gst 1 ao8.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION. APPEAL FROM ORDER NO. 8 OF 2011. M/s.Shree Ganesh Investments & Ors. .... ..... ...Appellants. V/s M/s.Sai Properties & Ors. .... .... ..Respondents. Mr.V.A.Thorat with Mr.M.M.Sathaye, Adv. For the appellants. Mr.G.S.Godbole i/by Mr.J.S.Chandnani, Adv. For respondents. S/Shri Anil H. Tharwani and Mohan H. Tharwani present-in-person. CORAM: B.R.GAVAI, J. 25th Jan., 2011. PC: By way of present appeal the appellants challenge the order dated 27.10.2010 vide which the learned Civil Judge, Senior Division, Panvel rejected the application filed by the present appellants below Ex.5 for order of injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure. 2. It is the contention of the plaintiff that the plaintiff were entitled to deal with the property and as such a memorandum of understanding was entered into between the plaintiff No.1 on 13.12.2006 with defendant No.1. The plaintiff has filed a suit styled as suit for specific performance and for direction to follow the memorandum of understanding dated 13.12.2006 and for obeying contract executed by and between defendant No.1 with further direction to pay the remaining amount under the contract and MOU dated 13.12.2006 worth Rs. 4,90,85,210/- and other reliefs. It is their contention that according to the said agreement an amount of Rs.27,56,25,000/- was to be paid by defendant No.1 to the plaintiff. It is the specific case of the plaintiff that an amount of Rs. 22,65,39,795/- has been paid upto date of filing of the suit. It is further contention of the plaintiff that though the plaintiffs were ready and willing to gst 2 ao8.11.sxw perform their part of contract the same could not be performed since the defendant No.1 has not paid the balance consideration. In the plaint the plaintiffs have specifically averred that possession of the suit property was not yet handed over to the defendants. 3. Along with the suit an application under Order 39 Rules 1 and 2 claiming temporary injunction restraining defendant No.1 from creating any third party interest was also filed. The application was resisted by defendant No.1. According to defendant No.1 consideration payable was not Rs.27,56,25,000/- as stated but was determined as Rs.9,62,50,000/-. In so far as payment of Rs. 22,65,39,795/- is concerned the same is not disputed by defendants but it is their case that it is towards purchase of suit property as well as other transactions. 4. Learned trial Court after hearing the parties has rejected the application hence the present appeal. 5. Shri Thorat, learned senior counsel appearing on behalf of the appellants submits that though the learned trial Court has held that the plaintiffs have made out prima facie case still an order of injunction has been refused. It is therefore submitted that the said order is not sustainable. He further submits that the conduct of the plaintiffs was bonafide, in as much as what the plaintiffs were seeking was an injunction restraining the defendant from creating third party interest and forestalling the further project. 6. Shri Godbole, learned counsel appearing on behalf of defendant No.1 on the contrary submitted that the learned trial Court applying the principles which govern the grant/rejection of the temporary injunction order has rightly passed the order and the same needs no interference. 7. In so far as the contention of Shri Thorat, learned senior counsel on behalf of the appellant is concerned, the learned trial Court has held that prima facie case is in favour of the plaintiffs on the ground that though it is averred by defendants that the transaction amount is Rs.9,62,50,000/- and that the gst 3 ao8.11.sxw defendant No.1 had in fact paid Rs.22,65,39,795/-. It has therefore been found that though an amount of Rs.22,65,39,795/- had been paid and though it has been submitted by defendant No.1 that there are some other transactions, no documents were placed on record in support of the case pertaining to other transactions and as such case of the plaintiffs that the transaction was for Rs. 27,56,25,000/- was more probable. 8. In any case, as to whether the transaction is of Rs.27,56,25,000/- or Rs. 9,62,50,000/- will have to be decided by the learned trial Court at the stage of trial after considering the evidence led on behalf of the parties. At this stage agreements which are relied upon by the parties and filed before the trial Court are not original. Though an affidavit has been filed by the plaintiffs regarding the same being copy of the original, said position is not admitted by the defendants. 9. The scope of appeal against the order under Order 43 Rule 1 are very limited. Unless the Court comes to a finding that the view taken by the trial Court is either perverse or impossible, this Court sitting in appeal is not expected to reverse the same. Equally it is not permissible for this Court to upset the view taken by the trial Court, if it finds that the two views are possible and that had it exercised original jurisdiction, it would have preferred the other view. 10. The learned trial Court while rejecting the application has found that though prima facie case has been made out, test of balance of convenience and irreparable injury weighed in favour of the defendant No.1. It has been found that after parting with substantial amount possession of the suit property has already been handed over to the defendant No.1. The contention of the plaintiffs regarding not handing over possession has been specifically negated by the learned trial Court. It has been found that after reading of averments made in the plaint, the claim of the plaintiffs would be at the most for the balance consideration which is yet to be received by the plaintiffs. Learned gst 4 ao8.11.sxw trial Court found that in the event the plaintiffs succeed in the suit the plaintiffs would be entitled at the most for recovery of the amount. Learned trial Court has therefore found that applying the principles of balance of convenience and irreparable injury injunction as prayed for could not have been granted. In that view of the matter, it cannot be said that the view taken by the learned trial Court could be said either to be perverse or impossible view. 11. In that view of the matter I do not find any merit in the appeal. Same is therefore dismissed. 12. However in order to secure the interest of the plaintiffs I am inclined to direct respondent No.1 to file an undertaking before the learned trial Court within a period of two weeks from today to the effect that in the event the learned trial Court decrees the suit and directs payment of any amount to them, the same shall be deposited in the trial Court within a period of four weeks from date of the judgment and decree passed by the trial Court. Such deposit will be without prejudice to rights and contentions of the parties to take recourse to file an appeal. Shri Godbole, learned counsel on instructions of the two partners of respondent No.1 viz. S/Shri Anil H. Tharwani and Mohan H. Tharwani, states that the said undertaking would be filed within a period of two weeks from today.