1 AO : 335/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION . 335 2011 APPEAL FROM ORDER NO OF WITH .478 2011 CIVIL APPLICATION NO OF / . . M s Roma Builder Pvt Ltd .... Appellant ( . ) Ori plaintiff . Vs . Narayan Chango Chaudhry & Ors .... Respondents ( . ) Ori defendants . . . , / Mr A A Kumbhakoni Senior Counsel i by . , . Ms Gauri Godse Advocate for appellant . / . Mr Vaibhav Joglekar i by Mr Puneet Anand . 57 59. for respondent nos to : . . . , . Coram Smt R P SondurBaldota J : 4 2011 Date th May .: PC 1. This appeal is preferred by the original plaintiff to challenge .. 15 refusal of interim reliefs by the trial Court by its order dated th 2011 .587 2010. . 57 February in Special Civil Suit No of Respondents no 59 . 57 59 to who are also original defendants no to are present before . the Court to oppose admission of appeal in response to the notice . 1 56 . 1 56 Respondents no to are original defendants no to and also . .60 the original owners of the property in dispute Respondent no is .60, the original defendant no who had at one point of time an . agreement of sale in his favour 2. 2010, In the month of August the appellant filed Special Civil .587 2010 14 Suit No of for declaration that agreement dated th May 1992 , registered along with power of attorney of even date another 2 AO : 335/2011 , irrevocable power of attorney a supplementary agreement and 18 possession letter of even date and declaration dated th 2005 March , , . are legal valid enforceable and binding upon the respondents It seeks same declarations in respect of validity of development 28 agreements dated th 2003, March executed by late Sajan Chango , .19 26 Chaudhary predecessor of respondents no to and agreement 20 dated th 2010 42, 43 53. May executed by respondents and The next declaration sought by the appellant is that the agreement of 1 sale dated st 2010 1 February registered on st 2010 April by . 1 56 . 57 59 respondents no to in favour of respondents nos to and the 6 deed of registered conveyance dated th 2010 May in their favour is , . , illegal null and void By way of further relief the appellant seeks permanent injunction to restrain the respondents from dispossessing the appellant from his suit property or creating any third party rights . , . over the same In the alternative the appellant seeks damages of Rs 27,29,83,749/- 18% . with interest @ per annum The appellant had filed an application for interim injunction in the same terms as the . permanent injunction The trial Court rejected the application holding that the applicant had not made out prima facie case either of being in possession of the suit property or of having any right . thereto 3. - 14 The appellant company had entered into agreement dated th 1992 . . , May with five persons i e Narayan Chango Choudhary Sajan , ,, Chango Choudhary Laxman Chango Choudhary Bhimabai Chandu , , Patil Hasubai Haribhau Madhavi the children of one Chango Ravji 3 AO : 335/2011 , . , Choudhary for sale of the suit property On the same day a power , of attorney was executed in favour of Niranjan Hiranandani director - of the appellant company to enable him to take steps for securing various permissions required for transfer including permissions under . 13 , the Urban Land Ceiling Act For years thereafter the appellant . remained idle and took no steps to complete the transaction Then 18 suddenly on th 2005, - March the appellant company executed declaration making reference to the agreement of sale in it’s favour . and got the same registered By that time only one of the five . executants of the agreement of sale was living During the , - intervening period the appellant company for reasons best known , to it had entered into two development agreements with the heirs of . . one of the executors of the agreement i e Sanjan Chango Choudhary , and with three of the heirs of another executant Hasubai Madhavi . for development of their respective shares in the land Then five , - years thereafter the appellant company issued a public notice . 1 claiming its interest in the suit land On st 2010, February respondent . 1 56 nos to executed the agreement of sale in favour of respondent .57 59 nos and and conveyed the property to them by the deed of 6 conveyance dated th 2010. April 4. The claim made by the appellant in the suit of being in 6000 possession of the suit property admeasuring approximately . mtrs has been rightly given up before this court for want of . establishment of any overt act of possession Therefore there can be no objection to refusal of interim injunction for protection of 4 AO : 335/2011 . , possession of the suit property It has however been strongly contended on behalf of the appellant that there should be an interim . 57 59 order restraining the respondents particularly respondent no to from creating any third party rights over the property in order to . avoid multiplicity of proceedings 5. The facts narrated above clearly show that the appellant had not taken any step whatsoever towards completion of the transaction . of sale The agreement of sale in it’s favour was not even registered . until recently The appellant got it unilaterally registered by . executing a declaration There is nothing to show that for the , purpose of registration the heirs of the executants of the agreement . were either not available or not ready As regards the two , agreements of development got executed by the appellant in its , , favour the same can be of no consequence since these being , agreements for development are not capable of specific . , performance Besides shares of the persons executing the , , development agreements not having been ascertained it would be . difficult to pass any order based on those agreements As against , . 57 59 this respondent nos to have become the owners of the suit property by virtue of registered deed of conveyance and as such . , have become absolute owners of the property In above facts it is prima facie clear on that there are hardly any chances for the . , appellant to succeed in the suit Besides the relief of specific . performance is a discretionary relief The appellant can be , , compensated by damages in lieu of specific performance which 5 AO : 335/2011 . 1 56. damages can be claimed only from the respondent nos to . 57 59, Respondent nos to the present owners cannot be concerned . , , with the damages In that circumstance in my opinion the trial . Court has rightly rejected the application for interim reliefs There is . , . no need to interfere with the order Hence the appeal is dismissed 6. , In view of dismissal of the Appeal from Order the Civil , . Application does not survive the same is accordingly disposed off ( . . . , .) Smt R P SondurBaldota J