*1* nms.2842.09 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2842 OF 2009 IN SUIT NO.172 OF 2009 M/s Deep Construction Company. ..Plaintiff -Versus- Jitendra N. Patel and another. ..Defendants .......... Mr.Ajay Panicker i/b Ajay Law Associates, for the Plaintiff. Mr.Diwakar Dwivedi for the Defendant No.1. Mr.S.U.Kamdar, Senior Counsel a/w Ms.K.C.Sidhwa i/b J.J.Thakkar, for the Defendant No.2. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 27th September, 2010. P.C. 1 For the reasons that have persuaded me to pass the order in Notice of Motion No.319/2010 in Suit No.2292/2009 and finding that this is not a different case but the Plaintiff approaches with conflicting pleas, the order passed today in the companion Notice of Motion (No. 319/2010 in Suit No.2292/2009) will also hold good in this motion and for same reasons. 2 Mr.Panicker, learned counsel appearing on behalf of the Plaintiff submits that there is distinction in this case inasmuch as the agreement with the Defendant No.2 who is the Plaintiff in the companion suit is with a developer but this is an agreement for sale of immovable property of which specific performance can be granted. Moreover, the Plaintiff is ready and willing to deposit the entire balance consideration to the tune of Rs.6.66 crores in this Court. *2* nms.2842.09 3 Upon a query to Mr.Panicker as to why the Plaintiff has not refuted the pleas raised in the affidavit in reply by the Defendant No.1 of the breaches committed and not paying the amount, Mr.Panickar’s reply was that it was for the Defendant No.1 to forward an agreement or in any event the draft of the same, it is only then the Plaintiff was obliged to pay the sum. Mr.Panickar invites my attention to the clause of the agreement in favour of the Plaintiff and submits that the same contemplates payment of Rs.10 lacs on execution of the agreement and Rs.1.56 crores within a month thereof against completion of sale in favour of the purchaser. Therefore, this sum has to be paid and the vendor was entitled to receive it only against completion of agreement for sale which has not been so completed. On further query from the Court then what is nature of the agreement/ transaction as recorded and evidenced by MoU, a copy of which is at Annexure-A, Mr.Panicker argued that this is an agreement by itself which creates rights in the immovable property. 4 I am unable to accept such contentions particularly when the Defendant No.1 has taken a specific stand that not only there is default in payment of the sum but all prior agreements including the development agreement dated 21.04.2005 with M/s Maruti Vikas Enterprises were known to the Plaintiff and one Ramdas Kanani who is a partner has read a copy of that development agreement. The Defendant No.1 has pointed out this agreement and obligation upon which the said Mr. Kanani is stated to have told that he will settle all claims, if any, with M/s Maruti Vikas Enterprises. Therefore, considering the breaches that are alleged by the Defendant No.1 and that he is ready and willing to compensate the Plaintiff for whatever expenses incurred till date and will abide by the further order, the same order as in Notice of Motion No.319/2010 will hold good in this motion but with a difference in the deposit of money *3* nms.2842.09 namely as far as the Defendant No.1 is concerned, he will deposit Rs.27 lacs in the Court within a period of four weeks from today. There will be no question of the Defendant No.2 M/s Maruti Vikas Enterprises being called upon to deposit or pay any sum to the Plaintiff. The amount so deposited shall be invested in a nationalized bank in the fixed deposit initially for a period of three years and further as per the orders of this Court. 5 Further it is clarified that when this Notice of Motion is being disposed of for the identical reasons and with the same directions, any further act of the Defendant No.1 would be subject to final orders in both suits and the Defendant No.1 shall not claim any equity based thereon. 6 Interim injunction that the Plaintiff M/s Deep Construction Company would be entitled to in this suit would be only restraining the Defendant No.1 till the date of deposit and in default of payment from transferring the property or creating any third party rights in respect thereof. There will be no interim injunction as against the Defendant No. 2. 7 The Notice of Motion is, accordingly, disposed of. (S.C. Dharmadhikari, J)