1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.14 OF 2011 WITH CIVIL APPLICATION NO.18 OF 2011 M/s. Nilesh Construction ...Appellant. v. Shri Madhukar N. Nhavle & Ors. ...Respondents. Mr. P.S.Dani ,adv. For the Appellant. Mr. Sanjeev J. Rairkar, adv. For the Respondent No.1. Mr. Vishal Kanade i/by Mr. Sanjay S. Gawde, advs. For the R.Nos.2 to 6. CORAM : J.H. BHATIA, J. DATED : JULY 12, 2011. P.C. 1 Heard the learned counsel for the parties. Appeal is preferred by the original plaintiff against the rejection of application, Ex. 5 for temporary injunction in the suit for specific performance of the contract. According to the plaintiff, who is the builder, the suit land is joint family property of the defendants/respondent nos.1 to 7. Defendant no.1, as manager of the joint family, entered into an agreement with the plaintiff on 23.11.2007 whereby the right to develop the property was to be transferred to the plaintiff. Plaintiff was to pay an amount of Rs.25 lakh and also to give possession of 10,000 sq.ft. built up area to the defendants after completion of construction. According to the plaintiff, 2 he paid an amount of Rs.25 lac to the defendant from time to time. In the year 2008, he offered to give 14,000 sq.ft. built up area in addition to the amount of Rs.25 lakh as consideration of the development rights. However, on 14.8.2010 he received notice from the defendant no.1 that as other share holders are not agreeable, the contract was terminated. Plaintiff thereafter filed S.C.Suit No.2022 of 2010 in the Court of Civil Judge Senior Division, Pune for specific performance of the contract and moved an application Ex.5 for temporary injunction restraining the defendants from causing disturbance in his possession over the suit property and from alienating property in favour of any third party. Application was opposed. According to the defendants, firstly, there was no concluded contract and terms of the contract were not settled. Initially, it was only in the nature of negotiation and was yet to be concluded. Secondly, the defendant no.1 alone had no right to enter into such contract on behalf of the joint owners and, therefore, even if any such agreement was entered into, it was not binding on remaining defendants. 2 Trial Court rejected the application Ex.5 mainly on two grounds. Firstly, there was no concluded contract and this fact is evident from the pleadings of the plaintiff himself that even though in 2007 he 3 had agreed to give 10,000 sq.ft. built up area in addition to the amount of Rs.25 lakh in 2008 defendant no.1 demanded 14,000 sq.ft. built up area to which the plaintiff agreed. It means the terms of the contract were not finalised. Secondly, suit property is the joint family property of the defendant nos.1 to 7. Some of the defendants are the sisters of the defendant no.1 and the defendant nos.6 and 7 appear to be nephews of the defendant no.1. Each of them has attained majority. Defendant no.1 while entering into contract with the plaintiff never claimed that other defendants had executed power of attorney in his favour and had authorised him to enter into contract of development on their behalf. Therefore, the defendant no.1 alone could not enter into such contract and bind other defendants with the agreement. The agreement nowhere shows that the defendant no.1 had entered into such development agreement with the plaintiff to meet any legal necessity of the joint family or for the benefit of the joint family property. In view of this, agreement between the plaintiff and the defendant no.1 can not be binding on the defendant nos. 2 to 7. In view of the facts and circumstances and the reasons given by the trial Court for rejection of the application, Ex.5, I find no illegality or mistake and, therefore, there is no scope to interfere in the said order. 4 3 At this stage, the learned counsel for the defendants/respondents on taking instructions from son of the defendant no.1 makes a statement that the defendant no.1 had previously sent the cheque of Rs.25 lakh to refund the amount received by him but that cheque was not accepted and that he is willing to repay the amount received by him from time to time from the plaintiff with interest at the rate of 18% p.a. 4 In view of the above circumstances, the appeal and the application stand dismissed. Defendant no.1, to show his bonafides, shall deposit the amount as per the above statement before the trial Court within four weeks from this date. (J.H. BHATIA,J.)