1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2589 OF 2007 IN SUIT NO.493 OF 2007 M/s. Star Apparels Pvt. Ltd. ...Plaintiffs Vs. Parampreet Singh Bindra alias King Bindra & Ors. ...Defendants Mr. D.D.Madon , Sr. Counsel with Mr. V.V.Kanade , Ms. D. Khare i/b. Shralkar & Co. for Plaintiffs Mr.P.K.Samdani , Sr. Counsel a/w. Mr. Kamal Khata & Mr. H.C. Mehta and S. Nasradaria, Ms. Deepti Shah i/b. Mehta & Co for Defendant No.1 Mr.F.E . D'Vitre, Sr. Counsel with Mr. Ramesh Tiwari i/b. B. Dandekar for Defendant Nos.3 Mr. V.R. Dhond i/b. M/s. Prakash & Co for Defendant No.7 CORAM: SMT.ROSHAN DALVI, J. DATED: 21 ST AUGUST, 2008 JUDGMENT 1. The Plaintiffs have essentially sued for specific performance of the Agreement/Memorandum of Understanding (MOU) dated 18 th May, 2006 entered into 2 between the Plaintiffs and Defendants 1 and 2. The Plaintiffs have challenged the termination of that agreement. The Plaintiffs also seek a declaration that the MOU dated 30 th June, 2005 between Defendant No.3 and Defendant No.1 is valid and subsisting, and for an order that Defendants 3 to 6 specifically performed the said MOU. The Plaintiffs have further sought the declaration that an agreement dated 26 th December, 2007 between Defendant No.3 and Defendant No.1 is void, and further that an agreement dated 29 th January, 2007 between Defendant No.1 and Defendant No.7 is also void. The Plaintiffs have applied for ancillary reliefs with regard to those agreements and in the alternative for damages. 2. The Suit property is the land bearing CTS No.82 at village Malegaon, Tal: Andheri, Mumbai. 3. The relationship between the parties to the aforesaid agreements must be first understood. The Plaintiffs have entered into an agreement with Defendant No.1. Defendant Nos.1 and 2 are not the owners of the suit property. The Defendant No.3 (The Trust) (Defendants 4,5 and 6 are the Trustees of the Defendant No.3 Trust) are the owners of the suit property. The Trust wanted to sell its property at CTS No.82. The Trust required to take permission from the 3 Charity Commissioner for such sale under Section 36 of the Bombay Public Trust Act (BPT Act). The Trust, however, had other properties of the Trust near CTS No.82. From amongst those properties a property bearing CTS No.61 did not belong to the Trust. That property was encroached upon. The encroachments came to spill on to the Trust properties adjoining CTS No.61. Whereas the Trustees decided to sell CTS No.82, they desired to purchase CTS No.61 from the owners of that land, so as to include it within their other lands, free from encumbrances that it held. Consequently, the Trust wanted a composite deal – to sell CTS No.82 and to purchase CTS No.61 free from encumbrances or encroachments. 4. The Plaintiffs have had nothing to do with any agreement in that behalf with the Trust. 5. The Trust initially entered into an MOU on 30 th June, 2005 Exhibit- A, to the Plaint, with Defendant No.1 (Whereas the Defendant No.1 is the Proprietary Concern, Defendant No.2 is the partner of sole Proprietor of Defendant No.1). 6. Under the MOU, the Trust agreed to enter into a Development Agreement with Defendant No.1 granting Defendant No.1 the absolute right of development of CTS 4 No.82 under the said MOU. The aforesaid arrangements with regard to the Survey Nos.82 as well as 61 were to be a part of the Development Agreement. The Trust agreed to enter into the Development Agreement within 30 days of receipt of the permission of the Charity Commissioner for sale of the land. The Developers agreed to obtain vacant possession of the CTS No.61 for the Trust and develop CTS No.81 for which they would pay a consideration of Rs.2.30 Crores in four installments mentioned therein. The relationship between the parties under the Development Agreement were to be on principal to principal basis. Time was to the essence of the MOU subject to two extensions of three months each for Defendant No.1 to carry out their obligations with regard to CTS No.61. Upon signing the Development Agreement between the parties the MOU was to stand relinquished. 7. It is seen that this constitutes the initial negotiations between the owners, Defendant No.3 and the initial Developers, Defendant No.1. The Plaintiffs have prayed for specific performance of this agreement by and between Defendant No.1 and Defendant No.3. 8. Entering into the Development Agreement for CTS No.82, would require a later sale by transfer to the Co- 5 operative Society, which would come upon the said plot. Defendant No.3 were statutorily required to obtain permission for such sale from the Charity Commissioner. This, they obtained under judgment dated 26 th July, 2006 passed by the Joint Charity Commissioner, Mumbai, Exhibit- D, to the plaint. The said order permitted sale of CTS No.82. It allowed transfer of the vacant plot of CTS No.61 upon a consideration of Rs.2.30 Crores and gave time for the usage of the sale proceeds. 9. Defendant Nos.3 and 1 have negotiated until December, 2006 by ultimately entering into the Development Agreement. The draft of their agreement for development came to be prepared in November, 2006. It appears that, the Defendant No.1 did not himself desire to develop; he was to create rights in other developers, who would finance the project. The Defendant No.3 were interested in having their unique contract for release from encumbrances of CTS No.61 alongside the sale of CTS No.82. If the Defendant No.1 was not to himself develop the project, Defendant No.3 were to allow some other Company or partnership or such other entity, in which Defendant No.1 would have control and stake to develop it, so that there end in obtaining the release of CTS No.61 and the sale of CTS No.82 would contemporaneously to be achieved. 6 10. The draft Development Agreement between the Defendant No.3 and defendant No.1 of November, 2006, part of the Exhibit- R to the plaint, shows how the parties were to deal with the aforesaid two Survey numbers upon the aforesaid consideration. Though, therefore, the ambit of the MOU was maintained in the Development Agreement, which the parties had agreed to enter into, the actual mode to obtain that end was negotiated, drafted and later modified. The draft of November, 2006 showed that the hutments would be removed from CTS No.61 within 36 months with an extendable period of further 12 months. The Defendant No.3 as the owners were to have a lien on 15000 sq. ft. on constructed area of CTS No.82 until the hutments were removed and for their alternate accommodation under Clause 4.2 of the said draft of November, 2006. Further, the Developer was to compensate the owner in case of refusal to rehabilitate hutment owners under Clause 4.3 of the said draft agreement. CTS No.82 upon which the Defendant No.1 was to construct and was to be handed over after the aforesaid obligation, with regard to CTS No.61 was performed under Clause 5.2 of the said draft agreement. Defendant No.3 allowed Defendant No.1 as the developer to grant sub- development of the property and assigned his rights and entitlements to a third party, subject to that third 7 party being liable to fulfill the aforesaid obligations with regard to CTS Nos.61 and 82 under Clause 6.15 of the said draft agreement. The Developers had the right to sell the units and form a Co-operative Society upon development of plot No.81 under Clause 8 of the said draft agreement. 11. The parties further negotiated and arrived at the final Development Agreement on 26 th December 2006, which was also executed between Defendant No.3 and Defendant No.1. The aforesaid terms came to be modified. Consequently, the obligations with regard to CTS No.61 were agreed to be performed by Defendant No.1 within 24 months with a further extendable period of 12 months from the date of that agreement. (the period of 36 months came to be reduced to 24 months for that purpose). The Defendant No.3 were to have a lien on 16478 sq. ft. built- up area to be constructed on CTS No.82 (the area of 15000 sq. ft. came to be increased accordingly). The parties agreed that Defendant No.1 would be entitled to transfer the benefits of the agreement or assign any rights or grant sub- development rights in the suit property to any Firm or Company in which Defendant No.1 was a partner, member or Director, and Defendant No.1 would remain personally liable to comply with the obligations with regard to CTS No.61. (Hence, mere sub- development rights came to be changed to the grant of such 8 rights only to a Firm or a Company constituted or incorporated by Defendant No.1 along with his personal liability continuing thereunder). 12. It can be seen that the initial MOU dated 30th June, 2005 culminated in the Development Agreement dated 26th December, 2006 between the Defendants 3 and 1. 13. It appears that Defendant No.1, from the very inception, had considered having a sub- developer or a financer for his project. That being the scheme of development, Defendant No.3 were amenable to having the project sub- developed or financed by a third party, but took care to keep the obligation of the Defendant No.1 in the said project alive for the entitlement of the owners, to the vacant plot under CTS No.61 alongside the development and sale of the plot under CTS No.82. 14. The Defendant No.1 negotiated inter alia with the Plaintiffs. It is, under such circumstances, the Plaintiffs came into the picture. 15. The initial document of the Plaintiffs, is the MOU executed on 18 th May, 2006 Exhibit- C, to the plaint. This was about a year after the MOU came to be executed 9 between Defendant No.3 and Defendant No.1, to agree to enter into a Development Agreement. Consequently, to enable Defendant No.1 to enter into such Development Agreement, he entered into the MOU with the Plaintiffs. Under the MOU dated 18 th May, 2006 Defendant No.1 agreed to allow the Plaintiffs to develop and utilise the plot of land at village Malegaon, Tal: Andheri, Mumbai (the survey number of the plot is not stated). This agreement was subject to the fulfillment of the conditions mentioned in the MOU, executed by Defendant No.1 with Defendant No.3 (which was dated 30 th June, 2005). Under the MOU between the Defendant No.1 and the Plaintiffs, Defendant No.1 was to get the ULC permission to construct the boundary wall, get the approval of the Charity Commissioner for the property to be developed (CTS No.82), enter into agreement with encroachers on the nearby plot (CTS No.61) (both the CTS numbers are not stated in the MOU) and make out a marketable title to the said property. 16. The consideration agreed between the parties was to be of Rs.9.50 crores for transfer and assignment of the said plot. Rs.51 lakhs was to be paid initially on execution of MOU against the security for repayment, if so required to be repaid by depositing with the Solicitor of the Plaintiffs. The letter of allotment of one flat of the value of about Rs.60 10 lakhs was to be held in escrow, and on the execution of a Promissory Note by Defendant No.1. Hence, it is seen that the initial payment of Rs.51 lakhs was not by way of earnest amount unconditionally given. For the initial payment also the parties contemplated the mode of its repayment and the security for that purpose. Consideration as required for an agreement to sell an immovable property did not pass. The execution of the Promissory Note suggested that the amount of Rs.51 lakhs paid by the Plaintiffs was treated as a deemed loan from them. 17. The balance amount of Rs.8.99 Crores was to be paid by the Plaintiffs to Defendant No.1, upon Defendant No.1 fulfilling all the conditions under the agreement and the execution of appropriate documents in favour of the Plaintiffs. This amount was payable within 45 days by the Plaintiffs after all the conditions were fulfilled. The period of payment for 45 days was to be extended and if within that period the Defendant No.1 would not be able to fulfill the condition they would be liable to pay the Plaintiffs interest at 12% on Rs.51 lakhs paid and secured. Hence, an extended period of 90 days was given for complying with the conditions by the Plaintiffs. If the conditions could not be complied, the amount would carry interest. The amount of Rs.51 lakhs was itself paid as security for its repayment by way of allotment of flat and execution of a Promissory Note. If the amount had to 11 be repaid after 90 days of the agreement, it would be repaid along with the interest at the agreed rate. 18. The period of three months allowed to the Plaintiffs to make payment upon the Defendants carrying out the five conditions mentioned in the MOU expired on 17 th August, 2008. Under the last clause of the said MOU the parties agreed that the terms, which required to be deliberated, would be discussed and finalised with consent of their respective Solicitors and further Memorandums may be executed from time to time. Hence, the parties did not take the aforesaid MOU as a final Agreement between them . 19. It is this MOU, that the Plaintiffs essentially seek to specifically enforce. This MOU is subject to the earlier MOU between Defendant No.1 and Defendant No.3. The Plaintiffs have not paid any consideration under the MOU - and not even earnest amount – except a loan against security repayable with interest at 12%. Defendant No.1 has not performed all the conditions mentioned in the agreement. The parties in fact negotiated further. 20. The owners, Defendant No.3 allowed the Plaintiff's Attorneys to publish a public notice by their letter dated 22nd 12 September, 2006 Exhibit- E, to the plaint. That public notice was to be given for the purpose of clearance of title of CTS No.82. Such permission was given also to the Defendant No.1 under Clause 3.4 of the final Development Agreement dated 26 th December, 2006. 21. The Plaintiffs gave the required public notices. These public notices Exhibit- F, F1 and F2, to the plaint, specifically show that the Plaintiffs are negotiating to purchase the property of the Trust under CTS No.82. The notices have been given on 29 th September, 2006. The negotiations were going on. Defendant No.3 was aware that Defendant No.1 is negotiating to obtain finance/sub- development rights . 22. The negotiations did not fructify. On 5th October, 2006 the Attorneys of Defendant No.1 wrote to the Plaintiffs setting out the negotiations between the parties and the fact of several modifications having taken place between them, thereafter. They stated in the said letter that it was “finally agreed” that the Defendant No.1 would form a Limited Company and enter into a development agreement with the Trust and immediately thereafter, the Plaintiffs would purchase the entire share holdings of Defendant No.1 Company. This was in terms of the requirement of 13 Defendant No.3 to allow a third party to take over sub- development rights subject to Defendant No.1 being made personally liable. The letter further states that the Plaintiffs agreed to pay Defendant No.1 the entire agreed consideration on or before 30 th September, 2006, failing which on 1st October, 2006 the MOU and all further understandings would stand cancelled, irrevoked and Rs.51 lakhs deposited by the Plaintiffs with Defendant No.1 would be forfeited. The Defendant No.1 formed a Private Limited Company and obtained a certificate of Incorporation on 5th September, 2004. The Defendant No.1 also claimed to have sent a draft Development Agreement to be entered into by them with the Plaintiffs (which is not produced by any party in Court). The Attorneys of Defendant No.1 gave notice to the Plaintiffs, that, as orally agreed in further negotiations, the Plaintiffs failed and neglected to deposit the entire consideration in escrow with their Solicitors by 30 th September, 2006 and hence, the MOU dated 18 th May, 2006 stood cancelled and Rs.51 lakhs stood forfeited. The letter, therefore, shows negotiations carried on between the parties, as they had envisaged and incorporated in the last clause of the MOU dated 18 th May, 2006 . 23. The further negotiations showed a quantum difference in the mode of payment of consideration. It showed the 14 simultaneous act of Defendant No.1 as required by Defendant No.3 in their separate negotiations. The public notice which the Plaintiffs required to give and which were permitted by Defendant No.3 on 22 nd September, 2006 came to be given on 29 th September, 2006 a day before the oral negotiations between the Defendant No.1 and the Plaintiffs were to culminate into the payment of consideration, for obtaining the development rights by the Plaintiffs. 24. The Plaintiffs Attorneys, by their letter dated 19th October, 2006 Exhibit- H, to the plaint, suggested further modifications of the deal. Plaintiffs, offered to deposit entire consideration with their Solicitors with irrevocable instructions to release them in favour of Defendant No.1 upon the completion of the transactions and also offered to obtain the ULC clearings, if it could not be obtained by Defendant No.1, as agreed in the MOU dated 18 th May, 2006. The further modifications suggested by the Plaintiffs show the continuance of the negotiations and are inconsistent with a completed contract before that date. 25. By a further letter of the Plaintiff's Attorneys dated 13 th November, 2006 Exhibit- I-1, to the plaint, the Attorneys enclosed a fair draft of the proposed MOU for the approval and comments of the Defendant's Attorneys. The letter 15 stated that the “final documents” would be executed within two days after the MOU is finalised. The fair draft is not annexed to the said letter in the plaint. The affidavit of Defendant No.1 shows that, under that draft, the consideration was increased and Defendant No.1 was obliged to form a Limited Company. The terms between the parties, therefore, came to be modified again. This itself shows that the earlier MOU dated 18 th May, 2006 was not the final agreement. The Attorneys of Defendant No.1, by their letter dated 14 th November, 2006, Exhibit- I-2 acknowledged receipt of the draft of the proposed MOU. They stated in that letter that inspite of “Fresh” negotiations, and several modifications there was no agreement between the parties and the proposed MOU was required to be further discussed and finalised. They requested a meeting on 16 th November, 2006, so that the MOU could be executed by 17 th November, 2006, since Defendant No.3 Trust was pressing hard for execution of their Development Agreement with Defendant No.1. 26. The affidavit of Defendant No.1 shows that even the said modifications did not fructify. In fact further correspondence shows that meetings were held on 16 th November, 2006 and 24 th November, 2006 between the Attorneys of the Plaintiffs and Defendant No.1, but the agreement remained elusive. 16 27. An E-mail is shown to have been sent by the Attorneys of Defendant No.1 to the Attorneys of Plaintiffs on 16 th November, 2006, part of Exhibit- R, to the plaint, annexing the draft Development Agreement between Defendant No.3 and Defendant No.1. 28. On 28 th November, 2006 the Plaintiff's Attorneys once again wrote to the Attorneys of Defendant No.1, setting out certain terms orally agreed between the parties in several meetings the parties had during that period. This letter shows entirely modified terms between the parties. The Plaintiffs were to pay Rs.1.40 Crores to the Trust and Rs.4.40 Crores as loan to Defendant No.1, upon Defendant No.1 fulfilling their obligations in relation to the deal, being the execution of the Development Agreement with the Trust, and the Assignment Agreement with the Plaintiffs to be kept in escrow along with an appropriate Loan Agreement and a Power of Attorney. The Plaintiff's Attorneys called upon Defendant No.1 to perform those obligations and complete the deal. They annexed xerox copies of Demand Drafts to be given by the Plaintiffs in favour of Defendant No.3 as well as Defendant No.1. This shows that admittedly, there were further negotiations between the parties, though the contents of this 17 letter have been denied in the letter of Attorneys of Defendant No.1 dated 13 th December, 2006, Exhibit- N, to the plaint. It can be seen that if they were as stated, they would result in a completely different and modified agreement with the Plaintiffs. The initial MOU dated 18 th May, 2006 which the Plaintiffs seek to enforce was completely given a go-by. A further assignment of the agreement, along with agreement and power of attorney were to be executed instead. 29. The Attorneys of Defendant No.1, by their letter dated 28 th November, 2006 to the Plaintiffs' Attorneys recorded two meetings held between the parties on 16 th November, 2006 and 24 th November, 2006 and stated that, no finality could be arrived at between the parties. The Attorneys ultimately concluded that the parties were not able to negotiate material terms and returned the initial amount of Rs.51 lakhs paid by Plaintiffs, at the time of the execution of the MOU dated 18 th May, 2006 along with interest as agreed thereon as per Clause 4 of the said MOU. The negotiations between the parties was stated to have stood withdrawn and terminated. A cheque for Rs.52,71,025/- of Defendant No.1 came to be sent to the Plaintiffs. 30. Defendant No.1 accepted initial payment of Rs.54 lakhs from Defendant No.7 on 25 th November, 2006, that was the 18 day after last meeting with the Plaintiffs on 24 th November, 2006 which did not culminate in any agreement. Consequently under the letter dated 28 th November, 2006 Defendant No.1 returned the initial payment made on security with interest thereon. 31. The Plaintiffs' Attorneys, of course , returned the said cheque along with the letter dated 31 st November, 2006 and insisted that there was a binding agreement between the parties. The letter does not show, which was that agreement that remained binding between them and which the Plaintiffs sought to enforce. 32. By further letters dated 7th December, 2006 and 15 th December, 2006, Exhibits- M and O, to the plaint, Plaintiffs' Attorneys stated that the Plaintiffs have learnt that Defendant No.1 was trying to sell off the property to a third party committing breach of the agreement between Defendant No.1 and the Plaintiffs. 33. Alongside the negotiations between Plaintiffs and Defendant No.1, Defendant No.3 and Defendant No.1 also negotiated for development of the property of Defendant No.3. These negotiations, which were consequent upon the 19 initial MOU between Defendant No.3 and Defendant No.1 dated 30 th June, 2005 culminated in the draft Development Agreement of November, 2006, which came to be finalised between them under the Development Agreement dated 26th December, 2006, Exhibit- P, to the plaint. The negotiations between Defendant No.1 and the Plaintiffs during November, 2006 remained inconclusive. 34. Whilst the draft Development Agreement between the Defendant No.3 and Defendant No.1 were being considered by and between those parties, and during which period the meetings with the Plaintiffs resulted in an impasse, Defendant No.7 came to be considered for being granted the development rights. A day after the last meeting with the Plaintiffs, Defendant No.1 accepted the earnest amount of Rs.54 lakhs from Defendant No.7. 35. Defendant No.1 and Defendant No.7 entered into a joint Development Agreement on 29 th January, 2007, Exhibit- Q, to the plaint. Defendant No.1 is shown as a principle developer thereto. Defendant No.7, a partnership firm, are shown as co-developer. The agreement between Defendant No.3 and Defendant No.1 to have a sub- development for development of CTS No.82 while keeping Defendant No.1 personally liable to get the obligations in respect of CTS 20 No.61 complied were recited and agreed between the Defendant No.1 and