1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7955 OF 2008 Mr. Vinodkumar Rameshlal Advani, age about 30 yrs,Ocn.Business r/o Plot No.7,RSN 304/2, Trimurti Housing Society, E Ward Near Hotel Eligant, Kolhapur .. Petitioner -versus 1. Gajanan Dadoba Pawar Age about 59 years, Occn. Retd residing at: Sardar Park Deokar Panand, Plot No.l, Kolhapur. 2. Vijaya Prabhakar Bhasme age: about 49 years, Occn. Housewife 3. Abhijit Prabhakar Bhasme age : 26 years Occn. Service 4. Vishal Prabhakar Bhasme age: 25, Occn. Student, respondent Nos 2 to 4 residing at: l859, D Ward, Teli Galli, Shukrawar Peth Kolhapur. 5. Prashant Gajanan Pawar age: about 26 years. Residing at: 904/l, A Ward Sardar Park, Deokar Panand Kolhapur. .. Respondents ALONWITH WRIT PETITION NO.7918 OF 2008 Mr. Rameshlal Gurdasmal Advani .. Petitioner age: about 55 years, occn. Business, residing at:plot No.7, R.S. No.304/2, Trimurti Housing 2 Society, E Ward Near Hotel Eligant Kolhapur. versus 1. Gajanan Dadoba Pawar Age about 59 years, Occn. Retd residing at: Sardar Park Deokar Panand, Plot No.l, Kolhapur. 2. Ajit Ganpatrao Mogale age: about 49 years, Occn. Service residing at: l736, E Ward Rajarampuri Kolhapur 3. Prashant Gajanan Pawar age: about 26 years, Occn. Business, residing at: 904/1, A ward Sardar Park, Deokar Panand Kolhapur .. Respondents. Mr V.S. Gokhale, for the petitioner in both the petitions. Mr. S.S. Patwardhan, for the respondent Nos 1 & 5 in WP No. 7955 of 2008 and for respondent Nos l & 3 in the writ petition No.7918 of 2008. . CORAM: A.S. OKA, J. DATED:25 th September, 2009. Common Judgment 1. The submissions of the learned counsel for the parties were heard on the earlier date and today the petitions kept for passing order. 2. Facts of the petitions are more or less similar and 3 therefore, a reference is made to the facts of the case in WP No.7918 of 2008. The petitioner therein is the original plaintiff who has filed a suit for specific performance of an agreement of sale dated 11th September, 2002 executed by second respondent in his favour. According to petitioner, the agreed consideration was Rs.6,83,000/- out of which a sum of Rs.50,000/- has been already paid. 3. In the said suit, an application for temporary injunction at Exh.5 was made by the petitioner. The said application was allowed by an order dated 19th August, 2008. The Trial Court restrained the respondents from creating any third party rights in respect of the suit property and from changing the nature of the suit property. The Trial Court directed the petitioner to deposit the balance consideration of Rs.6,33,000/- within a period of one month from the date of passing the said order. The trial Court directed that if the amount was not deposited within the stipulated time, the order of temporary injunction will stand vacated. It must be stated here that on a separate application at exh. 31 the Trial Court passed order on the same day and restrained the respondents from carrying out any construction on the suit property. The said order also provided that if the petitioner fails to deposit 4 balance consideration within a period of one month, the said order will stand vacated. 4. Thereafter on application made by the petitioner, by order dated 22nd September, 2008, time granted to deposit the balance consideration was extended till 18th October, 2008. There was further application at exhibit-73 , seeking further extension of time by three months. By order dated 18th October, 2008, the said application was rejected. As a result, the interim orders passed in favour of the petitioner on 19th August, 2009 stood vacated. 5. The challenge in these writ petitions is to the orders passed by the Trial Court by which the Trial Court declined to extend time. It is not in dispute that now the balance consideration in terms of the orders passed by the Trial Court has been deposited by the petitioners. The submission of the learned counsel appearing for petitioner is that in view of the deposit of balance consideration now the interim orders deserve to be restored. 6. Learned counsel for the first and third respondent submitted that after having committed gross default and after having failed to show readiness and willingness to perform his part of contract, now the 5 petitioner is disentitled to any equitable relief. Third respondent in WP No.7918 who is the fifth respondent in WP No.7955 of 2008, has placed on record an affidavit in which it is stated that he has taken loan from LIC Housing Finance for carrying out construction on the suit plots. He has stated that he will not create any third party rights in respect of the suit plots except for creating further encumbrance in favour of LIC Housing Finance Corporation for the purpose of obtaining additional finance for carrying out construction on the suit plots. There is some substance in the submission of learned counsel for the respondents that the petitioner has committed default. Though belatedly, the petitioner has deposited the balance consideration. Therefore, a limited interim relief will have to be granted in favour of the petitioner which will operate till the disposal of the suit. 7. As far as the suit subject matter in WP No.7918 of 2008 is concerned, third respondent is in possession of the suit property and as far as WP 7955 of 2008 is concerned, the fifth respondent is in possession of the suit property. The said respondent has filed an affidavit which I have referred above. The said respondent will have to be permitted to carry out and complete the construction in 6 view of the undertaking given in the affidavit . It is obvious that construction which may be carried out by the said respondent is subject to the final outcome of the suit. 8. Hence the petitions are disposed of by passing following order. ORDER I) Respondents in Writ Petition Nos.7918 of 2008 and 7955 of 2008 are restrained from creating any third party interests in respect of the suit plots till the disposal of the suit. II) The Undertaking of Shri. Prashant Gajanan Pawar, in the affidavits dated l6th September, 2008 filed in both the petitions, is accepted. In view of the said undertaking, it will be open for the third/fifth respondent to create a charge in favour of LIC Housing Finance Corporation Ltd only for the purpose of obtaining additional finance for construction of the building on the suit plots. III)It is made clear that the construction which may be carried out by the third/fifth respondent, will be subject to final outcome of the suit and the said respondent will not be entitled to claim any equity on the basis of said construction. IV)The amounts deposited by the petitioner in the Trial Court shall be invested in the fixed 7 deposit with any nationalized bank. The fixed deposit shall be renewed from time to time till the disposal of the suit . V) Order regarding disbursement /withdrawal of the said amount with the interest accrued thereon will be passed at the time of final disposal of the suit. VI) It is made clear that all the contentions of the parties in pending suits are expressly kept open. VII)Hearing of the suit is expedited. VIII)Both the petitions are disposed in above terms. (A.S. OKA, J)