1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.76 OF 2009 WITH CIVIL APPLICATION NO.96 OF 2009 Prasad Gopinath Thorat ..Appellant V/s Nivrutti Faikra Bhandure & anr. ..Respondents Mr.Sandeep K. Shinde, Advocate, for the appellant Mr.G.S.Godbole i/b.Mr.Nitin Mulye, Advocate, for the respondent Nos.1 & 2 CORAM : R.M.SAVANT, J. DATE : 2ND MARCH, 2009 P.C. . This appeal takes exception to the Order dated 1st October, 2008, passed by the learned Civil Judge, Senior Division, Nashik, by which order the application Exh.5 for temporary injunction came to be rejected. 2. The appellant is the original plaintiff, who has filed Special 2 Civil Suit No.115 of 2008 for the specific performance of the Agreement dated 8th November, 2006, in respect of the land bearing Gat No.38/3 and area admeasuring 1H 29.5R. The total consideration mentioned in the said Agreement is Rs.46,97,000/-. The said Agreement records that since the defendants herein were in financial difficulties and they had to pay the Bank loan, they had decided to sell the land in question. 3. In Clause 4 of the said Agreement, it is recorded that the plaintiff paid Rs.5,00,000/- by cash and has given two cheques of Rs.2,50,000/- each drawn on Vishwas Co-operative Bank Limited, Dwarka branch, Nasik. Both the cheques are dated 9th November, 2006. 4. The defendants by the advocates notice dated 7th April, 2007, terminated the said Agreement on the ground that the plaintiff has failed to make the payment within time stipulated in the said Agreement. The said notice was replied by the plaintifff by reply dated 16th November, 2007. As the defendants refused to execute 3 the Sale Deed, the plaintiff filed the said suit for specific performance of the Agreement dated 8th November, 2006. In the said suit, the plaintiff filed an application Exh.5 for temporary injunction which has been rejected by the impugned order. The Trial Court rejected the application Exh.5 holding that the plaintiff did not comply with the terms of the agreement. The Trial Court adversely commented against “Bharna Pavti” as it did not bear the signature of the defendants. In so far as the document dated 6th February, 2007, is concerned, though it is the case of the plaintiff that the said document bears the signature of the defendant No.1, it did not bear the signature of the defendant No.2 i.e.Heerabai, the Trial Court also took into consideration the fact that there is a delay on the part of the plaintiff in filing the said suit as the notice of termination was given by the defendants on 7th April, 2007 and the plaintiff has filed the suit on 20th February, 2008. 5. I have heard the learned counsel for the parties and I have also gone through the documents on which reliance was placed by the plaintiff. It is the case of the plaintiff is that the time was not the 4 essence of the contract. However, perusal of the said Agreement dated 8th November, 2006, indicates that the defendants had agreed to sell the land in question on account of their financial difficulties and since they had to discharge their obligations to the Bank. The other clauses in the said document also indicate that the payments were to be made within a particular time frame and therefore, the contention of the plaintiff that time was not an essence of the contract cannot be accepted. 6. In so far as the document styled as “Bharna Pavati” is concerned, apart from the fact it does not bear the signature of the defendant Nos.1 & 2, there is an inconsistency between the documents and the pleadings in the plaint. In so far as the document dated 6th February, 2007, is concerned, which is a document evidencing novation of the original contract. Pertinently the said document has not even been referred in the reply of the plaintiff to the notice of termination given by the defendants dated 7th April, 2007. In the plaint, the said document is referred to as document dated 6th February, 2007 whereas the document itself shows that there is an 5 overwriting in respect of the date. The signatures of the witnesses on the left and right side of the document and the date put under the said signatures is 3rd February, 2007. There is also an inconsistency in the pleadings and the said document. It is further recorded in the document that a sum of Rs.25,00,000/- was to be paid by 6th February, 2007. It is no where the case of the plaintiff that pursuant to the said alleged novation of the contract the said amount of Rs.25,00,000/- was ever offered to the defendants. 7. In so far as the document which is a receipt for an amount of Rs.2,00,000/- allegedly paid by the plaintiff is concerned, the said receipt is not a stamped receipt and it further does not indicate as to who has paid the said amount. The said document is also inconsistent with the document dated 6th February, 2007 in as much as, as per the said document an amount of Rs.25,00,000/- was to be paid. However, the receipt is only for Rs.2,00,000/- and therefore, the said receipt does not further the case of the plaintiff. 8. Considering the above conspectus of the facts, in my view, 6 the impugned order of the Trial Court rejecting the application Exh.5 for temporary injunction cannot be faulted with. 9. The above Appeal from Order is accordingly dismissed. 10. In view of the dismissal of the Appeal from Order, Civil Application does not survive and the same is accordingly disposed of. 11. It is made clear that the observations made herein above are only for the purposes of consideration of the application for temporary injunction and would not come in the way of the plaintiff in the suit. In so far as the suit is concerned, the same would be decided on its own merits and in accordance with law. (R.M.SAVANT, J.)