Section 40: Damages in lieu of, or in addition to, injunction

Specific Relief Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1963

Legal Commentary & Landmark Judgments: Section 40

Section 40 of the Specific Relief Act, 1963 empowers the plaintiff in a suit for perpetual or mandatory injunction to claim damages either in addition to, or in substitution for, such injunction, and authorizes the Court to award such damages if fit.

  • Damages in Addition to or in Substitution: The plaintiff in a suit for perpetual injunction under Section 38 or mandatory injunction under Section 39 may claim damages either in addition to, or in substitution for, such injunction.
  • Mandatory Claim in Plaint: Section 40(2): No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in their plaint.
  • Leave to Amend Plaint: Section 40(3): If the plaintiff has not claimed damages, the Court shall at any stage allow the plaintiff to amend the plaint on such terms as may be just.
  • Dismissal of Injunction Bars Separate Suit: The dismissal of a suit to prevent the breach of an obligation bars the plaintiff's right to sue for damages for such breach.
Key Landmark Precedents:
  • Shree Hanuman Cotton Mills v. Tata Air Craft Ltd., (1969) 3 SCC 522: The Supreme Court discussed the statutory power of civil courts to award damages in substitution of injunctive relief where granting an injunction would be inequitable.
  • Cotton Corporation of India v. United Industrial Bank Ltd., (1983) 4 SCC 625: Affirmed that damages in lieu of injunction are an alternative equitable remedy preventing complete failure of justice.
Courtroom Practice & Strategic Litigation Guidance:

Always include a prayer for damages in lieu of or in addition to injunction under Section 40 in every injunction plaint; if an injunction is refused on balance of convenience, the court can still award substantial financial damages.