*1* nms.935.10 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.935 OF 2010 IN SUIT NO.903 OF 2010 Jamshed Jal Vakharia and another. ..Plaintiffs -Versus- Maison Belvedre CHS Ltd.. ..Defendant .......... V.R.Dhond a/w M.Humranwala, for the Plaintiffs. G.K.Sovani, for the Defendant. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 23rd November, 2010. P.C. 1 The present suit is filed by the Plaintiffs for declaration that there is a concluded, valid and binding contract between the Plaintiff No.1 and the Defendant for sale of the suit premises on “ownership basis” for a consideration of Rs.60 lacs on the terms and conditions in the Defendant's letter dated 24.11.2009. 2 The premises are more particularly described at Exhibit-A to the plaint. The Plaintiffs claim to be the tenants of three structures on the sixth floor of the building. The building consists of ground and five upper floors. After fifth floor there is terrace floor on which the suit premises are situate. 3 It is stated that the building was owned by the Plaintiffs' family prior to 1963 and thereafter, in 1965 the society became owner of the building pursuant to an auction by the Municipal Corporation of Greater Mumbai. The Plaintiffs' father and uncle for several years were in *2* nms.935.10 possession and later on they became monthly tenants and through them the Plaintiffs have been continuing in possession as such. 4 It is stated that, thereafter, several meetings were held and an offer was made to the Society that the Plaintiffs would like to acquire the premises on ownership basis and ultimately, it is stated that a letter dated 24.11.2009 was addressed wherein the agreement was confirmed including the consideration of Rs.60 lacs. However, thereafter the transaction could not be finalized as it is alleged that the Defendant did not take necessary steps. Finally, the Plaintiffs learnt that the Defendant has decided to auction the premises. 5 It is in such circumstances, the instant suit has been filed and after ad-interim injunction was sought, which came to be denied, that the Plaintiffs challenged the said order in appeal. The appeal has been disposed of with an order and direction dated 03.05.2010 under which the Plaintiffs were directed to deposit Rs.60 lacs and on that condition, ad-interim injunction in terms of prayer clause (a) of the Notice of Motion came to be granted. 6 On the date of the order passed by the Appellate Court and even after the plaint has been amended, there is no affidavit in reply. The order passed by the Appellate Court was after hearing both sides. If none of the averments and allegations in the plaint have been denied nor the stand taken in affidavit in support of the Notice of Motion is challenged, then, mere pendency of the proceedings before the authorities under the Maharashtra Co-operative Societies Act, 1960 would not prevent the Plaintiffs from claiming ad-interim injunction and much less to stay the auction. The challenge to the so called auction is supported by pointing out that there was a concluded agreement which is binding on the society. 7 Once there is nothing on record to indicate that the *3* nms.935.10 agreement has come to an end and that the allegations are false; the interest of justice would be served if the Notice of Motion is allowed in terms of the ad-interim order made by the Appellate Court. 8 For all these reasons, the Notice of Motion succeeds and it is made absolute in terms of prayer clause (a) except the bracketed word "dealing". There will be no order as to costs. (S.C. Dharmadhikari, J)