1.AO.952-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.952 OF 2009 WITH CIVIL APPLICATION NO.1189 OF 2009 IN APPEAL FROM ORDER NO.952 OF 2009 Dreamworks Entertainment & Software Limited. ..Appellant. Versus Mr.Sanjay Dnyanu Gaikwad and 4 others. ..Respondents. .......................... Mr.G.B. Kedia, Advocate for the Appellant. Mr.G.R. Agarwal, Advocate for Respondent Nos.2 to 5. .......................... CORAM : A.R. JOSHI, JJ. DATE : 24th SEPTEMBER, 2009. P.C. :- 1. Heard learned Advocate Mr.Kedia for the appellant in the present Appeal From Order. Also heard the learned Advocate Mr.Agarwal for respondent Nos.2 to 5 who are represent on intimation to them through the Advocate for the appellant herein. Advocate notice was already sent to respondent No.1, however, none appears for respondent No.1. 2. In the present Appeal From Order, the order dated 23.1.2009 passed by Civil Judge, Senior Division at Nashik is challenged. The 1.AO.952-09 2 said order is passed below Exhs.5 & 21. 3. Admittedly, as per the averments in the plaint filed by the present appellant/plaintiff in Special Civil Suit No.276 of 2008 before the Civil Judge, Senior Division at Nashik, there was an oral agreement between the plaintiff and defendant No.1 i.e. Respondent No.1 for sale of certain immovable landed property for total consideration of rupees ten lakhs & odd. Allegedly, an amount of Rs. 5 lakh was transferred via bank transfer from H.D.F.C. Bank account of the appellant/plaintiff to respondent No.1/defendant No.1. Thereafter in April, 2007, draft conveyance was prepared and sent for approval of respondent No.1/defendant No.1, but no action for execution of such conveyance was taken by respondent No. 1/defendant No.1. In the meantime, respondent No.1/defendant No. 1 created third party interest in favour of respondent Nos.2 to 4 so far as part of the property is concerned. It appears that on refusal by respondent No.1/defendant No.1 to execute the conveyance, three demand notices were sent by the appellant/plaintiff, but, these notices were not replied. This laid to filing of the suit for specific performance and alternatively for damages. 4. In view of the above position, it is clear that suit of the appellant/plaintiff is based only on oral agreement and alleged 1.AO.952-09 3 payment of Rs.5 lakh to respondent No.1/defendant No.1. For such payment, apart from the statement of account of the appellant/plaintiff, maintained by H.D.F.C. Bank, no other document is produced. Needless to mention that there is no any agreement to sale in writing. Respondent No.1/defendant No.1 denied all the contentions and infact denied receipt of Rs.5 lakh also. 5. Application for injunction (Exhibit-5) was preferred by the appellant/plaintiff before the trial Court restraining respondent No. 1/defendant No.1 from creating any third party interest with respect to the property. As there was already interest created in favour of respondent Nos.2 to 4 with respect to part of the property, another application (Exhibit-21) was preferred by the appellant/plaintiff for similar injunctive relief so far as the purchasers of said part of the property are concerned. Both the said applications were disposed of and rejected by the impugned order. 6. Considering the scope of the Suit filed by the appellant/plaintiff as to the specific performance and considering his own case as to the Suit based on oral agreement, hardly it can be said that the specific performance would warrant under such circumstances. Moreover, admittedly, the part of the suit property has already been alienated. On this, it is submitted on behalf of the 1.AO.952-09 4 appellant/plaintiff that he may not ask for any injunctive relief so far as respondent Nos.2 to 4 are concerned. Still considering such submission, in view of factual position and in view of no legal necessity for grant of specific relief under the circumstances of the matter and in view of the possibility of compensation at the end of decision of the pending Suit, satisfying the cause of the appellant/plaintiff, there is nothing to interfere with the impugned order even at this admission stage and as such, the preset Appeal From Order stands dismissed and disposed of as such. However, specific directions are given to the trial Court to deal with the pending Special Civil Suit No.276 of 2008 as expeditiously as possible and as far as possible prior to June, 2010. All contentions raised by rival parties are kept open and the trial Court shall not be influenced by any of the observations passed while disposing of the present Appeal From Order. Civil Application also stands dismissed and disposed of as such. [A.R.JOSHI,J.]