1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO. 34 OF 2010 IN NOTICE OF MOTION NO. 4263 OF 2006 IN SUIT NO. 756 OF 2003 WITH NOTICE OF MOTION NO. 206 OF 2010 IN APPEAL NO. 34 OF 2010 IN NOTICE OF MOTION NO. 4263 OF 2006 IN SUIT NO. 756 OF 2003 Subhash S. Runwal .. Appellant V/s. Anjanabai H. Sonawane & Ors .. Respondents Ms. Alpana Ghone i/b M/s. Kanga & Co for the Appellant S.V. Doijode a/w Meenakshi Iyer i/b Doijode Associate for respondent nos. 7 and 8 Mr. Anil Yadav a/w Mr. Anil Singh i/b D.R. Shah for respondent nos. 1(a), 2 and 3 CORAM : B.H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. DATE : 21st January, 2010 P.C.: 1. Heard the learned counsel for the respective parties. 7.app34-10 2 2. This Appeal arises from the interlocutory order dated 06.06.2008 passed in Suit No. 756 of 2003 by the trial Court and thereby dismissing notice of Motion No. 4263 of 2006 which was filed for injunction. 3. As per the plaintiff, there was an agreement between him and original defendant no. 1 – Shri. Hanumantrao Sonawane and he had agreed to purchase the plot admeasuring 5543 sq mtrs bearing part of CTS NO. 119 of Hariyali Village for a total consideration of Rs. 55,00,000/-. A sum of Rs. One Lac was received by the owner i.e defendant no. 1 on 17.02.2000 and a stamped receipt was issued. The Appellant / Plaintiff filed Suit No. 756 of 2003 for specific performance of the agreement. Notice of Motion No. 792 of 2003 was taken out for the relief of injunction and on 24.03.2003, ad-interim order in terms of prayer clause (b) was passed, further directing to put the notice of Motion for hearing. The Plaintiff was directed to deposit the remaining amount of Rs. 54,00,000/- within the period of 8 weeks with the Prothonotary and Senior Master and on that condition, the Defendants, their agents / servants were restrained from in any manner directly or indirectly dealing with, disposing off, alienating or encumbering the 7.app34-10 3 suit property. This order was carried in Appeal No. 511 of 2003 which came to be decided on 14.07.2003. The Appellate Court set aside the order to the extent it directed the Plaintiff to deposit the sum of Rs. 54,00,000/- and confirmed the order of injunction. 4. While deciding Appeal No. 511 of 2003 on 14.07.2003, the Appellate Bench noted that the development agreement was entered into by the Defendants on 13.06.2003 with a third party and the suit property was conveyed to the third party for a consideration of Rs. 1.10 crores. On 25.11.2005, a Notice of Motion was taken out by the Plaintiff to add third parties i.e Defendant Nos. 7 and 8 and it was allowed on 21.06.2006. We are also informed that in the written statement filed on 17.11.2008, Defendant nos. 7 and 8 have stated that the suit property was further conveyed to MMRDA on 13.10.2006. 5. As per the learned counsel appearing for Defendant nos. 7 and 8, MMRDA had issued a public notice on 06.01.2004 about its proposal to take over the suit plot and Defendant nos. 7 and 8 have constructed a multi-storeyed building on the suit plot sometime in 2006 for MMRDA and the building has been handed over to it and in lieu thereof, Defendant Nos. 7 and 8 have been granted T.D.R. 7.app34-10 4 6. With these developments pertaining to the suit plot, the prayer for injunction, in our opinion has become stale and we have noted that the Plaintiff by way of an alternative relief, has sought financial damages in the pending suit. 7. However, Ms. Ghone, the learned counsel for the Plaintiff has invited our attention to some of the observations made by the learned trial Judge in the impugned order and more particularly, the observations made in Para nos. 2 and 3. The learned Judge held that as per the agreement dated 17.02.2000, the Plaintiff ought to have paid the balance consideration within one month and since the Plaintiff failed to prove that he had performed his part of the contract, he was not entitled for any injunction. The learned Judge also referred to the direction to deposit Rs, 54,00,000/- pursuant to the ad-interim order passed in Notice of Motion No. 792 of 2003 and stated that the Plaintiff did not comply with the said order and in fact, he ought to have willingly deposited the said amount as per the statutory requirement under the Specific Relief Act. 8. It is pertinent to note that in Appeal No. 511 of 2003, the direction to deposit an amount of Rs. 54,00,000/- was set aside by the 7.app34-10 5 Appellate Bench. The agreement dated 17.02.2000 on the basis of which the suit for specific performance has been filed reads as under : "Received a sum of Rs. 1,00,000/- lakh (Rupees One lakh only) from Mr. S.S. Runwal against C.T.S. No.119 of Hariyali Village admeasuring total area of 5,543 sq.mtrs. which has been agreed to be sold for a total consideration of Rs. 55,00,000/- (Rupees Fifty Five Lacs Only). I am the owner of the plot and which is in my possession. Against that I have received Rs. 1,00,000/- (Rupees One Lakh only) and the balance amount will be paid on giving the vacant possession of the plot and against signing all the required documents within a period of one month. All the expenses will be done by you. I will obtain ULC permission within one month." 9. A plain reading of the said agreement states that the owner had agreed to sell the suit plot to the Plaintiff for a consideration of Rs. 55,00,000/- and had received a sum of Rs. 1 Lac. The balance amount was to be paid on giving the vacant possession of the plot and against signing of the required documents within a period of one month. 10.Having regard to the language of the agreement, as it appears, we are of the view that the pending suit will have to be decided on its own merits without even taking into consideration the observations 7.app34-10 6 made against the Plaintiff in paragraph nos. 2 and 3 of the impugned order and the issue of Plaintiff’s willingness to perform his part of the contract will have to be considered afresh on its own merits, without being influenced by any observations made in the impugned order. 11.With these clarifications, we dispose off the Appeal. 12.In view of the disposal of this Appeal, Notice of Motion No. 206 of 2010 does not survive and is accordingly disposed off. [SMT. V.K. TAHILRAMANI, J.] [B.H. MARLAPALLE, J.] 7.app34-10 7 7.app34-10