1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.655 OF 2008 ALONGWITH CIVIL APPLICATION NO.763 OF 2008 M/s U.S. Roofs Ltd. .... Appellant (Ori. Plaintiff) Vs. Mr. Krishna Bama Thakur & 2 Ors...... Respondent (Ori. Defendants) Mr. Atul Rajadhyaksha, Senior Advocate with Mr.Akhilesh Dubey and Mr. Yogesh Dandekar, Advocates i/by M. Tripathi & Company for Appellant. Mr. Uday Warunjikar, Advocate for respondent no.1. Coram : SMT. R.P.SONDURBALDOTA,J Date : 10th September, 2008 P.C. 1. The appellant, the original plaintiff, is the builder and developer by profession. Respondents no. 1 and 2, original defendants no. 1 and 2, were the owners of land bearing survey and Hissa nos. A/481, A/779, A/880 and A/794 situate at Nhave, Taluka Panvel. These lands were acquired for development of new town under a scheme promulgated by respondent no. 3 known as “12.5% Scheme”. Under the said scheme, every project affected person is entitled, in addition to the monetary compensation, to allotment of 12.5% land of the total 2 land acquired from the owner at a nominal rate in a closeby location. 2. The appellant has filed instant suit contending that in the month of August,2003, respondents no. 1 and 2 represented to it that they are entitled to monetary compensation for acquisition of their four pieces of land and allotment of a plot admeasuring 1400 square meters at village Ulwe, Taluka Panvel, District Raigad in lieu of the land acquired. They further represented that on account of their poverty and illiteracy they are unable to represent themselves effectively in the acquisition proceedings and demand higher compensation from the Government. They requested the appellant to pursue the matter with the concerned authorities and get the compensation for acquisition released at the earliest. They also represented that they would sell the land allotted to them under 12.5% scheme. According to the appellant, on the basis of the aforesaid representation, agreement dated 5th August,2003 came to be executed and four months thereafter i.e. on 27th December,2003 a power of attorney came to be executed in favour of the plaintiff. The plaintiff is a company incorporated under the Companies Act. The plaint does 3 not speak about the person in whose favour the power of attorney came to be executed. However, the copy of power of attorney produced before the Court shows that the same is executed in the name of Urmish Udani. The Award of acquisition came to be declared on 27th February,2004. Thereafter on 21st July,2006, respondents no. 1 and 2 are said to have executed an agreement of development of sale of land admeasuring 1400 square meters at Nhave allotted to respondents no. 2 and 3 for the consideration of Rs.61,87,500. The appellant claims to have paid a sum of Rs.1,31,263/- as part payment on or before execution of the agreement. A receipt in respect of which is recorded in the agreement itself. The appellant alleges that on 31st December,2007, it came to know that respondents no. 1 and 2 were allotted a plot of land being plot no.15, Sector 9 at Ulwe, Taluka Panvel ademeasuring 950 square meters vide letter dated 19th December,2007, from respondent no.3. The appellant also learnt that respondents no. 2 and 3 are about to create third party interest over that plot of land. Therefore, it filed the instant suit for specific performance of the agreement dated 21st July, 2006 and sought interim relief to restrain respondents no. 1 and 2 interalia, 4 from creating any third party rights over the said property and to restrain respondent no. 3 from executing agreement of lease in favour of respondents no. 1 and 2 or to grant any N.O.C. for transfer of the said land in favour of any third party except in favour of the appellant. This application for interim relief was rejected by the trial Court by the order dated 30th May,2008 which is impugned in the present appeal. 3. Respondents no. 1 and 2 deny execution of the agreement of sale dated 21st July,2006. They contend that the representative of the appellant used to frequently visit these respondents. When he learnt about the acquisition of their land by respondent no. 3, he made an offer that since the land to the appellant was also being acquired, if joint efforts were made for enhancement of the compensation, the same would be more effective. Therefore, respondents no. 2 and 3 executed an agreement dated 5th August,2003 to enable the appellant to represent them in their application for enhanced compensation. In consideration of the efforts to be taken by the appellant, it was to receive 25% of the monetary compensation receivable by these respondents. They 5 allege that at the time of execution of the agreement and power of attorney in the year 2003, representative of the appellant, taking advantage of illiteracy of these respondents took their signatures on some blank papers, which have been used to prepare the agreement dated 21st July,2006. As regards receipt of the amount of Rs.1,31,263/-, they contend that this was part of the monetary consideration to be received by them in lieu of acquisition of the land. 4. It is the case of the appellant that in the year 2003, respondents no. 1 and 2 had represented them that there would be allotment of plot of land at Nhave for an area admeasuring 1400 square meters to them. From the records and proceedings, it is seen that in the year 2003, there was no action whatsoever initiated by respondent no.3 for allotment of any land under 12.5% scheme. Also this was nowhere in the picture at the time of execution of the agreement of sale dated 21st July, 2006. More than five months thereafter i.e. on 18th December,2007 in the draw of computerised lottery by respondent no.3, it was declared that the land admeasuring 950 square meters and plot no.15, Sector 9, village Ulwe would be allotted to respondents 6 no. 1 and 2. Thus as on execution of the agreement of sale, there was no allotment of land made to respondents no. 1 and 2. Perusal of the disputed agreement shows that it contains blank spaces at clauses 1 and 4 which relate to file Number of respondent no. 3 and the date of declaration of the Award in favour of respondents no. 1 and 2. The agreement refers to land admeasuring 1400 square meters at village Nhave. All the places of the agreement, wherever there is reference to the area of the land of 1400 square meters, it is seen that the original printed number is of 400 square meters. Numeric “1” has been added by hand at each place preceding number 4, making the number to 1400. The agreement is seen to be signed by respondent no. 1, whereas thumb impression of respondent no.2 appears thereon. Perusal of the earlier agreement shows that the same has been signed by both the respondents. Even the power of attorney contains signature of respondent no. 2 and not his thumb impression. There is a receipt accompanying agreement dated 21st July,2006. The receipt also bears signature of respondent no. 1 and thumb impression of respondent no. 2. It is supposed to have been witnessed by two persons. However, there are no 7 signatures of the witnesses. The receipt records payment alleged to have been made under five cheques dated 5th August,2003, 19th April,2004, 21st August,2005, 13th June, 2006 and 18th June,2006 together with cash amount of Rs.3,000/-. It also refers to the payment of Rs.66,263 made at Metro Centre (Panvel). Respondents no. 1 and 2 contend that Metro Centre (Panvel) is the Centre for making payment by respondent no.3. They have produced journal vouchers of appellant- Company dated 21st August,2006 under which these respondents received Rs.33,132/- each from the appellant and payment vouchers dated 31st May,2006 for payment of Rs.25,000/- each made on that day. The other amounts are smaller amounts paid in the year 2003 and 2004. The plaint and the appellant are silent as regards the monetary compensation received by respondents no. 1 and 2 and the payment thereof to them. Since the monetary compensation was received prior to the allotment of land, on prima facie view there appears substance in the claim of respondents no. 1 and 2 that the amount received by them was towards monetary compensation and not part payment of any consideration under the alleged agreement of sale. 8 5. The agreement of sale sought to be enforced by the appellant is in respect of a piece of land admeasuring 1400 square meters situate at village Nhave, whereas which land is neither allotted to respondents no. 1 and 2 nor owned by them in any capacity. The land allotted to them is at village Ulwe admeasuring 950 square meters. All the above aspects of the matter have been properly appreciated by the learned trial Judge in the impugned order to reject the application for interim reliefs. There is no need to interfere with the same. Hence, the order. O R D E R Appeal from Order is dismissed in limine with costs. In view of the disposal of the Appeal from Order, the Civil Application does not survive. The same is accordingly disposed off. Mr. Akhilesh Dubey, learned Advocate for the Appellant prays for extension of the order of status- quo for a period of six weeks. Looking to the facts 9 and circumstances of the case, the application is rejected. (SMT. R.P.SONDURBALDOTA,J)