1 AO No.1176/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1176 of 2009 Gangadhar Ramchandra Pusalkar ... Appellant versus Paras Developers and Anr. ... Respondents ... Mr. Uday Warunjikar for the appellant. Mr.S.M.Oka i/b Sagar Joshi for respondent no.1. CORAM : D.G. KARNIK, J DATED : 23rd November 2010 P.C. 1. By this appeal, appellant challenges the order dated 10 August 2009 rejecting the appellant’s application for injunction. 2. The appellant filed a suit bearing Regular Civil Suit no.140 of 2008 alleging that the respondent no.1 had agreed to sell to him the suit flat but had wrongfully terminated and/or cancelled the agreement. In stead of filing of a suit for specific performance of the alleged agreement, he filed a suit only for a declaration that the respondent no. 1 was not entitled to create any third party interest in respect of suit premises without following due process of law. He also claimed a permanent injunction restraining the respondent no.1 from creating 2 AO No.1176/10 third party interest in respect of suit property without following due process of law. In the suit, he made an application for interim injunction claiming interim relief restraining the respondent from creating any third party interest without due process of law. The trial Court rejected the application. That order is impugned in this appeal. 3. The prayer in the suit as well as prayer in the application is peculiarly worded. The exact words of the prayer clause in the application are Plaintiff therefore prays that; (a) pending the hearing and final disposal of the suit, the defendant, its agents, servants, employees and/or any person, agency claiming through, under or for and on behalf of Defendant be restrained by an order of Temporary injunction from creating third party interest in respect of the suit premises without following the due process of law. (underlining supplied) 4. It may be noted that neither in the suit nor in the application for interim injunction, the plaintiff has claimed permanent injunction restraining the respondent defendant from selling or alienating the suit flat but has claimed only a limited injunction restraining the respondent from selling the flat except by following due process of law. In other words, his contention is that only by following due process of law, the respondent can sell the suit flat. In the facts and circumstances of the case, the due process of law appears to be that respondent should not 3 AO No.1176/10 sell the suit flat without first terminating the agreement of the appellant. No other due process of law is contemplated. It is the case of the defendant respondent no.1 that it has terminated the agreement by a notice dated 9 February 2008. Since the respondent no.1 has followed the due process of law, no injunction could have been granted by the trial Court. The trial court has rightly rejected the application. 5. Even otherwise a mere suit for injunction without claiming relief of specific performance of the agreement without showing his readiness and willingness to perform his part of the contract by itself cannot be decreed and as such the appellant has not made out a prima facie case for grant of injunction. There is no merit in the appeal which is rejected summarily. (D.G.KARNIK, J)