RASHMIKANT CHOTALAL SHAH Vs. NARENDRA AMRITLAL SHETH

JUDGEMENT

(1.) THE present suit is filed for specific performance of an agreement dated 12.6.1974. It is the case of the plaintiffs that under the said agreement for sale the plaintiffs had paid full amount through the firm known as Samir Steels. The payments are set out in para-15 of the plaint. The defendant No.1 & 2 are the original owner of the property and have tendered an affidavit dated 27.10.2005 in para-5 thereof they have admitted the receipt of the said amount but it has been contended that the same were not in respect of the suit agreement but in respect of some other transaction with M/s. Samir Steels.

(2.) THE defendant No.4, 5 and 6 have opposed the present application. The defendant No.6 is a builder who has purchased the property under the development agreement dated 8.7.2004 from the defendant No.1 and 2 and defendant No.4 and 5. The defendant No.6 contends that the plaintiff is not entitled to any ad-interim relief in the present suit for the following reasons.

(3.) I am of the opinion that if the plaintiffs case is correct which prima facie I believe to be then then the entire consideration is paid by the plaintiffs and thus they are entitled to protection of their rights. The question whether the payment are inrespect of the suit transactions or inrsepect of some other transactions with Samir Steels as alleged by the defendant No.1 and 2 has to be gone into at the hearing of the notice of motion. Prima-facie it is suffice to state that though defendant No.1 and 2 has filed their affidavit dated 27.10.2005 contending that the payment is inrespect of some other transaction which has been with Samir Steels, no details of such other transaction has been put forward. M/s. Samir Steels is a partnership firm in which the defendant No.3 who is the brother of the plaintiff No.1 and 2 is admittedly the partner in respect of the suit property.