GAURANGBHAI MAHENDRABHAI SHAH CHAIRMAN Vs. DINESHKUMAR NARANDAS PATEL

JUDGEMENT

(1.) PRESENT Appeal from Order is arising out of the order below Exh.5 dated 05.05.2008 passed by the learned 6th Additional Senior Civil Judge, Gandhinagar in Special Civil Suit No.182 of 2007 by which the learned trial Court has allowed the application Exh.5 restraining the appellants original defendants from transferring, alienating in any manner whatsoever and putting up any construction on the land of Survey No.169/2/1, 170/1/1 and 170/2/1 situated at Village - Motera, Taluka, District Gandhiangar till disposal of the Special Civil Suit No.182 of 2007.

(2.) THE appellants are the original defendants Nos.1,3,6(A),6(C),6(D) and 6(I). Opponent No.1 is the original plaintiff and other opponents are original defendants Nos. 2 to 5(E). Opponent No.1 original plaintiff filed Special Civil Suit No.182 of 2007 in the Court of learned Principal Senior Civil Judge, Gandhinagar against the defendants for specific performance of Banakath / agreement to sale dated 16.12.2006 and for permanent injunction. In the said suit, the plaintiffs submitted application below Exh.5 for interim injunction restraining the defendants and their servants from transferring, alienating and putting up any construction on the disputed lands in question. The learned trial Court by order dated 05.05.2008 has allowed the application Exh.5 and granted interim injunction as prayed for. Being aggrieved and dissatisfied with the order passed below Exh.5, the appellants herein some of the defendants have preferred present Appeal from Order.

(3.) MR .Chetan Pandya, learned Advocate appearing on behalf of the appellants has vehemently submitted that in the facts and circumstances of the case, the learned trial Court has committed an error in allowing the application Exh.5. It is submitted that some of the conditions of the agreement to sale were not complied with. Such as payment of fees to the advocates / solicitors etc. The agreement to sale was already terminated. It is submitted that the learned trial Court has failed to appreciate terms and conditions of agreement to sale dated 16.12.2006 more particularly, time was essence of the agreement. It is submitted that plaintiff was to make payment of 55% of sale consideration within 15 days of the title clearance certificate and also agreed that said condition would be complied with. On failure to comply such condition Shalin (Motera) Co -opeartive Housing Society Limited was entitled to terminate agreement and having not complied with such condition and not depositing 55% of the sale consideration within stipulated time, agreement was terminated and therefore, the learned trial Court has committed an error in allowing the application Exh.5. Alternatively it is submitted that even the learned trial Court ought to have passed an order directing the plaintiff to deposit balance amount of sale consideration to show his bona -fide as it is the case of the plaintiff in the suit that he was always ready and willing to perform his part of contract. By making above submissions, it is requested to allow the present Appeal from Order.