1 -*IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. APPEAL NO.515 OF 2008 IN NOTICE OF MOTION NO.1990 OF 2006 IN SUIT NO.4236 OF 1997 Whiterose Developers Pvt. Ltd. ..Appellant. Vs. Sharanpal Balmukund Chopra .. Respondent. .... Mr. D.D. Madan, Senior Advocate with Mr. Cyrus Ardeshir i/b Wadia Ghandy & Co. for the Appellants. Mr. U.I. Makhija with Ms. G.R. Shastri for the Respondent. .... CORAM: SWATANTER KUMAR, C.J. & DR. D.Y. CHANDRACHUD, J. 13th January, 2009. P.C. : 1. We have heard learned counsel appearing for the parties. The challenge in the present Appeal is to the order passed by the Learned Single Judge dated 10th October, 2008 by which the Notice of Motion taken out by the present Appellants was rejected, however, with certain directions. With the consent of the learned counsel appearing on behalf of the parties, in our view, the Appeal should be 2 disposed of at the admission stage itself. 2. A suit for specific performance was instituted by the present Appellant on 23rd October, 1997 and it was prayed that the agreement dated 27th October, 1994 as modified by the minutes of the meeting held on 27th February, 1997 is valid, subsisting and binding. According to the Respondents they have terminated the said agreement on 2nd September, 1997 for certain breaches and irregularities committed by the present Appellant. Based on the said termination as already noted in October 1997 the suit was filed. However, Notice of Motion 1990 of 2006 was taken out by the present Appellant being the Plaintiff in the Suit after a lapse of nine years praying for an injunction, restraining the Respondents in the appeal from creating any third party rights and/or dealing with the property in question. When the Notice of Motion came up for ad interim hearing, the Respondents made a statement that they will not create any third party interest. However, when the Notice of Motion was finally heard by a Learned Single Judge, by a detailed order the Motion as already noticed was rejected. The challenge to the 3 impugned order is primarily on two grounds, firstly, that no specific finding has been recorded by the Learned Judge whether the agreement dated 27th October, 1994 is an agreement for development or is an agreement for sale. This finding was essential particularly in view of the fact that another Bench of the Court vide its order dated 25th February, 2008 had recorded a finding that it was an agreement for sale. Thus, the findings recorded by the Learned Single Judge are unsustainable and liable for interference. Secondly, it is contended that the statement made should have been continued and in face of that statement the Appellants were entitled to grant of interim orders. Meeting these two submissions, Counsel appearing for the Respondents contended that a prima facie view has been taken, that the Learned Judge has not recorded any finding or prima facie finding in relation to the breaches stated to have been committed by the Appellant as alleged by the Respondent and the mere delay of nine years was sufficient to decline the interim order. Further it is stated while relying upon the judgment of the Supreme Court in Wander Ltd. v. Antox India P. Ltd. - 1990 (Suppp) SCC 727 that the discretion exercised by the Learned Judge should not be 4 interfered by the Appellate Court and the exceptions stated are not made out in the present case. 3. Having heard the learned counsel appearing for the parties, we see no reason to interfere in the impugned order dated 10th October, 2008. The Learned Judge has exercised the discretion with reference to the totality of the facts and circumstances of the case and the discretion exercised can neither be termed perverse nor based on no evidence on record. 4. We are unable to find any error in the order of the Learned Single Judge that the Appellant took the trouble of taking out the Notice of Motion after a lapse of nine years. While the suit was instituted in the year 1997, the Motion was first time taken out in the year 2006. Even if other litigations between the parties were pending, whatever be their result, it will be inconsequential and the conduct of the Appellant in approaching the Court after such an inordinate delay cannot be explained. It is expected of a vigilant litigant that the party would take interest in protecting his interest, particularly in relation to 5 a case involving specific performance of agreement of a immovable property. There is no reason much less a plausible explanation for such an inordinate delay. 5. Certainly in the order dated 25th January, 2002 in paragraph 24 the Learned Judge has made some observations with regard to the agreement entered into between the parties. Firstly, a question whether the agreement was a development agreement or an agreement of sale was not in issue in that matter. The Court was concerned with an application taken out for contempt which was dismissed by that order. Thus, the finding recorded cannot be taken to be hit by the principle of res judicata between the parties even at the interlocutory stage. 6. The Learned Judge while dealing with this matter has clearly stated in the impugned order that this question will be gone into during the trial and has passed specific direction in regard to completion of the trial and has appointed an advocate as a local commissioner to record evidence between the parties. The mere fact 6 that a statement was made voluntarily on 28th June, 2006 by the Respondent in the present case would be no circumstance to justify the grant of a prohibitory order by the Court. There is no reason to interfere. The Appeal is dismissed with no order as to costs. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J.