1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 99 OF 2009 IN SUIT NO. 2938 OF 2006 Manjit Singh Sethi & Anr. ...Plaintiffs. Vs. M/s. Nahar Enterprises & Anr. ...Defendants. Mr. G.S.Hegde with Mr. Aditya Khanna for the Plaintiffs. Mr. A. Bookwala, Sr. Counsel with Mr. M.L.Chaturvedi for the Defendants. CORAM :- ANOOP V. MOHTA, J. DATED :- 23rd JULY, 2009. P.C.- 1 This Notice of Motion is taken out by the Plaintiffs in a suit, whereby the basic prayer is to declare that the agreement dated 18th December, 2004 is valid subsisting, operative and binding upon the Defendants. This agreement for sale provides various clauses and respective obligations of the parties and including regular payments as per clause 3. 2 In the present case, admittedly, those payments were not made in spite of the due notices and knowledge of the terms and conditions. The submission that as offered and a representation was given by the Respondents, the plaintiffs have acted upon and deposited only 15% of the 2 amount. The fact that the parties in spite of the alleged representation, entered into this written agreement that itself in my view, sufficient to accept the case of the Defendants that this written agreement should prevail unless proved otherwise in trial. There are documents on record to show that various notices/ intimations were given to the Plaintiffs informing about the stages of the construction. That itself means, the clear obligations of the Plaintiffs to make the payment from time to time. The willingness to perform the part of the contract by the parties, is required to be tested as per the agreement. As per the clauses, if the Plaintiffs failed to make the payment at the relevant time, now offering the total amount as contended, in my view, no way sufficient to accept the case and to grant the interim reliefs, in view of above position on the record. 3 The averments made in paragraph Nos. 4, 5 and 7 itself shows that the Plaintiffs were fully aware of these terms and conditions including the notices also. The submission of representation/ assurances so given, contrary to those written notices and agreement, in my view, just cannot be taken note of at this stage. 4 The submission, that there was no notice of terminating the contract as per the agreement, that itself is sufficient to accept the case of the plaintiffs to grant interim reliefs, in view of above, is unacceptable. The plaintiffs who have admittedly defaulted in regular payments as per the written agreement, now cannot blame that no notice was given as 3 contemplated, before terminating the contract. There is no equity, no balance of convenience, no injury, no irreparable loss and therefore, no interim reliefs as claimed. 5 In the result, this Notice of motion is dismissed. 6 At the request of the learned counsel appearing for the Plaintiffs, the statements so already recorded, shall continue only till 20th August, 2009. (ANOOP V. MOHTA, J.)