co. Ltd. v. Coca Cola Co.

In this case, Coca Cola Co. granted a franchise to Gujarat Bottling Co to manufacture, bottle,
sell, deal and distribute beverages under its trademark. However, the bottling company was
prohibited from providing services to other companies while the agreement with Coca Cola
subsisted, including the period of one year’s notice.

When Gujarat Bottling Co (GBC) rejected the validity of this agreement on the basis of restraint
on trade, the court held that the agreement led to promotion of trade, and not restraint of trade.
GBC was simply required to wholeheartedly contribute to the sale of goods of Coca Cola. The
condition of the period was held to be reasonable by the court, saying that it subsisted only
during the period of the agreement. Hence, the condition was held not to be against Section 27,
and the agreement was valid.

3. Restraint after termination of Employment:

Niranjan Shankar Golikar v. Century Spg & Mfg Co Ltd

A foreign producer entered into an agreement with a company manufacturing tyre cord yarn for
5 years, which stipulated that the defendants could not serve anywhere else in these 5 years, even
if he left the service earlier. The conditions were put in order to safeguard their trade interests
with respect to secrecy.

Justice Shelat held the agreement to be valid, saying that the period of restraint extended only till
the agreement subsisted. He said that the nature of restraint was not too wide or unreasonable,
neither was it opposed to public policy. It just safeguarded the legitimate interest of the
respondent company.

We can thus infer through this trajectory of cases in English and Indian law, that both the
systems hold agreements in restraint of trade, void. In England, the principle of exceptions had
been laid down early on. The basic underlying principle of exceptions, was reasonableness which
depended on the discretion of the courts. There exist certain exceptions even in Indian law. The
exceptions through judicial interpretations can also be said to follow the test of reasonability.

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______________________________________________________________________________

6. Elaborate on the different types of injunctions provided as remedy under the Specific Relief
Act, 1963.

To counter a breach of promise, there exist various remedies such as compensation, stipulation,
declaratory relief, injunctions, etc.

Specific performance of contracts, in India is governed by the Specific Relied Act of 1963.

Injunctions is one such remedy provided to the parties in case they intend to enjoy a specific
performance. According to lord Halsbury, an injunction is a judicial process whereby a party is
ordered to refrain from doing or to do a particular act or thing. Following are the three basic
characteristics of injunctions:

1. It is a judicial process
2. The relief obtained thereby is a restraint or prevention
3. The act which is prevented is wrongful in nature

Following are the sections of the specific relief act which are important in this particular context:

Section 10 which talks about the when the conditions to be fulfilled while asking for specific
performance,

Section 20 which gives us specific heads under what conditions the court can use its discretion to
decree a specific performance. this discretion is to be used in a sound and reasonable manner,

Section 41 which states circumstances in which injunctions cannot be granted.

Broadly, injunctions are classified into two categories. They are prohibitory and mandatory
injunctions.

Prohibitory: Section 36 of the Specific Relief Act talks about prohibitory injunctions. This
injunction is negative and preventive in nature. The court asks one of the parties to refrain from
doing certain things, which he/she has been doing.

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Mandatory: Section 39 talks about mandatory injunctions, which are applied when a person is in
the breach of obligation under a contract. The person would be compelled to do the acts if the
court enforces it. If it is not performed, the consequences will be negative. It will lead to a breach
of obligation. The court can use its discretion as mentioned in section 20 and grant an injunction.

For a mandatory injunction to be granted, 2 elements must be considered.

1. Acts are necessary to prevent a breach of obligation

2. The court must be capable of enforcing these acts.

Mandatory injunction cannot be granted in the following cases:

1. Where monetary compensation is adequate relief.

2. Where the balance of convenience is in the favor of the defendant.
3. Where the plaintiff has acquiesced to the acts of the defendant.
4. Where the injunction is desired to create a new state of things. Eg. It was held by the
Allahabad high court in Sheonath v. Ali 80 ALL 70 that where the defendant constructed
a structure which interfered with the privacy of the plaintiff’s house, he could not be
ordered to erect a wall on the roof so as to prevent a view of the plaintiff’s house from the
roof.

Further classifications concern themselves with time periods of the injunction. Both, preventive
and mandatory injunctions can be classified into temporary and perpetual injunctions.

TEMPORARY INJUNCTIONS:

These are regulated by the Code of Civil Procedure, 1908. A temporary injunction is just an
interim relief till the suit is disposed of or until the cause of action is decided conclusively, or
until it is in pendency. Most injunctions are temporary. Under order 39 rule 1,2 of the CPC, they
can be ordered at any stage of the suit for a specified time. The grounds are also found under the
aforementioned rules. Such injunctions may be granted in the following cases.

1. To protect the interest in a particular property. It includes three possibilities:

a. The property is in danger of being damaged, wasted or alienated, or

wrongfully sold in the execution of a decree. If its very existence is in danger,

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 it can be challenged under an interim injunction and it can be shown to the
court how the property is in the danger of being damaged.
Eg. If a person has forcefully taken a property from us in violation of our
rights, the court can grant an interim injunction here stating that no one should
derive benefits out of the property until the rightful owner of the property is
determined. Let the property be vacant so that it will be saved from any
damage, wastage, etc.
b. Removal or disposal of the property is happening to defraud creditors. In this
case, the creditors have a certain charge in this property and an enforceable
security has been created in their favor. If this property is being sold without
their consent, they will not have any security to fall back on. The creditors can
file a suit for interim injunction till they are able to prove to the court that they
have some other enforceable security to fall back on.
c. If the defendant is threatening to dispossess the plaintiff or cause injury to the
property. If the threats have started happening, we can file for a temporary
injunction.

2. To restrain the defendant from committing a breach of contract or injury arising out of
the breach: it basically prevents the defendant from breaching the contract. There can be
a temporary injunction asking the defendant to do something which the contract asks him
to do.

This is basically a discretionary relief. It must not come under any of the grounds which come
under section 41 of the Specific Relief Act. In section 41, the clauses a to j tell us when this
injunction can be refused. Those injunctions cannot be granted, when:

a. the person is restrained from approaching the court in order to prevent multiplicity of
proceedings If there are multiple suits concerning the same issue, this principle of res
judicata can be invoked.
b. a person seeks to institute any proceeding in a court not subordinate to that from which
the injunction is sought.
c. A person tries applying before a legislative body as a matter of right. No injunction can
hinder this right

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 d. A person seeks to institute any proceedings in a criminal matter
e. specific performance itself cannot be asked for under section 10. Section 10 specifies in
which exact cases the specific performance can be sought.
f. we cannot prove that there is nuisance.
g. the plaintiff has acquiesced on the part of the plaintiff in case of a continuing breach.
Here, the court infers that there is a tacit acceptance to suffer the breach and no injunction
will be allowed.
h. when specific performance is applicable.
i. the plaintiff has come to the court with unclean hands
j. the plaintiff has no personal interest in the matter.

Section 10, when read with section 20 and section 41 tells the manner in which the discretion can
be exercised.

Order 39 also gives points of guidance as to the nature of discretion

a. There needs to be a prima facie case. A clear title is not required to be made out, but
there should be a substantial question to be investigated.
b. If this temporary injunction is not granted, it will lead to an irreparable injury which
cannot be reversed. In the interest of justice, the injunction cannot be refused
c. Conduct of the plaintiff is not blameworthy. He has come with clean hands.
d. Balance of convenience needs to be tilted to some degree in favor of granting the
injunctions.

Section 94(c) of the CPC, when read with rule 2A of order 39 lays down the consequences of
committing a breach of injunctions.

a. Penalty
b. Arrested
c. Property could be attached
d. Detention in a civil prison not exceeding 3 months

PERPETUAL INJUNCTIONS:

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Section 37(2) lays down that a permanent injunction can be granted only by a decree at the
hearing and upon the merits of the suit. They are covered under section 38 of the SRA, which
talks about when a perpetual injunction should be granted. It is perpetual, conclusive in nature.
The question of fact, law, rights and obligations are conclusively addressed. The perpetual
injunction may be granted to the plaintiff to preserve his rights.

It is generally sought for if there is a breach of obligation and we want to prohibit the defendant
from doing something perpetually, or we have to compel the performance of certain acts. Eg. If a
certain construction infringes upon the rights of the plaintiff by destroying his property, a
perpetual injunction can ask the defendant to restore whatever part of the building that has been
destroyed.

Section 38(3)(a-d) elucidates the cases in which it can be granted.

a. Where the defendant is the trustee of the property for the plaintiff
b. Where there exists no method to measure the actual damage caused
c. Where the damage is such that monetary compensation won’t be enough
d. Where the injunction is necessary to avoid multiplicity of proceedings.

The applicability of perpetual injunctions depends on the satisfaction of the following criteria:

1. There should be a legal right

2. This right should have been actually violated or there should be a threatened
invasion.
3. This right should be an existing one.
4. This should be a case fit for the exercise of the court’s discretion. Balance of
convenience should be in favor of the plaintiff.
5. Should not come under any provisions given under section 41 which lays
down circumstances in which injunctions cannot be granted.

It can thus be noted that to understand the applicability of all the types of injunctions, it is
necessary to read Section 10 of the Specific relief act, along with section 20 and section 41.

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