The High Court held that the appeal was devoid of merit as the appellants failed to establish a prima facie case for interim reliefs, including appointment of a receiver or injunction. The court affirmed the dismissal of the single Judge's order.
None. The appeal was dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.62 OF 2009 IN
NOTICE OF MOTION NO.2589 OF 2007 IN SUIT NO.493 OF 2007
WITH
NOTICE OF MOTION NO.986 OF 2009 IN
APPEAL NO.62 OF 2009
M/s.Star Apparels Pvt.Ltd.
.. Appellants
Vs.
Parampreet Singh Bindra & Ors.
.. Respondents
Mr.V.V. Kanade i/b M/s.Shiralkar & Co. for the appellant
Mr.P.K. Samdhani, Sr.Advocate with Mr.H.C. Mehta and Mr.S.Nagvadaria i/b M/s.Mehta & C. for respondent no.1
Mr.F.D’Vitre, Sr.Advocate with Mr.A.Y.Bookwala, Sr.Advocate i/b M/s.Bagla Dandekar and Co. for respondent nos.3 to 6
Mr.V.R.Dhond i/b M/s.Prakash & Co. for respondent no.7
CORAM : J.N. PATEL &
SMT.R.P.SONDURBALDOTA, JJ
DATE : 15TH SEPTEMBER, 2009
2
P.C. (PER J.N.PATEL, J):
(b) that pending the hearing and final disposal of the suit, the Defendants, their servants and/or agents be restrained by an order and injunction of this Hon’ble Court from in any manner developing, disposing of, selling, transferring, alienating, encumbering, creating third party rights of any nature whatsoever in or putting up any construction on the suit lands on any part thereof;
(c) that pending the hearing and final disposal of this Notice of Motion, the Defendants, the Respondents and/or their servants, agents, contractors or sub-developers be restrained by and under an order and
3
injunction of this Hon’ble Court from entering into any agreement or arrangement with the Tenants/occupants occupying the Suit Property or any part of parcel thereof;
fit and proper in the circumstances of the case.
June 2005 and for that purpose do all required acts, deeds and things
and execute all such writings, documents as may be necessary. In the alternative, it has also sought for declaration that the said alleged
4
agreement dt.26.12.2006 be declared as null and void to the extent it is contrary to and / or inconsistent with the order dt.26.7.06 passed by the Charity Commissioner for sanctioning the sale and as regards clause 5.2 of the said Agreement dt.26.12.06 and to the extent it is prejudicial to the rights of the plaintiffs. It has also sought that the documents executed between the defendants dt.29.1.07 be declared null and void as it has no effect in law and that the respondents (original defendants) should be jointly and severally directed to order and decree to deliverup / hand over the said document dt.26.12.06 and the joint development
agreement dt.29.1.07 to the plaintiffs for cancellation and appropriate orders claiming that the plaintiffs have priority in claiming rights of the suit property and that the respondents (original defendant no.7) is bound by the suit agreement and for other ancillary reliefs and in alternative to specific performance, they have sought a decree in the sum of R.50.0 crores by way of damages and / or compensation in lieu
of specific performance and refund of sum of Rs.51 lacs with interest @ 18% per annum from the date of filing of the suit till payment and also
claim charge over the suit property along with interim relief in the nature of appointment of Court Receiver and injunction which has been sought by taking out the notice of motion which came to be dismissed by the trial court.
5
6
was no concluded agreement between the parties as the appellant was not agreeing with the material terms and conditions and offered to return the sum of Rs.51 lacs along with interest by enclosing a cheque in the sum of Rs.52,71,025/- which was not accepted by the appellants (original plaintiffs) and, therefore, the suit came to be filed.
7
negotiations with the appellants which was communicated by advocates letter dt.28.11.2006, the respondent (org.defendant no.1) was negotiating with the 3rd party to go ahead with the development of the property of the respondent trust which is evident from the correspondence between the parties on which reliance is placed. It is the case of the respondent that by virtue of joint development agreement dt.29.1.07 entered between the respondent nos.1 and 2 on one side and respondents (original defendant nos.3 to 6) which came to be registered on 12.3.07, the respondents have agreed to develop the suit property jointly with defendant no.7 at and for the consideration and on the terms and conditions related therein wherein the respondent nos.1 and 2 have retained 60% of the share whereas respondent (org. defendant no.7) is entitled to 40% in the said development and that pursuant to the said joint development agreement, respondent (org.defendant no.7) has paid a sum of Rs.2,85,58,000/- against 40% share of the mutually agreed value of the suit property, on as is where is basis.
8
the development rights only of the suit property and that respondent (Defendant no.1) never negotiated with appellants (original plaintiffs) for the development right of the suit property and that the M.O.U. dt.1805.06 amongst them was only an understanding to enter into an agreement in future, on compliance of certain obligations and conditions recorded therein. It was not a final and binding agreement between respondent (org.defendant no.3 and defendant no.1). It is also contended that pursuant to the M.O.U. dt.30.6.05, the respondent (defendant no.3) had applied to the Charity Commissioner, Greater Mumbai Region for obtaining permission for granting of development rights of the suit property to its proprietory firm and there was no arrangement between the respondents that the respondents (org.defendant nos.3) was intending to sell the suit property to the firm or respondent (org.defendant no.1) was intending to acquire any right in the favour of the said firm. The respondents have placed reliance on the order passed by the Joint Charity Commissioner dt.26.7.06 which has been granted in favour of the proprietory firm of respondent (org.defendant no.1) and that respondent (org.defendant no.3) have never recognized the said partnership firm either as the developers or purchasers of the suit property and that at all times they have been negotiating for the purpose of the development of the property of the trust.
9
10
between two sets of parties Defendant no.3 and defendant no.1, Defendant no.1 and the plaintiffs moved simultaneously and therefore, the initial MOU between defendant no.1 and plaintiffs came to be modified from time to time by both the parties orally as well as in writing. The learned single Judge has also taking cognizance of the various meetings which came to be held between from them from time
11
to time until 24.11.06 and that nothing has materialized. Defendant no.7 came into picture from 25.11.07 and that the initial payment made by defendant no.7 was not conditional as was the payment of the plaintiffs. Therefore, it was, as would be accepted in a Development Agreement - as earnest money paid before an agreement could be executed, which would be enforced by the parties.
12
legally enforceable. The contract is discharged and terminated by agreement, by due performance or payment, by waiver of performance, by replacement by a new contract, by supervening impossibility or illegality of performance, by frustration through the happening of some event which renders performance, if not impossible, at least fundamentally different from what was contemplated and by breach of the fundamental respect, if the innocent party treats the breach as a repudiation of the contract.
13
which TDR No.3645 sq.mts. is capable of being loaded which is situated at Village Mulgaon, Taluka Andheri as described in the Schedule and having acquired such rights under the MOU between it and one All India Soverdia Sangam Trust i.e. Respondent (org.defendants). The transferor i.e. Defendant nos.1 and 2 have agreed to allow the plaintiff to develop and utilize the said plot of land on the said terms and conditions hereinafter mentioned. So there is no ambiguity as to the nature of the MOU which was entered between the parties to develop and utilize the plot of land which is the suit property. The said MOU was subject to certain terms and conditions. There is no dispute over the description of the suit property of the plot. Clause 3 of the said MOU clearly records that the transferor i.e. Defendant nos.1 and 2 hereby agrees with the Company i.e. The appellants (org.plaintiffs) for transfer and assessment of the said plot with characteristics described in clause 2 i.e. Description of the plot, after fulfilling the conditions described in clause 1 i.e. Condition, for a consideration of Rs.9.50 crores, out of which at the time of execution of MOU, the sum of Rs.51 lacs came to be deposited with Vinod B. Agarwal of M/s.Vigi Jiris, Solicitors in escrow and the balance amount of Rs.8.99 crores was to be paid on fulfillment of all the terms and conditions and execution of documents in favour of the company.
14
15
cause irreparable injury to the respondents who have invested
substantial funds and any injunction preventing them from developing the property would rather cause irreparable loss to the respondents compared to the stake that the appellants (org. plaintiffs) has invested while entering into the MOU on the foundation of which the suit is filed.
J.N.PATEL, J
SMT.R.P.SONDURBALDOTA, J
2 issues framed by the court
Whether the High Court should interfere with the single Judge's dismissal of the Notice of Motion seeking interim reliefs in a specific performance suit.
Whether the appellants had established a prima facie case for the grant of interim injunction and appointment of a Court Receiver.
M/s. Star Apparels Pvt. Ltd.
Parampreet Singh Bindra & Ors.
J.N. PATEL
R.P. Sondurbaldota
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
