Can you get a ‘stay’ for delayed rent?
Aword that often plagues real estate related transactions are injunctions, more colloquially known as “stays”. An injunction has been defined as an authoritative or judicial order restraining a person from doing a certain act. For instance, if a tenant starts to cover the courtyard or undertake any changes within the tenanted premises, the landlord would be within his rights to seek a stay from the court.
Injunctions are broadly of three types, namely, temporary, permanent and mandatory injunctions. A temporary injunction may be granted at any stage and during the pendency of the litigation. By granting such a stay order, the court restrains a wrong from being done. At the end of the litigation, if the court remains convinced that there was indeed a wrongful act going to be undertaken after the court has reviewed the evidence and heard both parties, such temporary injunction may be converted to a permanent injunction. So, using the example above, if a temporary injunction was granted against the tenant from illegally covering the courtyard and the court remained convinced that the case presented by the landlord was justifiable, the temporary injunction would be made permanent at the end of the litigation. On the other hand, if during the course of the litigation, the court were to conclude that the tenant was permitted by the lease to carry out the changes to the courtyard, the court can vacate the stay and even impose costs.
Temporary injunctions can be perilous orders. In extraordinary circumstances, a temporary injunction may be passed even ex-parte ie without the presence of the party accused of the wrongdoing, if the court is prima facie convinced of the wrongful act. For example, if a landlord moved the court alleging that the tenant was intending to sub- let the tenanted premises and if the landlord was prima facie able to show the court that the danger of sublet was imminent, the court would grant a ‘stay’, effectively asking the tenant to not sublet or alienate or part with the tenanted premises. Such an order could be passed without the tenant being present or represented in court. After the court has passed the order, the tenant, would of course have an opportunity to present his side of the story at the next date of hearing. The onus would then lie on the tenant to show his bona fides to the court.
In the matter of Mandali Ranganna v T Ramachandra, the Supreme Court, in 2008, stated that in granting injunctions, the court will take into consideration, ‘the existence of a prima facie case, balance of convenience and irreparable injury’. These are the three key elements to be kept in mind by the party seeking an injunction. At the threshold itself, the plaintiff must make out a case on facts, such that there is a probability that the plaintiff is entitled to relief. In the matter of Rasool Karim v. Pirbhai Amirbhai, the Bombay High Court in 1914, held that the plaintiff must present a strong case, and the impending danger must be imminent and impressive. Balance of Convenience means a balance must be struck between the reliefs sought by the plaintiff versus the injury that will caused to the defendants from the grant of such relief. In the matter of Daily Gazette Press Ltd. v. Karachi Municipality the court at Sindh in 1930, held ‘that the court must be satisfied that mischief or inconvenience which is likely to arise inconsequence of withholding relief will be greater than that from granting it’. Thirdly, the party seeking the grant of an injunction must be able to show that irreparable injury will be caused to him if the injunction is not granted and that there is no other remedy available to him which could protect him from the consequences of the apprehended injury. This was held in case of Gangabai v. Purshottam Atmaram, in 1907, by the Bombay High Court. But because the grant of an injunction is a discretionary relief, even if all three ingredients are present, it will not necessitate the grant of an injunction.