ORBIT PROJECTS PVT. LTD Vs. ALANKAR FINANCIAL SERVICES

JUDGEMENT

(1.) BY consent of parties the appeal and the application are taken up together. This appeal is directed against the order No. 8 dated 13.8.2008 passed by learned Civil Judge, 1st Court, (Senior Division) at Alipore in T.S. No. 40 of 2008 rejecting thereby the petition for temporary injunction. A separate application being CAN No. 7923 of 2008 has been filed praying for stay of operation of impugned order and issuance of an order of injunction restraining the respondent/defendant from dealing with the property and/or disposing of the suit property to any third party till the disposal of the suit pending before the learned Court below.

(2.) (a) The plaintiff instituted the suit for specific performance of the agreement dated December 15, 2006 as varied upon and mentioned in paragraphs 9 to 12 of the plaint. The case of the plaintiff/appellant, in short, is that the defendants are the owners of the property prescribed in Schedule 'A'. The defendant No. 1 is the owner to the extent of undivided 85% and the defendant No. 2 is the owner of undivided 15%. There was an agreement between the parties to develop the suit premises on the following terms and conditions :-

(3.) THE learned Court below upon hearing the parties dismissed the petition for temporary injunction holding that there was no concluded contract between the parties. It has further been held that the plaintiff failed to establish a prima facie case by showing the existence of an agreement for sale which could be specifically enforced. The learned Judge of the Court below further held that from annexure 'B' it could be said that at best there was some pre- agreement correspondence amongst the parties.