1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2672 OF 2008 IN SUIT NO.2287 OF 2008 Devji Khodidas Parmar & Ors. ...Plaintiffs Vs. Smt. Amro Mohammed Sharif Khan & Ors. ...Defendants Mr. Kirit J. Hakani for Plaintiffs CORAM : SMT. ROSHAN DALVI, J. DATED : 30TH MARCH, 2010 P.C. : 1. The Plaintiff claims the relief essentially for cancellation of the agreement for sale-cum-development executed between the Plaintiffs and Defendant No.1 on 31 st October 2003. The Plaintiffs are 50% owners of the suit property. The Plaintiffs as well as their co-owners are 50% owners of the property entered into agreement of sale-cum-development. Under the agreement the Defendant No.1 was to pay Rs.15 lakhs, which were paid as earnest and to give 4 flats to the Plaintiffs in the newly constructed building on ownership basis after registering the agreements and 2 adequately stamping them. 2. Rs.15 lakhs is paid. The 4 flats have not been given. The Plaintiffs sued in 2008 after terminating the agreement on 7 th July 2008 which was after writing of several letters to the Defendants to perform the contract. The notice of termination is not replied. The Plaintiffs have claimed loss of interest and income of Rs.44.33 lakhs also in the Suit. 3. The construction is in progress. Mr. Hakani on behalf of the Plaintiffs states that instead of constructing flats on first floor the Defendants have constructed a commercial flats and instead of constructing flats on second floor the Defendants have constructed a parking space. There are flats constructed above these premises. 4. The Co-owners of the Plaintiffs have also sued the Defendants under their Suit No.195/2009. An order has been passed on 31 st March 2009 in their Suit restraining the Defendants from selling, alienating, encumbering, parting with possession, transferring or creating any 3 rd party rights in respect of any of the flats in proposed building. The Plaintiffs are entitled to similar injunction. The Defendants therefore, shall not sell, transfer, alienate, encumber, part with possession or create 3 rd party rights or put any other party in possession of any of the premises constructed by the Defendants. 5. The Vakalatnama of the Advocate of the Defendants is not filed. Only an affidavit in reply of the Defendants is filed on 29 th April 2009 without 3 exhibits shown in the affidavits. The Plaintiff has filed affidavit of service of the Writ of Summons sent by registered post to the Defendants. The Defendants are not represented by their Advocate. 6. Notice of Motion is disposed off accordingly. (SMT. ROSHAN DALVI, J.)