1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.207 OF 2009 WITH CIVIL APPLICATION NO. 245 OF 2009 Ramesh Lekhraj Kruplani & ors. : Appellants versus Shri Sarjerao Rajaram Suryawanshi : Respondent. Shri N V Walawalkar, Senior Counsel i/by Shri Ashok B Tajane for the Appellants. Shri G S Godbole i/by Smt.Jai V Kanade for the Respondent. CORAM : R.M.SAVANT, J. DATED : MARCH 20, 2009 P.C. 1. This Appeal, filed by the original Defendant No.2, takes exception to the order dated 12/11/2008 passed by the learned 8th Joint Civil Judge, Senior Division, Pune by which order the Application Exhibit-5 filed by the Plaintiff came to be allowed and the Defendants were temporarily restrained from carrying out construction over the suit property and creating any third party interest in it pending trial of the suit. 2 2. The Respondent is the original Plaintiff who has filed Special Civil Suit No.963 of 2007 against the Defendants for specific performance of the Agreement dated 11/1/2005, which document is referred to as “Visar Pavti”, in respect of the suit lands bearing Survey No.49 Hissa No.24 Part, area 6 R, situated at village Ghorpadi, Tal.Pune City, Dist.Pune. The consideration mentioned in the said Agreement to Sale was Rs.16,50,000/-. Out of which Rs.51,000/- was accepted by the Defendants from the Plaintiff as earnest amount at the time of execution of the said agreement to sale (visar pavti) dated 11/1/2005. As per Clause 6 of the said Agreement to Sale, it was agreed that Sale Deed of the suit land was to be executed within one month of the Defendant No.1's obtaining certificate under Gunthewari Act and NOC under ULC Act from the competent authorities in respect of the suit land. The residual consideration was agreed to be paid at the time of the sale deed. It appears that prior to obtaining the said Gunthewari Certificate and NOC under Urban Land Ceiling Act 1976 as stipulated in clause 6, the Defendant No.1 issued a notice of termination dated 29/3/2005 terminating the said 3 agreement on account of the lapse of the period mentioned for complying with the same. The Plaintiff replied to the said termination notice by his advocate's letter dated 16/4/2005 showing his readiness and willingness to perform his part of the contract. The Plaintiff was constrained to file the suit as the Defendant No.1 is alleged to have executed a development agreement in favour of the Defendant No.2. 3. The trial Court, on consideration of various clauses of the said Agreement, referred to as the Visar Pavti Exhibit 3/2, came to a conclusion that various clauses of the said document Exhibit 3/2, if cumulatively taken, do not provide prima facie inference about time being essence of the contract and observed that there are triable issues raised in the said Special Civil Suit which would require evidence to be led. The trial Court also observed that the Development Agreement between the Defendant No.1 and Defendant No.2 seems not to have been acted upon as no material was placed on record by the Defendant No.2 to the said effect. 4. In my view, the reasons mentioned in Paragraphs 6, 7 and 4 8 of the impugned order whilst granting the discretionary relief of temporary injunction are unexceptionable, the impugned order does not call for any interference in the above Appeal. 5. The above Appeal is accordingly dismissed. 6. However, in view of the issues that arise for consideration in the said suit, it would be just and proper to direct expeditious disposal of the said Special Civil Suit No.963 of 2007. The trial Court is therefore directed to hear and decide the said Special Civil Suit No.963 of 2007 within a period of one year from date. 7. The observations made in this Order are only for the purpose of considering grant of injunction in favour of the Plaintiff and are prima facie and would not come in the way of the parties at the time of hearing of the said Special Civil Suit and the said suit would be decided on its own merits and in accordance with law. 8. In view of the dismissal of the above Appeal, the Civil 5 Application No.245 of 2009 does not survive and the same is accordingly disposed of. [R.M.SAVANT, J]