NMS394-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.394 OF 2009 WITH NOTICE OF MOTION NO.1799 OF 2010 IN SUIT NO.187 OF 2009 Hemant R. Shukla and Anr. .. Plaintiffs Versus Premsingh Chaudhary and Anr. .. Defendants Mr.P.R.Arjunwadkar i/b. Warerkar & Warerkar for plaintiff Ms.Anjali Jadhav h/f. Sunil More for defendants. CORAM : S.C.DHARMADHIKARI, J. DATE : 6th October 2010. P.C.: 1] The plaintiff has filed this suit for a declaration that the agreement for sale dated 8th February 2009 is valid, subsisting and binding on defendants and that the defendants are bound and liable to specifically perform the same and transfer the immovable property mentioned therein, in favour of plaintiffs who have made payment of Rs.25 lakhs as part consideration. The balance payment, according to NMS394-09 2 plaintiff of Rs.75 lakhs was to be made on or before 5th March 2009 against clear marketable title and peaceful possession. Accordingly, a demand draft was arranged in the sum more particularly set out in para 34 of the plaint but defendants failed and neglected to hand over original title deeds and/or create marketable title. Averments with regard to readiness and willingness are also set out. 2] It is on such averments and statements, the Court at the ad- interim stage passed an order so as to preserve and protect the subject matter of this litigation. That was an order made in terms of prayer clause (a) of the motion. 3] There is a written statement that has been filed and insofar as the transaction is concerned, it is stated that the agreement is terminated due to non performance and particularly because the balance sum of Rs.75 lakhs was not paid. In such circumstances, it is alleged that the flat has now been transferred by the society in the name of defendants. The transaction, therefore, is not subsisting any NMS394-09 3 longer, according to the defendants. 4] However, from the written statement it is apparent that the flat has been recently transferred in their name by the society. They are residing therein. They admit that there is an ad-interim order and, therefore, the apprehension that the property would be disposed of is baseless and unfounded. It is in such circumstances, that I am of the opinion that interest of justice would be served if this motion is made absolute in terms of prayer clause (a). Accordingly, the motion is made absolute in terms of prayer clause (a). The same shall continue till the hearing and final disposal of the suit. 5] Considering the age of the defendants, place the suit for framing issues on 26th October 2010. (S.C.DHARMADHIKARI, J)