: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.496 OF 2008 WITH CIVIL APPLICATION NO.572 OF 2008 Anil Pralhad Bhavsar & Another ....Appellants V/s. Shri Matu Shakharam Kombade & Anr. ....Respondents Mrs.Kiran Bagalia i/by Ms.Asha Bhambwani for the Appellants. Mr.M.M. Sathaye for Respondent Nos.1 and 2. CORAM : S.J. VAZIFDAR, J. DATED : 18TH OCTOBER, 2008. P.C. : 1. Admit. At the request of the parties, the matter is heard finally. 2. The Appeal is filed against the refusal of the interim order in a suit for specific performance of the sale of 52-R of land. 3. There is no dispute that an agreement dated 28.11.2006 was entered into between the Appellants/Plaintiffs and the Respondents/Defendants. The relevant clauses as translated by the advocates are as under :- : 2 : "4) Total consideration / price agreed between us for the aforesaid property (described in para 1) is Rs.40,00,000/- (Rupees Forty Lacs only)_. You have today paid Rs.7,00,000/- (Rupees Seven Lacs) in cash to us towards earnest money. We have received said payment and there is no dispute about it. You have agreed to pay remaining amount of 33,00,000/- (Rupees Thirty Three Lacs) to us at the time when we execute and register sale deed. 5) We will execute and register sale deed of the aforesaid 0H, 52R portion within one month. Before that we will measure the land. After measurement of the said property, deducting the area coming under road widening, you have to pay to us the price of actual remaining area as per agreed rate. 7) We will give actual vacant possession of the said property at the time of sale deed. 9) We have not encumbered the said property under any mortgage, charity, lease, gift, rent agreement, agreement to sell or any other document. No case is pending in respect of the said property in any court or government office. There is no dispute about boundary, there is no dispute about area, there is no dispute about road, there is no dispute about ownership title and share of the said property. The said property is not acquired or required and we have till date not received any notice about it. You please publish notice in newspaper for title verification of the said property. After public notice, if any fault / dispute arises about title, we will remove it at our cost, before the sale deed. We will not let you bother for that. Before the said property, on 24/7/2001, we have executed & registered a development agreement and general power of attorney in favour of one Shri. : 3 : Pradip Chetanram Vajirani about 0H, 70R portion. But henceforth, without your consent in writing, we will not execute / register any document in favour of said Vajirani and will not create fault in title of the property. 12) If there is any legal impediment and we (the landowners) are unable to execute and register the Sale Deed, We (the landowners) shall refund the earnest amount received from you (purchaser), together with interest at the rate of 18% p.a. Within 8 days from demand. Until the amount is paid, this Agreement to sell shall not be cancelled. The payment of your money will be a charge on the said property. If however, without any legal difficulty, we (the landowners) do not execute and register the Sale Deed within the time stipulated above,you (purchaser) may get the transaction of sale completed through Court. We (the landowners) shall be responsible for the costs and consequences for the same." 4. The Plaintiffs admittedly paid the said amount of Rs.7,00,000/-. The balance amount of Rs.33,00,000/- has not been paid. As per clause 4, it was to be paid upon execution and registration of the sale-deed. 5. There is no dispute that the Respondents do not measure the land. Nor is there any dispute that the portion of the land coming under the road widening has not been determined. This was the responsibility of the Respondents under clause 5. : 4 : 6. The Respondents by a public notice dated 17.1.2007 terminated the agreement. By a letter dated 23.1.2007, the Appellants challenged the termination. The Respondents specifically stating that the Defendants had not carried out the measurement as per the agreement. 7. A further public notice dated 28.1.2007 was published by the Respondents cancelling the agreement. 8. Thereafter there were negotiations between the parties. Pursuant thereto, the Respondents issued another public notice dated 11.2.2007 withdrawing the earlier notice of termination. By this public notice, the Respondents confirmed the agreement and their desire to abide by the same. The Respondents stated that the responsibility of completing the agreement was on them. 9. Admittedly again the measurement was not done. Nor was the plot of land under the road widening determined. . In the circumstances, prima-facie the time for payment of the balance amount of Rs.33,00,000/- had not arrived. There was nothing that the Appellants were required to do under the agreement : 5 : till the Respondents measured the land and determined the amount after adjusting the land under the road widening. 10. Despite the same, a further public notice was issued on 18.6.2007 terminating the agreement. 11. In the circumstances the suit was filed in the year 2007. The above facts indicate that the time for paying the balance amount had not arrived. Indeed the amount payable after making adjustment under clause 5 has not been determined. This despite the fact that by a letter dated 23.1.2007 the Appellants had expressly called upon the Respondents to do so. Moreover as per the public notice dated 11.2.2007, the Respondents admitted that it was their responsibility to complete the transaction. There is nothing to indicate what they did in this regard thereafter. The contention that even thereafter the Appellants ought to have once again called upon the Respondents to comply with their obligations under the agreement is unfounded. They ought to have done so. They agreed to do so. Nothing further in that regard was required to be done by the Appellants. 12. In the circumstances, the Appellants’ rights require to be protected. : 6 : 13. It was then submitted that the Appellants be called upon to deposit an amount of Rs.33,00,000/- to show their readiness and willingness. 14. I do not agree. Prima-facie the Appellants have done all that was required of them. By the injunction, the Appellants do no get the benefit of the agreement. I see no reason to foist the burden under the agreement upon them. This would be unfair to the Appellants. 15. In the circumstances, the impugned order is set-aside. Pending the hearing and final disposal of the suit, the Respondents shall not dispose of, alienate, encumber, part with possession of or create any third party rights, title and/or interest in, to, upon or in respect of the suit property.