JOAQUIM INACIO MANUEL DIAS Vs. MILAGRES FERNANDES

JUDGEMENT

(1.) HEARD Shri N. Sardessai, learned Counsel appearing for the Appellant, Shri M. P. Almeida, learned Counsel appearing for the Respondent nos. 1 to 3 and Shri Pangam, learned Counsel appearing for the Respondent no.4. The above Appeal challenges the Order passed by the learned Civil Judge, Senior Division, Vasco da Gama, whereby an application for temporary injunction filed by the Appellant came to be rejected.

(2.) BRIEFLY , the facts of the case are that the Appellant has filed a suit for specific performance of an Agreement in respect of the property surveyed under no. 55/5 and 56/1 of Velsao Village. It is the contention of the Appellant, that an Agreement for sale came to be executed in February, 2000, executed by the Power of Attorney holder of the Respondent nos. 1 and 2 in favour of the Appellant. It is further their case that they are entitled for specific performance and, consequently, filed the suit for specific performance. The Respondents have disputed the said Agreement and pointed out that no such Agreement was executed on behalf of Respondent nos. 1 and 2 nor that the Respondent no.4 was authorised to enter into such Agreement. It is further their case that the alleged consideration referred to in the Agreement has not been paid to the Respondent nos. 1 and 2 and that the said Respondents have no connection whatsoever with the Appellant. Pending disposal of the suit, the Appellant filed an application for temporary injunction to restrain the Respondent nos. 1 to 3 from creating any third party rights and from changing the nature of the suit property. The learned Judge whilst passing the impugned Judgment, has come to the conclusion that the Appellants have, prima facie, not established the Agreement executed in their favour. The learned Judge has further found that the alleged consideration referred to in the Agreement has not been established to have been paid to the Respondent nos. 1 and 2. The learned Judge further found that the alleged sale of the portion of the property agreed to be sold is itself vague and further doubted the authenticity and/or correctness of the said Agreement.

(3.) ON the other hand, Shri M. P. Almeida, learned Counsel appearing for the Respondent nos. 1 to 3, has supported the impugned Judgment and pointed out that the learned Judge has rightly appreciated the evidence on record and has come to the conclusion that there is no prima facie case in favour of the Appellants. Learned Counsel further pointed out that the Agreement itself is a doubtful transaction as no such Agreement was executed by the Respondent nos. 1 and 2 nor the Respondent no.4 was authorised to enter into any Agreement in favour of the Appellant. Learned Counsel further pointed out that the Agreement itself is vague and, as such, grant of specific performance of a vague description of the property does not arise at all. Learned Counsel further points out that any construction carried out by the Respondent no.3 during the pendency of the Suit shall be subject to the result of the Suit. Learned Counsel has taken me through the impugned Judgment and submits that the impugned order is a discretionary Order and no interference is called for by this Court.