*1* nms.2739.09.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2739 OF 2009 IN SUIT NO.1811 OF 2009 Ranjanben Labhachandra Doshi. ..Plaintiff -Versus- Narendra G. Wagle and another. ..Defendants .......... Mr.D.S.Parikh, Senior Counsel a/w Mugdha Jadhav, for the Plaintiff. S.M.Sakhardande, Counsel a/w P.Dharmadhikari, for the Defendants. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 01st December, 2010. P.C. 1 This is a Notice of Motion for relief of Interim Injunction restraining the transfer of flats No.31 and No.31-A situate on third floor of Andheri Juhu Radhesham Co-operative Housing Society Ltd., Juhu Lane, Andheri (West), Mumbai-400058. 2 The Plaintiff is a housewife and she is residing at the address mentioned in the cause title along with family members. The Defendant No.1 is business man and the Defendant No.2 is his wife. 3 The Plaintiff states that in the light of the events that have been set out in paragraph No.2 of the plaint, on or about 06.03.2006 the Plaintiff and one Jayantilal Shah (broker) and the husband of Plaintiff, so also, her son visited the suit flat and the Defendant No.1 was present and the Defendant No.1 shown the said flat to them. The Defendant No.1 expressed his willingness to sell the said flat to the Plaintiff. Therefore, *2* nms.2739.09.sxw further appointment was fixed by the broker. After the husband of Plaintiff and her son and broker met one Vinodbhai, the friend of Defendants and after some negotiations, the price of flat was determined at Rs. 62,25,000/-. Therefore, the Plaintiff being interested in purchasing the flat, she paid to the Defendant No.1 a sum of Rs.1,000/- in cash in token on 07.03.2006 and further sum of Rs.50,000/- on 08.03.2006. It is stated in paragraph No.8 that the Defendant No.1 asked the Plaintiff to pay a further sum of Rs.5 lacs and promised that upon receipt of Rs.5 lacs he would take further steps and obtain NOC from the Society and execute further documents. The payment of Rs.5 lacs is made by two cheques. 4 Mr.Parikh, learned Senior Counsel appearing for the Plaintiff, submits that the suit is filed for specific performance of the oral agreement as set out in paragraph No.8 of the plaint. The agreement is not disputed because the Defendants purported to terminate it and that is how their letter dated 05.07.2006 must be read. If it is perused, it is clear that the agreement for sale of the immovable property is admitted, receipt of Rs.5 lacs is also admitted and in such circumstances, the Defendants cannot back out of the deal when it has been finalized. 5 Mr.Parikh submits that nothing much can be read in the wording of the relief and prayer clauses because if it was not an agreement for sale, then, there is no occasion to claim execution of the documents of transfer or sale of the suit flat in favour of the Plaintiff, based on the oral agreement. Mr.Parikh submits that specific performance of such agreement can be claimed and that is how the suit is maintainable. 6 Mr.Sakhardande, learned Counsel appearing for the Defendants, invited my attention to the letter dated 24.08.2006 addressed by the Plaintiff where it is stated that the amount of Rs.5 lacs paid be *3* nms.2739.09.sxw returned. He submits that there was no agreement much less oral agreement because talks were between the brokers. In such circumstances, so also, the suit being belated, no interim relief be granted. 7 With the assistance of the learned counsel appearing for the parties, I have perused the plaint and annexures thereto, so also, the reply affidavit and rejoinder placed on record. 8 To my mind, the agreement as pleaded in the plaint by the Plaintiff relates to a flat (immovable property) which is agreed to be purchased by her. However, if the plaint is perused carefully it is clear that beyond visiting the flat once the Plaintiff was not part of any oral understanding or agreement at all. There is some substance in the contentions of the Defendants that the flat was shown by the broker and even visit referred to in paragraph No.4 is by the husband of Plaintiff and her son along with broker. While it may be true that some amount has been paid but that was only in pursuance of some discussions and pending finalization of formal agreement for sale. That formal agreement for sale has not been executed, though contemplated, as is clear from the correspondence between the parties. In such circumstances, when the claim of the Plaintiff is not certain and specific and it is an understanding not between the Plaintiff and the Defendants but of some intermediary, then, I am of the opinion that the Plaintiff has failed to make out a prima facie case and therefore, the motion is devoid of any merit and is dismissed. 9 However, without prejudice to the rights and contentions of the parties, the Defendants are directed to deposit a sum of Rs.5 lacs in this Court within a period of four weeks from today. On such deposit, the Prothonotary and Senior Master/ Registrar of this Court to invest the same in the Fixed Deposit in a nationalized bank initially for a period of *4* nms.2739.09.sxw three years and thereafter, to be renewed as per the directions of this Court. 10 The Notice of Motion is, accordingly, dismissed. (S.C. Dharmadhikari, J)