1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO. 120 OF 2010 WITH CIVIL APPLICATION NO.181 OF 2010 Sadique R. Almelkar ...Appellant. v. Akshay Almelkar Housing Private Ltd. & Ors. ...Respondents. Mr.N.M.Sakhardande a/w Ms.Y.Khanwilkar i/by Shri S.R.Page, advs. For the Appellant. Mr.G.S.Godbole i/by Nitin Mule, advs. For the Respondent Nos.3 to 6. Shri P.S.Dani, adv. for the Respondent Nos.7 to 9. CORAM : J.H. BHATIA, J. DATED : MARCH 17, 2010 P.C. 1 Heard the learned counsel for the Parties. 2 Appellant before this Court is the original plaintiff and the respondents are the original defendants. Plaintiff and the defendant no.3 are the directors of the defendant no.1 Company. Defendant Nos.8 to 10 are said to be firms in which the defendant no.3 has interest. Defendant No.3 is proprietor of defendant no.11. Defendant no.3 is also chairman and Managing Director of the defendant no.1 Company. According to the plaintiff, defendant no.3 had received an amount of Rs.1.4 crores from the accounts of the defendant no.1 for purchase of certain lands from the 2 defendant no.12 and 13 for the purpose of development and construction. That payment was made by three cheques dated 13.3.2007, 29.3.2007 and 5.4.2007. That amount was paid to the defendant nos.12 and 13 and eventually defendant no.3 got development agreements from the defendant nos.12 and 13 in favour of his partnership firms, i.e., defendant nos.8 and 9. Plaintiff filed suit in January, 2009 seeking declaration that the said development agreement in favour of the defendant no.8 and 9 are void. He also sought perpetual injunction restraining them from making any construction and development and from creating any third party interest. He filed Application, Ex.5 for temporary injunction of the same nature before the trial Court. 3 Defendants in the reply denied that there was any representation by the defendant no.3 that the land was to be purchased or acquired by the defendant no.1 for development and construction. It was contended that the defendant no.1/Company had made payments to the defendant no.3 in his individual capacity towards the supply of material. Construction was undertaken since 2007 and certain third party interests are also created. 4 The learned trial Court rejected the application. Hence, the appeal. 3 5 On hearing the learned counsel for the parties, it appears that there is no document to show that defendant no.1 had entered into any agreement with the defendant nos.12 and 13 to acquire the land or development rights on the land. There is also no document to show that the defendant no.3 had ever represented that payment was being made for acquisition of such rights. Documents under which payments were made also did not disclose that any agreement for purchase or development was entered. Thus, there is no material to support oral contention of the plaintiff. It is also pointed out that the plaintiff had acquired copies of the agreement between the defendant nos.8 and 9 and the defendant nos.12 and 13 on 6.10.2007. In spite of having that knowledge, he allowed construction to proceed and filed the suit for the first time in January, 2009. Taking into consideration these circumstances, I do not find any reason to interfere in the discretion exercised by the trial Court in refusing the interim relief. 6 For the aforesaid reasons, appeal stands dismissed. However, it is made clear that any development, which may be made by the defendant nos.8 and 9 shall be subject to the result of the suit. 4 7 As the appeal itself is disposed off , civil application does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)