Dr. D. Y. Chandrachud, J.

1. Admit. With the consent of the learned counsel and at their request taken up for hearing and final disposal.

2. Appeal 494 of 2007 has been instituted by the Plaintiff while Appeal (Lodg.) 625 of 2007 has been instituted by the Defendant in order to impugn the correctness of an ad interim order dated 26th June, 2007 passed by the Learned Single Judge. The Learned Single Judge, while issuing an ad interim injunction in terms of prayer clause (a), restraining the Defendant from transferring, alienating or creating any third party rights in respect of the suit property imposed a condition that the Plaintiff shall deposit the entire balance of the consideration of Rs.9.21 Crores. The Plaintiff is aggrieved by the condition of deposit subject to which the order of injunction has been issued, while the Defendant is aggrieved by the order of injunction restraining him from alienating the property which forms the subject matter of the suit.

3. The application for ad interim relief arises out of a suit for specific performance of an agreement, styled as a Memorandum of Understanding, entered into between the parties on 3rd April, 2006. The Memorandum of Understanding recites that the Defendant has agreed to sell to the Plaintiff the immovable property more particularly described in the Second Schedule at and for a consideration of Rs.9.51 Crores. Of the total consideration, an amount of Rs.30 lacs was paid by the Plaintiff to the Defendant on or before the execution of the agreement. The balance of Rs.9.21 Crores was to be paid in the manner indicated in sub Clauses (b), (c) and (d) of Clause 4 of the agreement which reads as follows :

“(b) Rs.3,75,00,000/- (Rupees Three Crores Seventy Five Lakhs only) shall be paid on or before 25th May 2006 and on the Vendor causing the Mortgagee to execute a Deed of Reconveyance of the said property in favour of the Vendor herein, on the Vendor executing a proper Agreement for Sale in favour of the Purchaser and on the Vendor placing the Purchaser in possession of the said property with a right to develop and construct thereon. The said sum of Rs.3,75,00,000/- (Rupees Three Crores Seventy Five Lakhs only) shall be paid as hereby requested and directed by the Vendor, by the Purchaser directly to the Mortgagee at the time of the Mortgagee executing the said Deed of Reconveyance of the said property in favour of the Vendor herein;

(b) Rs.2,88,00,000/- (Rupees Two Crores Eighty Eight Lakhs only) shall be paid on or before 25th August, 2006 and

(d) the balance sum of Rs.2,88,00,000/- (Rupees Two Crores Eighty Eight Lakhs only) shall be paid by the Purchaser to the Vendor or before 25th November 2006 and on the Vendor executing and causing all necessary parties to execute a Deed of Conveyance of the said property in favour of the Purchaser and/or his nominee or nominees including a Co-operative Housing Society or Apartment Scheme or Limited Company and/or other association of individuals as the Purchaser may direct and on the Vendor placing the Purchaser in quiet, vacant and peaceful possession of the said property.”

4. There is a recital in the agreement that the Defendant had executed a mortgage in respect of the property on 22nd November, 2004 as varied by a deed of rectification dated 22nd June, 2005. Consequently, under Clause 4 of the agreement it has been stated that subject to the charge of the mortgagee, the vendor viz. the Defendant had agreed to sell the property to the Plaintiff.

5. On 20th April, 2006 the advocate for the Defendant forwarded the documents of title to the advocate for the Plaintiff confirming that his “client has finalized the sale of the property above referred/ his rights therein” to the Plaintiff. On 30th November, 2006 the Plaintiff's advocate addressed a letter to the Defendant recording that under Clause 4 (b) of the Memorandum of Understanding the Defendant was requir