1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1328 OF 2008 WITH CIVIL APPLICATION NO.1625 OF 2008 M/s.U.S.Roofs Limited ..Appellant V/s Feroz Bomansha Tarapoorwala & anr. ..Respondents Mr.S.C.Naidu i/b.M/s.M.Tripathi & Co., Advocate, for the appellant Mr.S.M.Oak i/b.Mr.Sagar Joshi, Advocate, for the respondent No.1 CORAM : R.M.SAVANT, J. DATE : 13TH MARCH, 2009 P.C. . The above appeal takes exception to the Order dated 4th December, 2008, passed by 4th Joint Civil Judge, Senior Division, Thane by which order the application Exh.5 for temporary injunction came to be rejected. The plaintiff has filed Special Civil Suit No.505 of 2006 for specific performance of the Memorandum of Understanding dated 15th January, 2003. The said Memorandum of 2 Understanding is in respect of a plot of land which the respondent No.1 herein was to be alloted under 12.5% Scheme of CIDCO restraining the defendant No.1 from creating third party interest in respect of the suit plot which is applicable to the land holders from whom the lands are acquired for the New Bombay Project. In the said suit, the plaintiff filed an application for temporary injunction restraining the defendant No.1 from creating third party interests in respect of the suit plot which has been rejected by the impugned order. 2. It is the case of the plaintiff that it has paid an amount of Rs.8,00,000/­ to the defendant in part performance. Prior to the Memorandum of Understanding dated 23rd January, 2003, there was Memorandum of Understanding executed between the same parties on 26th November, 1999. The plaintiff getting apprehensive of the fact that the defendant No.1 would enter into an Agreement with a 3rd party filed the said suit. As indicated above, the Trial Court by the impugned order has rejected the said application for temporary 3 injunction. 3. The Trial Court took into consideration the fact that the specific performance sought is of the Memorandum of Understanding dated 15th January, 2003 was sought. Significantly, a copy of the same was not filed along with the plaint nor produced at the hearing of the Exhibit 5 application. The same was not filed on record. The Trial Court also took into consideration the fact that subsequently on 7th February, 2004, the defendant No.1 had entered into the Memorandum of Understanding with one Mr. Bhupendra Shah to which the plaintiff was a confirming party and which fact was suppressed by the plaintiff. The said document dated 7th February, 2004 was produced in the Trial Court and marked as “Exhibit 39/1”. The Memorandum of Understanding dated 26th November, 1999 was in respect of half the plot of land to be alloted to the respondent No.1, by the respondent No.2 but the plaintiff has filed the suit for the entire area of 2250 Square meters. The instant suit is filed by the plaintiff after 7­8 years of the execution of the Memorandum of Understanding 4 dated 26th November, 1999. The Trial Court, in the said conspectus of facts came to a conclusion that the plaintiff has not made out a case for grant of the discretionary relief of temporary injunction. 4. Having considered the reasons cited by the Trial Court for refusing the grant of temporary injunction, in my view, the impugned order does not call for any interference in the above Appeal. The above Appeal from Order is accordingly dismissed. 5. In view of the dismissal of the Appeal from Order, Civil Application does not survive and the same is accordingly disposed of. 6. On the application of the learned counsel for the appellant, status­quo as regards development of the property or creating 3rd party rights is continued for a period of six weeks from date. (R.M.SAVANT, J.) 5