PURNIMAKUMARI DHARMENDRA JAIN Vs. J. GALA BUILDERS

JUDGEMENT

(1.) Appeal from Order by the Appellants-original Plaintiffs, as the learned Judge by impugned order dated 23 July 2013, dismissed the Notice of Motion pending the Suit filed by the Appellants, whereby the declaration is sought that agreement of sale dated 31 December 2007 in respect of the suit property is valid, subsisting and binding and also prayed that the termination letter dated 3.9.2010 is bad in law and be set aside. A prayer is made therefore to perform statutory obligation under the Maharashtra Ownership Flats (Regulation of Promotion of Construction, Sale Management and Transfer) Act, 1963 (MOFA Act) based upon the agreement.

(2.) The Appellants filed the Suit on 1.12.2012 for interim protection. The learned Judge, however, not granted any ad-interim relief. By this impugned order, even the motion of the Plaintiffs is dismissed of. There is no serious dispute with regard to the execution of the agreement between the parties. The price, property, and the parties as required for any agreement of such nature are also not in dispute. The termination of the contract from year 2010 is also not in dispute. The Appellants-Plaintiffs therefore fully aware of the effect of the termination of the contract, the Defendant-Respondent even forwarded the amount by a cheque along with the termination letter. The amount encashed or not is not relevant. For the purpose of deciding the present Appeal from Order, necessary element is the conduct of the parties apart from delay in invoking the court's jurisdiction for an interim protection on the foundation of a prima facie case, the balance of convenience, and an irreparable injury.

(3.) Admittedly, on 18.8.2012, by a registered agreement, Respondent No.1, sold the suit property/flat to Respondent Nos.5 to 7 for consideration. The Deed of Confirmation was registered on 23.8.2012. Thereafter, the Appellants issued Advocate's notice and challenged the action of termination of the contract.