: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.432 OF 2008 IN APPEAL FROM ORDER NO.370 OF 2008 IN INTERIM APPLICATION EXHIBIT 43 OF 2008 IN SPECIAL CIVIL SUIT NO.205 OF 2006 R.K.Golcha (HUF) ..Applicant/Orig.Appellants/ Orig. Plaintiffs. Vs. M/s.Aparanta Hotels Pvt. Ltd. & Ors ..Respondents/Orig.Respondents/ Orig.Defendants. Mrs.A.R.Khanna for the Appellant. Ms.Alpania Ghone i/b. M/s.D.S.K.Legal for Respondent Nos.1 to 3. Mr.Chetan Kapadia with Mr.R.S.Alange for Respondent Nos. 4 and 5. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. DATED : 24TH APRIL, 2008 DATED : 24TH APRIL, 2008 DATED : 24TH APRIL, 2008 P.C. : P.C. : P.C. : Out of the total consideration of about Rs.16,00,000/- an amount of over Rs.10,00,000/- has already been paid. 2. The Respondents contention that an amount of over Rs.5,00,000/- was paid for amenities and to their sister/associate concerns and not under the : 2 : agreement, requires to be tested after evidence. The Plaintiff’s contention is that the amounts though paid to the sister/associate concerns, was on account of the suit agreement as per the first Respondent’s request. Prima-facie, this appears to be so. There is no separate agreement for amenities. Further, the question of paying any amounts towards amenities could not possibly have arisen in 1996 when admittedly, the building was not only not completed but was nowhere even near completion. 3. In any event, the Plaintiffs would be entitled to a charge for the amounts paid even if specific performance is ultimately not granted. It is true that there is no pleading to this effect. That defect however could be taken care of by an amendment. I would not virtually non-suit the Plaintiff at this stage. 4. The letter dated 19.1.2005 in reply to the termination notice also requires to be tested in evidence. It is written by the Appellant in person and not with the assistance of Advocates. While it is true that a refund of the part-payments is : 3 : demanded in the earlier part of the letter, it is specifically stated that the purported termination was wrongful. It cannot be stated conclusively at this stage that the Appellant had abandoned the claim for specific performance. 5. In the circumstances, pending the hearing and final disposal of the Appeal from Order, the Respondents are restrained from disposing of, alienating, encumbering, parting with possession of or creating any third party right, title or interest in, to, upon or in respect of the suit premises. Civil Application stands disposed of accordingly.