1 W.P.No.9246/11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.9246 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr.A.K.Gugale, advocate for the petitioner. Mr.V.S.Bedre, advocate for the Respondent No.1. CORAM : S.V.GANGAPURWALA,J. Date : 08.12.2011. PER COURT : 1. Heard. 2. The present petitioner is the original plaintiff. The plaintiff has filed suit for perpetual injunction and mandatory injunction seeking relief, pursuant to the agreement entered into between the parties. The petitioner also filed an application for temporary injunction restraining the present Respondent/defendant from alienating, creating third party interest in respect of Flat No.2. The said application cane to be rejected. Aggrieved thereby, the plaintiff filed appeal before the District Court. The District Court dismissed the appeal. The plaintiff has assailed the said order in the present petition. 3. Mr.Gugale, learned counsel for the petitioner strenuously 2 W.P.No.9246/11 contended that U/s 38 of the Specific Relief Act. The plaintiff is entitled for prohibitory relief and obligation has been created by virtue of the said agreement which is executed between the parties pursuant to the dissolution of partnership. The defendant is duty bound to perform the obligations as enumerated in the agreement between the parties. With a view and in furtherance of the said agreement, if the defendant alienates and sells his property then the agreement which is entered between the parties will lose its efficacy inasmuch as the defendant is to pay the loan of the Bank. The agreement is self-speaking. If the Respondent succeeds in alienating the property then the Respondent would not be performing his obligation and the petitioner would be in a tight corner. 4. Mr.Bedre, learned counsel for the Respondent No.1 supports the order. 5. Both the Courts have observed that said Flat No.2 which is the subject matter of temporary injunction also is not the part of the agreement dated 12.7.2007 and as such have prima facie found that the plaintiff is not entitled for any equitable relief at this stage. The plaintiff has sought the relief of perpetual injunction as far as the said Flat No.2 is concerned. If at all the said property is the suit property then the provisions of the Transfer of Property Act, would take care of the apprehension of the petitioner. 3 W.P.No.9246/11 6. At present going through the agreement, it does not transpire that the said Flat No.2 was the subject matter of the agreement, it would be inequitable at this stage to pass prohibitory relief in respect of the said Flat No.2. 7. The view taken by the Courts below is a plausible view. The same need not be interfered in the Writ jurisdiction under Article 227 of the Constitution of India. 8. Taking into account the nature of the dispute and that the pleadings of the parties are complete, the trial Court shall expeditiously dispose of the suit. 9. Needless to state, the observations made herein are only prima facie in nature and the trial Court shall decide the suit on the basis of evidence adduced and dehors the observations made herein. (S.V.GANGAPURWALA,J.) Dt.08.12.2011. asp/office/wp9246.11 4 W.P.No.9246/11