1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.123 OF 2009 WITH CIVIL APPLICATION NO.142 OF 2009 Dr.Rajaram Amrej Singh : Appellant versus Shri Santosh Budhaji Jadhav : Respondent. Ms.Gauri Godse for the Appellant. Shri P D Dalvi for the Respondent. CORAM : R.M.SAVANT, J. DATED : FEBRUARY 27, 2009 P.C. 1. This Appeal takes exception to the order dated 21/10/2008 passed by the learned Civil Judge, Senior Division, Kalyan by which order the Application Exhibit-5 filed by the Appellant/Plaintiff came to be rejected. 2. The Plaintiff filed a suit being Special Civil Suit No.180 of 2 2008 for specific performance of the agreement for sale dated 27/5/2001 in respect of land bearing Survey No.165, Hissa No.1, admeasuring 37.3 gunthas situated at village Valvali, Badlapur, Tal. Ambarnath, Dist. Thane. It is the case of the Plaintiff that the Defendant agreed to sell the suit property to the Plaintiff for a total consideration of Rs.2,99,000/- and accordingly the parties executed a written agreement for sale on 27/5/2001. Out of the total consideration of Rs.2,99,000/-, the Plaintiff has paid Rs.51,000/- as earnest money to the Defendant on the date of execution of agreement for sale i.e on 27/5/2001 and as per the clause of 3 of the said agreement for sale, the Plaintiff was required to pay Rs.50,000/- out of the balance consideration on/or before 30th day from the date of the execution of the said agreement for sale. The balance consideration of Rs.1,98,000/- was to be paid at the time of execution and registration of the sale deed. It is an undisputed position that the Plaintiff has paid an amount of Rs.1,01,000/- to the Defendant. In terms of clause 6 of the said agreement for sale, it was the obligation of the Defendant to get the suit property measured and demarcated and to get the boundaries fixed before receiving the balance 3 consideration from the Plaintiff. It is the case of the Plaintiff that the Defendant has not taken steps to get the suit property measured and demarcated and to get the boundaries fixed. The Plaintiff has therefore by notice dated 28/2/2008 called upon the Defendant to execute the said agreement for sale. The said notice was replied to by the Defendant. The Plaintiff thereafter has filed the said Spl. Civil Suit No.180 of 2008 for specific performance. In the said suit, an Application Exhibit-5 for temporary injunction restraining the Defendant from creating third party interest was filed by the Plaintiff. 3. A perusal of the Plaint of the said suit and the said Exhibit-5 Application indicates that the averments are identical save and except some contents of Paragraph 5 wherein the Plaintiff has stated that he is entitled to the temporary injunction restraining the defendant, his relatives, friends, servants, agents, etc from creating third party interest in respect of the suit property and from parting with the possession of the suit property or any portion thereof. 4. The Defendant filed his say to the said Application. He has 4 admitted the execution of the said agreement as also the total consideration payable which was Rs.2,99,000/-. The fact that the Plaintiff has paid the amount of Rs.51,000/- has also been admitted. It is the case of the Defendant that on 9/2/2003, the Defendant was in need of money and he had, therefore, gone to the Plaintiff along with one Deepak Amarsingh Bansode when the Defendant demanded the balance consideration from the Plaintiff, whereupon it is the case of the Defendant that, the Plaintiff told him that he cannot pay the remaining amount of consideration and he cannot get the sale deed executed. It is further the case of the Defendant that the Plaintiff asked the Defendant to return the amount of Rs.1,01,000/- paid by him. It is the case of the Defendant that the Defendant told him that he would return the amount when he would get a purchaser for the suit property. 5. The trial Court considered the said Application Exhibit-5 and rejected it by the impugned order. The trial Court on the basis of the conduct of the Plaintiff that the Plaintiff had issued notice in 2008 observed that there appears to be substance in the contention of the 5 Defendant that the Plaintiff was not desirous of making payment of the balance consideration and execution of the sale deed. The trial Court was also of the view that the silence of the Plaintiff for 7 years in not asking the Defendant in getting the land measured or for execution of the sale deed lends credence to the case of the Defendant that the Plaintiff had cancelled the transaction. The trial Court also took into consideration the fact that there was no material placed on record by the Plaintiff to indicate that the Defendant is going to enter into any further transaction with some other person. 6. As indicated above, the averments made in the said suit and the Application Exhibit-5 are identical and there is absolutely no material on record to indicate that the Defendant has any intention to create third party interest save and except the Plaintiff's statement that when he asked for refund of money, the Defendant told him that he would return back the money after he gets a new purchaser. 7. The trial Court also took into consideration the discrepancy between the carbon copy of the agreement for sale and the original 6 agreement vide Exhibit 29/1 and the xerox copy of the agreement Exhibit 3/1. The trial Court was of the view that the same would also be a material circumstance in considering whether there exist a prima facie case in favour of the Plaintiff. 8. Having heard the learned counsel for the parties and having considered the impugned order, in my view, the finding of the trial Court that the Plaintiff has no made out a prima facie case for grant of the discretionary relief of injunction cannot be faulted with. In my view, in the facts and circumstances of the case no interference is called for with the impugned order. The above Appeal from order is accordingly dismissed. 9. However, the hearing of the Special Civil Suit No.180 of 2008 is expedited. 10. In view of the dismissal of the above Appeal from Order, the Civil Application No.142 of 2009 does not survive and the same is accordingly disposed of. 7 [R.M.SAVANT, J]