* 1 * A.O. 31.2011 27.4.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTTION APPEAL FROM ORDER NO. 31 OF 2011 WITH CIVIL APPLICATION NO. 39 OF 2011 [FOR STAY] IN APPEAL FROM ORDER NO. 31 OF 2011 IN SPECIAL CIVIL SUIT NO. 170 OF 2008 Shri. Harbanssingh G. Siddhu ......Appellant/ Orig.Plaintiff V/S. Smt. Shakuntala G. Kulkarni & Ors. .....Respondents * * * * Mr. P.N. Patil, Advocate for the appellant. None for the respondents. CORAM :- Smt. R.P. SondurBaldota, J. 27th April, 2011. P.C. :- 1. This appeal is preferred against the order dated 28th September, 2010 passed by the trial Court rejecting an application for interim relief filed by the appellant in a suit for specific performance. The respondents are the original defendants. Respondent no.1 is the person with whom the appellant had entered into with a Memorandum of Understanding (MOU) * 2 * A.O. 31.2011 27.4.2011 dated 17th January, 1996. There is a dispute as regards the date of the MOU. According to the appellant, the correct date is 16th November, 1995, whereas, according to respondent no.1, the date is 17th January, 1996. The date of the MOU has some significance in the dispute in view of the fact that on 28th November, 1995 the appellant had entered into further agreement assigning his rights to one M/s. Sahara India. Respondents no.2 and 3 are the CIDCO and Navi Mumbai Municipal Corporation. These respondents are concerned with the allotment of the land in question, to respondent no.1 by way of part of compensation for acquisition of the land belonging to respondent no.1. Respondents no. 4 and 5 are the persons with whom respondent no.1, in the year 2008, entered into registered agreement for development of the very property. After filing the suit for specific performance of the MOU, the appellant filed an application for interim reliefs against respondent no.2 and/or respondents no.4 and 5. It did not seek any interim relief against respondent no.1. The application came to be dismissed by the impugned order. 2. Amongst several reasons given for rejection of the application, few of the reasons which are sufficient for consideration of the appeal relate to maintainability of the suit for specific performance and the suit being barred by the law of limitation. The trial Court has found that the MOU was entered into between respondent no.1 and the appellant even before the * 3 * A.O. 31.2011 27.4.2011 allotment of the property by respondent no.2 to respondent no.1. Consequently, the subject matter of the MOU was not ascertained at the time of its execution. This makes the MOU vague and ambiguous. Besides, the MOU was a mere nominal and transitory document. Clause (3) of the MOU shows that, a formal agreement of sale was to be executed between the appellant and respondent no.1 after issuance of letter of allotment by respondent no.2 in favour of respondent no.1. As per the MOU, the total consideration for the proposed development by the appellant was of Rs. 2,16,00,000/- @ Rs.6,000/- per sq.mtr for 3600 sq.mtrs which was likely to be alloted to respondent no.1. The schedule for the payment provided under Clause-3 of the MOU was of Rs.25,00,000/- at the time of execution of the MOU by way of earnest money, Rs.29,00,000/- within 15 days of respondent no.1 obtaining succession/heirship certificate and Rs.54,00,000/- within 30 days from the intimation of letter of allotment issued by respondent no.2, thereafter the balance. The appellant paid a sum of Rs.25,00,000/- at the time of execution of the MOU. Though the second payment under the Schedule fell due in the month of January, 1997 with the intimation of heirship certificate being served upon the appellant, he did not make the payment until the year 2006. The explanation given for not making the payment is the pendency of the proceedings initiated by one Lakshmibai Koli in the year 1999. The trial Court has observed that pendency of these * 4 * A.O. 31.2011 27.4.2011 proceedings can have no bearing on the payment to be made by the appellant to respondent no.1 because the payment had fallen due 2 years prior to filing of the proceedings. Thus, the appellant had failed to comply with the terms of MOU as far back as in the year 1997. 3. The trial Court has rightly observed that since the MOU is a mere nominal and transitory document, suit for specific performance of it would not be maintainable. In addition, the trial Court has found that the appellant has himself committed breaches of the terms and conditions of the MOU. Much emphasis is sought to be placed upon the payment of the second installment of Rs.29,00,000/- to respondent no.1 in the year 2006. Respondent no.1, though admits receipt of the amount, she claims in her reply to interim proceedings that the same had been given to her by misrepresenting facts. The reply sets out details of misrepresentation. 4. The trial Court has also noted that respondent no.1 by filing written statement in Suit No. 417 of 2009 filed by M/s. Sahara India against the appellant and respondent no.1 made it categorically clear that she was not willing to go through with the MOU. The written statement was filed in February, 2002. Thus, the appellant already knew in February, 2002 itself that respondent no.1 had denied completion of the transaction with him. Therefore, he ought to have filed suit for specific performance within a period of 3 years thereafter. According to Mr. Patil, the payment made by * 5 * A.O. 31.2011 27.4.2011 the appellant in the year 2006 would save the period of limitation because it would amount to revalidation and confirmation of the MOU by respondent no.1. This would be a matter to be resolved at the time of final hearing of the suit. The present suit filed on 26th February, 2008 is barred by the law of limitation. Therefore, in the suit as filed there are hardly any chances for the appellant to succeed finally. In a suit in which no final relief can be granted, no interim relief can also be granted. Besides, respondents no.4 and 5 have registered agreement in their favour. They have also been put in possession of the property by respondent no.1. In these circumstances, there cannot be any interim restraints upon their rights in the property. Hence, the Appeal from order is dismissed. 5. With this, Civil Application No. 39 of 2011 taken out for stay does not survive. The same is accordingly disposed off. [SMT. R.P. SONDURBALDOTA, J]