1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.335 OF 2010 WITH CIVIL APPLICATION NO.446 OF 2010 IN APPEAL FROM ORDER NO.335 OF 2010 Microse India Ltd. .... Appellants Vs. Somabhai Prabhudas Patel & Ors. .... Respondents S/Shri P.K. Dhakephalkar with Ashish Kamat i/b RMG Law Associates for the Appellants. Shri M.S. Karnik for the Respondents. CORAM: R.C. CHAVAN, J. DATED: JUNE 28, 2010 P.C: 1. This is plaintiffs appeal questioning the rejection by the learned Civil Judge, Senior Division, Nasik of an application for injunction in Special Civil Suit No.127 of 2009. The appeal was taken up for hearing finally at the admission stage by consent. 2. I have heard the learned counsel for the parties. In this case, the property 2 belonged originally to defendant Nos.2 to 7. On 8-4-2002 defendant Nos.2 to 7 entered into a registered agreement of development of the property with defendant Nos.8 and 9. Defendant Nos.8 and 9, in their turn, on 15-9-2005 entered into a similar registered agreement with defendant No.1. Defendant No.1 is alleged to have entered into a notarised agreement on 11-1-2007 for sale of the property to the plaintiffs or may be for development of the property. On the basis of this agreement, the plaintiffs have approached the Court and had sought an injunction to restrain defendant No.1 from further developing the property. The original owners  defendant Nos.2 to 7  had also filed a suit against defendant No.1 for rescinding the agreement and for stalling the development of the property of defendant No.1. That matter came to this Court and while disposing of Appeal From Order No.734 of 2007 by a judgment dated 30-11-2007, this Court held that defendant No.1, i.e., S.P. Engineers, who were the appellants before the High Court in Appeal From Order No.734 of 2007, could have given an undertaking to the Court and also made it known to all possible purchasers or investors that the property in the suit which was pending, was subject to the result of the 3 suit and in case the plaintiffs succeed, it may be required to be pulled down and that they will also make it clear to the proposed purchasers of the flats or the properties that the owners of the land will not be responsible for any breach of contract between S.P. Engineers and their customers. 3. The plaintiffs, i.e., the appellants herein, in Special Civil Suit No.127 of 2009 claimed that there was an agreement of sale executed on 11-1-2007 in pursuance whereof they have paid a sum of Rs.1.15 crores to S.P. Engineers. The S.P. Engineers do not dispute having received this sum, but denies that any such agreement was executed. According to the plaitniffs, having parted with a huge sum of Rs.1.15 crores against the transaction price of Rs.7.05 crores or Rs.5 crores, it was incumbent upon the S.P. Engineers to allow the plaintiffs to proceed with the development, rather than taking up the development of the property upon themselves. Therefore, they had pleaded for an injunction to restrain further activities of S.P. Engineers on the property. 4. The learned Judge held that S.P. Engineers had complained of forgery alleging 4 that the notarised agreement dated 11-1-2007 was not at all executed by the proprietor of S.P. Engineers and that they had filed a private criminal complaint in which the learned Magistrate had ordered an investigation under Section 156(3) of the Criminal Procedure Code. The learned Judge, after noting the order passed in Appeal From Order No.734 of 2007 by this Court, found in para 24 of the impugned order that no order could be passed, much less prohibitory order, in view of the peculiar circumstances of the forgery and therefore refused to grant injunction. 5. The learned counsel for the appellants is right in submitting that the order passed in Appeal From Order No.734 of 2007 passed by this Court cannot protect S.P. Engineers in an action by the appellants, since, defendant No.1 S.P. Engineers, had entered into an agreement, may be, not the one which was executed on 11-1-2007, but all the same an agreement under which S.P. Engineers had received a hefty sum of Rs.1.15 crores. He submitted that his clients were ready to bring in the balance and had stated so in the plaint itself. He submitted that the order passed by this Court in Appeal From Order No.734 of 2007 was made 5 for protection of interest of purchasers and would not provide adequate protection to the appellants. He also pointed out that the story about forgery in the plaint allgedly made by defendant No.1 is yet to be examined by the police and therefore should not have been readily accepted by the learned trial Judge. He pointed out that it could not be a matter of co-incidence that defendant No.1 had received a cheque from the appellants on 11-1-2007 itself for a sum of Rs.10 lakhs. Therefore, according to him, there was absolutely no warrant for the learned trial Judge to refuse an injunction since the appellants had shown that they would suffer irreparably. 6. In this case, the appellants had come up with the claim that the appellants were to purchase the property, or to purchase the right to develop the property, from defendant No.1, whose own rights are under doldrums because of the suit filed by defendant Nos.2 to 7. In view of this, stopping further construction or development by defendant No.1 on the property was unlikely to secure the interest of the plaintiffs i.e., the present appellants. Therefore, it cannot be said that the discretion which the learned trial Judge 6 exercised was thoroughly unwarranted or perverse calling for interference by this Court, though another view of the matter could also have been taken by the learned trial Judge. 7. However, the learned trial Judge should have seen that after defendant No.1 admitted having received sum of Rs.1.15 crores after setting up a case in para 37 of the written statement that on delayed payments interest of 12% was to be paid, and also stating that he was ready to refund the amount of Rs.1.15 crores, but that the appellants had demanded hefty interest at 24% per annum, it was incumbent on defendant No.1 to first bring back the money which he had received, which he had not done. 8. In view of this, it would be necessary and equitable to modify the order which has been questioned in this appeal by directing that the application would stand rejected on respondent No.1 depositing before the trial Court by 19-7-2010 a sum of Rs.1.15 crores with interest at the rate of 12% per annum from the dates on which he received the amounts till 19-7-2010, as desired by respondent No.1 with 7 the understanding that he would seek no further indulgence. If the amount is not so deposited, all the further activities on the property shall stop till the suit is disposed of. The deposit shall be subject to the right of the parties to claim such damages as the parties may be entitled to. In addition, respondent No. 1 would be obliged to inform the prospective purchasers that the purchase of the property by them would be subject to the decision of the suit between the present appellants and defendant No.1 and that the purchasers will not be entitled to claim any equity should defendant No.1 fail in the suit. The appeal stands disposed of in these terms. 6. Since the appeal itself has been disposed of, Civil Application No.446 of 2010 also stands disposed of. (R.C. CHAVAN, J.)