Mr. Nalin Virjee Shah vs Mr. Narayan Ramchandra Mhatre And ...
2002 Latest Caselaw 130 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. Admit The learned Counsel for the Respondents waive service. By consent taken up for hearing and final disposal.

2. In these proceedings, an order dated 29th September, 2001, passed by the learned 2nd Joint Civil Judge, Senior Division, Thane, is sought to be impugned, In a suit for specific performance which was filed by the Appellant, the learned Trial Judge has rejected an application for the grant of an interim injunction. In these circumstances, the ad-interim injunction which had been granted on 29th March, 2001 came to be vacated. In the proceedings before this Court, the earlier ad-interim order of the learned Trial Judge was extended by an order dated 28th November, 2001 and has since continued to hold the field during the pendency of the appeal.

3. A suit has been instituted by the Appellant for specific performance of an agreement to sell which was executed by and between the Appellant and the First Respondent on 11th October, 2000, Briefly stated, the averments in the Plaint are that the First Respondent was the absolute owner of agricultural lands situated at village Shahabad at Belapur in the area which now forms part of Navi Mumbai. The lands, it has been stated, were recorded in the name of the First Respondent since prior to the year 1970 as owner and as the person in possession thereof. The lands came to be acquired for the purposes of the new town of New Bombay by proceedings under the Land Acquisition Act, 1894, Notices for acquisition came to be issued under the Land Acquisition Act, 1894 to the First Respondent and awards were published by the Special Land Acquisition Officer in the name of the First Respondent. Compensation in respect of the acquired lands was paid to the First Respondent. According to the Plaint, the compensation was accepted by the First Respondent in his individual capacity without the intervention of the other members of his family. Respondent No. 2 is the wife of the First Respondent, while Respondent Nos. 3 to 9 comprise of his sons and a daughter. Respondent No. 10 is a firm of developers, while Respondent Nos. 11 and 12 are respectively CIDCO and the Municipal Corporation.

4. In pursuance of a policy of the Government of Maharashtra, CIDCO started allotting lands under what is known as the Gaothan Extension Scheme to those whose lands were acquired for the purposes of the new town and, it is common ground that the extent of allotment is equivalent to 12.5% of the lands which were acquired. The First Respondent who is the Original First Defendant in the suit, was in anticipation of the allotment of 1500 sq. mtrs. of land by CIDCO. Two agreements were entered into, the first dated 2nd July, 2000 and the second of 11th October, 2000. The suit for specific performance, it must be noted, is in respect of the second of the aforesaid agreements. The first agreement dated 2nd July, 2000 was entered into between the Appellant as the proposed purchaser, First Respondent and Respondent Nos. 3, 4, 5 and 7. The agreement records that the vendors have been cultivating various agricultural lands of their ancestral ownership and agricultural lands in the ownership and possession of the family had been acquired by the State Government for the New Bombay Project. In pursuance of the scheme of the State Government, CIDCO had issued a letter dated 26th June, 2000 in pursuance of which the process of granting plots was complete and within a period of a few days, a lease agreement was to be made with CIDCO. The agreement recites that the land to be allotted by CIDCO, admeasuring 1550 mtrs. was agreed to be sold to the Appellant at a consideration of Rs. 85 lakhs. There is no dispute about the fact that in pursuance of the aforesaid agreement, an amount of Rs. 50,000/- was initially paid by way of a cheque dated 2nd July, 2000 and an amount of Rs. 51.000/- in cash. The agreement stipulated the manner in which the balance of the consideration would be liable to be paid. Clause 5 of the agreement recites that a separate agreement would be made within a period of 15 days from obtaining the possession of the plot from CIDCO and under Clause 8, it was recited that a Power of Attorney would be entered into so as to enable the Appellant to develop the property.

5. The second agreement which was then entered into was after the CIDCO had issued on 4th October, 2000 a letter of allotment. The letter of allotment was issued in the name of the First Respondent, CIDCO in the letter of allotment has expressly stated that Plot No. 10 in Sector 14 at Vashi-Sanpada, admeasuring 1550 sq. mtrs. has been allotted to the First Respondent. The agreement which was entered into on 11th October, 2000 recites that the letter of allotment dated 4th October, 2000 has been received from CIDCO. Clause 1 of the agreement recites that a plot admeasuring 1550 sq. mtrs. is agreed to be sold to the Appellant at and for a consideration of Rs. 85 lakhs. An amount of Rs. 1.51 lakhs as already noted had been paid at the time of the execution of the earlier agreement of 2nd July, 2000 and that was agreed to be adjusted against the total consideration of Rs. 85 lakhs. Over and above the aforesaid amount of Rs. 1.51 lakhs, an additional amount of Rs. 1 lakh was paid at the time of the execution of the second agreement. Clause 4 of the agreement recites that within a period of 15 days of the obtaining of the possession of the plot, a separate agreement would be entered into between the parties in accordance with the agreed terms. The First Defendant stated that he would duly entrust the power of developing the plot to the Appellant and convey the property either in favour of the Appellant or to a Co-operative Housing Society that may be formed. By Clause 5, the First Respondent agreed that he would convey the title to the property in favour of the Appellant and if any of his kinsmen, heirs or descendants has any objection, he would ward off the same at his own cost.

6. Thereafter, on 26th February, 2001, CIDCO entered into an agree merit to lease with the First Respondent in respect of the said plot upon the payment of the premium. Under the terms of the agreements to lease, it is stipulated that within a period of 12 months the licensee would commence the construction of a building for residential use in accordance with the Development Control Regulations and complete construction within a period of 4 years. Under Clause 7, it was provided that upon certification of the Town Planning Officer that the building has been constructed in accordance with the terms of the licence, CIDCO would grant a lease in respect of the land and the building erected thereon for a period of 90 years on a yearly rent of Re. 1/-.

7. CIDCO granted possession on 26th February, 2001 to the First Respondent upon the execution of the agreement to lease. Upon the handing over of possession, the Appellant and the First Respondent had agreed to execute within a period of 15 days a separate agreement between them in accordance with the terms which were agreed. On 14th March, 2001, the First Respondent addressed a letter to the Appellant stating that the agreement which had been entered into by him had not been approved of by his sons. The notice then recites that the Appellant had not paid money to the First Respondent in accordance with the terms of the agreement though they had been demanded from time to time and in the circumstances, the agreement stood cancelled.

8. The Appellant disputes receipt of the notice of termination and the case of the Appellant is that no such notice was ever received. The case of the Appellant is that on 22nd March, 2001, he saw that some unauthorised persons had entered upon the suit plot for carrying out some filling work and that when he contacted the First Respondent, the First Respondent declined to perform the contract between the parties and stated that he has entered into a development agreement with the Tenth Respondent. Now it is common ground that a development agreement was entered into between the Tenth Respondent and Respondent Nos. 1 to 9 on 19th March, 2001. In these circumstances, a suit for specific performance came to be initiated before the Trial Court and an ad-interim order dated 29th March, 2001 was passed.

9. In the suit for specific performance which was instituted before the learned Civil Judge, Senior Division, Thane, being Special Civil Suit No. 125 of 2001, the Appellant prays that (a) the agreement dated 11th October, 2000 is valid, subsisting and binding upon all the Defendants; (b) that the First Defendant be decreed and ordered to effect specific performance of the agreement by selling, transferring and alienating his right, title or interest in respect of the plot in favour of the Appellant; (c) that the First Respondent be ordered and decreed to execute an irrevocable power of attorney and carry out all his obligations by delivering possession to the Appellant; (d) in the alternative, a decree for Rs. 1.27 crores be passed against Respondent Nos. 1 to 10 as damages for breach of contract; and (e) a declaration be issued that the agreement with Respondent No. 10 is null and void. A permanent injunction has also been prayed for against the private party Defendants as well as Defendant Nos. 11 and 12, who are respectively CIDCO and the Municipal Corporation.

10. An application for interm relief was made before the learned Trial Judge Inter alia praying for (a) an injunction against Respondent Nos. 1 to 10 from carrying on any development activities on the plot and from making any construction thereon or creating third party interests; (b) an order of injunction restraining CIDCO from permitting transfer of the plot to Respondent No. 10; and (c) an injunction restraining the Municipal Corporation from sanctioning the building plans submitted by Respondent Nos. 1 to 10.

11. As already noted earlier, an ad-interim order was passed on 29th March, 2001. Parties were thereafter heard by the learned Trial Judge and by an order dated 29th September, 2001, the learned Trial Judge has vacated the ad-interim order and dismissed the application for interim, relief.

12. In assailing the order which has been passed by the learned Trial Judge in the present case, the learned Counsel appearing on behalf of the Appellant submitted that the lands in the present case were of the absolute ownership of the First Respondent. In pursuance of the agreement which was entered into on 2nd July, 2000, an amount of Rs. 1.51 lakhs was paid over to the First Respondent and in pursuance of the subsequent agreement dated 11th October, 2000, a further payment of Rs. 1 lakh was made. The State Government had acquired the lands of the First Respondent, the original First Defendant, in the course of acquisition proceedings. The award for compensation was passed in favour of the First Respondent and compensation was in fact, paid to the First Respondent. The allotment of land by CIDCO in lieu of the lands which were acquired, was made in favour of the First Respondent. In fact, in an earlier suit for partition, being Special Civil Suit No. 123 of 1996 which was filed inter alia, by Respondent Nos. 2, 3, 5 and 6 to which the First Respondent, amongst others, was a party Defendant, the First Respondent filed a written statement expressly stating that the lands were of his absolute ownership and were not joint family property. In these circumstances, in pursuance of the agreement which was entered into on 11th October, 2000, valuable consideration has flowed to the First Respondent. CIDCO executed an agreement to lease on 26th February, 2001. Under the terms of the agreement dated 11th October, 2000, a period of 15 days was reserved by the parties for entering into a formal agreement which period would expire on 13th March, 2001. Prior thereto, there was no question of any further payment being made to the First Respondent over and above the payment which had been made. There was in fact, no valid termination of the agreement since according to the Appellant, the alleged notice of termination dated 14th March, 2001 has never been received. But the contents of the purported notice of termination would demonstrate that the contention therein of the First Respondent that the agreement was terminated on the ground that his sons had not agreed thereto and that payment had not been made in pursuance of the agreement was palpably false and unfounded. In these circumstances, the learned Counsel submitted that :

(i) In the present case, there was a valid agreement of sale-cum-development between the Appellant and the First Respondent in respect of the property which belongs exclusively to the First Respondent;

(ii) The agreement to sell was capable of specific performance since it identified both the plot as well as the price payable in respect thereof;

(iii) The fact that parties contemplated that a conveyance document should be executed in future does not detract from the enforceability of the agreement to sell;

(iv) That time was never the essence of the contract in the present case and there is a presumption in respect of an agreement to sell of immovable property that time is not the essence of the contract;

(v) The First Respondent was duly authorised to enter into the agreement since allotment by CIDCO has been made in his favour. The acquired lands stood in the name of the First Respondent; the acquisition of land was made from the First Respondent; compensation was paid to him; an application for allotment has been made by the First Respondent in his individual capacity and the allotment of land was made to him;

(vi) In any event, even if it was the case of Respondent that the lands in question were lands which belong to the joint family, the First Respondent as a Karta of the family, was entitled to alienate the lands and the remedy of the other members of the family if they are aggrieved, must lie in a suit for setting aside the alienation;

(vii) The Appellant at all times was ready and willing to perform his part of the contract. There was absolutely no default on the part of the Appellant;

(viii) The cause of action arose when the Appellant saw certain activities by third parties. The alleged agreement between Respondent Nos. 1 to 9 and Respondent No. 10 for development of the property took place on 19th March, 2001 and the suit was filed immediately thereafter on 28th March, 2001;

(ix) The agreement which was entered into between Respondent Nos. 1 to 9 and Respondent No. 10 took place despite public notices which were issued by the Appellant, these public notices having been published in the local newspapers on 11th November, 2000. The Tenth Respondent was, therefore, not a bona fide purchaser for value without notice. The learned Counsel appearing on behalf of the Appellant has relied upon three judgments of the Supreme Court to support his propositions ; Yudhister v. Ashok Kumar in support of the proposition that the properties which were acquired by the First Respondent from his father were not joint family properties in his hand but the properties were of his sole and exclusive ownership under Section 8 of the Hindu Succession Act, 1956; (ii) Kollipara Sriramulu (dead) by L.R. v. T. Aswatha in support of the proposition that since the essential terms relating to the price and the property were contained in the agreement dated 11th October, 2000, the mere fact that a subsequent formal agreement was to be executed between the parties did not detract from the enforceability of the agreement which was already entered into and (iii) Godind Prasad Chaturvedl v. Hari Dutt Shasta AIR 1977 SC 1005 : 1977 (2) S.C.R. 877 : 1977(2) SCC 539 in support of the proposition that time is not the essence of the contract in relation to an agreement to sell of immovable property unless parties by their conduct or by express words have made it an essential term of the contract.

13. The learned Counsel appearing on behalf of Respondent Nos. 2, 6, 8 and 9 has, however, opposed to the grant of any relief to the Appellant by submitting that the aforesaid Respondents are not signatories to any of the two agreements. The learned Counsel drew the attention of the Court to the prayers in the suit for specific performance and submitted that the First Respondent has no right of ownership since at present what has been granted in his favour by CIDCO was an agreement to lease together with possession of the land and it is only CIDCO which can transfer the rights in favour of the First Respondent or for that matter any other assignee of the First Respondent. In these circumstances, it was urged that the First Respondent is only a licensee from CIDCO. The third submission which was urged was that under the agreement dated 11th October, 2000 only development rights were conferred upon the Appellant and it is a well settled principle of law that a development agreement is not capable of specific performance. The learned Counsel then submitted that the recitals of the agreement dated 11th October, 2000 show that there were other co-sharers in the property and this would also emerge from Clause 5 of the letter of allotment of CIDCO. In these circumstances, it was urged that in view of the fact that Respondent Nos. 2 to 9 are other co-sharer who have interest in the property but who are not signatories to the agreement dated 11th October, 2000, a decree for specific performance cannot be passed. The learned Counsel appearing on behalf of the aforesaid Respondents has also relied upon a judgment of a Division Bench of this Court in H.S. Khan v. Homi J. Mukadam .

14. On behalf of Respondent Nos. 3, 4, 5 and 7, it has been sought to be urged by the learned Counsel that while his clients were parties to the earlier agreement dated 2nd July, 2000, they were not parties to the subsequent agreement dated 11th October, 2000. Since the appellant has accepted the interest of Respondent Nos. 3, 4, 5 and 7 by executing the earlier agreement, he is estopped from denying any fact to the contrary by contending that those Respondents were not required to be parties to the subsequent agreement.

15. Finally it must be recorded that the learned Counsel appearing on behalf of the Tenth Respondent has stated that a development agreement has been entered into with Respondent No. 10 on 19th October, 2001 in pursuance of which an amount of Rs. 27 lakhs has been paid to the vendor together with an assurance of a built up area in the building comprising of 2500 sq. mtrs.

16. In dealing with the submissions which have been urged on behalf of the contesting parties before the Court, it would be necessary for the Court to consider at the outset, whether a prima facie case for the grant of interim relief has been made out. The execution of the agreements dated 2nd July, 2000 and of 11th October, 2000 is not disputed. The receipt of consideration in the amount of Rs. 1 lakh under the first agreement and of Rs. 1.51 lakhs under the second agreement is again not disputed (According to the Appellant, a further amount of Rs. 25.000/- was also paid in cash). Neither of the parties before the Court dispute either the execution of the agreement or the receipt of the consideration. Two agreements have been placed before the Court for consideration - the first agreement, being an agreement dated 2nd July, 2000 which was entered into between the Appellant and Respondent Nos. 1, 3, 4, 5 and 7 and the second agreement dated 11th October, 2000 which was entered into between the Appellant and Respondent No. 1 alone. The suit for specific performance has been filed in respect of the second agreement and this fact would have to be duly taken into account.

17. The fact of the case would show that the first agreement to sell was entered into on the basis of a letter which had been issued by CIDCO on 26th June, 2000. By the time the second agreement came to be executed, CIDCO had issued a letter of allotment dated 4th October, 2000. In its letter of allotment, CIDCO had stipulated the plot which had been allotted. The procedure which is followed by CIDCO is to issue, initially, a letter of allotment which is thereafter followed by an agreement to lease. Under the agreement to lease, the allottee is granted a licence to enter upon the plot and is duly authorised to commence construction activities. The letter of allotment stipulates that construction activities have to be commenced within a stipulated period and have to be completed within the period prescribed thereafter. Upon due certification that the building has been constructed in accordance with the building plan and applicable rules and regulations, CIDCO then conveys the land under a lease deed for a period of 90 years. The rights of the licensee or as the case may be, the lessee are undoubtedly transferable and there is no dispute about this. Under the Gaothan Extension Scheme, alternative land is allotted to the erstwhile land owner whose lands have been acquired and the extent of the allotment is 12.5% of the land holding. The lands which are allotted by CIDCO are part generally of the developed township of New Bombay and as the present case would show, the allotted plots are required to be put to a specified user, in this case, a residential user. The whole scheme of CIDCO pre-supposes that the allottee is to utilize the land for the construction of a residential building and the flats which would be constructed, would be alienated to purchasers of flats. The allottee is given the licence to enter upon the land to construct a building thereon and after construction is complete, CIDCO executes a deed of lease in favour of the allottee or as the case may be, a Co-operative Housing Society formed by the flat purchasers.

18. In the present case, CIDCO is a party defendant before the Trial Court and the attention of the Court has been drawn to the purshis filed on behalf of CIDCO in which it has been stated that the authority has executed an agreement to lease on 26th February, 2001. CIDCO has stated in its purshis that it will be able to further transfer the plot in the event of its requirements being duly complied with. CIDCO has stated that the litigation is actually between the Appellant on the one hand and Defendant Nos. 1 to 8 and that Defendant No. 11 is also involved. CIDCO has stated that it would abide by the order in the case. It is necessary to advert to the position that CIDCO has adopted in this case in view of the contention urged on behalf of some of the Respondents by their Counsel that the suit for specific performance must fail because until CIDCO agrees to transfer the allotment in favour of the assignee of the original allottee, there could be no question of any decree for specific performance being executed. Moreover, it was urged that the First Respondent is only a licensee under the agreement of lease executed by CIDCO. CIDCO, it must be noted, has expressly stated before the Court that it is in a position to transfer the property subject to due compliance with its requirements. Moreover, the entire nature of the allotment by CIDCO would show that the position of the First Respondent is not that of a bare licensee, but a licensee to whom possession has been handed over coupled with an authority to construct a permanent structure viz., a building which would be put to residential use. CIDCO then binds itself to executing a lease document in favour of the allottee after a building is duly constructed or, where a Co-operative Housing Society is formed of flat purchasers, to the Society itself.

19. At the prima facie stage of the matter, the question as to whether the First Respondent did or did not have any authority to enter into the agreement may be considered from either of two perspectives - that which is urged on behalf of the Appellant-Plaintiff as well as the perspective of Respondent No. 1 and of Respondent Nos. 2 to 9 who constitute the family of the First Respondent. The Appellant contends that the original, land which was acquired, stood in the name of the First Respondent at least since the year 1970; the acquisition proceedings which took place were on the basis that the First Respondent was the owner of the land; the First Respondent received the compensation payable from the State and it was the First Respondent who applied for the allotment of the land to him in an individual capacity. In fact, in the partition suit which was filed, inter alia, by Defendant Nos. 2, 3, 5 and 6 being Special Civil Suit No. 123 of 1996, the First Respondent herein, who was the First Defendant thereto, sought to assert that the property in question was his own and belonged to him exclusively. According to the Appellant the properties in question which belonged earlier to the father of the First Respondent cannot in his hands be treated or regarded as joint family property. Reliance is placed on behalf of the Appellant on the judgment of the Supreme Court in Yudhister v. Ashok Kumar in which Mr. Justice Sabyasachi Mukharji (as the learned Chief Justice then was), speaking for a Bench of two learned Judges of the Supreme Court held thus :

10. This question has been considered by this Court in Commr. of Wealth Tax, Kanpur v. Chander Sen where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and becomes part of the co-parcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally therefore, whenever the father gets a property from whatever source from the grandfather or from any other source, be it separate property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity.... In that view of the matter it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a-vis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grand father could not be said to be HUF property.

20. On the other hand, the First Respondent in his affidavit in reply before the Trial Court contends that all landed properties of the family were ancestral properties and all co-shares have shares in those properties. The father of the First Respondent expired in 1945 and according to the First Respondent, Defendant No. 2 as well as Defendant Nos. 3 to 9 have acquired shares by succession in the properties of the late grandfather. Original Defendant Nos. 2, 6, 8 and 9 have stated in paragraph 3 of their reply before the Trial Court that Defendant Nos. 1 to 9 constitute a Hindu undivided family and the First Respondent, was acting as the Karta of the said family. In these circumstances, on behalf of the Appellant, it has been submitted that even if at the interim stage, the hypothesis of the Respondents is accepted, the alienation which took place was by the Karta of the family and the remedy of the other co-sharers if they are aggrieved by the alienation shall be to file a suit for setting aside the alienation. The question as to whether the alienation is valid would raise a triable issue and the Appellant cannot virtually be non-suited by declining an interim injunction. The agreement to sell which was entered into by the First Respondent on 11th October, 2000 would not, be void but would continue to be valid unless it was voided in a duly constituted proceeding filed by the other co-shares.

21. In my view, the question as to whether the First Respondent was authorised to enter into the agreement dated 11th October, 2000 raises a serious triable issue which would have to be adjudicated upon at the trial of the suit. Having regard to the factual background of this case, the issue cannot be disposed of merely on a priori basis that some of the alleged co-shares are not parties to the original agreement. If the First Respondent is an absolute owner of the property, then clearly he had an authority to deal with the property. If the First Defendant was a Karta of the Hindu undivided family, then the agreement which was entered into by him would have to be dealt with on the basis of the well known tests laid down by the law in that regard.

22. Essentially the dispute in the present case is now between two sets of developers - the Appellant who claims under an agreement to sell-cum-development and the Tenth Respondent who claims under a development agreement. Insofar as the vendors of the Tenth Respondent are concerned, their submission with regard to the nature of the relationship with CIDCO cannot be given an overbearing importance in view of the fact that insofar as they are concerned, they have themselves alienated the very property in favour of the Tenth Respondent. The agreement for development in favour of the Tenth Respondent is subsequent in point of time to the agreement entered into with the Appellant on 11th October, 2000. The Appellant had issued a public notice in respect of his agreement dated 11th October 2000 which was published in the newspapers in the local area and prima facie it cannot be said that the Tenth Respondent who is a builder, is a person who has in the facts of this case furnished value to Respondent Nos. 1 to 9 without notice.

23. This is, therefore, prima facie, a case where in pursuance of the agreement which was entered into with the Appellant consideration has flowed. The execution of the agreement and the receipt of consideration is not denied. The alleged notice of termination is seriously disputed by the Appellant. The grounds which were advanced in the said notice display prima facie a complete lack of bona fides on the part of the First Respondent. The First Respondent purports to contend therein that the Appellant had not paid the money due under the agreement when as a matter of fact, the execution of a further agreement was to take place 15 days after the handing over of possession by CIDCO. CIDCO having handed over possession on 26th February, 2001, the period of 15 days for the execution of a formal agreement was to come to an end on 13th March, 2001. On 14th March, 2001, the First Respondent has purported to terminate the agreement. The agreement with the Tenth Respondent took place barely a few days later on 19th March, 2001. The entire sequence of events would show that prima facie an attempt has been made by the First Respondent to resile from the agreement which was entered into with the Appellant.

24. In these circumstances, in my view, a prima facie case has been made out for the grant of interim relief to the Appellant. Serious triable issues arise in the suit. The balance of convenience is in favour of the Appellant. The Tenth Respondent who has a development agreement with Respondent Nos. 1 to 9 is not a purchaser for value without notice and his rights are subordinate to those which have accrued to the Appellant under the agreement to sell dated 11th October, 2000. However, I am of the view that in granting the injunction as prayed for to the Appellant, the Appellant must be put to terms by requiring him to deposit before the Trial Court the balance of the consideration payable under the agreement dated 11th October 2000. The Appellant shall do so within a period of four weeks from today, failing which the order of injunction which I propose to pass will stand vacated.

25. Before concluding the order, it would be necessary to record that during the course of the hearing of this Appeal from Order and upon perusing the order of the Trial Court in the present case, I was of the view, prima facie, that the impugned order left much to be desired and that without going into the merits of the case, the matter may be remanded back to the Trial Court for reconsideration. The learned Counsel appearing on behalf of the Appellant was agreeable to the suggestion of the Court. Shri Y.S. Jahagirdar, the learned Senior Counsel appearing on behalf of Defendant Nos. 2, 6, 8 and 9 also fairly stated that since this Court upon perusing the impugned order was of the view that the matter should be remanded back to the Trial Court, he would in these circumstances, leave the matter to the Court. The learned Counsel appearing for the other Respondents, however, vehemently opposed the matter being remanded for reconsideration. In these circumstances, with the consent of the learned Counsel, the Appeal from Order has been argued finally on merits and is being disposed of by this order. In these circumstances, the Appeal from Order is allowed in the following terms:

(1) During the pendency of the suit before the learned Civil Judge, Senior Division, Thane, there shall be an injunction as prayed for in terms of prayer Clauses (a) and (b) of the application before the Trial Court, which read as follows :

(a) Pending the hearing and final disposal of the present suit the Defendant Nos. 1 to 10, their agents, servants or any one claiming through or under them, may be restrained by an appropriate order of temporary injunction, restraining them, from carrying out any development activities in or upon the suit plot and/or constructing any structure/s, building/s thereon, carrying out the filling work, etc. and further be restrained from creating any third party interest in that regard;

(b) Pending the hearing and final disposal of the present suit the Defendant No. 11 be restrained by temporary injunction from permitting transfer of the suit plot by the Defendant No. 1 to Defendant No. 10 or to anyone else and/or from executing any deed of transfer in favour of defendant No. 10 or any third person;

(2) The grant of interim relief shall be subject to the condition that the Appellant shall deposit before the Trial Court the balance amount which is due and payable under the agreement dated 11th October, 2000 within a period of four weeks from the date of this order, failing which the order of injunction shall stand vacated without further reference to this Court.

(3) Upon deposit, the amount shall be invested in a fixed deposit of a Nationalised Bank initially for a period of one year.

(4) The hearing of the suit before the Trial Court is expedited. The Trial Court is requested to endeavour to dispose of the suit by the end of the year 2002.

The Appeal from order is accordingly allowed in these terms.

Parties to act on a copy of this order duly authenticated by the Sheristedar/P.S. of this Court.

Certified copy expedited.