Can you get a ‘stay’ for de­layed rent?

HT Estates - - HTESTATES -

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.

THINKSTOCK

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