BGD IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL APPEAL APPEAL FROM ORDER NO.950 OF 2007 FROM ORDER NO.950 OF 2007 FROM ORDER NO.950 OF 2007 Shri Vilas Ramchandra Kulkarni ... Appellant (Ori.Defendant) Vs. Shri Dilip Vishwanath Sanyashiv ... Respondent (Ori.Plaintiff) Mr. Tushar Sonawane i/by M.M. Sathaye, Advocate for the Appellant. Mr. N.R. Bubna, Advocate for Respondent CORAM CORAM CORAM : SMT. R.P. SONDURBALDOTA, J : SMT. R.P. SONDURBALDOTA, J : SMT. R.P. SONDURBALDOTA, J. DATE DATE DATE : 31ST JULY, 2008 : 31ST JULY, 2008 : 31ST JULY, 2008 P.C. P.C. P.C. :- :- :- 1. Rule is made returnable forthwith. The appeal is taken up for final hearing. Heard both the learned Advocates. 2. This appeal is preferred to challege the correctness of legality of the order passed on an interim application filed by the respondent who is the original plaintiff before the trial Court. The appellant is the original defendant. 3. On 2nd June, 1995, the appellant entered into an agreement with the respondent for sale of 2 the property, Plot No.17 of Survey No.223/7, admeasuring 184.25 sq.mtrs. Since the property was of the old tenure, it was necesary for the respondent to make an application to the Collector for converting the same into property of the new tenure to validate the said transaction. The consideration for the transfer was agreed at Rs.78,000/-. The respondent paid the earnest money to the extent of Rs.55,000/- to the appellant. It was agreed that the balance amount of Rs.23,000/- would be paid at the time of execution of conveyance deed. 4. On 18th March, 2005, the respondent made an application to the Collector for conversion of the property. The Collector fixed the charges of that at Rs.56,272/- which was paid by the respondent to the Government on 28th March, 2008. Thereafter, on 15th April,2005, the Tahsildar, Malegaon granted the permission for the transaction of the sale. The appellant does not reside on the suit property, he resides at Aurangabad in connection with his service. On 9th April, 2006 when the appellant had gone to Malegaon, the respondent visited him and demanded specific performance of the transaction, when for 3 the first time, the appellant and his wife denied the transaction. Therefore, the respondent filed the instant suit. The Respondent had applied for interim relief of injunction to restrain the appellant interalia from creating any third party rights over the suit property. By the impugned order, the interim relief came to be granted to the respondent. 5. Mr. Tushar Sonawane, the learned counsel for the appellant submits that the trial Court ought to have considered that the suit is barred by Law of Limitation. He submits that the suit filed in the year 2006 for specific performance of the agreement of sale dated 2nd June, 1995 is ex-facie barred by Law of Limitation. Perusal of the plaint shows that the respondent has avered therein that the appellant and his wife showed unwillingness for the transaction for the first time on 9th February, 2006. Hence, I find no substance in the contention that the suit is barred by Law of Limitation. 6. It is next contended by Mr. Sonawane that the agreement of sale is made on the stamp paper of the denomination of Rs.20/- and as such it is 4 not properly stamped. It is not also registered. Therefore, there could be no relief of injunction in favour of the respondent. This fact will be considered by the trial Court at the time of final hearing of the suit. The same need not come in the way of grant of interim relief. 7. Lastly, it is contended by Mr. Sonawane that the appellant had terminated the contract with the respondent in the year 1998 and paid a sum of Rs.78,000/- in cash to the respondent, which included the earnest money. This is denied by the respondent. There is no evidence produced before the Court to establish the fact of return of money in cash to the appellant. There is also, admittedly, no notice of termination given by the appellant to the respondent. Consequently, there is nothing before the Court to indicate termination of the contract. In these circumstances, the respondent would be entitled to the interim relief as granted by the learned trial Court. There is no need to interfere with the impugned order. 8. The Appeal from Order is dismissed. 5 ( SMT.R.P. SONDURBALDOTA, J.) SMT.R.P. SONDURBALDOTA, J.) SMT.R.P. SONDURBALDOTA, J.)