- 1 - 233.ca.344judg rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.233 OF 2011 WITH CIVIL APPLICATION NO. 344 OF 2011 1. Mr.Devdatta Chandrakant Patil Age 49 years, Business Service 2. Mrs Snehal Devadatta Patil, age 45 years, Business: Service both Plaintiffs (Appellants) residing at O-3, Ground Floor, Mahaver Shikhar Bldg, Bawan Bungalows Society, (Adarsh Co-op Hsg Scty, Old Panvel Tal Panvel Dist Raigad ..Appellants vs 1.M/s Thalkar Developers through its Prop/Partner Mr. Manohar alias Laxman Shankar Thalkar, age 65 yrs, Business: Builders and Developers, residing at 80-6, "Thalkar Niwas, Mominpada, M.G.Road, Panvel Tal: Panvel Dist Raigad 2. The Managing Director, IDBI Home Finance Limited, having office at "Sapana" Gr.Floor, Plot No.850, S.K.Bole Road, Agarbazar, Dadar (W)Mumbai-400 028. .. Respondents Mr J.C.Patil for Appellants Ms. Samiksha Mhatre i.b Kiran Kandpile for Respondent No.1 CORAM: J.H.BHATIA, J DATE: 10 th August 2011 - 2 - 233.ca.344judg ORAL JUDGMENT Rule. Rule made returnable forthwith. 1. Heard learned counsel for the parties. Admittedly, the Plaintiffs-Appellants had entered into an agreement with Defendant no.1 on 30th August, 2006, whereby the Defendant No.1 agreed to sell flat No.11 situated at 4th floor of the building under construction on land city survey no.1483A situated within the limits of Municipal Council of Panvel. As per the said Agreement, consideration amount was fixed at Rs. 7,20,000/-. An amount of Rs.70,000/- was paid at the time of execution and registration of that Agreement. Out of the balance amount, an amount of Rs.5,00,000/- was to be paid at the time of handing over the possession of the flat by Defendant No.1 to the plaintiffs. Further balance amount of Rs.1,50,000/- was to be paid on completion of exterior panting and work of water proofing in the flat and on terrace of the - 3 - 233.ca.344judg roof. It appears that the plaintiff also entered into a contract with Defendant no.2 bank for providing finance for purchase of the flat. Somehow the Defendant No.2 could not fulfill the undertaking to provide the loan. Defendant no.1 insisted on making full payment which at the relevant time the Plaintiff was unable without getting bank loan from the Defendant No.2. The Defendant No.1 refused to sell the flat to him and threatened to dispose it of. The plaintiffs filed the suit for specific performance of the contract against the Defendant No.1 for sale of the flat and against Defendant no.2 to provide the loan. 2. By Application Exhibit 5 the Plaintiffs sought temporary injunction restraining the Defendant No.1 from creating any third party interest in the suit flat on 4th floor pending the suit. 3. The Application was opposed by the - 4 - 233.ca.344judg Defendant No.2 contending that the plaintiff were not in a position to fulfill the terms of the contract and had failed to make payment on time and therefore they are not entitled to get temporary get temporary injunction. 4. The learned trial Court rejected the Application on the ground that the plaintiff had failed to comply with the terms of the contract as per paragraph 7 of the Agreement. 5. After hearing the learned counsel for the parties and perusal of the record, it appears that the Plaintiffs had created some confusion by drafting prayers and joining the Defendant nos. 1 and 2 both in the suit. Similarly, it appears that the trial court also committed an error in rejecting the Application of the Plaintiffs relying on paragraph 7 of the Agreement and ignored the terms of the contract incorporated in paragraph 5. Learned counsel for the Plaintiffs makes a statement that the - 5 - 233.ca.344judg Plaintiff have already deposited balance amount of Rs.6,50,000/- with the trial court on 25th May 2011 after rejection of the Application at Exhibit 5. In fact, in a suit for specific performance of contract for sale of flat, the Defendant No.2-bank would be a necessary party whatever grievance the plaintiffs may have grievance against the said bank. As stated above, in paragraph 5 of the Agreement, schedule for payment of the amount is given. An amount of Rs.70,000/- was paid at the time of execution and registration of the Agreement and the balance amount of Rs. 5,00,000/- was to be paid at the time of giving possession of the flat. The balance amount of Rs.1,50,000/- was to be paid on completion of exterior colours and water proofing work. Written statement filed by the Defendant No.1 shows that only 80% of the work is completed. The building is not ready for giving possession even now. The Defendant no.1 could demand - 6 - 233.ca.344judg payment of balance amount of consideration only when the construction would be ready and he would be in a position to deliver possession of the flat. He could not demand of the balance amount before he could hand over possession of the flat. Paragraph 7 of the Agreement states that terms of the contract stated in paragraph 5 should be completed within one moth from the date of registration of the Agreement of the flat. Agreement was executed on 30th August, 2006 and was registered on 31st August,2006. If the terms and conditions mentioned in paragraph 5 are read with paragraph 7, it could be said that if the Defendant No.1 builder would be in position to hand over possession within one month from the date of registration of the Agreement, then the plaintiff would be liable to make payment within that period but unless the Defendant No.1 is in a position to give delivery of possession of the flat, he cannot insist on payment of the balance amount of consideration. - 7 - 233.ca.344judg 7. The trial Court clearly committed an error in holding that the Plaintiff had failed to comply with the terms and conditions contained in paragraph 7 of the Agreement. In fact, the stage of compliance of the terms and conditions of paragraph 5 has not yet reached because the construction is not completed and Defendant No.1 is unable to give possession of the flat. The Plaintiff has already deposited the balance amount of Rs.6,50,000/- before the trial court even though it was not necessary in the given circumstances. Taking into consideration all these circumstances, I find that the trial court committed an error in rejecting the Application for temporary injunction. 8. In the result, Appeal is allowed. The impugned order is set aside. The Defendant No.1 is hereby restrained from creating any third party interest and/or parting with possession of flat No.11, pending the suit. - 8 - 233.ca.344judg Rule made absolute accordingly. As the Appeal itself is finally disposed of, Civil Application does not survive and is disposed of accordingly. J.H.BHATIA, J