[9] AO-381-2021 aw IA-3164-2021.doc

Reserved-22.02.2022 & Pronounced -28.02.2022

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

Appeal from Order No. 381 / 2021

Alongwith

Interim Application No. 3164 / 2021

in

Appeal from Order No. 381 / 2021

M/S. Suraj Estate Developers

Through its Partner,

Shri. Rajiv Chinubhai Parikh

… Appellant

Versus

Dilip Ashok Desai

… Respondent

****

Mr. Surel S. Shah, Advocate for the Appellant.

Mr. Suryajeet P. Chavan i/by One Legal Bay LLP, Advocate for Respondent

No.1.

****

CORAM

: SANDEEP K. SHINDE, J.

RESERVED ON : 22^nd FEBRUARY, 2022.

PRONOUNCED ON : 28^th FEBRUARY, 2022.

P.C.

1.

In the Special Suit Appellant/ Plaintiff prayed for ;

(i)

declaration that development contract dated 24^th April, 2018

executed between the Plaintiff firm and the Defendant be declared

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void, reason being it is ‘impossible to perform’.

(ii)

perpetual injunction to restrain the Defendant from negotiating 38

Post Dated Cheques (PDC) and two security cheques bearing no. 599551

and 062772.

(iii)

to recover Rs. 1,49,08,749/- with interest @ 12% from the

Defendant.

2.

Pending suit, the application moved by the Appellant-Plaintiff

below Exhibit-5 seeking, relief to restrain the Defendant from negotiating

the 36 post dated cheques, was rejected by the learned trial Judge vide

order dated 24^th September, 2021. That order is challenged this appeal

under Order-43, Rule-1 read with Section 104 of the Code of Civil

Procedure.

3.

Heard. Learned Counsel for the parties.

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4.

Factual Matrix :

Plaintiffs’ case in brief is that vide Development Agreement dated 24^th

April, 2018, Plaintiffs had agreed to develop the Defendants’ property,

upon certain terms and conditions. In consideration whereof, Plaintiffs

had agreed to pay Rs. 3,30,000,00/- to the Defendant and two flats.

Accordingly, Plaintiffs paid Rs. 85,20,000/- to the Defendant up to 10^th

February, 2019. Assuring performance of agreement, Plaintiff No.1 drew

53 post dated cheques of Rs. 5,10,000/- each in favour of Defendant of

dates between April, 2019 to March, 2023 towards the balance

consideration of Rs. 2,44,80,000/-. In addition thereto, also drew two

cheques of Rs. 50,000/- each, in the name of Defendant as a ‘security’ for

allotting the flats in the suit property. Plaintiffs’ case is, when

Development Agreement was executed i.e. in April, 2018, the ‘property’ in

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question was falling in residential zone; however, the State of

Maharashtra in its’ Irrigation Department vide communication dated 10^th

July, 2019 classified the said property within the ‘blue line’ (flood line).

As a result, the property in question classified in the preventive/

prohibited zone, of development. In consequence, the performance of the

Development Agreement was rendered, ‘impossible’. In the said

circumstances, the Plaintiffs requested the Defendant, not to deposit

remaining 36 Post Dated Cheques. Yet the Defendant presented some

cheques for negotiation on due dates. Thus, Plaintiffs instructed Bank to

stop the payment. Cheques were dishonoured. Whereafter, Defendant

filed complaints under Section 138 of the Negotiable Instruments Act,

1881. In these circumstances, Plaintiffs brought the suit for the reliefs

stated herein above and pending suit, moved an application to injunct the

Defendant from negotiating 36 post dated cheques + two security deposit

cheques.

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5.

The learned trial Judge declined the said relief on two grounds;

(i)

Cheque bein