IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL APPEAL APPEAL FROM ORDER NO.680 OF 2008 FROM ORDER NO.680 OF 2008 FROM ORDER NO.680 OF 2008 IN SPECIAL CIVIL SUIT NO.1923 OF 2006 Dishti Industrial Ltd. ... Appellant Vs. M/s Dream Giga Ventures (AOP) ... Respondents & Ors. Mr. Ravi Kadam with Birendra Saraf, Hitesh Jain, Subhash Jadhav, Tanmaye Gadre i/by ALMT Legal for Appellant. Dr. V.Y. Tulzapurkar with Mr. Y.S. Jahagirdar, Senior Advocate i/by Mr. G.S. Godbole, Advocate for respondent No. 1(b) & 2. Ms. Manjiri Parasnis Advoate for respondent No. 1(a). CORAM CORAM CORAM : SMT. R.P. SONDURBALDOTA, J : SMT. R.P. SONDURBALDOTA, J : SMT. R.P. SONDURBALDOTA, J. DATE DATE DATE : 1ST AUGUST, 2008 : 1ST AUGUST, 2008 : 1ST AUGUST, 2008 P.C. P.C. P.C. :- :- :- 1. By this Appeal from Order, the appellant- Company (original plaintiff) takes exception to the order dated 30th June,2008 passed by the trial Court rejecting its application for interim reliefs. Respondents No.1 and 2 are the original defendants. Respondent No.1 M/s Dream Giga Ventures (AOP) is not a legal person. It is described as "Association Of Persons" represented by its 2 constituents (a) M/s Dream Developers, a partnership firm and (b) M/s Kolte Patil Enterprises, another partnership firm. It is to be noted that the two partnership firms have not been joined as parties to the Suit in their individual capacities. Respondent no.2 is a company registered under the Companies Act. 2. Looking to the frame of the reliefs sought in the suit and the peculiar facts alleged in support, it will be convenient to set out the reliefs in verbatim and the facts alleged in some details. The reliefs prayed in the suit are as under : "(i) Defendants may be directed to execute sale deed in favour of the plaintiff as per the letter dtd. 16/8/2005. (ii) Defendants may be directed to execute necessary documents in favour of the plaintiff for the sale of land, more particularly described in Schedule of the plaint i.e. bearing No.198/1A, Lohagaon, Pune constituted buildable area about 95,000 sq. ft. for Hotel / Service Apartment. (iii) Alternatively the Defendants may be directed to pay damages Rs.20 Crores. (iv) The Defendant be directed by an order of permanent injunction not to develop the suit property contrary to the agreement dated 16/8/2005 i.e. not to construct building for I.T. Park / Commercial purpose. (v) The Defendants be restrained by an order of permanent injunction from constructing building on the suit property for the purpose of I.T. Park/ Commercial purposes and create any third party interest with respect to the suit property in any manner. 3 (vi) The Defendants be directed by an order of mandatory injunction to revoke and cancel the building plans already sanctioned for I.T. Park / Commercial purpose and submit fresh building plans for constructing building for Hotel / Service Apartment having area of 95000 sq. ft. by obtaining / acquiring required TDR or in any other manner". 3. The interim relief sought before the trial Court was in terms of prayers (v) and (vi) above. 4. The facts alleged in support of the above overlapping reliefs are as follows. The appellant- Company is in the hotel business. It was looking for suitable premises near Lohagaon/ Wagholi / Nagar road for running Hotel/ Service Apartment. Through one Mrs. Neeru Gupta, an estate broker a meeting was organised in May 2005 between Shri K.K. Mehra, Director of the appellant- Company and Rajesh Patil, Director of respondent No.2. In the meeting, Shri Rajesh Patil represented that respondent No.2 is having authority from the owners to develop the suit land having an area of 52,500 sq. foot by constructing a building of approximately 95,000 sq. feet area for hotel/ service apartment project and sell the same. The suit land is owned by M/s. Dream Developers, the first constituent of respondent no.1, Mr.Rajesh Patil who allegedly made the representation 4 is not a partner of M/s. Dream Developers. The plaint does not indicate the nature of authority given to Mr.Rajesh Patil over the suit land. It is stated that after some more meetings, respondent No.2 agreed to sell and the Appellant agreed to purchase the suit land with building for hotel/ service apartment project. As per the work-sheet the building was to consist of ground plus six upper floors having an area of approx. 95,000 sq. feet to be constructed at the rate of Rs.2200/- per sq.feet with Rs.150 per sq. foot for M.S.E.B. and Rs.1,25,000/- per car parking. After this, the plaint suddenly starts referring to both the respondents, stating that they assured to make out marketable title to the suit property and also get the building plan sanctioned. It further states that the respondents asked for advance towards purchase price. There is no clue as to when and how respondent no.1, which is an association of two firms became actively involved in the alleged transaction. There is also no mention as to which individual on behalf of which of the respondents and in what manner gave the assurances. 5. The plaint next states that the appellant paid Rs.50,00,000/- towards advance of the purchase price and signed the "documents acknowledging 5 the contract" on 16th August 2005. It is silent as regards the nature of the documents signed. However, the appellant has produced xerox copy of letter dated 16th August,2005 written by Shri Rajesh Patil of respondent No. 2 along with an annexure to it which is now sought to be treated as the concluded contract. The contents of the document and the effect thereof would be discussed later at the appropriate time. At this stage, it is sufficient to note that the appellant was deliberating and dealing with Rajesh Patil, of respondent no.2 about the property owned by the first constituent of respondent no.1 without the owner being actively in the picture. 6. The appellant claims that pursuant to the contract dated 16th August,2005, it paid a total sum of Rs.3.00 Crores from time to time during the period 16th August 2005 to 28th December,2005. Receipts for the payments were issued by M/s Kolte Patil Enterprises Limited, the second constituent of respondent No.1. One of the receipts was issued by respondent No.1. It is alleged that later Mr. Rajesh Patil informed the appellant that the suit property would now be developed by respondent no.1 instead of respondent no.2. Shri Rajesh Patil also assured the appellant that the contract dated 16th August,2005 6 between the appellant and respondent no. 2 is binding on respondent no.1 which had come into existence by joint venture agreement dated 19th October, 2005 i.e. long after the alleged agreement dated 16th August,2005. 7. When the appellant insisted for execution of a formal agreement "the respondent" alongwith letter dated 28th March, 2006 forwarded draft agreement not for Hotel/Service Apartment Project, but for I.T. Park/Commercial Complex. Therefore the appellant protested and issued public notice regarding their agreement. Respondent no.1 then by letter dated 12th July, 2006 asked the appellant to accept refund of Rs. 3 crores. 8. The appellant contends that the respondents are bound to construct a building for Hotel/ Service Apartment Project as per the specifications agreed on 16th August,2005 and convey the property to the appellant on accepting the balance consideration. 9. The respondents while pointing out various defects in the plaint contend that the plaint does not disclose cause of action against any of the respondents. According to them there is no concluded 7 contract between any of the respondents and the appellant. The respondents do not dispute the payment made by the appellant. However, they contend that the payment made was not towards any concluded contract but was a mere advance booking payment. 10. In view of the rival contentions the first question that falls for consideration is whether there is a concluded contract between the parties which is enforciable. There is no formal agreement executed and as rightly submitted by Mr. Kadam, the learned Counsel for the appellant the same is not required. The appellant contends that the letter dated 16/08/2005 together with the Annexure thereto is the concluded contract. The letter is written by the Director of respondent No. 2 giving a final offer to the appellant for Hotel/Service Apartment Project at survey NO. 198/1-A Lohegaon, Ahmednagar Road,Pune. It is given by a person who has no right to the property. It does not disclose his authority to deal with the property. It refers to the area of the land, approximate area of proposed construction, the total number of floors, the rate of construction for Bare Shell with specifications of Bare Shell and rate for car parking. The annexure to the letter contains approximate costing of service apartment. The letter 8 does not refer to the sale of the land. It does not refer to the number of parking places to be sold. As per the letter the payment schedule was to be still discussed mutually. On 21st November, 2005, respondent NO. 2 sent another letter giving proposal of payment schedule to the appellant. The letter refers to the total cost of the construction as Rs.22,32,50,000/- (minus the charges for car parking) to be paid between November 2005 to July 2007. The charges for car parking at the rate of Rs.1,25,000/- per number were to be paid proportionately to the payment schedule mentioned in the letter. The payment schedule does not make any reference tothe cost of the land. This letter also does not specify the number of car parking places to be made available to the appellant and the total charges therefor. The transaction does not indicate whether the land was to be sold along with the construction thereon to the appellant or any other right was to be created in respect thereof. All these factors, prima facie, support the contention of the respondents on the letter. They contend that Mr. K.K. Mehra of the appellant had requested the Director of respondent NO. 2 to atleast give the rates for bare shell which would give a rough idea of the costs to the appellants. Therefore, though respondent No. 2 did not have any 9 agreement with the owners of the property and though there was no question of giving any final proposal to the appellant a broad idea of expenses of the proposed construction came to be given to the appellant. 11. The appellant heavily relies upon the payment made by it to the respondents and the receipts issued therefor submitting that the same amounts to acceptance of the proposal in the two letters by it. As against this respondent no. 2 contends that though the entire transaction was still at the stage of proposal, the appellant desired to make a booking for the property and paid the amount by way of an advance booking amount. This payment was made voluntarily for which receipts came to be issued. In the circumstances, according to the respondents, the payment made by the appellant is of no consequence. On a prima facie view this contention of the respondent must be accepted since letter dated 16th August 2005 does not deal with all the aspects of the transaction of sale. 12. In the above circumstances, on a prima facie view, it must be held that letter dated 16th October,2005 coupled with the annexure thereto and the letter dated 21st November,2005 cannot be said to be a 10 concluded contract between the parties. The learned trial Judge had rightly appreciated this aspect of the matter. The learned trial Judge has also taken note of the fact that the construction plan on the suit property is not yet sanctioned nor the final terms and conditions of the contract discussed. He has observed that the letter 16th August,2005, on a prima facie view is a mere final offer of respondent NO. 2 and there is nothing to show that the offer is accepted. 13. Several authorities have been cited on behalf of both the sides as regards sufficiency of the averments made in the plaint about readiness and willingness of the appellant in performing its part of the contract. Since it is prima facie seen that there is no concluded contract between the parties capable of specific performance, it is necessary to discuss the citations 14. The learned trial Judge has rightly appreciated the contentions raised by the parties in the application before it and rejected the application for interim reliefs. There is no need to interfere with the same. Hence, the Appeal from Order is dismissed. 11 ( SMT.R.P. SONDURBALDOTA, J.) SMT.R.P. SONDURBALDOTA, J.) SMT.R.P. SONDURBALDOTA, J.)