* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1129 OF 2008 W I T H CIVIL APPLICATION NO. 1386 OF 2008 IN APPEAL FROM ORDER NO. 1129 OF 2008 Shabir Salebhai Mahimwala .........Appellant V/S. Kishor Danabhai Patel .........Respondent --------- Mr.P.S.Dani, adv.for appellant. Mr.Bipin Joshi, adv.for respondent. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 8 th OCTOBER, 2009. P.C. : 1. Heard learned counsel for the parties. 2. This Appeal arises from the interim order dated 19th March, 2009 passed by the trial court restraining the appellant from creating any third party rights in the suit property till the final disposal of the suit. The impugned order is passed in the suit filed by the respondent for specific performance of the agreement of sale dated 8th March, 2007 by which the applicant agreed to sell the land admeasuring 60 R towards east from Gat No.22 and 1 Hectares 19 R * 2 * towards north from Gat No.23 of village-Akshi Tal.Alibag. The appellant contends that time was the essence of the contract as can be seen from the Schedule of payment for consideration. The total amount of consideration payable by the respondent was Rs.1,65,00,000/- which was to be paid by 15th July 2007. Since, the amount was not paid, the appellant terminated the agreement of sale by issuing notice dated 5th October 2007. Within a month thereafter, the respondent filed the suit for specific performance. 3. Under the agreement, the appellant was to take measurement of pot hissas and complete process of Akarphod Patrak, since the property purchased by the respondent was part of the land at Gat No.22 and 23 and the appellant is one of the co-owners of the land. The learned trial Judge has recorded that though the appellant claims to have got the land measured and process for Akarphod Patrak completed, no record of separate pot hissas is produced at any point of time. In these circumstances, on a prima-facie view no fault can be found with the respondents for not maintaining the time schedule. Also, it is not open for the appellant to claim that time was essence of the contract. Hence, the impugned order is just and reasonable. Since the suit filed is for specific performance of agreement of sale of immovable property, the interim order passed is necessary so as to ensure that the properties are available at the time of final decree in the suit, in case the respondent succeeds in the same. * 3 * 4. Mr.Dani, the learned counsel for the appellant then submits that the interim relief granted to the respondent by the impugned order should atleast be subject to the condition to deposit the amount of consideration in the court. He submits that otherwise the suit property would get locked up to the prejudice of the applicant. He also points out that the final disposal of the suit may take a long time and during the intervening period there is every likelihood of the prices of the land escalating. There is no need to direct the respondent to deposit the entire consideration in the court, when he has in terms expressed his readiness and willingness to perform his part of the contract. It is also to be noted that the appellant has already terminated the agreement by serving notice dated 4th October, 2007. Hence, the Appeal from Order is dismissed in limine. 5. With the dismissal of Appeal from Order, Civil Application No. 1386 of 2008 does not survive. The same is accordingly disposed off. [SMT.R.P.SONDURBALDOTA, J]