1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 93 of 2008 AND CIVIL APPLICATION NO. 288 of 2008 M/s. Costa Pinto & Associates and two others .. Appellants Versus Prestige Holiday Resorts Ltd. .. Respondents. Mr. V. A. Lawande,Advocate for the appellants. Mr.N. D'Souza, Advocate for the respondent. CORAM :- SMT. R. S. DALVI, J. DATE : 6 th May, 2009 . ORAL ORDER : Admit. Heard forthwith by consent. 2. The appeal challenges the order dated 26.6.2008 of the learned Civil Judge, S.D. at Margao under which the application for temporary injunction filed by the defendants came to be dismissed. The suit has been filed by the plaintiff for specific performance of certain contracts between the parties under which the defendants as the developer had 2 constructed 250 units out of which 189 units have been agreed to be purchased by the plaintiff. The defendants had got conveyed 106 units out of these 189 units to the plaintiff through the original owners. The remaining units have not been conveyed. The plaintiff has sued to have them conveyed to it. 60 other units have been sold to outsiders. Hence, the suit was filed. This accounts for a large portion of the developed property. Only 2 units remain with the defendants. It would be material to note that 2 units have been kept with the defendants pursuant to which co-ownership rights in the suit land are claimed by the defendants who are merely developers of the suit property. Since a large chunk of the property is not with the defendants any longer, they having been sold to the plaintiff and others, the defendants would otherwise have no rights in the suit land once they sell the remaining two units to others. The defendants claim co- ownership rights in the suit land only upon the fact that they still have in their ownership, control and possession 2 out of 250 units. Based upon such a case, the co-ownership rights of the defendants in the suit land would have to be considered. 3. The defendants filed the counterclaim. The 3 counterclaim was allowed. A review application was filed. On review the counterclaim was disallowed. The defendants applied for ex-parte ad interim order of injunction. This was on the premise that they are the co-owners of the suit land and the plaintiff is damaging the suit property and creating waste. The learned Judge heard the plaintiff as well as the defendants on the interim application and has rejected the application for temporary injunction to the defendants. 4. The initial agreements between the plaintiff and the defendants for sale of 189 units were executed from time to time between June 1995 to 1997. However, thereafter, in view of bulk purchase made by the plaintiff an agreement dated 19.7.98 came to be executed between the parties. This agreement would be a novitio between the parties. The rights of the parties would be dependent upon this agreement. The learned Judge has considered the said agreement in para 8 of the impugned order. It is stated to be a subsequent agreement between the parties. Under this agreement the work of completing the development of Royal Palms Resort was assigned to the plaintiff by the defendants at his own costs. Under that agreement the defendants are stated to have given up their rights to any space in the 4 mundkar blocks and the rights to perform future construction work on the purchase other than completion of only four blocks out of blocks 12 to 15. The learned Judge has considered that the property was entrusted by the defendants to the plaintiff for managing the same and also for taking of remedial measures in connection thereto. The learned Judge has also considered that the possession of the units have been taken by the plaintiff. In view of the assignment to the plaintiff of the contract rights the mere fact that the defendants has retained 2 out of 250 units would not make the defendants such co-owners as to be able to restrain further activities upon the lands by the plaintiff. Besides, it is impossible to contend or hold that the plaintiff would damage its own property. The plaintiff has taken several units. The acts of the damage are shown to be within the property between those units. 5. The defendants contend that the plaintiff bored a bore-well. The defendants obtained the report of Engineer. It is contended on their behalf that the report was not considered by the learned Judge. It has not been considered because the plaintiff has given up the work of digging the bore-well. The learned Judge has recorded in para 11 of the 5 order the submission of the plaintiff that they have given up the work of digging the bore-well. Several photographs are shown to this Court. One of the photographs shows that the well dug by the bore-well has been filled. Consequently, there is no need to see the report of Engineer appointed by the defendants themselves showing damage to the suit property. The learned Judge has correctly considered that the plaintiff cannot damage its own rights. 6. Absolutely no case of grant of injunction is made out. In fact a mischievous act of keeping only 2 units out of 250 to claim co-ownership rights in the entire landed property is seen. On the facts of the case, even if the defendants to continue to be the co-owners of the land below the units, no case for grant of injunction is made out. Even balance of convenience is not shown in as much as the case of damage, if any, is in between the units admittedly purchased by the defendants. The challenge to the impugned order cannot be sustained. The appeal from order and Civil Application No.288/2008 are dismissed. SMT. R. S. DALVI, J. SMA 6