1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3069 OF 2007 IN SUIT NO.2308 OF 2007 Dipak Development Corporation ....Plaintiff V/s. Veena Vitthaldas Sampat and 23 ors ....Defendants Mr. Sanjay Jain a/w Ms. Nilini Gade i/b Harakhchand & Co. for the Plaintiff. Mr. Tushar Bhavsar i/b Kishore Dalal & Co. for defendant Nos. 1 to 7, 8, 9, 15 to 19, 21 to 23. CORAM : S.J. VAZIFDAR, J. DATE : 30 th NOVEMBER, 2009. P.C. :- 1. Mr. Balsara’s application for adjournment on behalf of some of the Defendants is rejected as adequate opportunity was granted to them on the previous occasion to file an affidavit in reply. 2. This is a suit for specific performance of an agreement contained in three documents all dated 6th August, l978 as allegedly modified as stated in paragraph l2 of the plaint. 3. The agreement has been substantially implemented to the extent of over 50% of the suit property. The entire consideration has been paid. Constructions have been put up on the property and third party rights have been created therein. However, some of the signatories to the documents and/or the heirs of the signatories to the documents have failed to execute the conveyance in favour of the Plaintiff. 2 4. Despite time being given to the Defendant, there is no affidavit in reply. Ad interim reliefs were granted by an order dated 19th December, 2007. 5. I appreciate that in the absence of an affidavit in reply, there appears to be no defence to the Plaintiff’s claim in the suit. I have no hesitation in granting an injunction restraining the Defendants from prejudicing the plaintiff’s rights as claimed in the suit. I am, however, reluctant despite a very strong case having been made out to grant the additional interim reliefs sought, as that would virtually be decreeing the suit. I am unable to presume the outcome of the suit for specific performance of an agreement of this nature. If for any reasons specific performance is not granted it would be impossible to grant restitution. 6. It does appear that the Defendants are avoiding filing any reply or written statement. In that eventuality, the Plaintiff is certainly entitled to take steps for having the suit heard/decided on the basis of the absence of a written statement. 7. Pursuant to the implementation of the said agreement, the Defendants have derived the benefits not merely by way of receiving monetary consideration, but also have not been put in possession of the flats and the hall constructed by the Plaintiff. Having failed, prima facie at least to comply with their obligations under the agreement the Defendants cannot derive any further benefits under the agreement including by dealing with the properties which came to them under the agreement. 8. In the circumstances the Notice of Motion is made absolute in terms of prayers (a) and (b) except the words “dealing with” bracketed in 3 red in both the prayers. 9. Prayer (b), however, would not operate against the Defendant Nos 12, 13, 14, 20 and 24.