- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION No. 3300 OF 2008 IN SUIT No. 2407 OF 2008 Ismail Building Tenants Association & Ors. ... Plaintiffs Vs. Sir Mohammed Yusuf Ismail Building Trust & Ors ... Defendants WITH TRUST PETITION No. 3 OF 2008 Haroon Alim A. R. Yusuf & Ors. ... Petitioners Vs. Faruq A.R. Yusuf ... Respondents *** Mr. J. P. Sen i/b Markand Gandhi & Co. for the plaintiff. Mr. Virag Tulzapurkar a/w Ms. Kirtida Chandarana & Dhiraj Mhetre i/b Mahrnosh Humanwala, for the Defendant Nos. 1 to 6 and for petitioner in Trust Petition No. 3 of 2008. *** CORAM : V. M. KANADE, J. DATE : AUGUST 20, 2009. PC :- 1. Heard the learned counsel appearing on behalf of the plaintiff and the defendants. The plaintiff has filed the suit for specific performance of agreement of transfer of ownership of the - 2 - building, known as Ismail building, namely 1st to 4th floor of the said building. The plaintiff No.1 is an Association of tenants of Ismail building and plaintiff Nos. 2 to 37 are tenants having their premises in the said building. The defendant No.1 is a Trust and defendant Nos. 2 to 7 are its trustees. The defendant No. 8 is the proposed assignee in whose favour the defendant No.1 proposes to assign and sell the ownership right of the said building. It is case of the plaintiff that the members of plaintiff No.1 Association have since last few years been negotiating with the defendant No.1 Trust for conversion of the tenancy rights of their respective office premises into ownership. The defendant No.1 Trust were/are the owners, amongst other buildings, of sister buildings called “Yusuf Building”. It is case of the plaintiff that thereafter a proposal was given by the plaintiff regarding transfer of management in respect of the said building to the plaintiff on or about 1st October 2003. Thereafter the negotiations were going on between the plaintiff and defendant No.1 for the transfer of ownership of said building. Several letters were written by the plaintiff to the defendant No.1 and the negotiations were going on between the parties. At one stage some objections were raised by defendant No.1 for the purpose of conversion of ownership rights in respect of 6 tenants. It is case of the plaintiff that said objection thereafter was withdrawn by the defendant No.1 by the letter dated 23rd November 2006. 2. According to the plaintiff, a meeting was held between the plaintiff and defendant No.1’s Trustees and in the said meeting the plaintiff and defendant No.1 arrived at an agreement and it was - 3 - agreed that the defendant No. 1 Trust would sell the premises of “Ismail Building” to the tenants who are members of the Plaintiff Association, subject to sanction of the High Court, for a consideration of Rs.1,30,00,000/-. According to the plaintiff, it was agreed that initial amount of Rs.30 lakhs to be paid to the defendant No.1 as part consideration and the balance consideration of Rs. one crore would be payable after necessary sanction was granted by the High Court. Though the minutes of the said meeting were not recorded, the plaintiffs by their letter dated 10th April 2007 placed the said facts on record in the said letter and also sent a cheque for an amount of Rs.30 lakhs dated 15th April 2007. Thereafter on 16th April 2007 the plaintiff by their letter sent the draft Memorandum of Intent to the defendant No.1. The defendant No.1 by their reply letter dated 19th April 2007 denied that any agreement had been arrived between the parties as stated by the plaintiffs in their letter dated 10th April 2007. It was stated in the said reply letter that the negotiations between the parties were “without prejudice” and as such there was no commitment given by the defendant No.1 and no conclusive agreement had been reached. 3. The learned counsel appearing on behalf of the plaintiffs submitted that intention of the parties is to be gathered from the documents. It was submitted that the letter dated 10th April 2007 refers to the agreement which was arrived at between the parties and it was only after the eighth defendant had given a better proposal during the intervening period, the defendant No.1 had - 4 - backed out from the concluded agreement, which the parties had arrived at on 5th April 2007. He submitted that initial objection was taken by the defendant No.1 in respect of conversion of ownership of six tenants but lateron the same was withdrawn. He submitted that under the said letter dated 23rd November 2006 the defendant had categorically stated that “we hereby repeat and confirm that the offer is valid for all tenants including the 6 tenants”. It is vehemently urged by the learned counsel appearing on behalf of the plaintiff that the correspondence exchanged between the parties clearly establish that there was a concluded contract and an understanding was reached between the parties. He submitted that this fact can be established by the plaintiff by leading the evidence. He submitted that therefore, during pendency of the suit it is necessary to protect the interest of the plaintiffs by granting the appropriate reliefs. It was also vehemently urged that the fact that a cheque of Rs. 30 lakhs had been accepted, clearly establish that there was a concluded agreement since the offer given by the plaintiffs was accepted by the defendant No.1. 4. In my view taking into consideration the facts as averred in the plaint, there is no prima-facie evidence to show that there was concluded contract between the plaintiffs and the defendant No.1 for transfer of ownership rights in respect of the premises of the “Ismail Building” in favour of plaintiff No.1. The correspondence between the parties clearly indicates that there was on going negotiation between plaintiff No.1 and defendant No.1 and there was no concluded contract between them. After the letter - 5 - was sent by the plaintiffs on 10th April 2007 in which they had placed on record the so called agreement which was arrived at/ entered on 5th April 2007, the defendant No.1 immediately by his reply dated 19th April 2007 denied that there was any agreement between the parties and reiterated its stand that what transpired in the meeting held on 5th April 2007, was without prejudice and that negotiations were going on between the parties and there was no concluded contract. The defendant No.1 by the said letter returned the said cheque of Rs.30 lakhs which was given by the plaintiff along with letter dated 10th April 2007. Prima-facie therefore, there is no concluded agreement between the parties and as such, therefore, plaintiff has not made out prima-facie case for grant of interim reliefs. Notice of Motion is accordingly dismissed. Sd/- [ V. M. KANADE, J.]