Allowed

Sachin Pandurang Marathe v. Ajitkumar Vasantrao Patil

Bombay HC23 Jan 2014AO/184/2011

Case brief

AI extract

What is this about?

This High Court appeal quashed an injunction rejection order in a specific performance suit. The court held that since a prima facie case existed, the balance of convenience favored the plaintiff, and third-party interests would cause irreparable loss by complicating the suit.

What did the court decide?

The impugned order is set aside. The respondent is restrained from alienating or creating any third party interest in the suit property during the pendency of the suit.

Sachin Pandurang Marathe Vs Ajitkumar Vasantrao Patil — Specific Performance | Bombay HC (2014)

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Appeal from Order No.184/2011

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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APPEAL FROM ORDER NO.184 OF 2011 WITH CIVIL APPLICATION NO.12789 OF 2011

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Shri Sachin Pandurang Marathe, Age 29 years, Occ. Business, R/o 5, Shekhar Nagar Niwas, Sudarshan Colony, Khedi (Bk.), Jalgaon, Tal. & District Jalgaon

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... APPELLANT (Original Plaintiff)

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VERSUS

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Shri Ajitkumar Vasantrao Patil, Age major, Occ. Business, R/o Gat No.53, Plot No.37, Shiv Colony, Jalgaon, Tal. & District Jalgaon

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... RESPONDENT (Original Defendant)

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Shri S.B. Yawalkar, Advocate for appellant Shri V.B. Anjanwatikar, Advocate holding for Shri V.D. Hon, Advocate for respondent

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CORAM: A.I.S. CHEEMA, J. DATED: 23rd January, 2014.

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ORAL JUDGMENT :

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Admit . Taken up for final hearing at the stage of admission with the consent of learned counsel for the parties.

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Appeal from Order No.184/2011

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The appellant (original plaintiff) has carried this appeal against the order passed below Exhibit 6 in Special Civil Suit No.121/2011 by 5th Joint Civil Judge, Senior Division, Jalgaon. The plaintiff filed the suit for specific performance of contract and filed application Exhibit 6 for temporary injunction to restrain the defendant from alienating, transferring or creating third party interest in the suit property till the disposal of the suit. The trial Court heard both the sides and although trial Court found that there was prima facie case in favour of plaintiff, it was held that the balance of convenience is not in favour of the plaintiff and plaintiff is not likely to suffer irreparable loss if injunction is not granted.

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Considering the application, injunction was rejected, however, the defendant was directed to give undertaking that no equities would be claimed on account of sale, development of property effecting sale only after putting transferees to notice that their rights would be subject to the present suit.

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Learned counsel for the appellant is submitting

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Appeal from Order No.184/2011

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that if the defendant sells or creates any third party interest, he would suffer.

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Learned counsel for the respondent is submitting that, the trial Court has observed that there was nothing to show from the side of the plaintiff that defendant is alienating the suit property. According to counsel for respondent-defendant, no third party interest has been created and undertaking as directed by the Court has already been given.

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The point for consideration in this appeal is:-

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"Whether the impugned order is maintainable ?"

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I have gone through the matter and having heard learned counsel for both sides. The dispute is regarding agreement of sale. Plaintiff is claiming that there was agreement of sale and the defendant is claiming that it is a money lending transaction. Defendant has disputed that there was any such agreement of sale. The trial Court found that prima facie case was made out in respect of existence of document of agreement of sale, but the Court

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Appeal from Order No.184/2011

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has still not granted injunction in favour of the plaintiff. There is no reason why the property should not be protected and saved from creation of third party interest. The defendant has given undertaking mentioning that if the defendant sells, he would inform the transferee regarding the present matter. Learned counsel for the respondent is submitting that the respondent/ defendant has no intention to sell or create third party interest in respect of the suit property and even if it is done, the transferee would be informed. I find that, when prima facie case is made out, it should have weighed with the trial Court that third party interest would create difficulties and complications. When such third party interests are created, opposite party in the suit is hardly in a position to know, till it is too late.

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It is held that, balance of convenience is in favour of plaintiff. Plaintiff will suffer irreparable loss if third party rights get created. The plaintiff is entitled to injunction as prayed.

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In the result, the appeal is allowed. The impugned order is set aside. The respondent/ original defendant is restrained from alienating or creating any

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Appeal from Order No.184/2011

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third party interest in whatsoever manner in the suit property during the pendency of the suit.

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The observations made in this judgment shall not weigh with the trial Court while deciding the suit. Hearing of Special Civil Suit No.121/2011 is expedited.

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This Appeal is thus disposed. No order as to costs. In view of disposal of the Appeal from Order, Civil Application No.12789/2011 is disposed of as not surviving.

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(A.I.S. CHEEMA, J.)

Sachin Pandurang Marathe v. Ajitkumar Vasantrao Patil

Case brief

What is this about?

What did the court decide?

Sachin Pandurang Marathe v. Ajitkumar Vasantrao Patil

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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