1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Appeal against Order No.24 of 2011 (Nitin s/o Krishnamanohar Jaiswal v. Kailash s/o Udaram Larokar and another) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri M.I. Dhatrak, Advocate for Appellant. Shri S.V. Deshmukh, Advocate for Respondents. Coram : R.K. Deshpande, J. Dated : 30 th March, 2011 1. This appeal challenges the order dated 11-1-2011 passed by the learned Civil Judge, Senior Division, Nagpur, allowing the application Exhibit 5 filed by the respondents/plaintiffs in a suit for specific performance of contract restraining the appellant/defendant, his servant, agent or any other person appearing on his behalf from selling, transferring or creating third party interest in the suit property in any manner whatsoever till the decision of the suit. 2. Notice was issued in this matter on 17-2-2011. 2 Shri S.V. Deshmukh, the learned counsel, appears for the respondents/plaintiffs. 3. The question before the Trial Court in the application for grant of temporary injunction was whether the time was essence of contract. According to the appellant/defendant, the last date for execution of the contract was 28-2-2010. Though the respondents/plaintiffs paid an amount of Rs.3,40,000/- at the time of execution of the agreement dated 10-11-2009, according to the appellant/defendant, no steps were taken by the respondent/plaintiffs to get the sale-deed executed on or before the said date by paying the balance amount of consideration out of the total consideration of Rs.12,40,000/-. According to the appellant/defendant, the notice was issued on 7-7-2010 to the respondents/plaintiffs informing about cancellation of the agreement. 4. The Trial Court has recorded the finding that the respondents/plaintiffs did not make further payment of consideration due on 10-11-2009. It has further recorded the finding that the appellant/defendant did not inform the 3 respondents/plaintiffs nor issued any notice calling upon them to make the payment. It has also recorded a finding that the time was not the essence of contract and non-payment of further consideration of Rs.3 lacs would not defeat and invalidate the subsisting rights of the respondents/plaintiffs. With these findings, the application for temporary injunction has been allowed. 5. Shri Dhatrak, the learned counsel appearing for the appellant/defendant, submits that the Trial Court was wrong in holding that the time was not the essence of contract. According to him, the agreement itself shows that the time was the essence of contract, and, therefore, the Trial Court ought not to have passed an order of injunction. He further submits that Section 52 of the Transfer of Property Act is enough to protect the interest of the respondents/plaintiffs and no order of injunction could have been passed by the Trial Court. 6. The Trial Court has prima facie recorded the finding after reading the agreement and looking into the conduct of the parties that the time was not the essence of contract. This was the only 4 ground to oppose the relief claimed by the respondents/plaintiffs. The Trial Court has taken a possible view of the matter, which does not call for any interference. So far as the contention of the learned counsel for the appellant/defendant that Section 52 of the Transfer of Property Act is sufficient to protect the interest of the respondents/plaintiffs is concerned, it has to be seen that the power to grant injunction under Order 39, Rules 1 and 2 of the Civil Procedure Code has to be exercised to avoid the multiplicity of the proceedings. Hence, no fault can be found with this finding. 7. The learned counsel for the appellant/defendant has relied upon the judgment of the Supreme Court in Mandali Ranganna and others, etc. v. T. Ramachandra and others, reported in AIR 2008 SC 2291, in support of his contention that a person, who had kept quiet for a long time and allowed another person to deal with the property exclusively, would not be entitled to an order of injunction and the Court will not interfere only because the property is a valuable property. It has been held in the said judgment that the grant or refusal of injunction has serious consequence depending upon the nature thereof and the 5 Courts dealing with such matters must make all endeavours to protect the interest of the parties. The said judgment does not apply to the facts of the present case, for the reason that the notice was issued on 7-7-2010 for the first time by the appellant/defendant to the respondents/plaintiffs, although, according to the defendants, the respondents/plaintiffs did not take any steps after 10-11-2009 to get the sale-deed executed. Even non-payment of balance amount of consideration from 10-11-2009 to 7-7-2010 was not complained of by the appellant/defendant. The Trial Court has taken a note of the fact that the respondents/plaintiffs immediately filed the suit on 28-7-2010 after the receipt of the notice, and the appellant/defendant tried to deal with the property after issuance of the notice. Hence, the Trial Court has passed an order of injunction. 8. In view of above, there is no reason to interfere in the order passed by the Trial Court. The appeal is, therefore, dismissed. Judge pdl