Kambli 1 APP No.1168.10 & 52.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION O.O.C.J. APPEAL NO.1168 OF 2010 IN NOTICE OF MOTION NO.319 OF 2010 IN SUIT NO.2292 OF 2009 ... M/s.Maruti Vikas Enterprises ...Appellant v/s. Shri Jitendra Narayanbhai Patel alias Pokar & Anr. ...Respondents WITH APPEAL NO.52 OF 2011 IN NOTICE OF MOTION NO.2842 OF 2009 IN SUIT NO.172 OF 2009 ... M/s.Deep Construction Co. ...Appellant v/s. Jitendra Narayanbhai Patel ...Respondent ... Mr.Jawahar J. Thakkar for the Appellant in Appeal No. 1168/10. Mr.D.D.Madon, Sr.Counsel i/b Ajay Law Associated for Respondent No.2 in WP No.1168/10 & Appellant in Appeal No.52 of 2011. Mr.Rohit Kapadia, Sr.Counsel with Mr.G.S.Godbole i/b Diwakar, Dwivedi for Respondent No.1. Kambli 2 APP No.1168.10 & 52.11 ... CORAM: D.K.Deshmukh & K.K.TATED, JJ DATED: 21st February,2011 P.C.: 1. Both these Appeals can be conveniently disposed of by a common order, because both the Appeals relate to the same property. 2. So far as Appeal No.1168 of 2010 is concerned, after having heard the learned Counsel for both sides and after having gone through the record and after having perused the judgments relied on by the learned Counsel for the Appellants, specially the judgment of the Division Bench in the case of Chheda Housing Development Corporation Vs. Bibijan Shaikh Farid, 2007(2) Bom.C.R., 587, in our opinion, no exception can be taken to the finding recorded by the learned single Judge that the agreement in favour of the Plaintiff was an agreement to develop the property and not the agreement to sell. In our opinion, therefore, no fault can Kambli 3 APP No.1168.10 & 52.11 be found with the order of the learned single Judge declining to grant any interim order in favour of the Appellant. 3. So far as Appeal No.52 of 2011 is concerned, perusal of the agreement which is subject matter of that Appeal shows that it it is only on payment of Rs.1.56 crores within a period of one month that an agreement for sale was to come into existence. In our opinion, therefore, the learned single Judge is right in observing that no case is made out for grant of any interim relief in favour of the Plaintiff, because admittedly the amount of Rs.1.56 crores has not been paid. 4. We find from the impugned order that the learned Judge has observed in his order, which is impugned in Appeal No.1168 of 2010 that the Defendant No.1 who is the owner, can carry on development. The learned Counsel appearing for the Defendant No.1 has clarified that the order does not amount to licence to the Defendant No.1 to develop the property. All that is said by the learned single Judge is that the owner may develop the property, if he is otherwise entitled to Kambli 4 APP No.1168.10 & 52.11 develop the same in accordance with law. The learned Counsel appearing for the Defendant No.1 has made a statement that if he develops the property and creates third party right, the persons in whose favour the third party rights are created will be informed in writing that the creation of third party rights in their favour is subject to the result of both the suits and that no equities can be claimed on the basis of the development that the owner carries on and creation of rights during the pendency of these suits. 5. In our opinion, this statement protects the interest of the Plaintiffs in both the suits. Both Appeals disposed of. The order of status quo which is admittedly operating till today shall continue to operate for a period of four weeks from today. (D.K.DESHMUKH, J.) (K.K.TATED, J.)