{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.141 OF 2011 WITH CIVIL APPLICATION NO.9850 OF 2011 1 Jagannath Madhavrao Chakrawar, age: 55 years, Occ: Business, R/o Vitthal Niwas, Dilpsingh Colony, Nanded. 2 Sardar Gurdeepsingh Indarsingh Tailor, age: 56 years, Occ: Business, R/o in front of Udasi Math, Chikalwadi, Nanded. Appellants Versus Smt.Suraiyabegum w/o Mohd.Rauf, age: 57 years, Occ: R/o 177/1, Okhla Village, Jamai Nagar, New Delhi-110 025. Respondent Mr.A.D.Kasliwal, advocate for appellants. Mr.Mohd. Mazharji, advocate holding for Mr.Sanjaykumar Chavan, advocate for respondent. CORAM : S.S.SHINDE, J. DATE : 13 th September, 2011 PER COURT: 1 This Appeal from Order takes exception to the order dated 21.07.2011, passed by III Joint Civil Judge, Senior Division, Aurangabad, below Exhibit-5 in Special Civil Suit No.606/2010. {2} 2 Learned Counsel appearing for the appellants - original plaintiffs submits that perverse findings are recorded by the trial Court. He invited my attention to the written statement of the Respondent - original defendant and submits that so far as finding of the trial Court, in respect of ownership of the defendant qua suit properties, is not in dispute. Therefore, the trial Court has recorded perverse findings in para 25 of the impugned judgment. He further submits that the agreement is not in dispute. The payment of earnest money is also not in dispute. The original defendant - Respondent herein has not stated anything or placed anything on record to show that while granting such injunction, irreparable loss would be caused to the defendant. In support of this contention, learned Counsel for the appellants placed reliance on the reported judgment of the Supreme Court in the case of Maharwal Khewaji Trust (Regd), Faridkot Vs. Baldev Dass, reported in 2004 (8) SCC 488 and in particular para 10 of the said judgment. Learned Counsel further submits that the defendant was directed to maintain status quo in respect of the suit properties on 21.03.2011, The said order was continued on 30.08.2011. Therefore, in the interest of justice and in order to protect interest of the plaintiffs pending suit, the said order deserves to be continued. The learned Counsel, in addition to his oral submissions, invited my attention to the grounds stated in the {3} memo of appeal, annexures thereto and also subsequent notices issued to the Respondent and submitted that this Appeal from Order deserves to be allowed. 3 On the other hand, learned Counsel appearing for the Respondent – original defendant has invited my attention to the terms of the agreement to sell and submitted that three dates are crucial. On 23.11.2007, plaintiffs contacted the defendant and showed willingness to purchase the suit property, on 05.12.2007, agreement to sell is executed and on 14.11.2008, notice was given by the plaintiffs to the defendant. Learned Counsel for the Respondent has invited my attention to clause nos.3, 8 and 9 of the agreement to sell and submitted that admittedly, agreement period is for twelve months commencing from 5th December 2007 to 5th December 2008. It is the submission of the Counsel for Respondent – original defendant that balance amount of Rs. 2,80,00,000/- was not paid by the appellants within stipulated period and, therefore, as per clause 8 of the agreement to sell, earnest money of Rs.20,00,000/-, received by the defendant, stood forfeited. It is further submitted that obligation was on the appellants / plaintiffs. He has invited my attention to clause 9 of the agreement to sell and submitted that in case the first party fails to execute the document in respect of sale of the suit property in favour of the second party i.e. appellants herein or their nominees within thirty days on receipt of full and final payment, {4} then the second party shall have a right to get the sale deed executed through the Court by filing appropriate proceedings before the Court at Aurangabad under Specific Performance of Contract Act. Learned Counsel further submits that the judgments relied upon by the plaintiffs, which were not before the trial Court or before this Court, are not applicable in the facts of this case. The plaintiffs utterly failed to make out prima facie case and balance of convenience is not in favour of the plaintiffs and if injunction is granted, it would cause irreparable loss to the defendant. Learned Counsel for the Respondent submits that this Appeal from Order is devoid of of any merit and, therefore, same may be dismissed. 4 I have given due consideration to the submissions. Heard learned Counsel for respective parties at length. Perused the appeal memo and also annexures thereto, document of agreement to sell, which is placed on record by the appellants, so also the impugned judgment and order, which is assailed in this Appeal from Order. 5 The trial Court, in para 20 of the impugned order, has considered the document of agreement to sell and further discussed about the terms of the agreement in paragraphs 21, 22, 23 and reached to the conclusion in para 24 that the plaintiffs are {5} taking contradictory pleas at one and the same time, when they are aware that, some portion of land is not in possession of the defendant and names of some tenants are shown in 7/12 extracts, it means plaintiffs, at their own, have admitted that some portion of the suit properties is already taken in possession by some tenants and 4 hectares 30 ares portion out of G.No.310 is already shown in the name of Government under the Ceiling Act. 6 The trial Court has, in detail, considered the document of the agreement to sell and also the aspect of balance of convenience. 7 On independent scrutiny of the document of agreement to sell, which is placed on record by the appellants, it is not in dispute that balance amount of Rs.2,80,00,000/- shall be paid by the second party i.e. appellants herein to the first party i.e. Respondent herein on or before 05.12.2008 i.e. within twelve months. Consequences of not paying the balance amount are provided under clause 8 of the agreement to sell. Admittedly, in the present case, balance amount of Rs.2,80,00,000/- is not paid by the appellants to the Respondent. Therefore, prima facie, it appears that the conclusions drawn by the trial Court, on the basis of agreement to sell, cannot be said to be perverse findings. That apart, the trial Court, in para 27 of the impugned order, has observed that the plaintiffs have not made out prima facie case and {6} balance of convenience would not lie in favour of the plaintiffs. The plaintiffs / appellants herein want injunction prohibiting the respondent from alienating the suit property. Though the earnest amount of Rs.20,00,000/- is paid by the plaintiffs to the defendant, from reading clause 8 of the agreement to sell, such amount gets forfeited in case the balance amount of Rs. 2,80,00,000/- is not paid within stipulated period, as agreed between the parties in clause 3 of the agreement to sell. 8 Therefore, taking overall view of the matter, in my opinion, the conclusions drawn by the trial Court are in consonance with the material placed on record. Therefore, no case is made out for interference. The Appeal from Order is devoid of any merit. Same, therefore, stands rejected. Consequently, Civil Application also stands rejected. Interim order granted by this Court stands vacated. 9 Any observations made hereinabove are restricted only for disposal of this Appeal from Order and Civil Application. S.S.SHINDE JUDGE adb/ao14111