VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER No. 8 OF 2008 Rajaram Baburao Lonkar & Ors. Appellants Vs. Vilas Ganpatrao Chorge & Ors. Respondents Mr. Girish Godbole with Ashok Tajane, for the Appellant. Mr. Sanjay Kshirsagar, for the Respondent No.1. CORAM : A. A. KUMBHAKONI, J. DATE : SEPTEMBER 2, 2008. PC :- 1. The appellants/original defendant Nos. 1 to 4 have filed this appeal from the order, being aggrieved and dissatisfied by an interim order passed on 15th October, 2007 by the trial Court, pending the civil suit filed by the respondent Nos. 1 and 2 herein, seeking specific performance of alleged agreement of sale dated 5th August, 2002. The learned trial Court by the impugned order restrained the appellant and the original defendant No.5, who is respondent No.3 herein, from alienating the suit land or creating third party interest therein by themselves or through - 2 - their agent till disposal of the suit. 2. The parties to the present appeal are hereunder referred to as the plaintiffs and defendants as they were before the trial Court for the sake of convenience, in as much as only sum of the defendant Nos. 1 to 4 have come in appeal by joining the 5th defendant as 3rd respondent. 3. The dispute between the parties pertains to a land, which was admittedly in the agriculture zone. There is no dispute that all the defendants have executed document dated 5th August, 2002 in favour of the plaintiff whereby they have agreed to sell the suit property @ Rs. 1.7 lakh per "Are" by accepting an earnest amount of Rs. 2 lakhs. In terms of this agreement, the defendants took upon themselves the responsibility to the change zone in which the suit property falls from agriculture to residential zone. The documents spells out this to be an important condition of the transation in issue and states that within ten days of converting the land in issue to non agriculture use further transaction will be completed. 4. The plaintiff issued notice on 6th October, - 3 - 2004, seeking specific performance of the agreement. It is pertinent to note that the defendants did not even bother to reply the notice for more than one and half years and the reply was issued for the first time on 15th February, 2006. The plaintiff has filed the suit on 20th March, 2006. 5. One of the defence of the defendants is that the transaction in issue is a money lending transaction. The fact that the defendant did not bother to reply the notice for more than one & half years speaks volume. Had there has been in fact a money lending transaction, prima-facie, the defendants would have immediately issued reply to the notice, seeking specific performance, pointing out to the plaintiff that the original transaction in issue was only a money lending transaction and there is no question of executing a sale-deed in favour of the plaintiff. This step having not taken at the earliest available opportunities by the defendant, this silence prima-facie appears doubtful which doubt the defendants will have to cler by leading evidence at the trial. 6. The defence of the defendants is also that the - 4 - document in issue is not document of agreement of sale but is only executory agreement which contemplates issuance of a further document and therefore, it is not specifically enforcible. Prima-facie I do not find any substance in this contention because the bare perusal of this agreement, produced at page 68 in the compilation of this appeal does not contemplate execution of any further document. 7. In any case whether this agereement is an agreement of sale or executoree agreement is a question, that will have to be decided upon appreciation of evidence, that may be led by the parties, during the trial, at the time of final hearing of the suit. Same observations will have to be made, in regard to the controversy raised by the defendants as to the nature of agreement, being a development agreement. At this prima-facie stage mere contents of this document will have to be taken at their face-value. If is so done, both these defences as to nature of transaction in issue can’t be accepted, of course, prima-facie. The learned counsel for the appellants also contended that the fact that the 5th defendant, the 3rd respondent herein has executed on 8th December 2005 i.e. subsequent to the - 5 - agreement in issue, the development agreement shows that the agreement in issue is an executoree agreement. Prima-facie I do not find force in this contention, in as much as a perusal of the copy of the aforesaid development agreement dated 8th December, 2005 executed by 5th defendant in favour of the plaintiff does not show that this document was executed as and by way of continuation of or in performance of or in implementing the original agreement in issue dated 5th August, 2002. 8. It is contended by the learned counsel appearing on behalf of the appellant that the paintiffs paid only Rs. 2 crores, as an earnest money as against the total consideration of the land, which according to the defendants is about Rs.2 lakhs and odd. It is contended that the plaintiffs must deposit the balance amount to show their readiness and willingness to perform their part of contract and that without such deposit, no interim relief ought to have been granted in faour of the plaintiffs. 9. I do not find any substance in this contention as well, in as much as, as set out hereinabove the important condition of the agreement in issue is that - 6 - the defendants should get the zone of the land changed from agriculture to residential and that thereafter the appropriate steps should be taken, permitting non agriculture use of the land. The burden to take all the steps has been squarely put on the defendants under the agreement in issue. Within ten days of the defendants taking all these steps, the plaintiff has agreed to make the balance payment and complete the transaction. Admittedly, no such steps are taken by the defendants, even till today. Even in law, under such circumstances, it cannot be said that the plaintiffs are liable to pay to the defendants balance amount of consideration at this stage itself. Consequently, it will not be possible for this Court, nor it was possible for the trial Court to direct the plaintiff to deposit the balance amount at this stage to demonstrate his readiness and willingness to perform his part of contract. 10. It was further contended on behalf of the appellant that there are other co-owners of the suit property, who have not been joined as defendants to the suit and that they tried to intervene in the - 7 - matter, but the trial Court rejected their application on 4th August, 2007. It is therefore, contended that on the face of such order, the order impugned herein ought not to have been passed by the trial Court. . I do not find any substance in this contention as well. In paragraph 7 of the order, the trial Court has observed that after the aforesaid application was rejected by the trial Court on 4th August 2007, the defendants had sought time for preferring an appeal against that order and though the time was granted accordingly, no appeal was preferred. Even otherwise, if these third parties have any right, title and interest at all in the suit property, the order impugned by this appeal will not bind them, In any case these defendants need not hold their brief by claiming that their non-joinder is a ground for this Court to interfere with the impugned order. 11. No other point was raised in suport of the appeal. As I find no substance in either of the points, as setout hereinabove, I have no option but to dismiss this appeal, which I hereby do. Appeal is accordingly dismissed. - 8 - . It is needless to state that all the aforesaid observations are not conclusive findings, as to the rival claims of both sides. These observations are made for giving reasons, which this Court is duty bound, for dismissal of Miscellaneous Appeal arising out of an interim order passed, when the suit is yet to be tried. Therefore, they are not worth so much that they should influence the trial Court in deciding the suit finally on the basis of evidence that is yet to be led by both sides. 12. At this stage, the learned counsel appearing on behalf of the applicant points out that the suit is of the year 2006 and that it needs to be disposed of in a time bound programme by the trial Court. I am affraid that, not being aware of the commitments of trial Court, that are already made, it will not be possible for this Court to lay down any fixed time table for the trial Court to dispose of this suit. However, I believe that the suit will be disposed of by the trial Court, as expeditiously as possible. Sd/- [ A. A. KUMBHAKONI, J.]