abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1399 OF 2008 IN SUIT NO. 1148 OF 2008 Kishore C. Sarivastava & Anr. .. Plaintiffs V/s Shree Swastik Developers .. Defendant Mr.Udaipuri i/b Bharat & Co. for the plaintiffs. Mr.Nitin H. Shukla for the defendant. CORAM : D.G. KARNIK, J. DATE : 23RD APRIL 2008 P.C. P.C. P.C. : 1. Heard learned counsel for the parties. 2. By this motion, the plaintiffs seek an injunction restraining the defendants from selling flat no.407 in Building No.D-5, Sadguru Complex, General Arunkumar Vaidya Marg, Goregaon (E), Mumbai, more particularly described in Exhibit-A to the plaint (for short "the suit flat"). 3. By an agreement for sale dated 26th April 2006, the defendant agreed to sell to the plaintiffs the suit flat for a total consideration of Rs.29,92,500/-. The plaintiffs have so far paid to the defendant a sum of Rs.4,38,875/-. The balance consideration is not paid. The plaintiffs did not have money for payment of the balance consideration. They therefore wanted to borrow money from the bank. The defendant gave no objection to the plaintiffs for borrowing of the money. It however appears that on account of the plaintiffs’ own difficulty, the bank did not disburse the loan in time. The plaintiffs were therefore unable to fulfill their promise to pay the balance consideration. 4. By a letter dated 13th March 2007 the defendant called upon the plaintiffs to pay the balance consideration, failing which it would terminate the agreement. Despite this notice, the plaintiffs did not make payment. Finally, by an advocate’s notice dated 7th April 2007 the defendant terminated the agreement with the plaintiffs. Even thereafter the plaintiffs did not approach the court till 4th April 2008. It appears that the plaintiffs were not ready and willing to perform their part of the contract as they did not have money to make the payment to the defendant. They approached the bank for loan which was not advanced by the bank for the plaintiffs’ own reasons. The defendants showed indulgence by giving of a notice of demand prior to the termination of the agreement. In spite of that notice, the plaintiffs failed and neglected to make payment. 5. In the circumstances, the plaintiffs have failed to make out a case that they were ready and willing to perform their part of the contract as required under section 16(c) of the Specific Relief Act. The plaintiffs therefore are not entitled to any injunctive relief. Motion is rejected. Hearing of the suit is expedited. (D.G. KARNIK, J.)