1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3796 of 2007 IN SUIT NO.2807 of 2007 Mast. Manav R Trivedi ..Plaintiff -versus Jitendra C Panditpotra and anr .. Defendants Mr. Girish K Vora, for the Plaintiff. Ms. Usha Rahi i/b M/s. Mayur Narendra & Company for Defendant No.1 Mr B.B. Parekh, for the Defendant No.2 CORAM: S. J. VAZIFDAR, J DATED: 30th November,, 2009. P.C. 1. Prima facie it appears that the suit agreement dated 6th April, 2006 for the sale of property is valid and substituting. The Plaintiff made payment of Rs.5,00,000/ as earnest money. The balance was to be paid upon obtaining the NOC, Stamp duty and registration and against possession latest by 6th April, 2006. 2. It is alleged that the NOC was issued by the Society on 11th May, 2006. There is no document evidencing that the same was forwarded to the Plaintiff. 2 3. Defendant No.l contends that the agreement was by mutual consent terminated and the earnest money was returned. There is no evidence of the same. Even in reply to the Plaintiff’s advocate Notice, the Defendant did not refer to the alleged repayment of earnest money. 4. The alleged agreement between the Defendant Nos 1 and 2 for the sale of the same property dated 28th December, 2006 was only for a sum of Rs.25,00,000/- whereas the agreement with the Plaintiff was for a sum of Rs.53,00,000/-. In the circumstances the Plaintiff’s rights require to be protected. 5. The Notice of Motion is therefore, made absolute in terms of the prayer (b). The Plaintiff is at liberty to serve the copy of this Order on the Society. 6. Written Statement if any shall be filed on or before 3lst December, 2009 and the affidavit of documents to be filed within six weeks thereafter. Discovery and inspection forthwith thereafter. 7. Evidence shall be recorded on commission for which directions shall be sought at the time of framing of issues. The costs of the Commissioner shall be shared equally between the Plaintiff on the one hand and the Defendants on the other hand in the first instance. The same shall, however, be subject to final orders. 8. The suit to be on board on 22nd March, 2009 for framing issues.