1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1029 of 2008 IN SUIT NO. 794 of 2008 Ramnik Mohanlal Chawda .. Plaintiff versus Eric D’Souza & Anr. .. Defendants ... Ms.Someya Srikrishna i/b Sonal Doshi & Co. for the plaintiff. Mr.Ralston Fernandes for the defendants. CORAM : D.G.KARNIK, J DATED : 28th April 2008 P.C.: 1. Heard. By this motion, the plaintiff seeks injunction restraining the defendant from dealing with, disposing off, transferring, selling, alienating or creating any third party interest in the suit flat. 2. The plaintiff is a builder and promoter. By 2 an agreement of sale dated 23rd September 1992, the plaintiff agreed to construct and sell and the defendant agreed to purchase from the plaintiff the suit flat for a total consideration of Rs.9,50,000/- to be paid in instalments. According to the plaintiff, defendant is in arrears of Rs.2,01,000/-. However bonafide believing the defendant would make the payment, he handed over the possession of the flat but the defendant did not pay the balance consideration. Therefore by an Advocate’s notice dated 7th February 2008 agreement was terminated. According to the plaintiff, on termination of the agreement, the defendant is a trespasser and has no authority to remain in occupation. In the circumstances, plaintiff has prayed for interim relief restraining the defendant from transferring, selling, alienating or parting with the suit flat to anybody else. 3. Learned counsel for the defendant pointed out that the agreement contemplated 15 days prior notice in writing of intention to terminate the agreement specifying the breach of breaches of the terms and conditions on account of which the plaintiff was entitled to terminate the agreement. Thereafter the defendant was to have an opportunity of remedying the breach and only on failure to remedy 3 the breach, the plaintiff could terminate the agreement. In the present case, no such notice was given and therefore, according to the defendant, termination of the agreement dated 7th February 2008 was not proper. Prima facie there is merit in the contention of the defendant that there is no valid termination of the agreement. 4. However it appears that the defendant has not paid full consideration. The burden of proving payment of the full consideration is on the defendant. He has not produced any material before the court to show that he has made the full payment. Furthermore, ownership has not yet been transferred to the defendant. In the circumstances, defendant cannot be permitted to transfer the flat as sale deed has not taken place and as defendant has not even prima facie paid the full consideration. He cannot be allowed to transfer the suit flat to anybody. 5. For these reasons mentioned above, the defendant is restrained from disposing off, transferring, alienating, parting with possession or creating any third party rights in the suit flat without payment of the balance consideration of Rs.2,01,000/-. 4 (D.G. KARNIK, J)