JUDGMENT : R.D. Kothari, J. The plaintiff in Civil Suit (CCC) No.652 of 2014 aggrieved by the rejection of interim relief, has filed the present Appeal. The plaintiffs said suit is for specific performance and for damages and other reliefs. 2. Story that emerges from the material on record is thus, an agreement to sell was executed between the plaintiff and defendants, on 3.5.2012. The suit property is residential flat No.201. The building is known as Yuthika. It is located at Memnagar, Ahmedabad. Against the price of Rs.90,90,000/-, plaintiff has paid Rs.90 lacs at the time of execution of agreement to sell. It is say of the defendants that plaintiff had some property dispute with her near and dear ones and in a litigation relating to that property, plaintiff had received about Rs.1.30 crores. The purchaser of the property - means the property, about which plaintiff had dispute with her close family members - the said purchaser wanted to develop that property. The defendant No.2 claims to have served as a consultant for the purpose of development of that property. At that time, work of the defendants present building - Yuthika - was in progress. It is said that at that time, plaintiff and defendants came into contact. Sample house was shown by defendants to the plaintiff (plaintiff claims that sample house was not ready at the time of initial talk and it was not ready even at the time of execution of agreement to sell. It was ready only in October, 2012). After the talk, registered agreement to sell was entered into between the parties. As per the agreement to sell, sale deed was to be executed by 31.3.2013. Then, there is different version also about what led to strained relationship between the parties. It is say of the defendants that after execution of the agreement, plaintiff started making suggestions - that she made innumerable suggestions - in respect of her flat. It is alleged that most of the suggestions were in writing and signed by the plaintiff. Continuous flow of suggestions includes making suggestion twice in a day and even four times in a day. One material suggestion for change was qua three bathrooms and the kitchen which was as late as in November, 2013. 3. It is alleged that most of the suggestions were in writing and signed by the plaintiff. Continuous flow of suggestions includes making suggestion twice in a day and even four times in a day. One material suggestion for change was qua three bathrooms and the kitchen which was as late as in November, 2013. 3. It is also say of the defendants that during work in progress also, she used to make suggestion to the persons engaged in construction or she would ask the defendants to change the workman etc. That she also got some work done by her own contractor. It is also say of the defendants that she had appointed one Shri Janak Patel at the site as her supervisor. Against this, it is say of the plaintiff that Shri Janak Patel is defendants man and otherwise than that, she was not in contact or was not knowing said Shri Janak Patel. She claims that Shri Janak Patel was employed as defendants scavenger. That Shri Janak Patel and defendant have played deception/fraud with her. Shri Patel had played criminal deception by signing and acknowledging on behalf of the plaintiffs some of the bills/papers etc. Shri Patel and defendant Nos. 1 and 2 had planned well and systematically. In the end, says plaintiff, state of affairs so emerge that approaching the Court becomes necessary. 3.1 In first/second week of January, 2014, plaintiff had filed complaint before the Consumer Forum. After about week or so, it was withdrawn and then, present suit was filed. 4. In substance, plaintiff has prayed for three reliefs (i) execution of sale deed (ii) to pay Rs.40 lacs as damages and (iii) defendants be directed to give surety of another Rs.40 lacs. 5. It appears that considerations that had weighed with the learned trial court in rejecting interim relief to the application are, Granting of interim relief and relief of specific performance is a discretion of the court. In exercise of such discretion, circumstances of the case and conduct of the parties are to be considered. Further, granting of plaintiffs prayer would amount to granting mandatory interim relief. The case on hand is not such that such mandatory interim relief needs to be granted. Insufficient payment of court fees had also materially weighed with the learned trial court. 6. Heard the party-in-person and learned Senior Advocate, Mr. S.N. Soparkar assisted by learned advocate, Mr. Further, granting of plaintiffs prayer would amount to granting mandatory interim relief. The case on hand is not such that such mandatory interim relief needs to be granted. Insufficient payment of court fees had also materially weighed with the learned trial court. 6. Heard the party-in-person and learned Senior Advocate, Mr. S.N. Soparkar assisted by learned advocate, Mr. Amar Bhatt for the defendants. Learned advocate, Mr. A.S. Vakil appeared for defendant Nos. 3, 4 and 5. 7. Party-in-person, after referring facts of the case, had began the argument by pointing out how the learned trial court has erred in holding that plaintiff has paid insufficient court fees. It was also pointed out that in fact, at the time of passing of this order, plaintiff has paid court fees as she was directed to pay. Much of the argument was directed towards lack of creditworthiness of the defendants and also lack of transparency on the part of other side. In this regard, it was also urged that claim of defendants Nos. 3, 4 and 5 about retiring (one on 7.5.2011 and other on 25.4.2011) is based on forged document. The other aspect on which emphasis was placed was ownership of defendant No.1. That the ownership is doubtful inasmuch as the property is a leasehold land and it has got to be converted in free hold land. On making inquiry by her, she has found so and if the defendants do not improve their title, the plaintiff would get defective property. The plaintiff has also grievance that there is variance in the condition i.e. term mentioned in agreement to sell and terms etc. appear in proposed sale deed shown to her. She had submitted that by challenging the ownership of the defendants, she is not flouting the terms of the agreement to sell. As against agreement to sell, - she says - sale deed runs into so many pages. One of the material distinctions urged was, variance in FSI in both the deeds. It was urged that she has no dispute as to FSI stated in agreement to sell. 8. The defendants have filed detail written statement wherein they have also advanced counter claim. Referring 4-5 items, defendants had alleged that plaintiff is required to pay Rs.7,97,025/- and since the plaintiff has declined to pay said amount, counter claim is advanced by the defendants. 8. The defendants have filed detail written statement wherein they have also advanced counter claim. Referring 4-5 items, defendants had alleged that plaintiff is required to pay Rs.7,97,025/- and since the plaintiff has declined to pay said amount, counter claim is advanced by the defendants. Defendants counter claim is, thus, (i) Rs.90,000/- Being balance of the said consideration. (ii) Rs.1,92,225/- Being price/value of the additional/extra work. (iii) Rs.2,25,000/- Being the amount of maintenance deposit. (iv) Rs.64,800/- Towards maintenance for 2 years @ Rs.1 Per month. (v) Rs.2,00,000/- Towards servant room, if she requires. 9. At the time of hearing, party-in-person has submitted that as agreed, sale price includes the facility of servant room and now demanding money separately for that, is bad and contrary to the term agreed between the parties. She does not dispute that Rs.90,000/- remains to be paid nor she dispute that permanent maintenance amount is to be paid by her. Her say is, defendants can claim permanent maintenance amount only when they hand over the possession. Similarly, monthly maintenance would only be payable when she is given possession. 9.1 Referring claim advanced by the defendants for extra work, it was submitted that plaintiff is required to pay for extra work only if the work is not covered under the agreement to sell and only when said item is outside Schedule-III and IV of the agreement to sell. No such case and therefore, she is not required to pay for extra work. It was also urged that extra work has nothing to do with the execution of sale deed and execution of sale deed should not be refused on claim advanced by defendants. 10. It was also urged that besides specific performance, plaintiff also claims damages under Section 21 of the Specific Performance Act. It was submitted that plaintiff has a prima facie case inasmuch as there is serious questions to be tried. In the facts of the present case, it is not that what amount is to be paid to the plaintiff, is yet to be determined and it would be known only at the end of the trial. It was also submitted that there is serious threat to the enjoyment of her fundamental right. It was submitted that plaintiff at present resides in a rented premises. That there is material distinction between rental accommodation as residence and to reside in ones own house. It was also submitted that there is serious threat to the enjoyment of her fundamental right. It was submitted that plaintiff at present resides in a rented premises. That there is material distinction between rental accommodation as residence and to reside in ones own house. That residing in former capacity has its own drawbacks. 11. It was submitted that for execution of sale deed, creditworthiness of defendants is required to be ensured and therefore, solvency of Rs.40 lacs is prayed by the plaintiff. In this regard, plaintiff has drawn attention of court by referring balance-sheet etc. that were with her. Objecting such production of document before this Court, the other side has submitted that it should be filed with the affidavit. The plaintiff replied that there is a reference to this document in the memo and therefore, she is entitled to refer and draw the attention of the Court. It was submitted that under the Company Law, in order to protect interest of people at large, the company is required to submit balance-sheet. Despite the plaintiff had asked for the same, defendants have not produced the same and therefore, plaintiff has to obtain it from the Company office. It was submitted that balance-sheets are prepared on the basis of forged document. 12. It was submitted that defendants are wrongly finding fault with the plaintiff and it is only on account of act of defendants, plaintiff has to approach the Court. 13. Learned Senior Advocate, Shri S.N. Soparkar in his brief submission has drawn attention to relief claimed in the memo of appeal and dealing with each relief individually, he has submitted that each of the relief is incapable of being granted. It was submitted that relief of interim mandatory injunction cannot be granted by the court at interim stage and as to the damages etc., plaintiffs claim is required to be adjudicated. It was submitted that when rival assertion made by the parties then as an interim relief, the Court cannot ask the defendants to pay the damages. Learned Senior Advocate, Shri Soparkar has supported the order of the trial court. Commenting on nature of relief claimed by the plaintiff, reference was also made to the relief claimed in the plaint. It was submitted that when rival assertion made by the parties then as an interim relief, the Court cannot ask the defendants to pay the damages. Learned Senior Advocate, Shri Soparkar has supported the order of the trial court. Commenting on nature of relief claimed by the plaintiff, reference was also made to the relief claimed in the plaint. Learned Senior Advocate, Shri Soparkar has submitted that different occupier of this building has executed sale deed with the defendants and plaintiff was shown copy of their sale deed as a model sale deed, however, plaintiff was not agreeable to any of those sale deeds. It was also submitted that plaintiff has not filed reply in respect of defendants counter claim. It was submitted that argument based on fraud etc. of director is irrelevant and foreign to the dispute. Lastly, learned Senior Advocate, Shri Soparkar reiterating the undertaking given before the trial court, has submitted that during the pendency of dispute between the parties, defendants undertake that they will not sale, alienate or transfer in any manner the suit property. Learned Senior Advocate has also placed reliance on relevant case laws, to which I may make reference hereinafter, if required. 14. Learned advocate, Mr. A.S. Vakil for defendant Nos. 3, 4 and 5 has submitted no interim relief is claimed against defendant Nos. 3 to 5. Reliefs are only against defendant Nos. 1 and 2. Neither in plaint nor in appeal memo, there is prayer against his client. It was pointed out that defendant Nos. 3, 4 and 5 have retired prior to the execution of agreement to sell, plaintiff has wrongly dragged them as party. 15. Plaintiff, in her reply, has submitted that order of payment of court fee is perverse and arbitrary. It was pointed out that other side in their submission has not replied to the courts query, namely, whether assertion qua counter claim can be considered while deciding plaintiffs claim for interim relief. It was submitted that trial court has seriously erred in not appreciating plaintiffs case. It was also urged that Order 7, Rule 11 application filed by the defendants is wrongly not decided by the trial court in the impugned order and defendants said application requires to be rejected. It was submitted that balance of convenience etc. are in favour of plaintiff and therefore, interim relief, as prayed for, by the plaintiff should be granted. It was also urged that Order 7, Rule 11 application filed by the defendants is wrongly not decided by the trial court in the impugned order and defendants said application requires to be rejected. It was submitted that balance of convenience etc. are in favour of plaintiff and therefore, interim relief, as prayed for, by the plaintiff should be granted. 16. I may consider the case of parties. 17. Broadly saying, order of the learned trial court does not call for interference. It is true that interim mandatory relief of execution of agreement cannot be granted in a suit for specific performance. If such relief is granted then, nothing remains - so far as execution of sale deed is concerned - to adjudicate. In other words, weighing of evidence on record and its appreciation has yet to take place. At present, all the proceedings are at very initial stage. There is only pleading, affidavits etc. on record. The documents mainly agreement to sell and proposed sale deed (probably, sale deed is not even on record) are yet to pass through the scrutiny by which the document can be looked into in evidence. There is no oral evidence of parties and their witnesses. It is acceptable and admissible say of the witnesses in their evidence that form the basis to record the finding by the court either way. The main point in favour of plaintiff is, she has paid Rs.90 lacs to the defendants, virtually total sale consideration is paid. Such payment is not in dispute. From that, it would appear that any court would have sympathy towards the plaintiff in such a case. I was inclined to pass an order directing the defendants to execute the sale deed, on making payment of unpaid sale price by plaintiff and also directing plaintiff to pay the amount qua which dispute lay in narrow compass. Is there any plausible reason/s in such a case for not directing the defendants to execute the sale deed ? Trouble in the way of the plaintiff is that, she has serious grievance against the terms and conditions of proposed sale deed. Plaintiff had urged that proposed sale deed shown to her is not acceptable to her. In her opinion, there is material variance between terms and conditions stated in agreement to sell and what is mentioned in sale deed. Agreement to sell appears to be printed one. Plaintiff had urged that proposed sale deed shown to her is not acceptable to her. In her opinion, there is material variance between terms and conditions stated in agreement to sell and what is mentioned in sale deed. Agreement to sell appears to be printed one. Original is not in this Appeal from Order. Assuming that it is only typed one, it is not likely that plaintiffs agreement to sell would be different from the agreement to sell executed in respect of other flat owners. No such case of the plaintiff. It was submitted at the time of hearing by learned Senior Advocate, Mr.Soparkar that 4 sale deed which were executed by the defendants with other flat owners, were shown to the plaintiff, however, none were acceptable to the plaintiff. One of the grievances of the plaintiff about variance in terms is, FSI stated in sale deed is different than FSI shown in the agreement to sell. 18. Another objection that goes to the root is, as per the claim of the plaintiff, the land on which the building is constructed is not a freehold land but leasehold land. It was submitted that defendants should be directed to undergo necessary procedure for converting the land into freehold land, so that plaintiff may not get defective title. In response to this, it is say of the defendants that their land does not suffer from any legal infirmity. In this regard, defendants rely on title clearance report given by the legal firm. 19. In view of above, it is not possible to grant interim mandatory relief of execution of registered sale deed. 19.1 Party-in-person had urged that since serious questions are to be tried, plaintiff has a prima facie case. Assuming for the sake of argument that questions agitated by the plaintiff are sufficiently serious then this case is illustrative case showing why even in case where plaintiff has a prima facie case, it need not necessarily followed by interim relief. In every case, circumstance of the case plays vital and material role in consideration of case for interim relief and test of prima facie case cannot be applied in abstract. The circumstances of the case may oust the claim of the plaintiff of interim relief. In every case, circumstance of the case plays vital and material role in consideration of case for interim relief and test of prima facie case cannot be applied in abstract. The circumstances of the case may oust the claim of the plaintiff of interim relief. Keeping the dispute raised by the plaintiff open, in the circumstances of the present case, it is not possible to direct the defendants to execute the registered sale deed. Both cannot go together. In a sense, it cannot be denied that facts and circumstances of each case dominates and controls all the three essential ingredients for consideration of case of interim relief. 19.2 The other principal submission of plaintiff is, defendants be directed to furnish surety of Rs.40 lacs. It would appear from the impugned order that, the learned advocate before the trial court and learned Senior Advocate, Mr.Soparkar before this Court have made a statement that pending the suit, defendants will not sale, transfer or alienate in any manner or will not create any charge etc. on the disputed property. This is sufficient to protect the interest of the plaintiff. The statement made by learned Senior Advocate, Mr.Soparkar at the time of hearing is sufficient. However, considering the dispute between the parties and in the circumstances of the case, let the defendants file an undertaking on oath in terms of statement made before the Court. Such undertaking shall be filed within one month from today before the learned trial court. Plaintiffs anxiety about creditworthiness of the defendants will be taken care of by such undertaking. Undertaking shall clearly declare that the defendants shall not transfer or alienate the suit property in any manner nor shall create any charge till the disposal of dispute between the parties. 20. As to the damages, generally speaking, plaintiff would have more difficulty in successfully urging claim for payment of interim damages than the difficulty she may face in praying for interim mandatory injunction - particularly in case of specific relief of immovable property. Plaintiff claims Rs.40 lacs as damages. Plaintiff has placed strong reliance on Section 21 of the Specific Reliefs Act. Plaintiff says that suit is not only for specific performance and plaintiff also claims damages under Section 21. Plaintiff claims Rs.40 lacs as damages. Plaintiff has placed strong reliance on Section 21 of the Specific Reliefs Act. Plaintiff says that suit is not only for specific performance and plaintiff also claims damages under Section 21. It was also urged that unlike the other cases of damages, in the present case it is possible to identify the undisputed amount and that being so, it cannot be said that claim requires adjudication. This specious submission is difficult to accept. One of the main items of damage as advanced by the plaintiff is, the rent which she required to pay on account of staying in rented premises. Even if the fact of plaintiff staying in rented premises and also the amount of rent that she claims to be paying, are taken at its face value for the purpose of present application, there is a serious dispute on merits i.e. on account of whose fault the plaintiff is required to stay in rented premises ? Beside that defendants have also advanced counter claim against the plaintiff. It is not possible to agree with the plaintiff that amount of damages is possible to identify at this interim stage. 21. Plaintiffs grievance about learned trial courts order on court fee appears to have substance. Pursuing the case for interim relief without payment of sufficient court fee, has erroneously weighed with the learned trial court. It may be stated that save in exceptional case, if otherwise the plaintiff has a case for interim relief, the court would not refuse such relief merely on the ground that court fee paid is insufficient. Discussion by trial court gives impression that issue of court fee had also weighed with trail court. Plaintiff has submitted that now, court fees as she was directed is paid by her. So, if this submission is correct, court fees now is not an issue. The order of cost passed by learned trial court was also uncalled for. The order of cost is also set aside. 22. Learned advocate, Mr. A.S. Vakil for respondent Nos. 3, 4 and 5 has rightly pointed out that no relief is claimed against respondent Nos. 3, 4 and 5. It is say of the plaintiff that respondent Nos. 3, 4 and 5 may not be necessary party but, they are proper parties. The order of cost is also set aside. 22. Learned advocate, Mr. A.S. Vakil for respondent Nos. 3, 4 and 5 has rightly pointed out that no relief is claimed against respondent Nos. 3, 4 and 5. It is say of the plaintiff that respondent Nos. 3, 4 and 5 may not be necessary party but, they are proper parties. Since the plaintiff does not claim any relief against these respondents, it is not necessary at this stage to go into the brief submissions made in this regard by plaintiff and learned advocate, Mr. A.S. Vakil. 23. In view of above, the appeal fails and is dismissed. However, order of cost is set aside. The concerned respondents would require to file an undertaking on oath as directed in Para.19. The learned trial court shall expeditiously dispose of the suit and it is expected that party-in-person and learned advocates would cooperate the learned trial court in expeditious disposal of the suit. 24. Consequently, all civil applications stand dismissed. Appeal dismissed.