Specific Relief Act (SRA)
Damages in Lieu of or in Addition to an Injunction: Section 40
Section 40 does for injunctions what Section 21 does for specific performance. A plaintiff who sues for a perpetual or mandatory injunction may also claim damages, and the court may award them, either in addition to the injunction or in substitution for it. So the court can settle both the preventive relief and the money loss in one suit. This note explains the two modes, the procedural rules, and how Section 40 fits with Section 21 and with the general law of damages.
Figure: Section 40: damages in addition to or in substitution for an injunction, the procedural rules, and its place among the damages provisions
1. The Two Modes
How damages may be awarded ▪ In addition to the injunction. The plaintiff may claim damages in addition to the injunction, and the court may award them along with it. This is used where the injunction stops the future wrong but the plaintiff has already suffered a loss the injunction cannot repair. ▪ In substitution for the injunction. The plaintiff may be awarded damages in lieu of the injunction, where the court decides an injunction ought not to be granted but the plaintiff has a valid claim. This is used where an injunction would be oppressive, or the injury is slight and can be met in money. |
2. The Procedural Rules
Claiming and the bar ▪ Damages must be claimed. The court awards damages under this section only where the plaintiff has claimed them in his plaint. ▪ Amendment allowed. The court may allow the plaint to be amended, at any stage of the proceeding, on just terms, to include a claim for damages. ▪ The claim-splitting bar. The dismissal of the suit for an injunction bars the plaintiff from a fresh suit for damages for the same wrong, in the same way that Section 24 bars a later compensation suit after a specific-performance suit is dismissed. |
3. Section 40 in the Scheme of Damages Provisions
Compared with | How Section 40 relates |
|---|---|
Section 21 | Both award compensation within the suit, in addition to or in substitution for the main relief, and both require the claim to be pleaded. Section 21 sits with specific performance; Section 40 with the injunction |
Section 73, Contract Act | The general money remedy for breach of contract in an ordinary suit. Section 40 damages are awarded alongside or in place of an injunction and are not confined to breach of contract |
The measure | Drawn from the general law of damages, the loss the wrong caused |
4. Frequently Asked Questions
Q. Can a plaintiff get both an injunction and damages?
A. Yes. Under Section 40, the court may award damages in addition to a perpetual or mandatory injunction, where the injunction alone does not repair a loss already suffered.
Q. Can damages be awarded instead of an injunction?
A. Yes. Where the court decides an injunction ought not to be granted but the plaintiff has a valid claim, it may award damages in lieu of the injunction.
Q. Must damages be claimed in the plaint?
A. Yes. The court awards them under Section 40 only where claimed, though it may allow the plaint to be amended at any stage to add the claim.
Q. What happens if the injunction suit is dismissed?
A. A dismissal bars a fresh suit for damages for the same wrong, mirroring the claim-splitting bar in Section 24 for specific-performance suits.
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