: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.56 OF 2008 WITH CIVIL APPLICATION NO.733 OF 2006 Harakchand Gulabchand Dhoka ..Appellant/Plff. Vs. Kashinath Narsinha Marathe ..Respondent/Deft. Mr.R.D.Soni i/b.M/s. Ram & Co. for the Appellant. Mr.R.A.Jahagirdar, Senior Counsel with Mr.Tejas Dande for the Respondent. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. DATED : 28TH APRIL, 2008 DATED : 28TH APRIL, 2008 DATED : 28TH APRIL, 2008 P.C. : P.C. : P.C. : Admit. Heard finally. 2. I am inclined only to modify the impugned order and not to grant the injunction sought by the Appellant. The Appellant seeks specific performance of an agreement dated 13.4.2005 for the purchase of 20 ares of land for a consideration of Rs.19,51,000/-. Admittedly, there is no written agreement. The suit property is a part of Survey No.28. There is no dispute that a sum of Rs.19,51,000/- had been paid. The only question is the purpose for which the same was paid. : 2 : 3. The Defendants case is that the amount has been paid as an advance towards purchase of the said property by the Defendant from the previous owner and not towards the sale consideration by the Plaintiff. There is no difficulty in identifying the property as the suit property is the only portion of Survey No.28 (part) that was purchased by the Defendant from the previous owner. However, there is no valid explanation as to the absence of a written agreement between the parties. In a transaction of this nature, I would have expected if not a written agreement, atleast some writing either by way of correspondence or otherwise referring to the alleged agreement. There is admittedly none. 4. The first letter is the Plaintiff’s Advocate’s notice dated 17.4.2006 to which the Defendant replied by a letter dated 20.4.2006. The Defendant has in detail set out the circumstances in which the amount of Rs.19,51,000/- was paid. According to the Defendant, it was paid as an advance towards the purchase of the said property and that the Defendant was in fact to enter into a contract with the Plaintiff in respect of another property viz. Survey No.27 which admittedly was in the Defendants : 3 : possession. Specific performance of that property however is not sought by the Plaintiff. In these facts and circumstances, I am not inclined to interfere with the order in so far as it refused the injunction as the mere payment of the said sum does not indicate or establish the agreement as pleaded. 5. I do not suggest that at the final hearing the Plaintiff would not be able to establish his case. There is for instance no satisfactory explanation regarding the alleged sum of Rs.19,51,000/- admittedly paid in April, 2005. There is merely a bald averment that the amount has been repaid. There is for instance no averment to suggest the same. However, in the facts and circumstances of this case, the Plaintiff must be satisfied with registering a lis-pendence which would have its own effect. 6. In the circumstances, the Defendant/ Respondent is directed to deposit in this Court a sum of Rs.30,00,000/- which would include interest on the said sum of Rs.19,51,000/- within twelve weeks from today. Till such amount is deposited, the Respondent will not dispose of, alienate, encumber, part with possession of or create any third party : 4 : right, title and/or interest in respect of the suit property. 7. The above amount is deposited shall be invested in fixed deposits of a Nationalised Bank initially for a period of one year and thereafter for like periods of one year each. The injunction to continue in the event of the amount not being deposited as aforesaid. 8. Appeal from order is disposed of. Nothing therefore survives in the Civil Application which also stands disposed of accordingly. ***