:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.505 OF 1995 1. Mohommed Chand Mujawar since deceased by his heirs and legal represnetatives: 1A. Smt. Tarabai Mohommad Mujawar, Age 67 years, widow, Occ. Household. 1B. Smt.Shamshed Hamid Inamdar, Age 49 years, daughter, Occ. Household work, Both R/o. 277, Budhwar Peth, Pune. 1C. Smt. Nasim Isak Mulani, Age 47 years, daughter, Occ. Household, Residing at Yavat, Tal.Daund, Dist. Pune. 1D. Smt. Rukhsana Abdulajiaj Shaikh, Age 46 years, daughter, R/o. Panchgani, Tal. Wai, Dist.Satara. 1E. Smt. Rahana Nissar Mulani, Age 44 years, daughter, R/o. Khed Shivapur, Tal. Haveli, Dist. Pune. 1F. Shri. Mansoon Mohmad Mujawar, Age 43 years, son, Occ. Business, R/o. 277, Budhwar Peth, Pune 411 002. 1G. Smt. Shikara Akabar Inamdar, Age 42 years, daughter. Occ. Household work, R/o. 277, Budhwar Peth, Pune-411002. 1H. Smt. Vazira Taher Mulani, Age 41 years, Occ. Household work, R/o. Khed Shivapur, Tal. Haveli, Dist. Pune. 1I. Smt. Arifa Akram Khan, Age 39 years, daughter, Occ. Household work, R/o. 366, Nana Path, Pune-411 002. 2. Isak Babubhai Mulani, Age about 45 years, Occ. Agriculturist, Residing at Yawat,Tal. Dound, Dist.Pune. ...Appellants. (Org. Defendants.) Vs. :2: Raghunath Shankar Kelkar. Age about 35 years, Occ. Agriculturist and Businessman, Residing at Shivkripa, 250, Sadashiv Peth, Pune-30. ...Respondent. (Org. Plaintiff.) Ms. Deepa Ahuja i/by Mr. Vineet B. Naik for the Appellants. Respondent in person. CORAM: R.S. MOHITE, J. DATE : 11th June,2008 ORAL JUDGMENT 1. This is a first appeal filed by the original defendants impugning a judgment and order passed by the Civil Judge, Sr. Division, Baramati on 17.11.1994 in Special Civil Suit No.55 of 1990. The said suit was filed by the present respondent (hereinafter referred to as the "Plaintiff") for the relief of specific performance of an agreement of sale dated 19.3.1985. 2. Under the said agreement of sale, two vendors Mohammad Chand Mujawar and Isak Mulani (Vendors hereinafter referred to as the "Defendants") agreed to sell properties bearing Gat No.925, 926 and 1028 to 1033 of Village Yawat,Tal. Dound,Dist. Pune to the plaintiff/purchaser for an amount of Rs.4,77,000/-. The :3: amount of Rs. 35,000/- was paid a day prior to the execution of the agreement. This payment was made to satisfy the loan account of the vendors to the Maharashtra State Co.op. Development Bank Ltd. The balance amount of Rs.4,42,000/- was payable at the time of execution of the sale deed. The agreement provided that the payment of the balance of the purchase price and the conveyance shall take place within six months from the date thereof. Under Clause 4 of the agreement the vendors assured that they had a marketable title of the land agreed to be sold and stated that the same was free from all encumbrances. Under Clause 5 vendors agreed to answer all reasonable requisitions of title made. Under Clause 6 they agreed to obtain consent of any person if required for due and proper conveyance of the lands. Under Clause 8 they agreed that if marketable title was not made out in respect of the property, the purchaser would be at liberty to rescind the contract. Under Clause 7 of the said agreement purchaser/plaintiff was entitled to rescind the agreement if in the course of searches and investigation of title the property was found to be affected by any encumbrance not disclosed by the vendors or any notice of requisition or acquisition by Government or any statutory body or authority or any injunction or prohibitory order from any court. :4: 3. On 27.7.1985 the vendors through their Advocate issued a notice to the plaintiff referring to the agreement dated 19.3.1985. It is stated in the notice that as the property was involved in various matters of litigations and transactions, the plaintiff had shown unwillingness to act as per the agreement of sale. That the defendants had made enquiries with the Maharashtra State Agro Industries Development Corporation Ltd. regarding what was to be done about those litigations and transactions and it had been learnt by the respondent that on 7.5.1982 the Supreme Court had prohibited the members of Agro Service Centres, Association by an injunction order from transferring the suit property in any way and from parting with possession of the same. This order was passed in Civil Writ Petition No.2200/1982 by the Supreme Court of India on or about 17.5.1982. It is further stated that as per Clause 7 of the said agreement defendants rescind the said agreement because there was a prohibition upon the defendants from transferring or assigning the property in any way. That there being an injunction order, the defendants had no other way but to rescind the agreement which they did of the their notice in question. 4. On receipt of the said notice on 3.8.1985 the plaintiff immediately filed a suit for specific performance. The evidence of seven witnesses, four :5: witnesses on behalf of the plaintiff and three witnesses on behalf of the defendants was led. The son of defendant No.1, defendant No.2 as well as friend of the defendant No.2 stepped into the witness box. On consideration of the oral and documentary evidence on record, the trial court passed the impugned judgment and order and decreed the plaintiff’s suit for specific performance with costs. It directed the plaintiff to deposit an amount of Rs.4,02,000/-, (since during the pendency of the suit, out of the balance consideration of Rs.4,42,000/- and an amount of Rs.40,000/- has been withdrawn by the defendants). It is a common ground that the impugned decree has also been executed and the sale deed has been got executed through the court. 5. The counsel appearing for the appellants took me through the pleadings and the evidence. From the same, it appears that the execution of the agreement dated 19.3.1985 and the payment of Rs.35,000/- is not disputed at all. The short question that was raised by the defendants in their notice dated 27.7.1985 and the written statement of the defendant Nos. 1 and 2 was that the agreement dated 19.3.1985 had been rescinded and the sale deed required to be executed under agreement could not be executed in view of the prohibitory injunction granted by the Apex Court on 7.5.1982 in C.M.P.No.2200/1982 filed in W.P.No.7771 of 1981. It was fairly conceded that the Advocate’s notice :6: dated 27.7.1985 wrongly mentioned that rescession was done under agreement dated 19.3.1985 because right to rescind the contract under clause 7 was only given to the purchaser i.e. the plaintiff and not to the defendant. It is contended that under general law, there, however, was a statutory right to rescind the said contract in case the vendor’s learnt of the existence of any injunction order. It is seen from the written statement filed by the defendants that they contend that they learnt about the injunction order passed by the Apex Court two to three months after the execution of the agreement. It is therefore clear that at the time of execution of the agreement they had no knowledge about the injunction order and the same was not served upon them. 6. It is well settled that a injunction operates from the date and time of knowledge of the same and if there was no knowledge of the injunction when the defendants signed the agreement dated 19.3.1985, it could not be said that the said agreement was unlawful by operation of Section 23 of the Indian Contract Act. Besides, that the so called rescission of the contract under Clause 7 is untenable as fairly conceded because Clause No.7 did not permit the defendants to invoke a rescission of the contract. In any case under Section 27 of the Specific Relief Act 1963 recession of the contract can be effected only after an adjudication in the court. The :7: defence thus, raised on behalf of the defendants was completely untenable. 7. Even otherwise on perusing the order passed by the Apex Court in C.M.P.No.2200/1982 it is clear that the said order of injunction dated 7.5.1982 was granted to cover the assets of the members of the Maharashtra Agro Service Centre Association. However, the second paragraph of the order indicates that there was a dispute about the membership and to sort out that matter, the matter was adjourned to 23.7.1982. In the present case, the defendants nowhere state in their written statement that they were the members of Maharashtra Agro Service Centre Association. They have produced no document or evidence any such membership. Further, the order passed by the Apex Court after 23.7.1982 is not placed on record at any point of time. The next order placed on record is an order dated 5.5.1983. It is fairly conceded that ultimately the entire group of matters before the Apex Court came to be dismissed on 31.3.1993. With this final disposal, the interim orders also came to be an end. In this fact situation also there was no impediment in executing the sale deed and thus, no impediment in passing the decree for specific performance. 8. In view of the aforesaid facts, there is no substance in the first appeal and therefore, the same is :8: dismissed. 9. The amount which is deposited and invested will be disinfested and the entire amount so disinfested, inclusive of interest, will be handed over to the appellants after the period of 90-days. 10. The Advocate for the appellants states that the appellants would like to carry the matter further and prays for stay of the order for the period of four weeks. Interim stay to continue for the period of four weeks from today. (R.S. MOHITE, J.)