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 O.O.C.J. O.O.C.J. O.O.C.J. APPEAL APPEAL APPEAL NO. NO. NO. 39 OF 2006 39 OF 2006 39 OF 2006 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO. 3685 OF 2005 OF MOTION NO. 3685 OF 2005 OF MOTION NO. 3685 OF 2005 IN IN IN SUIT SUIT SUIT NO. NO. NO. 3212 OF 2005 3212 OF 2005 3212 OF 2005 ALONGWITH ALONGWITH ALONGWITH CROSS-OBJECTION CROSS-OBJECTION CROSS-OBJECTION NO. 3/2006. NO. 3/2006. NO. 3/2006. MULTIPLEX MULTIPLEX MULTIPLEX COLLAPSIBLE COLLAPSIBLE COLLAPSIBLE TUBES LTD. ... APPELLANTS. TUBES LTD. ... APPELLANTS. TUBES LTD. ... APPELLANTS. VS. VS. VS. NALIN NALIN NALIN PRATAPSINH THACKER PRATAPSINH THACKER PRATAPSINH THACKER ......... RESPONDENT. RESPONDENT. RESPONDENT. DR. DR. DR. V.V.TULZAPURKAR V.V.TULZAPURKAR V.V.TULZAPURKAR SR. AVOCATE WITH P.K.SAMDHANI SR. AVOCATE WITH P.K.SAMDHANI SR. AVOCATE WITH P.K.SAMDHANI SR. SR. SR. ADVOCATE ADVOCATE ADVOCATE AND MR. DASGUPTA I/B J.NARULLA & AND MR. DASGUPTA I/B J.NARULLA & AND MR. DASGUPTA I/B J.NARULLA & ASSOCIATES ASSOCIATES ASSOCIATES - FOR APPELLANT IN APPEAL NO. 39 OF 2006 - FOR APPELLANT IN APPEAL NO. 39 OF 2006 - FOR APPELLANT IN APPEAL NO. 39 OF 2006 AND AND AND RESPONDENT IN CROSS-OBJECTION NO. 3/06 RESPONDENT IN CROSS-OBJECTION NO. 3/06 RESPONDENT IN CROSS-OBJECTION NO. 3/06 MS. MS. MS. USHA PUROHIT FOR APPELLANTS IN CROSS-OBJECTION USHA PUROHIT FOR APPELLANTS IN CROSS-OBJECTION USHA PUROHIT FOR APPELLANTS IN CROSS-OBJECTION NO. NO. NO. 3/06 AND FOR RESPONDENT IN APPEALNO. 39 OF 2006. 3/06 AND FOR RESPONDENT IN APPEALNO. 39 OF 2006. 3/06 AND FOR RESPONDENT IN APPEALNO. 39 OF 2006. ..... ..... ..... CORAM CORAM CORAM : J.N.Patel and A.A.Sayed, JJ. : J.N.Patel and A.A.Sayed, JJ. : J.N.Patel and A.A.Sayed, JJ. DATE DATE DATE : July 25, 2007. : July 25, 2007. : July 25, 2007. 2 ..... ..... ..... P.C. P.C. P.C. 1.1.1. Heard Heard Heard the learned Counsel for the parties. the learned Counsel for the parties. the learned Counsel for the parties. 2.2.2. The The The original plaintiff has preferred this original plaintiff has preferred this original plaintiff has preferred this Appeal, Appeal, Appeal, impugning impugning impugning the Order dated 25th January, 2006, the Order dated 25th January, 2006, the Order dated 25th January, 2006, passed passed passed by the Single Judge, wherein the notice of by the Single Judge, wherein the notice of by the Single Judge, wherein the notice of motion motion motion taken out by the Plaintiff for grant of taken out by the Plaintiff for grant of taken out by the Plaintiff for grant of temporary temporary temporary injunction, came to be disposed of by injunction, came to be disposed of by injunction, came to be disposed of by vacating vacating vacating the ad interim Order. the ad interim Order. the ad interim Order. 3.3.3. Few Few Few facts, which persuade us to remit back facts, which persuade us to remit back facts, which persuade us to remit back the the the matter to the learned Single Judge of the Trial matter to the learned Single Judge of the Trial matter to the learned Single Judge of the Trial Court, Court, Court, can be culled out as under :- can be culled out as under :- can be culled out as under :- 4.4.4. Parties Parties Parties to the Suit entered into an agreement to the Suit entered into an agreement to the Suit entered into an agreement toto to purchase the suit property for a consideration of purchase the suit property for a consideration of purchase the suit property for a consideration of 7,60,00,000/-. 7,60,00,000/-. 7,60,00,000/-. The said agreement came to be entered The said agreement came to be entered The said agreement came to be entered into into into on 2.9.2004 and an amount of Rs. 76 lac was on 2.9.2004 and an amount of Rs. 76 lac was on 2.9.2004 and an amount of Rs. 76 lac was paid paid paid by the Plaintiff to the defendant by way of by the Plaintiff to the defendant by way of by the Plaintiff to the defendant by way of earnest earnest earnest money. It was agreed that the sale deed money. It was agreed that the sale deed money. It was agreed that the sale deed would would would be executed on 15.11.2004. It appears that by be executed on 15.11.2004. It appears that by be executed on 15.11.2004. It appears that by letter letter letter dated 10.11.2004, it was communicated on dated 10.11.2004, it was communicated on dated 10.11.2004, it was communicated on behalf behalf behalf of the defendant that since some outstanding of the defendant that since some outstanding of the defendant that since some outstanding issues issues issues remained to be resolved between the parties, remained to be resolved between the parties, remained to be resolved between the parties, 3 ititit was not possible to complete the transaction till was not possible to complete the transaction till was not possible to complete the transaction till 15.11.2004, 15.11.2004, 15.11.2004, therefore, it came to be extended, which therefore, it came to be extended, which therefore, it came to be extended, which isisis strongly disputed by the learned Counsel appearing strongly disputed by the learned Counsel appearing strongly disputed by the learned Counsel appearing for for for the respondent- original defendant. the respondent- original defendant. the respondent- original defendant. 5.5.5. The The The learned Single Judge though arrived at a learned Single Judge though arrived at a learned Single Judge though arrived at a finding finding finding that the appellant-plaintiff had made out a that the appellant-plaintiff had made out a that the appellant-plaintiff had made out a prima prima prima facie case, observed that " ... Therefore, I facie case, observed that " ... Therefore, I facie case, observed that " ... Therefore, I put put put it to the learned Counsel appearing for the it to the learned Counsel appearing for the it to the learned Counsel appearing for the plaintiff plaintiff plaintiff that if the plaintiff claims to be ready that if the plaintiff claims to be ready that if the plaintiff claims to be ready and and and willing to perform his part of the contract, to willing to perform his part of the contract, to willing to perform his part of the contract, to show show show his his his willingness whether the plaintiff is willing willingness whether the plaintiff is willing willingness whether the plaintiff is willing toto to deposit deposit deposit balance amount of the consideration in the balance amount of the consideration in the balance amount of the consideration in the Court. Court. Court. The learned Counsel appearing for the The learned Counsel appearing for the The learned Counsel appearing for the Plaintiff Plaintiff Plaintiff states that the plaintiff is willing to states that the plaintiff is willing to states that the plaintiff is willing to deposit deposit deposit the amount in the Court only if the Court the amount in the Court only if the Court the amount in the Court only if the Court directs directs directs the defendant to hand over possession of the the defendant to hand over possession of the the defendant to hand over possession of the property. property. property. In my opinion the condition subject to In my opinion the condition subject to In my opinion the condition subject to which which which the plaintiff contends that he is willing to the plaintiff contends that he is willing to the plaintiff contends that he is willing to deposit deposit deposit the amount, is not valid. Till the suit is the amount, is not valid. Till the suit is the amount, is not valid. Till the suit is decreed, decreed, decreed, the defendant cannot be asked to hand over the defendant cannot be asked to hand over the defendant cannot be asked to hand over possession possession possession of the property on the plaintiff of the property on the plaintiff of the property on the plaintiff depositing depositing depositing the amount. Therefore, without the the amount. Therefore, without the the amount. Therefore, without the plaintiff plaintiff plaintiff depositing the amount, locking up the said depositing the amount, locking up the said depositing the amount, locking up the said valuable valuable valuable property in my opinion will not be in the property in my opinion will not be in the property in my opinion will not be in the interest interest interest of justice. Granting of injunction without of justice. Granting of injunction without of justice. Granting of injunction without 4 the the the plaintiff depositing amount in the Court may plaintiff depositing amount in the Court may plaintiff depositing amount in the Court may result result result in causing irreparable injury to the in causing irreparable injury to the in causing irreparable injury to the defendant’s defendant’s defendant’s interest. The plaintiff, therefore is interest. The plaintiff, therefore is interest. The plaintiff, therefore is not not not entitled to any ad interim order. Ad interim entitled to any ad interim order. Ad interim entitled to any ad interim order. Ad interim order order order earlier passed is vacated." earlier passed is vacated." earlier passed is vacated." 6.6.6. On On On arriving at such a conclusion, the learned arriving at such a conclusion, the learned arriving at such a conclusion, the learned Single Single Single Judge observed that granting the injunction Judge observed that granting the injunction Judge observed that granting the injunction without without without the plaintiff depositing amount, will cause the plaintiff depositing amount, will cause the plaintiff depositing amount, will cause irreparable irreparable irreparable loss and therefore, the Plaintiff is not loss and therefore, the Plaintiff is not loss and therefore, the Plaintiff is not entitled entitled entitled to any ad interim Order, which was earlier to any ad interim Order, which was earlier to any ad interim Order, which was earlier passed, passed, passed, was vacated and the notice of motion was was vacated and the notice of motion was was vacated and the notice of motion was disposed disposed disposed of. of. of. 7.7.7. On On On going through the impugned Order, we are going through the impugned Order, we are going through the impugned Order, we are of of of the view that the learned Single Judge has not the view that the learned Single Judge has not the view that the learned Single Judge has not considered considered considered the notice of motion taken out by the the notice of motion taken out by the the notice of motion taken out by the appellant-plaintiff appellant-plaintiff appellant-plaintiff on merits and restricted the on merits and restricted the on merits and restricted the findings findings findings only to assess whether an ad interim Order only to assess whether an ad interim Order only to assess whether an ad interim Order earlier earlier earlier granted by the Court deserves to be continued granted by the Court deserves to be continued granted by the Court deserves to be continued 8.8.8. Therefore, Therefore, Therefore, with all humility at our command, with all humility at our command, with all humility at our command, we we we are required to observe that the learned Single are required to observe that the learned Single are required to observe that the learned Single Judge Judge Judge disposed of the Notice of Motion without disposed of the Notice of Motion without disposed of the Notice of Motion without dealing dealing dealing with the same on merits. with the same on merits. with the same on merits. 5 9.9.9. We We We need not lay emphasis on the settled need not lay emphasis on the settled need not lay emphasis on the settled principle principle principle that ordinary rule is that specific that ordinary rule is that specific that ordinary rule is that specific performance performance performance should be granted. It can only be should be granted. It can only be should be granted. It can only be refused refused refused when equitable considerations warrant it and when equitable considerations warrant it and when equitable considerations warrant it and circumstances circumstances circumstances show that damages would constitute an show that damages would constitute an show that damages would constitute an adequate adequate adequate relief. relief. relief. In such cases Court has to consider In such cases Court has to consider In such cases Court has to consider question question question regarding existence of a prima facie case, regarding existence of a prima facie case, regarding existence of a prima facie case, which which which involves finding of fact as to whether a case involves finding of fact as to whether a case involves finding of fact as to whether a case for for for trial is made out as also whether other factors trial is made out as also whether other factors trial is made out as also whether other factors requisite requisite requisite for grant of injunction exist, Court has for grant of injunction exist, Court has for grant of injunction exist, Court has also also also to consider balance of convenience of the to consider balance of convenience of the to consider balance of convenience of the parties parties parties and irreparable injury, if any that might be and irreparable injury, if any that might be and irreparable injury, if any that might be suffered suffered suffered by by by the plaintiff in case of refusal to grant the plaintiff in case of refusal to grant the plaintiff in case of refusal to grant injunction. injunction. injunction. Once the Court is satisfied, then the Once the Court is satisfied, then the Once the Court is satisfied, then the foremost foremost foremost concern will be to preserve the suit concern will be to preserve the suit concern will be to preserve the suit property property property till till till the decision of the Suit. The impugned the decision of the Suit. The impugned the decision of the Suit. The impugned Order Order Order does not deal with all these aspects. does not deal with all these aspects. does not deal with all these aspects. Therefore, Therefore, Therefore, we quash and set aside the impugned Order we quash and set aside the impugned Order we quash and set aside the impugned Order and and and the matter is remitted back to the Single Judge the matter is remitted back to the Single Judge the matter is remitted back to the Single Judge toto to decide the notice of motion on merits. Needless decide the notice of motion on merits. Needless decide the notice of motion on merits. Needless toto to say that in the meantime, the parties to maintain say that in the meantime, the parties to maintain say that in the meantime, the parties to maintain status status status quo in so far as it relates to the suit quo in so far as it relates to the suit quo in so far as it relates to the suit property property property as on the date of the passing of the as on the date of the passing of the as on the date of the passing of the impugned impugned impugned Order. Order. Order. 6 10. 10. 10. In In In view of the fact that we have remanded view of the fact that we have remanded view of the fact that we have remanded matter matter matter for de-novo hearing, the cross-objection does for de-novo hearing, the cross-objection does for de-novo hearing, the cross-objection does not not not survive. survive. survive. 11. 11. 11. The The The Appeal stands disposed of in the Appeal stands disposed of in the Appeal stands disposed of in the aforesaid aforesaid aforesaid terms with no Order as to costs. terms with no Order as to costs. terms with no Order as to costs. [J.N.Patel, [J.N.Patel, [J.N.Patel, J.] J.] J.] [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]