1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.122 OF 2010 Jude D souza & anr. ..Appellants V/s. Aparanta Hotel Pvt. Ltd. & anr. ..Respondents Mr.Madhusudan Nair, Advocate, for the Appellants Mr.G.S.Godbole with Mr.Nitin Mulye, Advocate, for Respondent No.1 Mr.Shishir Joshi i/b.Mrs.Priti Joshi, Advocate, for Respondent No.2 CORAM : R.C.CHAVAN, J. DATE : 16TH JUNE, 2010 P.C. . This Appeal is directed against the Order passed by the learned Civil Judge, Senior Division, Thane, rejecting the Applicants' Application for an injunction to restrain the Respondents from creating third party interest on the suit premises and for appointment of Receiver. 2 2. The Appellants had entered into an Agreement with Respondent No.1 on 1st June, 1994 under which the Appellants was to receive commercial premises. The Appellants claimed to have paid 90% of the amount under the Agreement. On 15th November, 2004, Respondent No.1 wrote to the Appellants stating that the Agreement was cancelled since the Appellants failed to pay the amounts due. The Appellants' claim that thereafter, they were negotiating with the Respondent No.1  Builder from time to time and several meetings were held. Eventually a notice was issued by the Appellants on 14th February,2007 and the Appellants filed suit on 20th April, 2007. The Applicants filed an Application for appointment of Receiver and an injunction. 3. It was pointed out by the Respondent No.1 that the property had already been agreed to be sold to the Respondent No.2 and it seems that certain sum of money had been paid by the 3 Respondent No.2 to the Respondent No.1 towards this sale on 14th February, 2007. 4. After considering the contention of the parties, the learned Civil Judge rejected the Application. Aggrieved thereby, the Appellant is before this Court. 5. I have heard the learned Counsel for the Appellants and the learned Counsel for both the Respondents. The learned Counsel for the Appellants submitted that since construction was not at all completed on 15th November, 2004 or even till today, there was no occasion for the Respondent No.1 to demand the possession amount and therefore, non- payment of such amount could not have resulted in termination of contract. The learned Counsel for the Appellants further submitted that the Respondent Nos.1 and 2 are possibly the same group of persons operating under the two entities. Therefore, according to him, 4 the Agreement between the Respondent Nos.1 and 2 has only been created to defeat interest of the Appellants. Therefore, according to him, the learned Trial Judge should have seen that the Appellant was entitled to protection of his interest till the suit was finally decided. 6. The learned Trial Judge refused the interim reliefs claimed first, because the third party interest had already been created and the Respondent No.1 had already agreed to sell the property to the Respondent No.2 before the suit was filed, and secondly, he held that since an alternative relief of refund of Rs.13,79,600/- along with compensation and damages amounting to Rs. 97,14,833/- was claimed, the Appellant was not entitled to relief of specific performance since the loss was computable in terms of money. 5 7. In this case, it is not that the Appellant had promptly approached the Court after termination of contract. No doubt statute of limitation permits the Appellant to approach the Court even on the last date when limitation expires but that carries the risk of third party rights being created. The contention of the Appellant that the Respondent Nos.1 and 2 are in fact the same entities operating under two different names would require examination at trial and it cannot be readily inferred that the Agreement between the Respondent Nos.1 and 2 is in fact bogus or sham Agreement intended only to defeat the interest of the Appellant. In view of this, it must be held that the learned Trial Judge did not err in refusing discretionary relief of grant of an injunction and appointment of Receiver which is acknowledged as possible harshest interim remedy that Civil Court can grant, and 6 therefore, no case for appointment of Receiver was made out by the Appellant. In view of this, the impugned Order does not deserve to be disturbed in this proceedings. 8. Needless to mention that since the Respondents are already before the Court if they create any third party interest they would obviously be subject to provisions of Section 52 of the Transfer of Property Act. The learned Judge at trial would undoubtedly examine and consider whether the Respondent Nos.1 and 2 are same entities and in that case he would consider whether specific performance could be granted. 9. The Appeal is, therefore, dismissed. Both the learned Counsel for the Respondents state that if their client would intend to create third party interest, they would first inform the Plaintiff as well as Court at least 21 days before creating third party interest. 7 10. In view of dismissal of the Appeal from Order, Civil Application does not survive and the same is disposed of accordingly. (R.C.CHAVAN, J.)