1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR APPEAL AGAINST ORDER NO. 90 OF 2008 (Chhedanlal Tejram Katre vs. Dhnyanoba Bablaji Kale) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. SEPTEMBER 24, 2008. Heard Shri V.V. Bhangde, Advocate for the appellant – defendant and Shri Ghurde, Advocate for the respondent – plaintiff. The contention of Shri Bhangde, Advocate is that the Court below while granting temporary injunction in suit for specific performance filed by present respondent, lost sight of the fact that suit was to specifically enforce agreement dated 10.10.2005 which contemplated execution of sale deed and compliance thereof by 25.11.2005. He states that without recording any finding as to prima facie case or balance of convenience in relation to performance or otherwise of said agreement dated 10.10.2005, the trial Court has given undue importance to reply notice dated 12.03.2007 issued by the counsel of present appellant, erroneously mentioning that the respondent – plaintiff could have obtained sale deed within 15 days of receipt of 2 said reply. He argues that this reply cannot amount to renewal or renovation of agreement which already stood expired and exhausted. He, therefore, urges that there is total non application of mind by the trial Court while directing present appellant, not to create third party interest in the suit property till the decision of suit. He further states that at one point of hearing, the trial Court has directed the appellant to deposit Rs.60,000/- amount of earnest money received by him from the respondent and it was deposited by the present appellant. He states that in these circumstances, the impugned order is liable to be quashed and set aside. In support of his contentions, he has some judgments to cite. Shri Ghurde, Advocate for the respondent, on the other hand, states that time was extended by 15 days on 12.03.2007 and the said reply itself demonstrates that time was never essence of contract insofar as original agreement dated 10.10.2005 is concerned. He states that the conduct of respondent – plaintiff thereafter by remaining present before the Sub-Registrar with due previous intimation to present appellant and Bank Draft, clearly shows that he was ready and willing to perform his part of contract and the Court below has rightly exercised the jurisdiction and this Court 3 cannot interfere. After hearing parties, I am satisfied that question whether time was essence of contract or not is involved in the matter and the same can be decided only after parties lead their evidence. The conduct of plaintiff within 15 days of receipt of reply dated 12.3.2007 prima facie shows that he was ready and willing to perform his part of agreement. I, therefore, do not find any jurisdictional error in the matter. However, it cannot be forgotten that amount of earnest money which the appellant has deposited back in the Court has not been taken into account while passing impugned order by the trial Court. The appellant – original defendant is at liberty to withdraw said amount from the trial Court if he so elects, without prejudice to his defence. In the circumstances, I do not find any merit in this Appeal against Order. The same is dismissed. No costs. JUDGE *GS.