JUDGMENT :

Sandeep K Shinde, J.

Rule. Heard. With consent of the parties, heard finally at the admission stage.

2. Petitioners (Plaintiffs) instituted Special Civil Suit No.660 of 2014 against the respondents/defendants seeking following reliefs:

"(i)The Defendant No.2 be directed to handover the chain of documents in respect of the suit property, which have been mortgaged to the defendant no.2 by the defendant no.1 and the same are lying in the safe custody of the defendant no.2.

(ii) The Defendant No.1 be ordered, decreed and directed to pay the amount of Rs.3,24,706/- (Rs.1,55,000/- + Rs.1,24,000/- + Rs.45,706/-) (Rs. Three Lakhs Twenty Four Thousand Seven Hundred and Six Only) to the Plaintiffs being the amount paid to him in excess than the consideration value as per the Agreement for Sale, which is attributable on his part.

(iii) The Defendant No.1 be further directed and ordered to pay the compensation of Rs.5,00,000/- (Rupees Five Lakhs Only) to the plaintiffs for causing the mental and physical harassment to them."

Pending suit, he filed an application seeking directions to the return of documents of defendant no.2 Senior Manager of the Bank of India, Mumbai to handover documents of title of the flat no.303 to him. The learned Judge rejected the said application on 31st October, 2015 against which this writ petition is preferred under Article 227 of the Constitution of India.

FACTS:

3. Respondent No.1-Defendant No.1 executed agreement for sale on 11th February, 2014 and agreed to sell flat no.303 third floor, type 'C' Nilkanth Co-operative Housing Society Ltd., Ghodbunder Road, Thane (West) (hereinafter referred to as 'Suit Flat') to the petitioners upon certain terms and conditions, which were as under:

(1) The total agreed consideration is Rs.1,24,00,000/-

(2) In terms of clause 1(vii), balance Rs.17 lakhs were payable on or before 5th March, 2014 subject to availability of mortgage, NOC from the society and original agreement of flat executed between the defendants (Vendors), and builder, registration receipt and any other document required by the banker of the purchaser for loan disbursement amount.

Agreement has been registered with Sub-Registrar on 11th February, 2014. Possession was handed over by D/1 to the plaintiffs on 25th March, 2014. On the same day, D/1 applied for transfer of his shares in the housing society to the petitioners.

4. Clause (iii) of the agreement reads as under:

"3 In pursuance of the said Agreement and in consideration of the price when fully paid by Purchasers/Transferees, Vendor/Transferor undertake to hand over to purchasers/Transferees the vacant and peaceful possession of the said flat and all original document pertaining to said flat on or before/---/20 subject to the realization of the cheques."

5. It is plaintiffs' case that flat no.303 was mortgaged by the defendant no.1 to defendant no.2-Bank and in terms of the agreement, defendant was under obligation to obtain and handover original title deeds and all chain of title documents of flat no.303, executed between him and builder to the plaintiffs to enable them to secure loan from their banker. Be that as it may, for one reason or another, original title deeds have not been handed over to the plaintiffs in spite of the fact that they paid entire consideration as agreed under the agreement dated 11th February, 2014. It is the plaintiffs' case that besides agreed consideration, they paid Rs.1.55 lakhs to defendant no.1 towards incidental expenses by cheque. It is plaintiffs' case that they paid Rs.3,24,706/- to the defendant in excess of the agreed consideration. It is their case that loan availed against mortgage of the flat has been repaid yet title deeds of the flat have not been released by the D/1 and are still lying in the custody of defendant bank. Plaintiffs further state though defendant no.1 admits and acknowledges receipt of consideration under the agreement, he withheld the title documents illegally and under these circumstances, he i