-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 358 OF 2009 IN NOTICE OF MOTION NO. 2123 OF 2008 IN L.C. SUIT NO. 1415 OF 2003 M/s. Jayashtree Builders & Contractors Pvt. Ltd. ... Appellant versus Vishakha Sadan Co-op. Hsg. Soc. Ltd. ...Respondents Mr. A.G. Damle for the appellant. Mr. Udaipuri, instructed by M/s. Udaipuri & Co., for the respondents. CORAM: P.B. MAJMUDAR & R.C. CHAVAN, JJ. DATE: NOVEMBER 04, 2009. P.C. This appeal is directed against an order passed by the learned single Judge dated 16th February, 2009, by which the learned Judge dismissed the Notice of Motion taken out by the appellant-original plaintiff. 2. The appellant is the original plaintiff in Suit No. 1415 of 2003. The aforesaid suit was initially filed by the appellant for specific performance of suit agreement dated 8th May, 1998 read with deed or rectification dated 17th May, 1999. Subsequently, the plaintiff amended the plaint and prayer for specific performance was given up and an additional prayer was made to the -2- effect that the said agreements are null and void and not binding on the plaintiff and they are vitiated by fraud. The plaintiff thereafter preferred a Notice of Motion with a prayer that the defendant be restrained from acting on the basis of the agreements in question. The learned single Judge found that whether the agreement in question is vitiated by fraud or not, the same is required to be decided after recording the evidence in the suit. It has been found that as long as the agreement has not been finally set aside by holding that the same is vitiated by fraud, the same still subsists and the defendant cannot be prevented from developing their own property. 3. In our view, no interference is called for against the impugned order of the learned single Judge. The learned single Judge rightly found that the defendants are not required to be restrained from developing their own property. As stated earlier, the plaintiff had earlier filed the suit for specific performance of the very agreements which prayer they gave up and now they have prayed that the defendants should not be allowed to act as per the agreements in question. The issue in question is required to be decided in the suit and at this stage the defendants cannot be prevented from developing their own property. Even the balance of convenience also requires that such injunction prayed for in the Notice of Motion cannot be granted. The leaned Judge, therefore, has rightly used his discretion in rejecting the prayer in the Notice of Motion. We may, however, clarify that whatever may be the -3- developments, the same shall be subject to the final outcome of the suit. 4. Subject to what is stated above, the Appeal is dismissed. P. B. MAJMUDAR, J. R.C. CHAVAN, J.