1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4123 OF 2008 IN SUIT NO. 3199 OF 2008 South Asian Hospitality Services Pvt. Ltd. ...Plaintiffs Vs. Mr. Faiz Ahmed Nunaf Mamdani & Ors. ...Defendants Mr.N.S.Nappinai, Advocate for the Plaintiff Ms. Sunita Poddar with Mr. M.Y.Sayani, Advocate for Defendant No.1 Mr. Suneet Moholkar for Defendant No.2 CORAM : SMT. ROSHAN DALVI, J. DATED : 18TH MARCH, 2010 P.C. : 1. The parties entered into an undated agreement referred to as the Letter Of Intent (LOI). It is admittedly executed. The agreement was for letting out of one room as a business premises in “Atria-The Millennium Mall”. The essential terms of the LOI was the payment of rent of Rs.92,000/- p.m along with the Common Area Maintenance (CAM) of Rs.36/- per sq. ft., of super-built up area (which is shown to be 510 sq. ft., in the LOI). The 2 Plaintiffs were to pay non-refundable security deposit of Rs.70,000/-p.m for 4 months to make it Rs.2.70 lakhs (instead of Rs.2.80 lakhs). 2. The Plaintiffs seek specific performance of this agreement. The Plaintiff paid a cheque of Rs.90,000/- on 10 th January 2008. The Plaintiff required possession to be given to it on 21 st May 2008 upon paying Rs.90,000/-. 3. A Business Conducting Agreement (BCA) was to be executed, a draft of which signed by the Defendant No.1 was sent to the Plaintiff. 4. Thereafter, the parties have entered into E-mails. 5. The first of such E-mails is dated 7 th June 2008 of the Broker/Representative of the Plaintiff to the Defendant No.1. In that an issue relating to Municipal and other taxes which were to be paid was taken up. The Plaintiff contended that it is the duty of the owner to pay the taxes. The Plaintiff’s Broker summed up the letter thus:- “If it is O.K by you we would request you to guide us when the Company can take possession of the property. AND If it is not O.K, then I would request you to send the cheque in the name of the Company as written on the LOI as the deal will stand cancelled.” This letter written by the Plaintiff’s Broker/Representative shows that the negotiations were on and the Plaintiff was amenable to cancell the agreement and get the return of the amount of the cheque paid by the Plaintiff, if the 3 terms mentioned in the Plaintiff’s Broker’s E-mail was not agreeable to the Defendant. In any event the Plaintiff did not sign the BCA sent by Defendant No.1 and made inquiries and counter-offer. 6. Thereafter on 16th June 2008 the E-mail sent by the Plaintiff it contends that there are no extra charges @ of Rs.15/- payable under the LOI for Mali Management. It further shows that payment @ Rs.36/- in the LOI does not show that Rs.6/- was towards the property and Municipal Taxes. The E- mail shows that the Plaintiffs disagreed over terms in the agreement and LOI signed. The Plaintiff has requested return of Rs.90,000/- token amount paid to the Defendant No.1. This Email also shows that the Plaintiff was amenable to cancell the LOI because of disagreement with certain other terms which cropped up thereafter between the parties. 7. Thereafter, the Plaintiff’s Broker in the E-mail dated 10 th July 2008 requested certain changes in the attached agreement. This Email shows that still the parties were negotiating certain changes in the agreement. 8. In further E-mail dated 23 rd July 3008 of the Plaintiff’s Broker the condition that the Plaintiff would pay Rs.92,000/- plus Rs.30/- per sq. ft. towards CAM charges and the Defendant would pay Rs.6/- towards property tax as the owner of the property has been set out. 4 This E-mail shows further changes in the agreement between the parties. 9. On 24th July 2008 the Plaintiff’s Broker requested possession of the property to be handed over. 10.On 25th July 2008 the Defendants sent their E-mail stating that the Plaintiff had still not confirmed about the issue and hence the possession could not be given to the Plaintiff unless the Plaintiff confirms. 11.It is on 25th July 2008 that the Defendant No.1 entered into another agreement with Defendant No.4. 12.The only essential issue to be considered is whether the Plaintiff would be entitled to the relief of specific performance of the LOI. The parties were still negotiating, proposing changes and accepting some and rejecting others. The LOI is not the final binding contract between both parties. The initial offer contained in the BCA was not unconditionally accepted. There have been counter offers which were also not been accepted. Hence specific performance of the Agreement cannot be granted. Hence the prohibitive injunction pending the suit cannot be issued. 13.Consequently, the Notice of Motion is dismissed. (SMT. ROSHAN DALVI, J.)