1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO.105 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard Shri S.D.Kulkarni Advocate for the appellant and Shri C.K.Shinde, Advocate for Respondents. 2. This appeal from order is preferred by original plaintiff being aggrieved by refusal by learned Civil Judge, Senior Division, Kopargaon to grant temporary injunction as prayed vide application Exhibit 6 in Special Civil Suit No.97 of 2008. The impugned refusal is dated 13.7.2009. 3. Briefly stated, case of the plaintiff is that on 15.6.2007 he entered into an agreement with Respondent Nos. 1 to 3 for purchase of 2 survey Nos.166/2/1, 166/2/2 and 166/2/3 situated at village Chande Kasare, Taluka Kopargaon, District Ahmednagar. Three portions of Survey No.166/2 belonged to Respondent Nos. 1 to 3 respectively and it was agreed that the price of land would be Rs.3,50,000/= per acre and thus total price at the rate of Rs.3.50 lakhs per acre, was held to be Rs.46,90,000/= out of which, Rs.4,00,000/= were paid and remaining consideration amount was to be paid subsequently. 4. It is said that as per the agreement the land was cleared up of thorny bushes existing thereon by using JCB machine and compound of wire fencing was erected around the lands. Applications for measurement of the lands were also given. Public notice, as agreed, was also given, but thereafter one of the adjoining land owners raised dispute regarding right of way through his land and thereafter the plaintiff issued notice to Respondents, but they denied the 3 agreement. It was averred that the agreement was cancelled and earnest amount was repaid. Thereafter suit was filed for specific performance. 5. Application was made for temporary injunction restraining Respondents from creating third party interest and for maintaining status-quo so far as title and ownership of the property is concerned. Ad-interim injunction was granted, but after hearing both sides learned trial court judge refused the application and hence, this appeal from order. 6. Learned Civil Judge, Junior Division, observed that the plaintiff was not ready and willing to perform his part of the contract and necessary pleading was not there. Advocate Shri S.D.Kulkarni for the appellant argued that admittedly fencing was erected, applications for measurement of lands were given, land was cleared by JCB Machine and, therefore, certain acts were done as per the agreement. He 4 pointed out paragraph 2 of the plaint and submitted that the plaintiff was and is ready and willing to perform his part of the contract. 7. Shri C.K.Shinde, learned Advocate for Respondents, drew my attention to paragraph 4 of the receipt of earnest money dated 15.6.2007 produced at Exh. A along with present appeal memo wherein it is stated that 50 per cent of the total consideration amount was to be paid at the time of agreement of sale to be executed within one month from the date of execution of receipt of earnest money. So, what was executed on 15.6.2007 was not an agreement of sale, but just a receipt or document indicating intention to enter into an agreement and the agreement was not executed between the parties. Paragraph 4 of the receipt also discloses that two months after execution of agreement of sale within one month, sale deed was to be executed and at that time remaining amount was to be paid. 5 8. It is argued that there is complete silence on the part of the plaintiff as to why agreement of sale, which is to be registered, was not executed within one month from the date of execution of receipt of earnest money and why 50 per cent amount was not paid as agreed in paragraph 4 of the plaint and that shows that the plaintiff was, in fact, not ready to perform his part of the agreement. Out of total consideration of Rs. 46,90,000/=, the plaintiff paid only Rs.4,00,000/=. 9. Along with appeal memo, affidavits sworn by Respondents for obtaining necessary permission for measurement of lands, are annexed. Shri C.K.Shinde, learned Advocate for Respondents, relied upon following portion in paragraph 5 of the judgment of the Apex Court in the matter of N.P.Thirugnanam vs. R. Jagan Mohan Rao AIR 1996 SC 116; 6 "5. .......................... Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to 7 perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been ready and willing to perform his part of the contract." 10. Advocate Shri Shinde for Respondents has also relied upon paragraph 6 of judgment of the learned Single of this Court in Citizen Aster Co-op. v. Fredrick J. D'Souza 2005 (2) Bomb.C.R.647 to following effect: "6. It is well settled that an order relating to temporary 8 injunction, either grant or refusal, is in exercise of discretion of the Court, and the Appellate Court is not supposed to substitute its own discretion for that of trial Court except where the discretion is shown to have been exercised by the lower Court arbitrarily or capriciously or where the Court exercising its discretion had ignored the settled principles of law regulating grant or refusal of temporary injunction. Indeed, the Apex Court in (Wander Ltd. & Nr.v. Antony India P. Ltd.), reported in 1990 (Supp.) C.C. 727 had held that "an appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below solely on 9 the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion." 11. In the present case, though certain minor steps were taken by the plaintiff-appellant, major step to be taken or condition to be complied with was to pay fifty per cent of the total consideration amount at the time of of agreement of sale which was to be executed within one month from the date of receipt of earnest money executed on 15.6.2007. However, that major step was not taken and said condition is not complied with and we do not find any explanation for non compliance of the 10 said material condition. In fact, it is one of the major circumstances which weighed with learned trial court judge to hold that the plaintiff had no prima facie case for grant of injunction. 12. Advocate Shri S.D.Kulkarni for the appellant submitted that other formalities were to be first complied with before execution of agreement of sale, but paragraph 4 of the receipt of earnest money is an independent term not depending on completion of other formalities as sought to be contended by learned Advocate. Admittedly fencing is erected around the lands. Lands are cleared of thorny bushes and even applications for measurement of lands were also made, but there is no mention as to why fifty per cent of the total consideration amount was not tendered and agreement of sale was not demanded by the plaintiff. So, paragraph 4 of the receipt for earnest money dated 15.6.2007 (Exh. A to appeal from order) clearly shows that the parties did not intend to treat the said receipt as 11 agreement of sale, but in fact, they wanted to execute separate agreement for sale and intention behind it is very clear that there should be immediate payment of 50 per cent of total consideration amount at the time of execution of agreement of sale. 13. In this view of the matter, I am of the view that the trial court has reasonably exercised its jurisdiction. The appeal from order is, therefore, rejected. 13. At this stage, learned Counsel for the parties assured that they will co- operate with the trial court, and requested for direction to expedite hearing of the suit. In the result, trial court is directed to expedite hearing of the suit and as far as possible to decide the suit within six months. Date:29/09/2009 (P.R.BORKAR, J.) pnd/ao105.09