1 ao162.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 162 OF 2011 WITH CIVIL APPLICATION NO. 11110 OF 2011 Ganesh s/o Jagannath Farkande, Age: 37 years, Occ: Agri. & Business, R/o. Kandhar, Tq. Kandhar, District Nanded. ...APPELLANT VERSUS Dattataram s/o Digaji Pagde, Age: 67 years, Occ: Agri., R/o. Dhangarwadi, Tq. & Dist. Nanded & others. ...RESPONDENTS ... Mr. Milind M. Patil (Beedkar), Advocate for appellant/applicant. petitioners. Mr. M.V. Ghatge, Advocate holding for Mr. Bharat Gadegaonkar, Advocate for respondent Nos. 5 and 6. ... CORAM: S.S. SHINDE, J. DATE : 27TH SEPTEMBER, 2011 PER COURT : . Heard learned Counsel appearing for the appellant. The learned Counsel appearing for the appellant invited my attention to the copy of the agreement to sell and submitted that, it was 2 ao162.11 agreed between the parties that out of total consideration amount, 25% amount will be paid at the time of execution of the sale deed. The appellant-plaintiff all the time was ready to perform the part of contract. It is submitted that, towards earnest amount Rs.15600/- were paid to the respondents. Agreed rate per acre was Rs.1,30,000/-. Learned Counsel further submitted that, paper publication was also given in respect of agreement to sell between the parties. However, defendant Nos. 2 and 3 executed sale deed in favour of defendant Nos.6 and 7 on 12-11-2009. 2. The learned Counsel appearing for the appellant further invited my attention to the findings recorded by the trial Court in Para-7 and submitted that, the trial Court has recorded perverse finding. In fact, the agreement to sell is dated 05-10-2009 and the execution of sale deed in favour of defendant Nos. 5 and 6 by defendant Nos. 2 and 3 is dated 12-11-2009. Therefore, there is no application of mind on the part of the 3 ao162.11 trial Court in observing that the sale deed is executed prior to the alleged agreement of sale. Therefore, learned Counsel submits that, not only interim injunction is refused on the said ground but the plaintiff may find difficulty even to prosecute the suit for specific performance. 3. On the other land, learned Counsel appearing for the respondents placed reliance on the reasons recorded by the trial Court and submitted that, in pursuant to the execution of the sale deed defendant Nos. 5 and 6 are in possession of the suit property. Therefore, he submits that, if there is any interference by this Court, it will affect and cause irreparable loss to them. 4. I have given due consideration to the rival submissions. It is true that, the observation of the trial Court in Para-7 that the sale deed executed by defendant Nos. 2 and 3 in favour of defendant Nos. 5 and 6 is executed prior 4 ao162.11 to alleged agreement of sale in favour of plaintiff, is not a correct position. In fact, the agreement to sell is executed on 05-10-2009 and the sale deed is executed on 12-11-2009 by defendant Nos. 2 and 3 in favour of defendant Nos.5 and 6. But the question which is required to be considered at the time of considering the application for injunction or interim order is, whether granting such injunction would cause irreparable loss to the plaintiff or the defendants. It is not in dispute that, in pursuant to the execution of the sale deed, defendant Nos. 5 and 6 are put in possession of the suit property. It is the plaintiff's case that, only amount of Rs.15,600/- as part amount towards consideration is given to the defendants and amount agreed for purchase of land per acre is Rs.1,30,000/-. Therefore, in my opinion, if such order granting injunction in favour of the plaintiff is passed, certainly it will cause irreparable loss to the defendants. 5 ao162.11 5. In that view of the matter, I am not inclined to entertain the Appeal from Order and the Civil Application, same stands dismissed. However, it is clarified that, any observation made either in the impugned order by the trial Court or by this Court in this order will not come in the way of the plaintiff while prosecuting the suit. [S.S. SHINDE, J.] sut/SEP11