- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION No. 1092 OF 2008 IN SUIT No. 906 OF 2008 M/s. Oska Synthetics Pvt. Ltd. ... Plaintiff Vs. Abdullah Riyasatalli Khan & Ors. ... Defendants *** Mr. R. D. Ruryawanshi, for the Plaintiff. Mr. A. K. Tripathi i/b Jayraj, for Defendants. *** CORAM : V. M. KANADE, J. DATE : AUGUST 7, 2009. PC :- 1. Heard the learned counsel for the plaintiff and the defendants. Plaintiff has filed the suit for specific performance of the agreement for sale dated 7-11-2007 between the plaintiff and the defendants. It is case of the plaintiff that by virtue of the said agreement of sale, it was agreed between the parties that the plaintiff would pay total consideration of Rs. 50 lakhs towards purchase price of the properties, which are described in the said agreement for sale. At the time of execution of agreement of sale, an amount of Rs.1,25,000/- was paid to the defendants and thereafter, from time to time total amount of Rs.48,00,000/- have been paid. He submitted that on 25-11-2007 possession of the said - 2 - property was handed over to the plaintiff. He submitted that possession receipt was executed by the defendants, which is annexed at Exhibit “K-2” to the plaint. He submitted that though the are ready and willing to pay the entire consideration to the defendant, the defendants refused to execute the conveyance in favour of the plaintiffs, as agreed in the agreement dated 25-11-2007. It is submitted that therefore, the plaintiff was constrained to file this suit for specific performance. The plaintiff obtained leave under Clause 12 from this Court by an order dated 17-8-2008. Thereafter, he took out the Notice of Motion in which an ad-interim relief was granted by this Court (Coram : D. G. Karnik, J.) dated 16-4-2008. He submitted that by an order dated 21st August 2008 this Court was pleased to continue the said order. The learned counsel submitted that in the affidavit of surrejoinder the defendants have in paragraph 3, 4 and 5 admitted that they had received Rs.30 lakhs from Abdulla Muzibulla. The learned counsel submitted that after having received substantial part of the amount, the defendants are now disputing the execution of power of attorney by them in favour of said Abdulla Muzibulla. He submitted that therefore, the plaintiff was entitled to seek interim relief in terms of prayer Clause (a) in Notice of Motion, pending hearing and final disposal of the suit. 2. Mr. A. K. Tripathi, learned counsel appearing on behalf of the defendants, firstly submitted that the suit is not maintainable in the present Court since the property is situate in Bhivandi and respondents are residing in Bhivandi and therefore, - 3 - the suit was not maintainable in this Court. He then submitted that genuineness of the said agreement was in doubt since a criminal complaint had been filed against the alleged power of attorney holder Abdulla Muzibulla and in the said criminal complaint said Abdulla Muzibulla was arrested and the police have filed the criminal case against him. He submitted that agreement of sale was signed by the alleged power of attorney holder and not by them. All the receipts in respect of monies received have been given by the said power of attorney holder. He further submitted that defendant also had not given possession of the said property to the plaintiff. He therefore, submitted that the ad-interim relief which was granted by this Court, may be vacated and the Notice of Motion may be dismissed. 3. So far as question of maintainability of this suit is concerned, since leave has been granted by this Court by an order dated 17th August 2008, the present suit therefore, is maintainable in this Court. If the defendants are aggrieved by the said order of granting leave under Clause 12, it is open for the defendants to challenge the said order or to raise preliminary issue regarding the maintainability of the suit in this regard. 4. So far as second submission is concerned, the defendants now claim that they had never executed a power of attorney in favour of the said Abdulla Muzibulla. However, in the affidavit-in-surrejoinder dated 29th July 2009 it is admitted by them in paragraph 3, 4 and 5 that they had accepted an amount of Rs.30 lakhs from said Abdulla Muzibulla as co-owner of the said - 4 - property through cheques, issued by the plaintiff company. This being the position, the defendants having accepted the substantial part of the amounts, the question of genuineness of agreement of sale would be an issue which will have to be decided at the hearing of the suit. The plaintiff having parted with the huge amount of money towards purchase of the said property, in my view, therefore, is entitled to seek an order of injunction, restraining the defendants from creating any third party rights in respect of the said property. Prima-facie case, in my view, is made out by the plaintiff for grant of interim relief in terms of prayer Clause (a) of the Notice of Motion. For the aforesaid reasons, Notice of Motion is allowed. Ad-interim order passed by this Court is confirmed. Notice of Motion is allowed in terms of prayer Clause (a). [ V. M. KANADE, J.]