1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO.64 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Shri P.G.Godhamgaonkar, Advocate, for the appellants. Shri V.D.Patnoorkar, Advocate for the Respondent. 1. This appeal from order is preferred by original defendants being aggrieved by the order passed by learned II Joint Civil Judge, Senior Division, Nanded on application below Exh.6 in Special Civil Suit No.72 of 2009 on 27.5.2009. The learned Judge thereby issued temporary injunction restraining present appellants- defendants from alienating the suit property i.e. shop premises and flats constructed over Plot CTS No. 2 51, municipal No.6-2-267 situated at Kalal Galli, Sarafa, Nanded. 2. Briefly stated, the facts giving rise to this appeal can be summarized thus; It is the case of the plaintiff- respondent that defendant - appellant No. 1 Ramakant is the original owner of the property and that he entered into an agreement of development with appellant-defendant No.1 on 5.4.2008. Amount of Rs.13,58,694/= was spent by plaintiff-respondent on development and on partial construction construction on the property. Thereafter on 3.10.2008, appellant No.1 entered into agreement of development with appellant No.2 Kishorbhai Patel. The said agreement was registered. According to the respondent-plaintiff, after entering into agreement of development with him, defendant No.1 could not have entered into such an agreement with appellant No.2. In the circumstances, 3 respondent-plaintiff filed Special Civil suit No.72 of 2009 with following prayers: (1) ............................ .... (2) That, the defendant No. 1 and 2 may kindly jointly be directed to pay the suit amount of Rs.13,38,694.00 along with 18% interest from the date of filing of suit till the full satisfaction of the suit amount. (3) That, it may kindly be declared that any agreement executed by the defendant No.1 in favour of defendant No.2 during the existence of the previous agreement in between the plaintiff and defendant No.1 may kindly be declared as illegal and unlawful and not binding to the plaintiff. 4 (4) That, the defendant Nos.1 and 2 may kindly be restrained from creating any third party interest in the suit property by any mode of transfer either by sale or by mortgage or by gift until the suit amount is satisfied. 5. That, defendant No. 1and 2 may kindly be restrained from carrying out any construction over the suit property until the suit amount is satisfied. 6. ............................ 7. ..........................." 3. Thus, it is clear that essentially suit of the plaintiff is for recovery of Rs.13,38,694/= with 18 per cent interest. In the course of his submissions, learned Advocate Shri Patnoorkar for the respondent - plaintiff stated that the plaintiff 5 has no objection if appellants deposit the said amount in the court. 4. Application Exhibit 6 is made before the trial court for temporary injunction restraining the appellants-defendants from alienating the property. 5. It is the case of appellant No. 2 that that after appellant No.1 entered into development agreement with him on 3.10.2008, appellant defendant No.2 has started construction and the same is almost complete. Huge amount is invested in the development of the property and thereafter present suit is filed by the plaintiff-respondent. It is also brought to my notice that in the development agreement, the copy of which is filed at Exh. E to Civil Application No.6215 of 2009 in present Appeal from Order, appellant nos. 1 and 2 have agreed that appellant No.1 shall hand over his 6 property to appellant No.2 and thereafter appellant No. 2 shall develop the same by dismantling present construction thereon and would construct a multy-storeyd building consisting ground plus three floors on the suit property as per the FSI available and map of construction and other details which are annexed to the said agreement. It is stated that there shall be 16 self contained flats on various floors and five shop premises on the ground floor. Clause 20 of the agreement reads thus; "20. That, the executee is constructing flats which consist five shops on the ground floor, one flat on the ground floor, five flats each on the first, second and third floors. Thus, the total number of shops in this building namely Rukhmini Plaza are five. Whereas, the total number of flats in this building are 16. The first party 7 shall remain shop no.4 on the ground floor and flat No.G-1 on the ground floor and flat number 107& 103 on the firt floor, 202 on the second floor and 302 on the third floor and the rest of shops and flats can be disposed off and sold by the second party. " 6. The question is whether the injunction as against alienation would be proper under the circumstances. As per Section 38(3) (c) of the Specific Relief Act, 1963, injunction can be granted in a case where the invasion is such that compensation in terms of money would not afford adequate relief. In this case, suit is necessarily for recovery of money and though other prayers are added those are ancillary and for ensuring recovery of money. 7. In the circumstances, it cannot be said that there would be irreparable loss if injunction is not 8 granted or money cannot be adequate compensation. Respondent-plaintiff ought to have made an application under Order 38 Rule 5 of the Code of Civil Procedure, 1908 and injunction as claimed is not a proper remedy. 8. In view of above, appeal from order is allowed and disposed of. The order passed by the learned trial judge below Exhibit 6, dated 27.5.2009 is hereby set aside. It is made clear that the respondent- plaintiff is at liberty to make an application under Order 38 Rule 5 of the C.P.C. if he is so advised. Date:03/08/2009 (P.R.BORKAR, J.) pnd/ao64.09