1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.81 OF 2009 WITH CIVIL APPLICATION NO.102 OF 2009 M/s. Bagadia Builders & Developers A Proprietory concern through its Proprietor ..Appellant Shri Shravankumar Purushottam Bagadia Age : 55 years, Occu : business having his office at Rahul Nagar Ambernath, District Thane. Versus Defense Civilians Co-operative Housing Society (Proposed) having its office at Air Force Thane, SMQ F-16 Kolshet Road, P.O.Sandoz Baug, Thane. Through its office bearers : 1. Shri Maruti T. Desai Aged : 65 years, Occu : Retired Residing at Shiv Kripa Co-operative Housing Society, Plot No.G1, Post Sandoz Baug, Kolshet, Thane  400 607. ..Respondents 2. Shri Prakash Ramu Londe Aged : 51 years, Occu : Service Residing at Air Force, SMQ., F/16, Post Sandoz Baug, Kolshet, Thane. 2 3. Shri Vitthal Laxman Shinde Aged : 57 years, Occu : Service Residing at Air Force, SMQ., F/8, Post Sandoz Baug, Kolshet Thane. 4. Shri Devidas Haribhau Vanjari Aged : 64 years, Occu : Retired Residing at Room No.10, Nav Vaibhav Co-operative Housing Society, Kharkar Ali, Jambli Naka, Thane. 5. Shri Prakash Vishram Vichare Aged : 56 years, Occu : Service Residing at Military camp, M.E.S.Quarter, Kandivali, Mumbai. 6. Shri Dilip R. Manchekar Aged : 50 years, Occu : Service Residing at 1/102, Siddhivinayak, Surya Nagar, Vitawa, Kalwe, Thane. 7. Shri Ashok Tukaram Shinde Aged : 33 years, Occu : Lawyer B/2, 306 Jeevan Co-operative Housing Society, Near Parsik Bank, Luis wadi, Thane. ` (Nos.1 to 7 are sued for themselves and in their capacity as office bearers of the Defense Civilians Co-operative Housing Society(Proposed)) 8. Shri Chandrakant I. Ingavale Adult, Occu : business Residing at 4/704 Swami Krupa, Dhokali, Kolshet Road, Thane. 3 Mr.G.S.Godbole i/b.Mr.Dnyaneshwar Deshmukh, Advocate, for the Appellant Mr.Subhash Sawant, Advocate, for Respondent No.1 CORAM : R.C.CHAVAN, J. JUDGMENT RESERVED ON : 8TH AUGUST, 2010 JUDGMENT PRONOUNCED ON : 13TH SEPTEMBER2010 JUDGMENT . This is plaintiff's appeal against an order passed by the learned 2nd Joint Civil Judge, Senior Division, Thane in Special Civil Suit No.190 of 2008 for an injunction to restrain the defendants from disturbing plaintiff's possession over the suit property. 2. Facts which are material for deciding this appeal are as under :- The defendant  Society was allotted 5870 sq. meters of land for construction of tenements for its 100 members by Collector's order dated 8th December, 1993. On 27th November, 4 1994 a MOU was entered into between representatives of respondent's members and the plaintiff, which among other things provided that after providing 100 tenements balance FSI would be exploited by plaintiff. The Society paid Rs.50,000/- to plaintiff as goodwill amount on 26th December, 1994 and agreed to make further payments as per Schedule. The Society in fact paid Rs.12,000,00/- in all to plaintiff. On 26th April, 2000, a development agreement was entered into between the plaintiff and promoters of defendant  Society. It re-iterated that members of defendant  Society were to get only 100 flats and plaintiff was to appropriate the rest of the construction. Among other things, the agreement recited that possession was delivered to plaintiff as licencee. On 30th September, 2007, the defendant  Society agreed to pay the plaintiff at Rs.611/- per sq. feet instead of Rs.560/- per sq. feet earlier settled, for undertaking to clear hindrances. 5 On 4th February, 2008, the defendant informed the plaintiff that inspite of being paid Rs. 12,000,00/-, the plaintiff had failed to construct flats; that there was no scope for construction of more than 100 tenements in terms of Collector's order of allotment of land and thus several Clauses in the agreement were illegal. The Society, therefore, cancelled the agreement and Power of Attorney and demanded refund of Rs.12,000,00/- paid with interest at 20% per annum. The plaintiff found that defendant Nos.1 to 7 (office bearer of Society) had entered into some agreement with another developer  defendant No.8. 3. The plaintiff immediately filed suit claiming declaration that cancellation of agreement was null and void and seeking specific performance of the same. Plaintiff also sought injunction to restrain defendants from creating any third party interests, and disturbing 6 plaintiff's possession over the suit property. 4. The defendants resisted the plaintiff's claim; denying plaintiff's contentions. After considering the material before him, the learned Civil Judge held that the agreement between the parties was prima facie unenforceable; acts which plaintiff sought to prevent had already been committed; and plaintiff could be adequately compensated, and so rejected the application for temporary injunction. 5. The learned Counsel for the appellant submitted that right till 30th September, 2007, the Society was ready to go ahead with the agreement and even agreed to pay the plaintiff for construction at a higher rate. He, therefore, attributes the sudden volte face to circumstances which are not legal and fair. He submitted that since his client had been placed in possession way back in 1995, his possession 7 ought to have been protected. For this purpose, he placed reliance on a Judgment of Division Bench of this Court in M/s.Chheda Housing Development Corporation Vs. Bibijan Shaikh Farid & ors, reported at 2007(3)ALL MR 780. After considering several Judgments, the Bench held in paragraph 13 as under :- 13. In our opinion from a conspectus of these judgments, what is relevant would be the facts of each case and the agreement under consideration. Agreements considering what is discussed, amongst others, could be :- (a) An Agreement only entrusting construction work to a party for consideration; (b) An Agreement for entrusting the work of development to a party with added rights to sell the constructed portion to flat purchasers, who would be forming a Co-operative Housing Society to which society, the owner of the land, is obliged to convey the constructed portion as also the land beneath construction on account of statutory requirements. (c) A normal agreement for sale of an immovable property. 8 An Agreement of the first type normally is not enforceable as compensation in money is an adequate remedy. An Agreement of the third type would normally be specifically enforceable unless the contrary is proved. A mere agreement for development, which creates no interest in the land would not be specifically enforced. 6. The learned Counsel for appellant submitted that appellant's case fell in category (b) above, which does not appear to be correct, since the agreement does not show that development work was entrusted to appellant with added right to sell constructed portion to flat owners. Here the members of the Society were to pay and had paid to the appellant charges for carrying out construction. In M/s.Chheda Housing Development Corporation on which the learned Counsel for the appellant relied, the developer had paid to respondents Rs. 2,60,000,00/- and was to pay balance in five instalments, last whereof was to be Rs. 9 1,35,000,00/-. In the case at hand, appellant has, instead of paying anything for purchasing development rights, received Rs.12,000,00/- from defendant Society which is consistent with payment being towards construction cost. Therefore, appellant could not claim to have been put in possession. 7. The appellant entered into a MOU in 1994 and if till 2008 not a brick is laid, defendants cannot be blamed for cancelling the agreement. In any case, there would be no question of constructing more than 100 tenements or appellant being in a position to sell the remaining construction in violation of terms of allotment of land dated 8th December, 1993. 8. As rightly pointed out by the learned Counsel for the respondents, the relief of specific performance is a special, extraordinary and discretionary remedy, as held by the Supreme 10 Court in FGP Ltd. Versus Saleh Hooseini Doctor & Anr., reported at 2010(1)AIR Bom R 225. Therefore, till the trial is over, rights which the appellant claims are speculative in nature. And in any case, if any, rights are created in favour of third party during the pendency of the lis, the plaintiff can always seek protection of Section 52 of the Transfer of Property Act, 1882. 9. As to the claim of appellant to have been placed in possession, even the recital in the development agreement is that he was placed in possession as licencee. Therefore, the moment agreement was cancelled, licence stood revoked. That possession was only for carrying out construction and cannot be equated to possession to the exclusion of the owners. 10. In any case, it is not shown that the discretion exercised by the trial Judge in 11 refusing injunction was perversely exercised or that the conclusions drawn by him were wrong. 11. Appeal from Order is, therefore, dismissed. 12. In view of dismissal of Appeal from Order, Civil Application No.102 of 2009 does not survive and the same is disposed of. (R.C.CHAVAN, J.)