1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.68 OF 2009 Sau Jayashri Kailas Vani ..... Appellant (Ori. Deft.no.2) vs. Shri Dilip Motiram Nere & Anr. ..... Respondents Mr.M.M. Sathaye, Advocate for appellant. None for respondents. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 9th October, 2009. PC : 1. This appeal arises out of order dated 11th August 2008 passed by the trial Court in a suit for specific performance granting interim injunction restraining the appellant interalia from transferring, creating third party interest or encumbering the suit property. Respondents are absent despite service. 2. Respondent No.1 is the original plaintiff and respondent no.2, original defendant no.1, the vendor. Respondent no.2 had agreed to sell the suit property to respondent no.1 and executed Visar Pavti dated 7th September 2005. It is the claim of respondent no.1 that thereafter he had paid a sum of Rs.6.00 lacs to respondent no.2 from time to time. However, the sale remained to be completed as respondent no.2 was required to negotiate with the adjoining land 2 owners for creating an access to the suit property. It is alleged by him that in the meantime, respondent no.2 entered into another transaction of sale with the appellant. In the circumstances, he filed suit for specific performance of the agreement with him. Respondent no.2, the vendor in her written statement has taken inconsistent stand about the transaction with respondent no.1. On the one hand, she denies the transaction with respondent no.1 and claims that the only transaction entered into by her for sale of the suit property was with the appellant. But on the other hand, she claims to have cancelled the agreement with respondent no.1. The trial Court after considering the rival claims arrived at the prima facie conclusion that there was an agreement of sale entered into between respondent no.2 and respondent no.1 which is prior in point of time to the transaction between respondent no.2 and the appellant and granted temporary injunction to restrain the appellant and respondent no.2 from transferring/creating third party interest or encumbering the suit property, pending disposal of the suit. 3. Mr.Sathaye, the learned counsel for the appellant submits that the only material before the trial Court as regards the transaction of sale was Visar Pavti dated 7th September 2005 and the claim made by respondent no.1 that he had in addition to the amount mentioned in Visar Pavti paid a sum of Rs.6,00,000/- by two bearer cheques dated 30th June 2006 and 3rd October 2006. As against this, the 3 appellant holds a registered sale deed executed by respondent no.2 in his favour. Mr.Sathaye also points out that the two cheques relied upon by respondent no.1 are bearer cheques and the signatures on the back of the cheques are not of respondent no.2 but of some other person. Therefore, according to him, the payment under the cheques cannot be accepted as payment to respondent no.2. It is further submitted by Mr.Sathaye that though the Visar Pavti refers to total consideration of Rs.33,11,000/-, the earnest payment made is only of Rs.11,000/- which is a miniscule part of the consideration. This makes the transaction alleged by respondent no.1 suspicious. The appellant has paid full consideration of Rs.47,01,480/- to respondent no.2, which payment is admitted under the sale deed dated 27th February 2007. The appellant was also then put in possession of the suit property. 4. The appellant claims to be bonafide purchaser of the suit property. The trial Court has rightly held that the claim of the appellant of being bonafide purchaser and the claim of respondent no.1 to specific performance of the agreement will have to be decided on merits at the time of the trial. The only question that was to be considered by the learned trial Judge at the time of deciding the application for interim reliefs is whether it can be said on a prima facie view, that there was an agreement of sale of the suit property between respondent no.1 and respondent no.2 prior to the agreement between the appellant and respondent no.2. The 4 agreement alleged by respondent no.1 is undisputedly prior in point of time. Respondent no.1 has produced Visar Pavti executed by respondent no.2 and also copies of the bearer cheques. There is also admission of the transaction in the written statement of respondent no.2 wherein it is contended that the transaction was cancelled by respondent no.2 by giving a notice in writing. In these circumstances, the trial Court was justified in granting interim reliefs, so as to ensure that the suit property is available unencumbered for the purpose of handing over of its possession to respondent no.1 in case he succeeds in the suit. Hence, the appeal is dismissed. 5. In view of the dismissal of the Appeal from Order, the Civil Application No.87 of 2009 does not survive, the same is accordingly disposed off. (Smt.R.P.SondurBaldota, J.) 5