Ashim Kumar Banerjee, J.

1. The appellant and the respondent No. 2 were the owners of a land and building measuring 5 cottah 14 chataks and 12 sq. ft. more or less being plot No. 196/098, Khatian No. 449 in Mouza - Ban Hooghly within the local limits of Baranagar Municipality in the district of 24-Parganas (North). They entered into a development agreement with the respondents No. 1 being a partnership firm of which respondent No. 1 (a), 1 (b) and 1 (c) were the partners, for construction of a building on the said land in question. The property was originally owned by one Usha Rani Ghosh since deceased who by her last Will and testament bequeathed the said property to the appellant and the respondent No. 2. By the said agreement it was agreed that the developers would do necessary act and make an endeavour for obtaining probate of the Will of the said Smt. Usha Rani Ghosh since deceased. They would also upon taking possession of the said property measure and survey of the said property and prepare appropriate building plan for construction of a new building on the said land in question by demolishing the existing old structure at their own cost and responsibility. The said agreement also provided that in case of any dispute the matter would be referred to arbitration. As part performance of the said agreement the respondent No. 1 paid diverse sums of money to the appellant and the respondent No. 2. They also caused obtaining probate of the said Will of Smt. Usha Rani Ghosh since deceased. They also prepared a building plan and submitted to the municipality.

2. The respondent No. 1 approached the learned District Judge, Barasat under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act of 1996"), inter alia, praying for an order of restraint as against the appellant and the respondent No. 2 from entering into any agreement for development of the said property by creating third party interest. It was alleged in the said application that the owners without any reason engaged another developer, M/s. Banerjee Construction and Company and asked the respondent No. 1 to take back from M/s. Banerjee Construction a sum of Rs. 4.55 lacs paid to them by respondent No. 1 together with interest @ 15% per annum. The learned District Judge considering the averments made in the petition passed an order of status quo on the undertaking of the applicant to apply for appointment of Arbitrator under Section 11 of the said Act of 1996. We are told that an application under Section 11 of the said Act of 1996 is pending in this Court.

3. Being aggrieved and dissatisfied with the judgment and order of the learned District Judge the appellant preferred the instant appeal.

4. The appeal was heard by us on the above mentioned dates.

5. Mr. Debangshu Basak, learned counsel appearing for the appellant, contended that since the owners were not interested to proceed further under the agreement and they appointed a new developer by offering refund of the sums paid by the respondent No. 1 the learned District Judge should not have passed the order of status quo. It was contended that the development agreement entered into by the appellant and the respondent No. 2 on the one hand and the respondent No. 1 on the other hand was not capable of being enforced in view of the provisions of Section 14 of the Specific Relief Act, 1963 (hereinafter referred to as the said Act of 1963").

6. In support of his contention Mr. Basak relied on three Division Bench decisions of this Court and one Apex Court decision which are as follows :-

(i) 1999, Volume - V, Supreme Court Cases, Page 708 : 1999 AIR SCW 4742 (ICICI v. State of Maharashtra).

(ii) 2003, Volume - I, Calcutta High Court Notes, Page 14 (Satguru Nirman Pvt. Ltd. v. Narayan Chandra Paul).

(iii) All India Reporter, 2006, Calcutta, Page 209 (Vipin Bhimani v. Smt. Sunanda Das).

(iv) All India Reporter, 2007, Calcutta, Page 293 (Bimal Ghosh v. Smt. Kalpana Majumdar).

7. Ms. Sayanti Mukherjee, learned counsel appearing for the respondent No. 2 adopted the contentions made by Mr. Basak. In addition, Ms. Mukherjee contended that the father of the respondent No. 1(c) misbehaved with the respondent No. 2 which resulted in severing of relationship. In view of such misbehaviour the owners did not feel it inclined to proceed further under the said agreement and appointed a new developer for development of the said property.

8. Mr. Shiva Prasad Ghosh, learned counsel appearing for the respondent No. 1 while opposing the appeal contended that the respondent No. 1 performed their part of the obligation under the agreement. They not only paid substantial sums to the owners being the appellant and the respondent No. 2 but also took all steps to obtain probate in relation to the Will of late Usha Rani Ghosh. They also prepared plan and submitted it to the municipality. Copy of the plan was produced in Court by Mr. Ghosh. Mr. Ghosh lastly contended that there was no reason for cancellation of the agreement. He further contended that assuming Shri Dilip Ghosh misbehaved with the respondent No. 2 such factor had no consequence as the said Dilip Ghosh was not a party to the agreement.

9. In support of his contentions Mr. Ghosh cited two Division Bench decisions reported in -

(i) All India Reporter, 2005, Calcutta, Page 274 (Kalidas Sadhu v. Sushil Kumar Agarwal).

(ii) All India Reporter, 2005, Karnataka, Page 94 (Globe Cogeneration Power Limited v. Sri Hiranyakeshi Sahakari Sakkere Karkhane, Niyamit, Sankeshwar, Karnataka).

10. Before going into controversy let us examine the law on the subject.

11. Section 14 of the said Act of 1963 being relevant herein is quoted below :-

"14. Contract not specifically enforceable - (1) The following contracts cannot be specifically enforced, namely :-

(a) a contract for the non-performance of which compensation in money is an adequate relief;

(b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms;

(c) a contract which is in its nature determinable;

(d) a contract the performance which involved the performance of a continuous duty which the Court cannot supervise.

(2)........................................................

(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section (1), the Court may enforce specific performance in the following cases :-

(a) where the suit is for the enforcement of a contract, -

(i) to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once;

Provided that where only a part of the loan has been advanced the lender is willing to advance the remaining part of the loan in terms of the contract; or

(ii) to take up and pay for any debentures of a company;

(b) where the suit is for, -

(i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or

(ii) the purchase of a share of a partner in a firm;

(c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land;

Provided that the following conditions are fulfilled, namely :-

(i) the building or other work is described in the contract in terms 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 executed."

12. On a combined reading of sub-section (1) and sub-section (3) and the proviso contained therein it would appear that when a contract by its nature determinable or where a contract requires minute details and a strict vigil of the Court such contract is not specifically enforceable. Sub-section (3), however, provides that despite the contracts mentioned in sub-section (1) being not enforceable the Court may enforce specific performance in the cases stipulated therein including a construction contract as envisaged in sub-section (3)(c) provided three eventualities stipulated therein are fulfilled. They are -

(i) The contract is specific so that the Court can determine the exact nature of the building or work;

(ii) The plaintiff has a substantial interest and such interest cannot be taken care of by awarding compensation in money;

(iii) The defendant in pursuance of the said contract has obtained possession of whole or in part of the land on which the construction is to be carried out.

Let us now deal with the precedents cited at the bar.

13. In the case of ICICI v. State of Maharashtra (supra), 1999 AIR SCW 4742 the Apex Court considered a document said to be a lease coupled with permission to construct to find out whether the same would attract stamp duty under the provisions of the Bombay Stamp Act, 1959. While doing so the Apex Court in paragraph 8 observed that if a document gives only a right to use the property in a particular way or under certain terms, while it remains in possession and control of the owner thereof, it will be a licence. The Apex Court considering the document in hand observed, no material, no interest in the land is conveyed in favour of the appellants. We do not find any relevance of this decision in the case before us.

14. In the case of Satguru Nirman Pvt. Ltd. (supra) the Division Bench of this Court relying on the ratio decided in ICICI (supra) held that no interference was called for the order passed by the Court below refusing the order of injunction. In paragraph 27 of the decision the Division Bench held that the developer was not in possession of the land in question. Hence, it was hit by Section 14(3)(c). While holding so the Division Bench also observed, it would not be proper for us to go into a detailed discussion regarding the merits of the case and our above discussion will suffice for disposing of the present appeal.

15. In the case of Kalidas Sadhu (supra) the Division Bench considering the facts of the said case observed that the respondent made out a strong prima facie case showing a subsisting agreement and it was apparent that the appellant was unfairly trying to back out from the said agreement. The Division Bench, however, directed security to be furnished by the appellant to prevent order of injunction and/or status quo.

16. In the case of Vipin Bhimani (supra) the Division Bench held as a proposition of law that the developer had no right to sue for specific performance of a development agreement and a suit for specific performance would lie only at the instance of the owner. Paragraph 11 of this decision is relevant herein are quoted below :-

"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."

17. In the case of Bimal Ghosh (supra) this Bench considering Section 14 distinguished Vipin Bhimani (supra) and observed as under :-

"12. On the issue of maintainability, it was also contended that the application was not maintainable in view of the provisions of Section 14 of the Specific Relief Act. We have perused the Division Bench judgment in the case of Vipin Bhimani (supra). We reserve our comment on the ratio decided by the Division Bench as we feel that the same may not be relevant to decide the subject controversy before us. On perusal of the pleadings, it would appear that the respondent did not ask for specific performance of the agreement. She was rather interested to have enforcement of the negative covenant under the agreement by praying for an order of injunction.

13. The matter may be looked into from another angle. Assuming that the respondent could not have authority to raise any dispute to the arbitrator the very fact that dispute had already been referred to arbitration by the appellants automatically entitled the respondent to approach the Court under Section 9 as would be evident on a plain reading of the said Section whereby any party to an arbitration agreement was entitled to approach the Court before or after initiation of the arbitration proceedings. In the instant case, the arbitration proceeding was initiated by the appellants. The respondent in that event was entitled to approach the Court under Section 9.

14........................................

15. In the case of Vipin Bhimani (supra) the suit was filed by the developer for specific performance of the development agreement as also for a decree directing the defendant to perform under the agreement. In the instant case, the respondent only prayed for an order of the injunction so that their remaining part of the work was not disturbed by the appellants as also to protect their right under the contract being 60% of the constructed area from being encumbered by the appellants. These reliefs, in our view, could not be equated with the reliefs claimed in the case of Vipin Bhimani (supra). Hence, the ratio decided therein, does not have any application herein."

18. On a close reading of the Section 9 application we find that there was no prayer for specific performance of the agreement. It was a simple application asking for injunction based on the negative covenants stipulated in the agreement.

19. In the agreement it was provided that the owners would not do any act or deed or matter or thing which would cause hindrance to develop property in terms of the said agreement. The owners also undertook by the said agreement not to create any kind of charge or mortgage or would not let out or lease out or deliver possession of the said premises or any portion thereof to any third party without the consent of the developer. It was also provided that the said agreement could not be terminated by the owner in any way as long the flats, shops, garage etc. belonging to the developer's allocation were sold out and deeds of conveyance were made accordingly. Under the said agreement 32% of the constructed area of the proposed building was to be given to owner and balance 68% of the total constructed area was to be retained by the developer. Hence, it could not be said that the said agreement did not create any right over the land in question in favour of the developer.

20. Section 9 of the said Act of 1996 provides for interim protection before or after publishing of the award.

21. The developer approached the Civil Court for interim injunction for preservation of the status of the property during the pendency of the arbitration proceeding. The disputes relates to the property in question which is to be adjudicated by the Arbitrator. The learned District Judge directed parties to maintain status quo. We do not find any scope of interference on that score.

22. Lot of arguments were advanced on behalf of the appellant on the scope and application of Section 14(3)(c) of the said Act of 1963. We do not find it necessary to discuss the same herein.

23. The appeal thus fails and is hereby dismissed.

24. There would be, however, no order as to costs.

25. Tapas Kumar Giri, J.

I agree.