1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.709 OF 2006 Suresh Harakchand Parakh ..Appellant V/s. Haribhau Ramchandra Bhagat & ors ..Respondents Mr.R.D.Soni i/b.M/s.Ram & Co., advocate, for appellant Mr.Uday Warunjikar, advocate, for respondent No.1 Mrs.Uma Wagle, advocate, for the respondent Nos.2 to 7 CORAM : J.H.BHATIA, J. DATE : 15TH JANUARY, 2008 P.C. . Heard learned counsel for the parties. Perused the copies of the relevant documents filed by appellant. 2. Appellant is original plaintiff and respondents are original defendants. According to appellant, he had entered into an agreement for purchase of the suit land bearing Survey No.65A 4/2/1A/2 admeasuring 45R and Survey No.65A 4/2/1A/1A admeasuring 36R. That was oral agreement which had taken place on 30th May, 2005. 2 Consideration was agreed to be Rs.87,00,000/- for deal of the land. An amount of Rs.30,000/- was paid as an earnest money to the defendant No.1. Draft public notice was approved by all the defendants and thereafter, a public notice was issued in the news paper wherein it was clearly stated that the defendants intended to sell the suit property to the plaintiff and if anybody had any objection to the said transaction or title of the defendants, such objection should be taken within ten days, failing which further steps would be taken in respect of the said transaction. According to the plaintiff, no objection was raised after publication of the notice but the defendants were avoiding to execute the sale deed. Therefore, on 8th November, 2005, the plaintiff issued a notice to the defendants through an advocate calling upon the defendants to execute the same as per the terms & conditions in the contract. The notice was replied by the defendant Nos.2 to 7 through their advocate, Mr.Shekhar Bhame and defendant No.1 replied to the notice through his advocate Mr.Sandeep Shevale. In this reply, the defendants 3 denied that there was any agreement for sale and that consideration amount was agreed to be Rs.87,00,000/-. The defendant No.1 contended that he had received an amount of Rs.30,000/- by a cheque only as a hand loan which was to be repaid within three months. The amount was not repaid and therefore, for repayment of the said amount, he had issued cross cheque bearing No.112121 of 'The Vishweshwar Sahkari Bank Limited' on 26th November, 2005. According to the defendants, there was no reason to enter into such agreement nor any contract was finalized. According to them, even as per ready reckoner, market value of 00H .80R land belonging to the defendant Nos.2 to 7 would be Rs.1,24,80,000/- and therefore, it was impossible for them to enter into an agreement for sale for Rs.87,00,000/-. After above correspondence plaintiff filed a suit for specific performance of contract and also filed an application for temporary injunction restraining the defendants from creating any third party interest. The plaintiff supported his claim by his own affidavit and affidavit of one Narayan Bala Chand, who claims 4 to be broker. After hearing both the parties, the learned trial Court found that plaintiff had not made out a prima facie case to show that agreement for sale of the suit land was entered into and in the result, the application for temporary injunction came to be rejected. Being aggrieved by rejection of that application, plaintiff has preferred the present Appeal. 3. Admittedly, defendant No.1 is not relative of defendant No.2 to 7 though, they belong to the same village. Defendant No.1 holds only 1R land out of Survey No.65A 4/2/1A/2 admeasuring 45R. Remaining land out of this Survey Number belongs to the defendant Nos.2 to 7. In Survey No.65A 4/2/1A/1A admeasuring 36R defendant No.1 does not have any share. The defendant No.2, Sachin Maghare, defendant No.6 Lalu Maghare and defendant No.7 Satish Maghare are shown to be owners of this land. Thus, it is clear that out of the total suit land admeasuring 81R, defendant No.1 holds only 1R land and remaining 80R land belong to defendant Nos.2 to 7 in which defendant No.1 has no right, 5 title and interest. Admittedly, the alleged agreement for sale was not reduced into writing. The defendant Nos.2 to 7 did not receive any amount from the plaintiff as an earnest money or towards consideration amount. Defendant No.1 alone received an amount of Rs.30,000/- by a cheque. There is no document to show that the defendant Nos.2 to 7 had authorized defendant No.1 to receive earnest money from the plaintiff on their behalf nor there is any document to show that the defendant Nos.2 to 7 had authorized plaintiff to make payment of the earnest money to defendant No.1 on their behalf. 4. The draft notice was approved by the defendants. It appears that all the defendants had put their signatures below the draft notice whereby they had given consent for publication of the said notice. Accordingly, the said notice was published in the daily news paper calling upon objections from the people to the said transaction. No objection was taken by anybody. The notice indicates that the defendants had proposed to sell the property to the plaintiff and if no objection 6 would be received within a stipulated period of ten days they would proceed further. There is nothing to show that after publication of the said notice and after expiry of ten days, any steps were taken to enter into an agreement for sale. Except affidavit of the plaintiff and that of one broker, no affidavit of any independent witness has been filed by the plaintiff to show that such agreement had actually taken place in presence of such independent witness. As far as the broker is concerned, much reliance cannot be placed because he must be interested in the transaction; in the sense that he may get some commission from the plaintiff. 5. Agreement for sale may be oral but when the agreement of such huge property is entered into orally, the Court will have to be satisfied that such an agreement was in fact entered into before passing any order against the owner of the property who is also in possession. As pointed out above, the defendant Nos.2 to 7 had not authorized plaintiff to make any payment to the defendant No.1 7 as an earnest money on their behalf. The plaintiff did not obtain any receipt from the defendants and particularly, from the defendant Nos.2 to 7 to show that the amount was received by defendant No.1 as an earnest money for sale of the suit land admeasuring 81R. It is difficult to imagine that defendant No.1 being holder of 1R of land, would receive Rs.30,000/- as an earnest money but the defendant Nos.2 to 7 being holders of 80R of land, would not receive anything as an earnest money. Admittedly, the prices of land in this area are high and the Government of Maharashtra has prepared ready reckoner of the prices of the land for every area for the purpose of payment of stamp duty in case of registration of conveyance deeds. Generally, the prices fixed by the Government are minimum. According to the defendant Nos.2 to 7, as per the ready reckoner market price of 80R land was Rs.1,24,80,000/- at the relevant time. It is possible that if the land is of poor quality, the owner may agree to sale the same even at the price lesser than shown in the ready reckoner but then it is for the plaintiff, who has filed the suit for 8 specific performance of the contract to plead and to prima facie establish that the defendants had entered into the said contract to sell the land at a price lesser than market price. The learned trial Court took a view that the plaintiff had failed to prima facie establish that such an agreement for sale had taken place. I see no valid reason to take a different view as far as land of the defendant Nos.2 to 7 is concerned. Therefore, I find that the learned trial Court was right in refusing to grant any temporary injunction against the defendant Nos.2 to 7. 6. As far as defendant No.1 is concerned, he had received an amount of Rs.30,000/- by a cheque, incidently on 30th May, 2005 itself, when the draft notice was approved. Possibility cannot be ruled out that he might have received the amount as an earnest money in respect of his share in the land. His share was also specified in the draft notice. Even, though, he contends that this amount was received by him as hand loan for a period of three months but admittedly, he had not repaid that 9 money on expiry of three months nor there is any thing to show that on expiry of three months he had offered to pay the amount to the plaintiff towards repayment of hand loan. It is only after receipt of notice dated 8th November, 2005 from the plaintiff's advocate, that the defendant No.1 sent a cheque of Rs.30,000/- along with his reply dated 26th November, 2005. Taking into consideration this aspect and documentary evidence it appears that defendant No.1 had entered into an agreement with the plaintiff and had received an earnest money of Rs.30,000/- from him but naturally it was in respect of the consideration of his 1R land and could not be for 80R land held by the defendant Nos.2 to 7. Therefore, to secure and protect interest of the plaintiff in respect of the agreement with defendant No.1 it will be necessary to restrain him from creating third party interest over his share in the suit land. 7. In the result, the appeal is partly allowed only against defendant No.1. To that extent impugned order stands set aside. Defendant 10 No.1 is hereby restrained from creating third party interest over his share in the suit land. The appeal against the defendant Nos.2 to 7 stands dismissed. 8. As appeal itself is finally disposed of, Civil Application does not survive and stands disposed of. 9. At this stage, the learned counsel for the plaintiff makes a request that ad-interim relief for temporary injunction granted by this Court on 11th October, 2006 which is in force till today may be continued for further period of four weeks. The said order shall continue for further period of four weeks. (J.H.BHATIA, J.)