The Court dismissed an appeal against a Single Judge's order rejecting a notice of motion for ad-interim relief in a specific performance suit. It held that negotiations had not resulted in a concluded contract and no legal interest in the property was created.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 320 OF 2009
WITH
NOTICE OF MOTION NO. 2940 OF 2009
AMCON Developers Private Limited.
.. Appellant.
vs.
New Azad Co-op. Housing Society
Ltd., & Ors. .. Respondents.
Mr. D.D. Madan, Sr. Adv., with Dr. B.B. Saraf i/by Y.N. Adhia
for the Appellant.
Mr. A.Y. Sakhare, Sr. Adv., for the Respondent No. 1.
CORAM : J. N. PATEL, ACTING C.J. &
B.R. GAVAI, J.
DATE : 4TH JANUARY, 2010
P.C. :
This appeal is preferred impugning the order dated
25.6.2009 passed by the learned Single Judge in Notice of Motion No.
1116 of 2009. The appellant has filed a suit against the respondent
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society for specific performance of the memorandum of understanding Exhibit "K" pursuant to the draft development agreement Exhibit "I-2" and an irrevocable power of attorney Exhibit "I-3" in respect of bearing CTS No. 5635 admeasuring 2259.9 sq. mts. in village Kole Kalyan, Santacruz (E) and in the alternative for damages in the sum of Rs. 1 crore. In the said suit the plaintiff has sought interim relief seeking appointment of Court Receiver and injunction against the respondents from in any manner selling, transferring, dealing with, disposing of, alienating, encumbering, parting with possession of or inducting any person or creating any third party rights of any nature whatsoever in respect of the said property including the flats located therein or any part thereof. The said notice of motion came to be rejected by the learned Single Judge by the impugned order. The learned Single Judge arrived at
a finding that the plaintiff has failed to make out a prima facie case as there was no concluded contract between the parties and failure to finalise the terms and conditions in regard to redevelopment does not cause any loss to the plaintiff much less which could be termed as irreparable entitling it to claim ad-interim relief and so also that there is no balance of convenience in favour of the plaintiff.
submitted that the correspondence between the parties which is placed on record of the suit itself goes to show that there was a
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concluded contract between the parties i.e. original plaintiff-appellant were to be awarded contract in terms of the memorandum of understanding between the parties which goes to show that the respondent society had agreed to entrust the redevelopment of the society's property to the original plaintiff-appellant. On going through the draft memorandum of understanding and the correspondence between the parties, we concur with the findings of the learned Single Judge that there were only negotiations going on between the parties and there was no concluded contract entered into between them. The correspondence between the parties also show that the respondent society refused to enter into an agreement with the original plaintiff - appellant for the reasons specified by them in the notice dated 9.8.2007 which according to the plaintiffappellant gives rise to the cause of action.
parties and, therefore, it will not have any legal consequences.
on the part of the learned Single Judge in dismissing the notice of
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motion. Hence, the appeal stands dismissed.
Court while disposing of the appeal are at a preliminary stage and not on merits of the matter and, therefore, the learned Single Judge should not be influenced by our observations while deciding the suit on merits.
( J. N. PATEL, ACTING C. J.)
( B.R. GAVAI, J.)
2 issues framed by the court
Whether there was a concluded contract between the parties despite the existence of negotiations and a draft MOU.
Whether there is a balance of convenience to grant ad-interim relief such as appointment of a Court Receiver.
AMCON Developers Private Limited
New Azad Co-op. Housing Society Ltd.
J.N. Patel
B.R. Gavai
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
