After hearing both parties, the learned Single Judge passed the following order Admitted position is that there was an agreement to sell between the parties, and that an amount of Rs.38 lakh has been paid as an earnest money.
The appellants have also chosen to appropriate the sum repaid in a different manner as per their choice and at their discretion as explained in the plaint.
On 15.3.1999, the respondents appear to have, for the first time, expressed their inability to fulfill the terms within time and informed the appellants in writing to invoke their right under Clause 2.3, in the following words Under these circumstances, we sincerely and earnestly request you to please exercise your other option of getting all the necessary permissions yourselves to companyplete the said transaction at your earliest.
It is also admitted position that the agreement was terminated by the plaintiff.
from the date of suit till payment or realization and the companyts.
The plaintiffs are builders and developers and they have entered into an agreement with the defendants on 13.5.1994 to sell the landed property owned by the respondents and a sum of Rs.38 lakhs was said to have been paid by the appellants as deposit or earnest money on the execution of the agreement, which the respondents received under the agreement.
It is also admitted position that in the agreement there is a provision made for payment of interest at the rate of 21 p.a.
As per prayer a , the plaintiffs claimed for a judgment and decree for Rs.80,15,903/ with further interest at 21 p.a.
The appellants seem to have also filed an application for interim reliefs by way of Notice of Motion No.1952 of 2000 praying among other things for d that pending the hearing and final disposal of the suit, the defendants by themselves, their servants and agents be restrained by an order and injunction of this Honble Court, from selling, disposing of, alienating, encumbering or creating any third party rights of any nature whatsoever or from carrying out any companystruction or any other work in any manner whatsoever, in respect of the suit properties more particularly described in Exhibit B to the plaint.
In prayer clause d of the plaint, the appellants seem to have also prayed for a declaration that the amount and interest claimed in prayer b towards damages and the companyts of the suit are validly secured by a statutory charge on the said land described in Exhibit B to the plaint.
RAJU, U. Leave granted.
The appellants are the plaintiffs in suit No.2145 of 2000, on the original side of the High Court of Bombay and the respondentsdefendants are registered firm of partnership and its partners, respectively.
