1 ao490-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa APPEAL FROM ORDER NO. 490 OF 2010 ALONGWITH CIVIL APPLICATION NO. 635 OF 2010 Smt. Barkubai K. Patil & Ors. .. Appellants v/s. M/s. Dyelish Fright & Forwarding Co. Pvt. Ltd. & Ors. .. Respondents. .... Mr. Amol D. Joshi for the Appellants. Mr. R. M. Haridas for Respondent Nos. 1 and 2. .... CORAM : R.C. CHAVAN, J. DATE : JULY 20, 2010. P.C. This Appeal questioning rejection of the Application for injunction passed by the learned Civil Judge, Senior Division, Kalyan, on 30th December, 2009, is taken out for final disposal, at admission stage. 2. Plaintiff No.1 is wife, plaintiff Nos. 2 and 3 are sons, plaintiff No. 4 is brother, plaintiff No. 5 is brother's wife, plaintiff Nos. 6 and 7 are brother's sons and plaintiff Nos. 8 and 9 are real sisters 2 ao490-10 of defendant No.6. A Power of Attorney was executed in favour of defendant No. 6, who executed an agreement with the Developer, defendant No.1, for development of the property under which a sum of Rs.55,61,160/- was paid by cheque. The learned counsel for the appellants does not dispute that the construction has come up to 6th floor. In fact, husband of plaintiff no.1 who had entered into the transaction on the basis of the Power of Attorney had not come before the Court to state that he had not executed such an agreement. Therefore, the learned Judge refused to grant injunction in favour of the appellants/plaintiffs restraining the defendant no.1 from proceeding with the construction or creating third party interest therein. This finding cannot at all be faulted. 3. The learned counsel for the appellants further submitted that respondent no. 1 had not obtained requisite permission from MMRDA (Mumbai Metropolitan Region Development Authority), and therefore the construction should not be allowed to proceed. The learned counsel for the respondents rightly states that such a contention was not raised before the trial Court, and it has been raised before this Court for the first time, and therefore this contention may not allowed to be raised now. 3 ao490-10 4. In view of the fact that the construction has already been carried out upto the 6th floor and obviously defendant No. 1 has invested considerable amount in the project, it cannot be said that the learned trial Judge erred in refusing the injunction which was sought. The interest of the appellants would be safeguarded by simply asking defendant no.1 to inform the prospective purchasers that the purchase is subject matter of the suit, which is in fact a consequence of provisions of section 52 of the Transfer of Property Act, from which the defendant no.1 cannot escape. 5. With this modification in the impugned order, the Appeal from Order is disposed of. 6. In view of the disposal of the Appeal, Civil Application No. 635 of 2010 does not survive, and is disposed of accordingly. [ R. C. CHAVAN, J. ]