1 ao83.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 83 OF 2011 WITH CIVIL APPLICATION NO. 8992 OF 2011 1. Gopal Pulses Processors Pvt. Ltd., Through Gopal Ramnarayan Kogta. 2. Anup s/o Prem Kogta, Age: 29, Occ: Business, for Promotor/Director, proposed Pvt.Ltd. Compnay. Both having business place at E-48, M.I.D.C. Jalgaon, District Jalgaon-425003. ...APPELLANTS VERSUS 1. Permanent Magnets Limited, Through, Shri. Shyamsunder Tapadiya, Managing Director, Permanent Magets Limited, M.I.D.C. Jalgaon, Plot No.E-8. 2. M.I.D.C. Dhule Region, Through, The Regional Officer, Dhule having branch office at M.I.D.C. Jalgaon. ...RESPONDENTS ... Mr. S.G. Chapalgaonkar, Advocate for appellants. Mr.P.S. Shendurnikar,Advocate for respondent No.1. ... 2 ao83.11 CORAM: S.S. SHINDE, J. DATE : 16TH AUGUST, 2011 PER COURT : Heard learned Counsel appearing for the appellants and learned Counsel appearing for the respondent No.1. 2. Counsel appearing for the appellants invited my attention to the agreement to sell at Page-31 of the compilation of the appeal from order and submitted that, amount of Rs.10,00,000/- and Rs.30,00,000/- was paid to the respondents respectively in pursuant to the agreement dated 17-03-2006. It is further invited my attention to the letter written for transfer of the property in favour of the plaintiffs which is at Page-36 of the compilation of the appeal from order. He further invited my attention to the letter whereby the Manager of the respondents has confirmed payment of Rs.10,00,000/- and Rs.30,00,000/- which 3 ao83.11 is at Page-38 of the compilation. Learned Counsel further invited my attention to the letter written by M.I.D.C. to the plaintiffs asking them to deposit Rs.6,03,230/- towards transfer charges, which is at Page-39 of the compilation. . Learned Counsel appearing for the appellants further submitted that, the letter written by the defendants to the plaintiffs thereby stating that agreement to sell is cancelled on 06-04-2007 is not accepted by the plaintiffs. Agreement is intact. Time was extended to perform the contract by letter 3rd October 2007. The defendants have made correspondence with various banks. The defendants wanted to continue agreement. Learned Counsel invited my attention to the letter which is Page-78 of the compilation, whereby no objection for transfer of the property was given on 25-06-2008. Therefore, according to Counsel for the appellants, in the light of letter at Page-77 of the compilation, the contention of the 4 ao83.11 defendants or the case of the defendants that the agreement is cancelled, cannot be accepted. The respondents-original defendants have shown intention to sell the property with other person and therefore, the application for temporary injunction was filed by the petitioners herein, who are original plaintiffs. Balance of convenience lies in favour of the petitioners herein. If such relief is not granted, irreparable loss will be caused to the petitioners. Learned Counsel also invited my attention to the affidavit filed by Mr. Satyanarayan Ramnarayan Maniyar. Learned Counsel further invited my attention to the grounds taken in the appeal memo, annexures thereto and submitted that, case was made out by the appellants for grant of temporary injunction and the trial Court should not have rejected their prayer for temporary injunction. . Learned Counsel placed reliance on the judgment of this Court in the case of Pralhad 5 ao83.11 Jaganath Jawale and others vs. Sitabai Chandser Nikam and others reported in 2011 (4) Mh.L.J. 137. Learned Counsel submitted that, the trial Court placing reliance of the judgment in the case of Kachhi properties, Satara vs. Ganpatrao Shankarrao Kadam and others reported in 2010(5) Mh.L.J. 903 held that Section 52 of the Transfer of Property Act will take care of the situation since the matter is pending before the Court. According to learned Counsel for the appellants, said judgment is distinguished in the case of Pralhad Jaganath Jawale and others vs. Sitabai Chandser Nikam (supra) and therefore, relief of temporary injunction ought to have been granted in favour of the original plaintiffs-appellants herein. 3. On the other hand, learned Counsel appearing for respondent No.1 invited my attention to the agreement of sale and in particular conditions to be fulfilled by the parties. According to learned Counsel, the condition to 6 ao83.11 deposit entire amount towards consideration within two months from the date of agreement was not performed by the plaintiffs-appellants. He further submits that, Anup Prem Kogta was not party to the agreement of sale and therefore, there was no question of saying anything by him about specific performance. He further submits that, only Rs.10,00,000/- were paid by the plaintiffs by Cheque No.0429539 as reflected in the agreement of sale itself. He submits that, an amount of Rs.30,00,000/- as alleged by the plaintiffs was never paid. Learned Counsel further submitted that the amount of Rs.10,00,000/- was also refunded to the plaintiffs and same is encashed by the plaintiffs. Therefore, according to learned Counsel for respondent No.1, no case was made out by the plaintiffs for grant of temporary injunction and therefore, the trial Court has rightly rejected the application filed by the plaintiffs-appellants for grant of temporary injunction and therefore, this Court may not interfere in the impugned order. 7 ao83.11 4. I have given due consideration to the rival submissions. In paragraph-18 of the impugned order, the trial Court has observed that, "in the agreement though there is a column about the amount, date, cheque number, but that column left blank. From the said agreement it can be gathered that, there was no agreement about the payment of installments, but there is a specific condition to pay the entire consideration amount within a period of two months. It is not disputed fact that, on 28 January 2006 the defendant No.1 by passing the resolution, resolve to transfer the lease right in favour of plaintiff and S.S. Tapariya manging director and S.T. Tapariya vice present finance authorized to approve, modify, sign and execute all the documents and writings related to the proposed transfer and disposal of the property and further to do all other acts, matters, things as may be necessary to give full effect to that resolution." 8 ao83.11 . In paragraph-20 the trial Court has referred to the agreement between the parties which took place on 23-03-2006 and the trial Court has opined that in case, the plaintiff has successfully proved that if both the parties are ready to fulfill the terms of agreement and give full effect to it, even after letter dated 16-08-2006, in that case only, the relief of temporary injunction as prayed by the plaintiff can be granted. The trial Court has arrived to the conclusion that there was only one written agreement dated 23-03-2006. So far the contention of the plaintiff even there was oral agreement has been rejected by the trial Court. The trial Court in paragraph-21 has referred to the consideration amount and observed that there was specific condition that the plaintiffs have to pay the entire consideration amount of Rs.1,03,00,000/- to the defendant within a period of two months and in paragraph-22 it is observed that the plaintiffs have placed nothing on record to show that after payment of Rs.10,00,000/- at any time they have 9 ao83.11 issued any letter or any cheque or D.D. for the purpose of payment of remaining amount within a period of two months as per agreement. 5. Therefore, from the perusal of the order impugned in this appeal from order, it is crystal that an amount of Rs.1,03,00,000/- was to be paid / deposited by the plaintiffs within two months from the date of agreement of sale. Since the said condition was not fulfilled which was in the agreement of sale by the plaintiffs and further, the plaintiffs have even encashed amount of Rs. 10,00,000/- which was refunded by the respondents herein, any interference in the impugned order is wholly unwarranted. The appellants have not abided by the conditions in the agreement of sale. The question whether such agreement is in existence or not is yet to be adjudicated by the trial Court in the suit. The defendants specifically pleaded that such agreement of sale has been cancelled by them on 16-08-2007. Admittedly, the entire amount of 10 ao83.11 Rs.1,03,00,000/- was not deposited by the appellants-plaintiffs within two months from the date of agreement of sale. While exercising discretion the trial Court has taken a reasonable and possible view and rightly refused temporary injunction in favour of the appellants. No case is made out for interference. Appeal from Order and also Civil Application stands rejected. . Any observations in this order are prima facie observations to decide this Appeal from Order. Trial Court to hear the suit uninfluenced by any observations made hereinabove. [S.S. SHINDE, J.] sut/AUG11