(1) (3) AO 301/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk APPEAL FROM ORDER NO. 301 OF 2011 WITH CIVIL APPLICATION NO. 435 OF 2011 Smt. Jagrutiben Atulbhai Patel .. Appellant Vs. Namdeo Narayan Naik & Ors. .. Respondents Mr. S. U. Kamdar, Sr. Counsel i/b Mr. C. Patil for the Appellant. Mr. D. K. Dhakephalkar, Sr. Counsel a/w. Mr. Ajay S. Patil for Respondent Nos.1 to 6. CORAM : MRS. ROSHAN DALVI, J. Date : 23 rd August, 2011. P.C. 1. The Appellant has challenged the order of the trial Court refusing to grant an interim injunction in respect of the property agreed to be purchased by the Appellant from Respondent Nos.1 to 4. The Appellant entered into a Memorandum of Understanding with Respondent Nos.1 to 4 on 14.05.2004 for 1800 sq. meters of land which was to be allotted by CIDCO to Respondent Nos.1 to 4 later. The Appellant claims 1800 sq. meters of that land. In the Memorandum of Understanding the land is shown by 7 Survey and Hissa numbers related to file No.1393 of CIDCO. The Appellant claims that he gave a public notice with regard to agreement on 04.02.2005 to which no objections were received. However Respondent Nos.1 to (2) (3) AO 301/11 4 had entered into an agreement with Respondent Nos.5 to 6 in respect of the same land on 13.04.2002 unknown to the Appellant. The Appellant called upon the Respondents to perform the agreement on 17.02.2005. The Respondents failed to perform and failed to reply. The Appellant informed CIDCO of the agreement and his notice on 12.04.2005. 2. Respondent Nos.1 to 4 entered into a tripartite agreement with CIDCO and Respondent Nos.5 & 6 on 16.01.2008. CIDCO informed the Appellant by way of reply to the Appellant’s notice only on 16.01.2008 that the agreement of the Appellant is void. The Appellant has sued in August, 2008. The interim relief of injunction has been refused on 27.08.2009 against which order this Appeal is filed in November, 2009. 3. The execution of the agreement is not challenged. The receipt of amount under the agreement as mentioned in the agreement is also not challenged. Aside from the amount paid, the remainder of the payments were required to be made upon the allotment by CIDCO and after receiving the possession letter and after taking formal possession. Consequently the Appellant is not seen to be in breach of his part of the agreement. That appears to have been accepted fact because any notice of termination on account of any breach is also not given to the Appellant by Respondent Nos.1 to 4 between 14.05.2004 and (3) (3) AO 301/11 16.01.2008. The Appellant would be prima facie entitled to the relief of protection of the property against alienation, transfer, development and further use excluding him. 4. The learned Judge has not considered these fundamental aspects relating to the Appellant’s case. He has observed that the Plaintiff does not appear to have taken proper care in respect of the transaction of the Suit property. The learned Judge appears to have been impressed by the fact that the Respondents agreed to repay the amount received by them from the Appellant. That itself would not dis-entitle the Plaintiff to relief if the Respondents have not acted as per the terms admittedly executed by them. The learned Judge has considered the question of balance of convenience upon the fact that no inconvenience would be caused to the Plaintiff if the amount is paid and the Respondents develop the property. 5. These aspects appear to be erroneous. It is not for the Court to see whether the Plaintiff takes care of the property or could be repaid all the amounts and to conclude that upon such payment no inconvenience would be caused. The learned Judge has also observed that the Plaintiff’s rights would be decided in the trial. That also is erroneous because the rights of the parties under an admittedly executed written contract must be prima facie decided upon the contract itself since oral evidence against any of the (4) (3) AO 301/11 terms of the contract would stand excluded by the contract itself under Section 91 of the Indian Evidence Act. The reasonings of the learned Judge for not granting the injunction are incorrect. 6. Hence the impugned order refusing injunction is set aside. The Respondents shall not create any third party rights or develop the area of 1800 sq. meters from the area of 3649.91 sq. meters alloted by the CIDCO pending the Suit. The Appeal is disposed off accordingly. 7. The Civil Application is disposed off accordingly. (ROSHAN DALVI, J.)