((-1-)) ms t IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2080 OF 2008 IN FIRST APPEALNO.814 OF 2008 Mohammed Raees Jaish Applicant/ Mohd. Choudhary Appellant versus Karamjit Niranjan Singh Bhamra and others Respondents Mr.Anil C. Singh i/by D.R.Shah for applicant. Miss R.C.Nichani for respondents. CORAM : SMT.RANJANA DESAI AND SMT.R.P.SONDURBALDOTA, JJ. DATE : 22nd April 2008 PC : 1. This is plaintiff’s First Appeal. The First Appeal has been admitted. This Civil Application is for injunction restraining the respondents from disposing of, transferring, alienating or handing over possession of the suit properties to any third party without due process of law. The applicant/appellant has also sought stay of the impugned order dated 20th December 2007 passed in Special Civil Suit No.208 of 2005. By the impugned order the suit ((-2-)) has been dismissed and amount of Rs.1,06,80,000/- (Rs.One crore six lakh eighty thousand only) was directed to be refunded with accrued interest thereon to the plaintiff who had deposited the said amount in the Trial Court. 2. The case of the plaintiff appears to be that the defendants are owners of the suit properties and the defendants had orally agreed to sell the suit properties to the plaintiff @ Rs.68,000/- per Gunthas for total consideration of Rs.1,08,80,000/-. According to the plaintiff, the plaintiff has paid Rs.2.00 lakh (Rs.Two lakh only) on 12th January 2004 to the defendants as part consideration towards transaction and balance was agreed to be paid at the time of execution of the sale deed and in turn, the defendants were to hand over possession to the plaintiff. Thus, the case of the plaintiff is based on an oral agreement to sell. The further case of the plaintiff is that this oral agreement was confirmed by the defendants in their statements recorded by Mumbra Police Station in the enquiry conducted by the Police pursuant to the complaint lodged by the plaintiff. ((-3-)) 3. The Trial Court has, upon considering the evidence, held that the plaintiff has not proved that there was any agreement to sell the suit properties. The Trial Court has further held that the plaintiff has failed to prove that the plaintiff is ready and willing to perform his part of contract. The Trial Court has also held that the plaintiff has failed to prove that the plaintiff is entitled to specific performance of contract. In view of these findings, the suit came to be dismissed. As stated hereinabove the appeal filed against the said judgement has been admitted by this Court. 4. We have heard Mr.A.C.Singh, counsel appearing for the appellant, at some length. He submitted that during pendency of the suit, an order of injunction was operating and in the circumstances of the case, the same may be continued by this Court. He submitted that the amount of Rs.1,06,80,000/- has been deposited in the Trial Court. Learned counsel pointed out that the oral agreement has been confirmed by the defendants in their statement recorded by Mumbra Police Station. Learned counsel ((-4-)) pointed out that whereas, in written statement filed by the defendants, the defendants have denied that the police recorded their statement in the examination in chief in the form of affidavit, the second defendant has admitted that he had gone to Mumbra Police Station as he was called by Mumbra Police. The second defendant has admitted that his statement was recorded though he has stated that he was forced and pressurized to give the said statement. Learned counsel submitted that this inconsistency in the stand of the defendants creates doubt about their bona fides. He also drew our attention to the evidence of Balu Shirsath who was, at the relevant time, working as Police Inspector at the Mumbra Police Station and submitted that said Shirsath has also confirmed that the statement of the defendants was recorded. Learned counsel submitted that in the circumstances, this is a fit case where order of injunction should be passed. 5. On the other hand, Ms.Nichani appearing for the defendants submitted that the suit properties belong to four persons which includes apart from the defendants their ((-5-)) sister, who is, admittedly, not a party to the alleged oral agreement. In such circumstances, no order of injunction can be passed on the basis of the alleged oral agreement restraining the defendants from alienating and/or disposing off the suit properties. It is submitted that the plaintiff has failed to establish his case of oral agreement. 6. There is no dispute about the fact that the sister of the defendants is a co-owner of the suit property. The evidence does not indicate that she was party to the oral agreement. In our opinion, the case of oral agreement and alleged confirmation thereof by the defendants in their statement recorded by the Mumbra Police, is not established. This story does not inspire confidence. In the circumstances, prayer for injunction cannot be granted. However, if the defendants choose to develop the suit properties and sale the constructed premises, they will have to inform the prospective buyers about the pendency of this First Appeal in this Court and that any property purchased and any right created in their favour will be subject to final order that may be passed in this First Appeal. Hence ((-6-)) following order. 7. ORDER :- (a) Prayer for injunction is rejected; (b) Any transactions entered into with any one in respect of the suit properties and any rights created in respect of the said properties will be subject to the orders that may be passed in this First Appeal; (c) In case the defendants develop the suit properties or create third party rights in the suit properties, they shall intimate to the prospective purchasers about pendency of present First Appeal. The defendants shall also intimate to them that all transactions in respect of the suit properties and any rights created in respect thereof shall be subject to the final order that may be passed in the First Appeal; (d) The plaintiff will be at liberty to withdraw the amount deposited by him in the Trial Court with accrued interest thereon. ((-7-)) 8. Civil Application disposed off accordingly. 9. Appeal expedited. JUDGE JUDGE