1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1062 OF 2008 WITH CIVIL APPLICATION NO.1299 OF 2008 Mr.Baliram Chandar Joshi & Ors. ..Appellants V/s Smt.Jayashri Suresh Mange & Ors. ..Respondents ---- Mr.G.S.Godbole with Miss. Pallavi N.D for the appellants. Ms.Aparna Shinde for the respondent nos.1 & 2. ---- Coram : R.S.MOHITE,J Date : 24th August, 2009. PC 1 This is an appeal filed by the original defendants impugning an order dated 22.11.2007 passed by the Civil Judge, Senior Division, Panvel, below Exhibit-5 in Special Civil Suit No.438 of 2007. The plaintiffs’ suit was for specific performance of an agreement dated 15.3.2005. The agreement which is annexed on record is a composite agreement. It contemplates sale of 1000 square meters of the suit land to the plaintiffs and further contemplates that the balance area of 700 square meters will be developed by effecting construction, out of which, 40% will go to the owners and 60% will go to the developers. It is sought to be contended that in the plaint it is for the first time mentioned that the agreement was for the benefit of partnership firm by name Dhanashree Builders & 2 Developers. It is contended that this fact was not mentioned in the agreement. On perusal of the plaint however, I find that the plaintiffs have filed the suit in an individual capacity. The prayers also do not seek specific performance in favour of the partnership firm. The second contention is that the agreement in respect of 700 square meters contemplated a further agreement to be executed between the parties. The argument is that the specific performance of such an executory agreement cannot be granted because it will not be possible for the Court to know the nature of the contemplated construction. As far as this argument is concerned, it is seen that in the agreement there is no demarcation between 1000 square meters which is the subject matter of the outright sale and the 700 square meters on which construction is to be effected. In the circumstances, determination of these areas will have to be the matter of evidence and consequently injunction will have to be granted on the entire suit land. The finding of the Court is that out of the amount of Rs. 38 lakhs which was a consideration, the plaintiffs have already paid an amount of Rs. 28,20,000/- by cash and cheque and receipts have been issued. Taking into account these aspects of the matter, rights of parties will have to be determined in the suit. I am therefore, not inclined to entertain this Appeal. Appeal from Order is therefore, dismissed. However, hearing of the suit is expedited. It is made clear that the observations made in this order are prima facie in nature and will not influence the trial Court while deciding the suit. CIVIL APPLICATION NO.1299 OF 2008 1 As the main appeal is dismissed, Civil Application does not survive and stands disposed off accordingly. (R.S.MOHITE,J) 3