1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.616 OF 2008 WITH CIVIL APPLICATION NO.715 OF 2008 Girishchandra Vasant Bawdekar & ors ..Appellants V/s Kailash Suresh Kenjale & ors ..Respondents Mr.A.V.Anturkar i/b.Mr.Sugandh B. Deshmukh, Advocate, for the appellants Mr.R.S.Apte i/b.Mr.Ashutosh Gole, Advocate, for the respondent Nos.1 to 3 CORAM : R.M.SAVANT, J. DATE : 9TH FEBRUARY, 2009 P.C. . This appeal takes exception to the two Orders, both dated 14th March, 2008, passed on the Applications Exh.5 and Exh.20. Exhibit-5 was an application for temporary injunction filed by the appellants/plaintiffs and Exhibit-20 was an application filed by the respondent Nos.1 to 3/defendant Nos.1 to 3 seeking directions for 2 deposit of the amount of compensation which would be received on account of the acquisition of the suit property under the M.I.D.C Act in the Court. 2. The appellants are the original plaintiffs, who have filed Special Civil Suit No.177 of 2007 for a declaration that the Development Agreement dated 3rd September, 2006, has become inoperative and frustrated on account of the lands being notified for acquisition under the M.I.D.C Act. The plaintiffs also prayed that the registered Power of Attorney dated 29th September, 2006, to be declared validly terminated by the plaintiffs. 3. In the said suit, the plaintiffs filed application Exh.5 praying for temporary injunction against the defendants. The suit properties are the properties mentioned in paragraph 1 of the plaint. The defendants are engaged in the business of promotors/developers. The plaintiffs entered into a Development Agreement dated 2nd September, 2006, with the defendants. The defendants have 3 agreed to pay to the plainifffs a lumpsum amount of Rs.27,75,000/-. The plaintiffs have signed an Irrevocable Power of Attorney in favour of the defendants. After the said Development Agreement was entered into, the land in question i.e. the suit property was notified for acquisition under the M.I.D.C Act. The plaintiffs, therefore, informed the defendants about the said fact and returned the cheques received from the defendants. 4. The case of the plaintiffs was that the said contract was frustrated on account of the acquisition of the suit property. It was the case of the plainifffs that the defendants would respresent the plainifffs relying upon false and fabricated documents before the Government Authorities and will collect the amount of compensation. 5. The defendants filed their Written Statement and contested the said application Exh.5. It was the case of the defendants that the plainifffs were aware of the acquisition of the lands by the Government at the time of the execution of the Development 4 Agreement and the Power of Attorney and presuming that payment of compensation would be lesser than the market rate they entered into the said trasnaction with the defendants. The defendants further contended that they have paid the amount under the Development Agreement to the plainifffs. It is the case of the defendants that they have paid the market value for the lands in question. 6. The said applications Exh.5 and Exh.20 filed by the plaintiffs and the defendants respectively were tried by the Trial Court. The plainifffs filed the Development Agreement at Exh.3/1. No objection Letter in favour of the defendants executed by the plainifffs at Exh.31/1. In the said document Exh.31/1, it is mentioned that the plainifffs have also executed an Irrevocable Power of Attorney in favour of the defendants. It is further mentioned that the plainifffs have received adequate amount and the defendants are at liberty to take the compensation for the land that would be payable. 7. The Trial Court has considered the said documents i.e the 5 documents styled as the Development Agreement and especially Clause 10 thereof as well as No Objection Letter executed by the plainifffs in favour of the defendants as also Irrevocable Power of Attorney. On basis of the said material placed before it, the trial Court came to a conclusion that the plainifffs have failed to make out a prima face case for grant of temporary injunction. The Trial Court, therefore, dismissed the said application Exh.5. 8. In so far as application Exh.20 filed by the defendants is concerned, the Trial Court was of the view that in the light of the facts and circumstances of the case and to avoid further complications it would be just and proper to direct the authorities to deposit the amount of compensation, receivable on account of the acquisition of the suit properties in the account of the said Special Civil Suit No.177 of 2007. 9. Having considered the reasons cited by the Trial Court and also having gone through the Development Agreement and especially 6 Clause 10 thereof, in my view, the findings of the Trial Court that the plainifffs have failed to make out a prima facie case cannot be faulted with. In the facts & circumstances of the case, the order on Exh.20 directing the Land Acquisition Officer and the concerned Authorities to deposit the amount of compensation in Court is also just & proper. In that view of the matter, no case for interference in the Appellate jusrisdiction of this Court is made out. The above Appeal from Order is accordingly dismissed. 10. In view of the fact that some of the plainifffs are senior citizens, the hearing of the said Special Civil Suit No.177 of 2007 is expedited and directed to be disposed of by 31st January, 2010. 11. Needless to say that the findings of the Court below and this Court are prima facie and the suit would be decided on its own merits and in accordance with law. 12. On deposit of the amount of compensation, if the said 7 amount is not already invested, the Trial Court to invest it in any Nationalised Bank for a period which it deems appropriate. 13. In view of the dismissal of the above Appeal from Order, the Civil Application No.715 of 2008 does not survive and the same is accordingly disposed of. (R.M.SAVANT, J.)