=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 ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.278 OF 2008 NO.278 OF 2008 NO.278 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF OF OF MOTION NO.157 OF 2008 MOTION NO.157 OF 2008 MOTION NO.157 OF 2008 IN IN IN ARBITRATION ARBITRATION ARBITRATION PETITION NO.134 OF 2000 PETITION NO.134 OF 2000 PETITION NO.134 OF 2000 Amulya Marketing Agencies Pvt.Ltd. ...Appellants v/s Hema Vijaykumar Dialani and ors. ...Respondents Mr Satish Shah i/b M/s Singhi and Co. for Appellants. Mr J. Reis i/b Mr S.I. Menon for Respondent No.1. CORAM CORAM CORAM : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. DATE DATE DATE : 18TH FEBRUARY 2009 18TH FEBRUARY 2009 18TH FEBRUARY 2009 =2= P.C. :- 1. By this appeal, the appellants challenge the order passed by learned Single Judge of this Court in notice of motion No.157 of 2008 which was taken out in arbitration petition No.134 of 2000. Admitted relevant facts are that a petition under section 9 of the Arbitration and Conciliation Act 1996 was filed by the present appellants seeking several interim reliefs because there was an arbitration agreement between the appellants and persons who were joined as respondents to the petition. In that petition, apart from other reliefs, a temporary injunction was sought restraining the respondents from selling, alienating, creating third party rights, disposing or otherwise dealing with the following property :- "Generally the property named as Gomes Villa and the surrounding garden thereof numbered 17B, Shirley Village, Off Carter Road, Behind Zebra Garden, Bandra (W), Mumbai 400 050, more specifically that half of this property for which there is an agreement for sale and which part they have acquired and have possession." =3= . In the body of the petition, it was the case of the appellants that the property viz. Gomes Villa was owned by Dominic Gomes and that mother of the respondents to section 9 petition had entered into an agreement to purchase this property for a consideration of Rs.1,45,00,000/- and possession of that property was handed over to the mother of the respondents and therefore, the respondents are in possession of that property. The learned single Judge, by his order granted ad-interim relief in favour of the petitioners including temporary injunction in relation to the part of Gomes Villa. The appellants took out notice of motion No.157 of 2008 for modifying the ad-interim order passed by the learned Single Judge dated 25th September 2000 in so far as it relates to Gomes Villa. That notice of motion has been granted by the learned Single Judge by the order impugned in this appeal. 2. We have heard learned counsel for both the sides. It is clear from the record that it is not even the case of the appellants that Gomes Villa is owned by the respondents to section 9 petition. The case of the appellants is that there was an agreement to sell a part of Gomes Villa for a consideration of Rs.1,45,00,000/- and an amount of Rs.50,00,000/- has been paid as earnest money and that the respondents are in possession of that property pursuant to the agreement. A copy of the =4= agreement is annexed to the appeal memo. Perusal of that agreement shows that the prospective purchaser was to get possession only after payment of the entire amount of consideration i.e. Rs.1,45,00,000/-. It is not the case of the appellants that the respondents or their mother had paid full amount of consideration. Therefore, there is no question of respondents or their mother being in possession of the property. Even assuming that there is an agreement to sell the property, agreement of sale will not create any interest in the property in favour of the respondents and therefore, an order of temporary injunction passed under section 9, which is basically passed to protect the interest of the appellants in case an award is made in the arbitration proceedings in their favour, cannot be made. In this view of the matter therefore, we do not find any error in the order of the learned Single Judge. In our opinion, the learned Single Judge has correctly modified the order earlier passed by which temporary injunction was granted in relation to the property which is admittedly not owned by the respondents to section 9 petition. The appeal therefore fails and is dismissed. It is however clarified that as it appears from the material on record that an amount of Rs.50,00,00/- was paid by the mother of the respondents to the owner of Gomes Villa, if so advised the appellants will be at liberty to take appropriate action in relation to that. =5= The learned counsel appearing for respondent No.1 states that for a period of four weeks from today, he will not transfer or alienate the property. Statement is accepted. . Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of the Court. . Certified copy is expedited. ( D.K. DESHMUKH J.) ( A.A. SAYED J.)