1 caf.2645.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2645 OF 2010 IN FIRST APPEAL NO.280 OF 2010 Mr.Rakesh Kashinath Mitkari ...Applicant/Appellant Versus Mrs.Jayashree Prafulla Badle, through her Power of Attorney Holder Mr.Sunil M.Vanarse ...Respondent ...... Mr.Prafulla B.Shah for Applicant. Mr.G.S.Godbole i/b Mrs.Jai V.Kanade for Respondent. ...... CORAM:- A.M.KHANWILKAR AND A.A.SAYED, JJ. DATED:- AUGUST 6, 2010. P.C. 1. By this Application, the Applicant/original Plaintiff prays for order of injunction against the Respondent refraining her from creating third party rights in the suit property during the pendency of the Appeal. By separate order passed today, we have already admitted the Appeal as prima facie we are of the view that formidable points are raised in Appeal, which may require elaborate hearing, to wit, the document relied by the Applicant Exhibit 30 dated 11th January 2008 which was communication sent by the Applicant to the Respondent calling upon the Respondent to give inspection of title documents which obligation was cast on the Respondent in terms of 2 caf.2645.10.sxw clause (3) of the suit agreement. That request was never complied with. Significantly, in the said communication, it is clearly mentioned that the Applicant was ready with the balance consideration amount. The Applicant then sent legal notice on 17th May 2008 which also remained unreplied. The Trial Court has adverted to aspects while overlooking the admission of the Defendant in the cross examination where it is conceded that under Clause (3), the Defendant was obliged to give inspection of the title documents of the suit property to the Plaintiffs. He has further admitted that without the documents of title, if any other document is required, the Plaintiff were to procure the same. The fact remains that inspection of title document was not given to the Applicant/Plaintiff. This crucial aspect of the matter is not considered by the Trial Court at all. Besides, we are prima facie inclined to accept the argument of the Applicant that in the fact situation of the present case the finding of fact recorded by the Trial Court to the effect that the Applicant was not ready and willing to perform his part of the contract, is untenable and is manifestly wrong. 2. The Applicant not only called upon the Defendant to give inspection of the title documents but also issued legal notice and having failed to receive any reply, immediately filed Suit on 12th June 2008. We cannot 3 caf.2645.10.sxw overlook the fact that the suit property is agricultural property in respect of which time is essence of the contract principle, may not be so significant and especially when the Applicant has produced material on record to show that he was always ready and willing to perform his part of the contract. Even before this Court, the Applicant has shown willingness to perform his part of the contract by depositing the balance consideration amount. Not only that the Applicant has shown willingness to purchase the land at the present fair market price by offering sum of Rs.41,00,000/- (Rupees Forty- one Lakhs) to the Defendant. That offer is not acceptable to the Defendant. We make it clear that this is not the consideration on the basis of which we are inclined to admit the matter, but we are prima facie convinced that arguable questions have been raised in the Appeal. 3. Accordingly, the Applicant deserves interim relief. It was argued on behalf of the Respondent that during the pendency of the Suit, no such interim relief was operating though prayed. That will make no difference. Considering the fact that the Appeal is admitted, the Appellant is entitled to ask for appropriate relief and especially when there is imminent threat of disposing of the property which is evident from the public notice issued by the Respondent dated 16th May 2010. Accordingly, interim relief in terms 4 caf.2645.10.sxw of prayer clause (a) of the Application is granted to operate during the pendency of the Appeal. 4. We once again reiterate that the observations made herein are only for the purpose of considering grant or refusal of the interim relief and for admission of the Appeal. The Appeal will have to be considered on its own merits in accordance with law. 5. At this stage, Counsel for the Respondent invited our attention to the fact that he had argued that instead of granting interim relief as prayed, the Respondent can be put to terms that if the Respondent proceeds to sell the property to third party may incorporate disclosure about pendency of present proceedings and that the transaction is subject to the outcome thereof. We are not impressed by this argument. The fact that the Suit has been dismissed, does not mean that the Appellant has failed to make out any case at all before this Court. For the reasons already recorded, the Appellant has made out substantial issues that may have to be addressed at the final hearing of the Appeal. If the Respondent is allowed to create third party rights in the property, that may only result in further complications. Since the Appellant has brought on record that the Respondent has already 5 caf.2645.10.sxw issued public notice for sale of the property in question, we think it appropriate that interim relief as prayed for by the Applicant is granted instead of allowing the issue to be complicated further. 6. Accordingly, the interim relief as prayed for in terms of prayer clause (a) deserves to be granted. 7. Application disposed of on the above terms. (A.A.SAYED, J.) (A.M.KHANWILKAR, J.)