Sandeep V. Marne JUDGMENT
Sandeep V. Marne, J.
1. This Appeal is filed challenging Order dated 16 January 2020 passed by the Civil Judge Senior Division, Pune rejecting application filed by Appellants/Plaintiffs for grant of temporary injunction. Appellants/Plaintiffs have instituted Special Civil Suit No. 875 of 2018 seeking specific performance of Agreement for Sale, possession of suit property as well as challenging Deed of Assignment dated 16 May 2018 executed by Defendant Nos. 1 to 3 in favour of Defendant No. 4 to 6. Plaintiffs have also prayed for alternate relief of refund of consideration of amount of Rs. 1,73,00,000/-along with interest and compensation. It is Plaintiffs' case that late Ashok Vasudeo Joshi, Defendant No. 1-Aparna Ashok Joshi and Defendant No. 2-Amit Ashok Joshi executed an Agreement for Sale dated 7 July 2017 in their favour by which they agreed to sale Flat Nos. 2, 4, 6 and Shop No. 7 for consideration of Rs. 1,73,00,000/-. That the entire amount of consideration of Rs. 1,73,00,000/-was already paid to them in the year 2013 itself. Instead of executing a Sale Deed in pursuance of that agreement, Defendant Nos. 1 to 3 sold Flat No. 6 and Shop No. 7 in favour of Defendant Nos. 4 to 6. In the Suit, Plaintiffs filed application for temporary injunction to restrain Defendant Nos. 1 to 3 from creating third party rights in respect of Flat Nos. 2 & 4 as well as to restrain Defendant Nos. 4 to 6 from creating third party rights in respect of Flat No. 6 and Shop No. 7. The Trial Court has proceeded to reject the application by impugned order dated 16 January 2020.
2. I have heard Mr. Patil, the learned counsel appearing for Appellants. He would submit that the Trial Court has erroneously arrived at a conclusion that Plaintiffs did not place on record any documentary evidence in respect of payment of amount of Rs. 1,73,00,000/-. He would invite my attention to the agreement, which refers to cheque numbers in respect of various amounts totaling Rs. 1,73,00,000/-. He would also invite my attention to the bank statement to show that the said cheques have been encashed and the amounts are transferred in the accounts of the Defendant Nos. 1 to 3. He would submit that since the entire amount of consideration is already paid to Defendant Nos. 1 to 3, the minimum relief that Plaintiffs could expect from the Trial Court was an order of temporary injunction to restrain both the sets of Defendants from creating third party rights in respect of their respective flats. He would submit that though the injunction was refused on 16 January 2020, this Court has granted ad-interim relief in terms of prayer clause (b) in Interim Application No. 3463 of 2020, by virtue of which the Defendants are restrained from creating any third-party rights and/or parting with possession of the suit property. He would submit that since the interim order is operational since 26 April 2022, the same is required to be continued till final disposal of the suit.
3. The Appeal is opposed by Mr. Panchpor, the learned counsel appearing for Respondent Nos. 1 to 3. He would produce copy of application filed by the Plaintiffs before the Trial Court for amendment of the plaint. He would submit that after rejection of application for temporary injunction by recording a finding that Plaintiffs could not prove evidence of actual payment of consideration, Plaintiffs now wants to introduce a new case by way of amendment that the amount of Rs. 1,73,00,000/-was paid in respect of some other transaction, which could not fructify and that therefore the said amount was later shown as a consideration for the Agreement for Sale dated 7 July 2017. He would submit that the Plaintiffs are thus not sure about the exact nature of transaction and are frequently changing their stands. For the first time by introducing amendment, Plaintiffs want to demonstrate ........