NMS1897-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1897 OF 2009 IN SUIT NO.1302 OF 2009 Rita Shashiprakash Singh & Anr. .. Plaintiffs Versus M/s.Harsh Constructions .. Defendants Mr.Ashish Kamath i/b. Ashok Purohit & Co. for plaintiffs Mr.D.D.Madon, Senior Advocate with M.sLaxmi G. Jessani i/b. Vinod Mistry & Co. for defendantt No.1 Mr.Chetan Kapadia with Lalit Jain for defendant No.2. CORAM : S.C.DHARMADHIKARI, J. DATE : 14th October 2010. P.C.: 1] This is a notice of motion for interim reliefs in a suit for specific performance of a letter of allotment in respect of a flat which is under construction. 2] Plaintiff states that the letter of allotment by itself would constitute an agreement for sale and nothing further was required or NMS1897-09 2 else defendant No.1 would not have accepted any amounts thereunder. He has accepted a sum of Rs.55000/- and when it came to the possession being handed over so also the sale deed being executed, that he backed out and although, the agreement is not terminated, the first defendant purported to create third party rights. 3] My attention is invited by Mr.Kamat for plaintiff to the order passed by this Court at the ad-interim stage and it is contended that at that time, the flat was under construction and there was no chance of the possession being parted with as the flat is situate at 15th floor. 4] However, Mr.Kamat submits that construction has progressed further and the ad-interim injunction should also restrain the first defendant from giving the possession of the flat which is allegedly sold to the second defendant. In other words, the possession should not be handed over to the second defendant is the request. 5] It is opposed by Mr.Madon, learned Senior Counsel appearing NMS1897-09 3 for first defendant on the ground that no prima facie case is made out because the suit is based on letter of allotment which is not an agreement for sale itself. That contemplates execution of agreement for sale at a later date. Further, the defendant No.1 has already informed that the agreement / letter of allotment stands terminated but this act has not been impugned or challenged. Particularly now there is a regular agreement for sale which is registered and the consideration that is received from the second defendant is to the tune of Rs.16 lakhs. For all these reasons, motion itself deserves to be dismissed far from any confirmation of the ad-interim order. 6] Mr.Kapadia appearing for second defendant supports the submissions of Mr.Madon, learned Senior Counsel. 7] Having heard them at some length and finding that there is ad- interim order made on 11th June 2009, which is continuing till date with the modification as made on 8th July 2009, I do not see any prejudice being caused to the defendants. However, the request of the NMS1897-09 4 plaintiff that the second defendant cannot be put in possession until the suit is disposed of would cause hardship to the second defendant who has parted with a sum of Rs.16 lakhs under the agreement for sale. When the court is yet to reach a conclusion whether letter of allotment by itself constitutes an agreement for sale and whether the plaintiff was always ready and willing to perform his obligations thereunder, it would be unfair to deprive the second defendant of possession of a valuable flat in this city. For all these reasons, the motion is made absolute against defendants in terms of the ad-interim order dated 8th July 2009, which order only restrains transferring, selling, encumbering, alienating the suit property in any manner but will not prevent the first defendant in placing the defendant No.2 in possession and the second defendant from inducting any person as a licensee therein. The ad-interim order is confirmed subject to the above. No costs. (S.C.DHARMADHIKARI, J) NMS1897-09 5