1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 406 OF 2009 WITH CIVIL APPLICATION NO.488 OF 2009 Smt. Yamunabai Dwarkanath Gondhale & Anr. ....Appellants Versus M/s. Haware Engg. And Builders Pvt. Ltd. & Ors. ....Respondents. Mr. R. S. Apte, Sr. Counsel with Mr. Shivraj R. Patil for the Appellants. Mr. Atul Rajadhyaksha, Sr.Counel with Mr. Akhil Dubey & A. A. Khan i/b. M. Tripathi & Co. for Respondent No.1. CORAM : R. V. MORE, J. DATED : 3RD JULY, 2009. P.C. Heard, Mr. Apte, learned Senior Counsel for the Appellants and Mr. Rajadhyaksha, learned Senior Counsel for the Respondent No.1. None appears for the Respondent Nos. 2 to 10, though served by notice, informing them that the Appeal will be decided finally at the stage of admission. 2. There is no dispute that the Appellants are real sisters of the Respondent Nos.2 to 4. There is also no dispute that survey no.48/2, 48/3, 48/6A, 48/6B totally admeasuring 66 Guntas is the ancestral property of the Respondent Nos.2 to 4 and the present Appellants. The Respondent Nos. 5 to 10 are either wives or children of Respondent Nos. 2 to 4. 2 3. Mr. Apte, learned Senior Counsel, submits that the Appellants have two-third share in the suit property. However, same is disputed by Mr. Rajadhyaksha, learned Senior Counsel, by saying that they have got only two- fifth share. In any case, the share of the Appellants will have to be decided at the time of final hearing of the suit. 4. On 13th June, 2003, the Development Agreement was executed by Respondent Nos. 2 to 4 and the Appellants, in favour of the Respondent No.1. An amount of Rs.6,00,000/- was given as security deposit. Dispute arose between the parties, which led the Respondent No.1 to file Special Civil Suit No.390 of 2006 for specific performance of the above Development Agreement. During the pendency of the proceedings, conveyance was executed by Respondent Nos. 2 to 4 and the Appellants, in favour of Respondent No.1 on 6th November, 2007 for the consideration of amount of Rs. 2,15,00,000/-. In view of this conveyance, consent terms came to be filed in the said suit and the suit came to be disposed of, accordingly. Under the conveyance, the Respondent No.1 was to pay to the Respondent Nos. 2 to 10 an amount of consideration mentioned above, in phase-wise manner. It is not disputed by Mr. Apte and Mr. Rajadhyaksha, learned Senior Counsel, that till today, the Respondent Nos.2 to 10 have been paid an amount of Rs.1,25,00,000/- approximately and an amount of Rs. 90,00,000/- is balance. 5. The Appellants filed the present suit against the Respondents for declaration that the Conveyance Deed dated 6th November, 2007 executed in favour of Respondent No.1 is null, void and inoperative. The main grievance of the Appellants seems to be that though they have got substantial share in the suit property, they are not being paid any amount towards consideration. The Appellants also filed interim application at Exhibit “5” for temporary injunction restraining the Respondent No.1 from entering upon the suit land or remaining thereon or from carrying out development activities on the suit property. This application was contested by the Respondent No.1. By the impugned order, the learned Judge of the Trial Court, rejected the same. 3 6. I have perused the Conveyance Deed dated 6th November, 2007, as well as Consent Terms filed in S.C.S No.390 of 2006. Both the documents, unequivocally shows that the Appellants as sisters of Respondent Nos. 2 to 4 have substantial share in the suit property. Both the documents, further shows that inspite of this position, the Appellants are not being paid anything towards consideration. This position was fairly admitted by Mr. Rajadhyaksha, learned Senior Counsel appearing for Respondent No.1. 7. In the above facts and circumstances, I am of the view that the interest of the Appellants deserves to be protected. This interest can be protected by directing the Respondent No.1 to deposit in the Trial court, the balance of consideration amount which approximately comes to Rs.90,00,000/-. 8. In the above facts, I dispose of the Appeal from Order, by passing the following order: 1. The Respondent No.1 is directed to deposit the remaining balance consideration i.e Rs.90,00,000/- approximately, in the Trial Court as per the Conveyance Deed dated 6th November, 2007. 2. The Appellants are at liberty to apply to the Trial Court for withdrawal of above amount. The Trial Court shall decide the Appellants’ Application for withdrawal after giving opportunity of hearing to all the parties. In the event, the Trial Court refuses withdrawal,, the said amount shall be immediately invested in any nationalised Bank, initially for the period of six months and thereafter, be renewed from time to time. 3. It is made clear that the aforesaid amount of deposit shall be subject to final outcome of the suit. 4. This Order should not be construed as an expression on merits abouts rights of the respective parties. 4 5. The Respondent Nos. 2 to 10 shall not be allowed to withdraw the amount deposited. The Appeal from Order is disposed of, in the above terms. 9. In view of the disposal of the Appeal from Order, the Civil Application No.488 of 2009 will not survive and therefore, the same is disposed of. Sd/- (R. V. MORE, J.)