:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 2123 OF 2008 OF MOTION NO. 2123 OF 2008 OF MOTION NO. 2123 OF 2008 IN IN IN SUIT SUIT SUIT NO. 1415 OF NO. 1415 OF NO. 1415 OF 2003 2003 2003 M/s. Jayashree Builders & Contractors Pvt. Ltd. ... Plaintiffs. V/s. Vishakha Sadan Co-operative Housing Society Ltd. ... Defendants. Mr. A.G. Damle for the Plaintiffs. Mr. A.A. Joshi for the Defendants. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 16TH 16TH 16TH FEBRUARY 2009. FEBRUARY 2009. FEBRUARY 2009. P.C. P.C. P.C. : : : . Heard learned Advocate appearing for parties. Perused the Motion, affidavit in support, reply so also the annexures to the same. 2. Initially, the Suit was filed for Specific Performance of an agreement of right of way. Based upon the said pleadings an application for interim injunction was made and it is undisputed that a learned Single Judge of this Court relying upon the plaint averments has granted an interim injunction in favour of the Plaintiffs restraining the Defendants from interfering, obstructing and/or preventing them from performing the suit agreement. The suit agreements are dated 8th May 1998 (Exhibit ‘B’) read with Deed of Rectification dated 17th May 1999 (Exhibit ‘C’). :2: 3. Now, after amendment of the plaint, this relief is given up. According to Mr. Damle, the Plaintiffs have given up the same on account of some misrepresentation allegedly done by the Defendant and therefore, a fraud having been perpetrated on the Plaintiffs. 4. However, the Defendants are right in contending that it is yet to be decided as to whether the Suit agreement is vitiated by fraud and whether the Plaintiffs are entitled to such a declaration. That will have to be done by the Plaintiffs by leading evidence. As long as the agreement has not been declared to be vitiated and the Plaintiffs have taken advantage and benefit of clause 4 of the same, then, the Defendant cannot be prevented from developing their own property. 5. Considering that the Plaintiffs have themselves taken the benefit of the Suit Agreement at an earlier stage and now are claiming same to be vitiated, but until that is established, it cannot be said that a prima-facie case is made out and balance of convenience is also in their favour. In these circumstances, no interim relief can be granted in this Notice of Motion and it is accordingly dismissed. Costs costs in the cause. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)