1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPEAL FROM ORDER NO. 370 OF 2007 APPEAL FROM ORDER NO. 370 OF 2007 APPEAL FROM ORDER NO. 370 OF 2007 with CIVIL APPLICATION NO. 532 OF 2007 Mr. Madhukar N. Naik & Ors. ... Appellants Vs. Mr. Shankar Raghav Bhoir &Ors. ... Respondents Mr. N.V.Walawalkar, Senior Counsel, a/w Shri Jeetendra Sachdev , Advocate, for the appellant. Mr.R.V.Govilkar, Advocate a/w Mr. C.M.Lokesh, Advocate, for the respondents Nos. 3 to 6, 8, 9, 12, 16 & 18. Mr. P.K.Dhakephalkar, Senior Counsel a/w. Mr. Niranjan P. Shimpi, Advocate, for respondent Nos. 2, 13, 15 & 19. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE : 6th February, 2008. DATE : 6th February, 2008. DATE : 6th February, 2008. 2 P.C. P.C. P.C. 1. Heard learned Counsel for the parties. 2. The appellants before this Court are the original plaintiffs and the respondents are the defendants. The dispute pertains to land survey No.84/0 admeasuring about 13 acres and situated at Village Khundewal, Taluka Panvel, District Raigad. It is recorded as "Gavaki Zamin". According to the plaintiffs, on 2.5.2005, the defendants had entered into an agreement for sale of 10 acres of land out of the said Survey number at the rate of Rs.2 lakhs per acre and according to them, they have also paid whole of the consideration amount and agreement for sale was registered. The permission was to be taken from the Government under the Urban Land Ceiling Act before execution of the sale deed. Therefore, the plaintiffs filed Special Civil Suit No.436 of 2006 for specific performance of the contract. The plaintiffs also filed Application Exhibit 5 seeking direction restraining the defendants from selling, assigning or giving development rights to the third person in respect of the suit land pending the hearing and final disposal of the suit. 3 3. The application was opposed by the defendants. They denied to have received Rs.20 lakhs. However, they also admitted to have entered into an agreement for sale with the plaintiffs and also to have received the amount of Rs.9,50,000/-. According to them, the balance amount was not paid within the stipulated period and, therefore, by their letter 28th November, 2005 they have terminated the contract with the plaintiffs and they also offered to refund and repay the amount of Rs.9,50,000/- which they had received. It was also pointed out by some of the defendants that they had already entered into a contract with Surendrasingh and had given possession of the suit property to him on which he has raised some structures and started business in the name of "Dev Tyres". 4. The trial Court, after hearing the parties, rejected the application for temporary injunction disbelieving the case of the plaintiffs in view of the difference in date of agreement because in the notice and the plaint date is mentioned as 10th May,2005, while in the agreement, date is 2.5.2005. Being aggrieved by the rejection of the application Exhibit 5, the plaintiffs have preferred the present Appeal. 4 5. There is no dispute that the defendants have, in fact, entered into an agreement for sale of the suit land in favour of the plaintiffs for consideration of Rs.20 lakh and that agreement dated 2.5.2005 was even registered. Though according to the plaintiffs, they have paid Rs.20 lakh, even the defendants admit to have received the amount of Rs.9,50,000/-. According to them, they have terminated the contract in November, 2005 because the plaintiffs had failed to pay the balance amount. This is the question in dispute. Even though the defendants have entered into an agreement for sale of the land with some third person, they have not yet executed any sale deed in favour of that third party. Taking into consideration these aspects and to avoid further complications in the matter, it will be absolutely necessary in the interest of justice to give direction to the respondents not to create third party interest pending the suit. If the sale deed is executed by the defendants in favour of third party or any further third party rights are created it may create further litigation which will not be in the interest of the parties and it may cause irreparable loss to the plaintiffs. The balance of convenience, therefore, is clearly in favour of the plaintiffs. 5 6. Mr. Dhakephalkar, learned Senior Counsel for some of the respondents, makes a statement that Surendrasingh in whose favour the defendants have entered into an agreement for sale has already been put in possession of the land and he has also constructed a building and he is running his business. Even in such circumstances, the defendants may be directed not to execute sale deed and to create third party interest. As far as Surndrasingh is concerned, the plaintiffs may move the trial Court to implead him as a party in the suit and may seek appropriate relief against him pending the suit. 7. For the aforesaid reasons, the Appeal is allowed. The impugned order is hereby set aside. The defendants/respondents are hereby restrained from creating any third party interest in the suit property pending the suit. They shall not execute sale deed in favour of any third party on the basis of any agreement which they might have entered into with such party. 8. As the Appeal itself is disposed of, the Civil Application does not survive and stands disposed of accordingly. 6 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)