1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 635 of 2008 IN SUIT NO. 462 of 2008 Prabhakar M. Shetty .. Plaintiff versus Smt.Deubai Parshuram Patil & Anr. .. Defendants ... Mr.S.U. Kamdar, S.B.Kotak i/b M/s.Purnanand & Co. for the plaintiff. Ms.Munim for defendant nos.1 to 13. Mr.S.V. Shetty for defendant no.14. CORAM : D.G.KARNIK, J DATED : 25th April 2008 P.C.: 1. By this motion, the plaintiff seeks injunction restraining the defendant nos.1 to 13 from selling, alienating, transferring or in any manner creating third party interest in the plot of land 2 admeasuring about 9374.7 sq.m. bearing CTS No.573, Survey No.137 of Village Nahur (for short ’the suit property) 2. Learned counsel for the plaintiff did not press any relief except the prayer clause (a). 3. One Mr.Parshuram Patil was the owner of the suit property. The defendant nos.1 to 13 are the heirs of Parshuram. By an agreement of sale dated 31st October 1975 Mr.Parshuram agreed to sell to the defendant no.14, who is the brother of the plaintiff, the suit property. By an agreement dated 16th May 1988, the defendant no.14 transferred and/or agreed to transfer his rights in the suit property to the plaintiff. In the mean while, Parshuram died. By an agreement dated 21st March 2989, the defendant nos.1 to 13, as heirs of Parshuram, agreed to sell the suit property to the plaintiff. The defendant nos.1 to 13 also executed two power of attorneys dated 18th March 1989 and 23rd March 1996 in favour of the plaintiff. There is however some dispute regarding the execution and validity of one of the power of attorneys dated 29th March 1996. That dispute is not relevant at this stage for the purpose of relief of injunction which is claimed, as I am satisfied that the injunctive relief can be granted even without 3 reference to the said power of attorney dated 29th March 1996. 4. By a notice dated 28th June 2007, the plaintiff called upon the defendant nos.1 to 13 to specifically perform the agreement dated 21st March 1989. Instead of complying with the said notice, the defendant nos.1 to 13 by a notice dated 26th September 2007 purported to terminate the agreement dated 21st March 21989. The plaintiff has therefore filed this suit for specific performance and claimed injunction pending the decision of the suit. 5. By an agreement dated 31st October 1975 Parshuram, the original owner had agreed to sell the suit property to defendant no.14. The defendant no.14 in turn has transferred its rights in favour of the plaintiff. Subsequently, disputed have arisen between the plaintiff and defendant no.14. The defendant no.14 has filed a suit bearing no. 933 of 1994 against the plaintiff. In the said suit, the defendant no.14 claimed an interim relief of injunction. By an order dated 8th February 1996 passed in Notice of Motion no. 785 of 1994 this Court rejected the interim relief holding that defendant no.14 had agreed to transfer its rights under the agreement dated 13th October 1978 in favour 4 of the plaintiff. Thus, the defendant no.14 cannot presently claim any rights in respect of the suit property against the plaintiff. 6. So far as defendant nos.1 to 13 are concerned, they were not only bound by the agreement dated 31st October 1975 which was entered into by Parshuram, under whom they claim, in favour of the defendant no.14, but they had also entered into a separate agreement dated 21st March 1989 in favour of the plaintiff. The entire consideration of Rs.50,000/- agreed under the agreement dated 21st March 1989 has been paid by the plaintiff indicating his readiness and willingness to perform his part. 7. Learned counsel for the defendant submitted that the suit is barred by limitation under article 54 of the Limitation Act, time prescribed for computing the period of limitation begins from the date of refusal as no time for performance has been fixed in the agreement dated 21st March 1989. Hence, prima facie, there is no merit in this contention. 8. No other point was urged by the defendants. 9. For the reasons stated above the motion is allowed in terms of prayer clause (a). 5 (D.G.KARNIK, J)