1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTIC OF MOTION NO. 4943 OF 2007 IN SUIT NO. 3573 OF 2007 M/s. Sanghvi Constructions & Ors. ...Plaintiffs Vs. Dattaram S. Khanolkar & Ors. ...Defendants Mr.P.G.Pravin for Plaintiffs Mr.Kishor V. Tembe for Defendants 1 to 6 Mr. B.H.Prasad Sharma for Defendant 5 CORAM: SMT.ROSHAN DALVI, J. DATED: 6 TH FEBRUARY , 2009 P.C. 1. The Plaintiffs have sued under the MOU dated 22 nd November 2006, Exhibit- G to the plaint executed by the Plaintiffs as Developers with the owner of the suit land, Defendant No.1 and his family members. The other family members are his children. 2. The Defendant No.1 has been the owner of the suit land under the Indenture dated 16 th November 1983, Exhibit- D to the plaint executed by and between him and the original owners. The Defendant No.1 has paid the consideration under the Indenture of 16 th November 1983 as shown in the 2 letter of the original owners dated 8th October 1987, Exhibit- E to the plaint. 3. The M.O.U is neither registered nor sufficiently stamped. The MOU is executed also by some of the children of the owner of the suit property. Under the MOU a sum of Rs.70,00,000 /- was shown to be the consideration to be paid in 3 installments of Rs.30,00,000 /- , Rs.25,00,000/- and Rs.15,00,000 /- in addition to certain 4 flats to be given to the owners. The payment of the first installment is made as and by way of earnest at the time of the execution of the agreement for sale. The second installment was payable within 3 months at the time of the execution of the agreement for sale (or development). The 3 months would expire on 21 st February 2007. 4. On 2 nd February 2007 a draft of the Development Agreement was sent to the Defendant No.1 and his family under the Plaintiffs' letter dated 2nd February 2007. That is accepted by the Defendant No.5, who is one of his sons. Thereafter, there are reminders stated to be sent on 17 th April 2007, 26 th April 2007 followed by a legal notice dated 18 th May 2007 to the same end. 5. Therefore, it is sought to be shown that though the 3 Developers sought to follow up the MOU, the owner did not. The reply to the legal notice dated 24th May 2007, which is the first communication of the owners refutes the contention, that such an agreement was to be executed. 6. Defendant No.1 has denied receipt of either of the letters dated 17 th April 2007 and 26 th April 2007. He contends that the entire Development Agreement was to be executed within a period of 3 months and the initial letter sending the draft Development Agreement (which was sent within a period of 3 months) has not been received by him, but has been received by the Defendant No.5, who is the son, with whom he has strained relationship. He has, therefore, not receved the 2nd installment of the consideration also. 7. Though time is not the essence of a contract for immovable property, it is seen that the Defendant No.1 was not given the draft Development Agreement within a period of 3 months as contemplated in the MOU. The Defendant No.1, therefore, contends that he is not bound to execute and to otherwise specifically perform the MOU. 8. In the absence of the Plaintiffs showing receipt of the letter calling upon the Defendant No.1 to execute the Development Agreement as also reminders, it cannot be seen 4 that the Plaintiffs have performed their part of the agreements relating to the payment of the next installment of Rs.25,00,000 /- within 3 months of the execution of the MOU along with the execution of the Agreement for Sale (or Development). 9. It is seen that the initial agreement between the parties has been in November 2006. Within a period of 6 months and upon receipt of the legal notice itself, the Defendant No.1 has offered to return the consideration received. The reply to the legal notice dated 24 th May 2007, Exhibit- L to the plaint shows that a certain cheque was not even encashed. For the cheque which was encashed, the amount is offered to be returned. Even the cash amount is offered to be returned upon the Plaintiffs making arrangement to collect the same. 10. The Defendant No.1 also contends that the other owners have not consented and have not signed the MOU. The Indenture shows that only the Defendant No.1 is the owner. The Defendant No.1 contends that his wife was the Lessee of the land. She expired. Hence, all his children as her heirs and legal representatives have become Lessees of the land. 11. The Advocate for the Defendant No.1 has shown that the 5 MOU has not been executed by the persons at serial Nos.5,7 and 8 mentioned therein. These are the other children of Defendant No.1, the owner of the Suit land who are the present Lessees. One of them is a minor. 12. Under the aforesaid circumstances and taking an overall view, the Defendants cannot be compelled to continue the transaction with the Plaintiffs, being having not received the very second installment as contemplated under the Agreement itself. 13. Hence, the reliefs prayed for in the Notice of Motion cannot be granted. However, the Plaintiffs must be paid back the consideration received by the Defendant No.1. 14. The Defendant No.1 shall deposit the cheque amount which has been encashed with the Prothonotary & Senior Master of this Court within 2 weeks from today. 15. The Defendant No.1 also offers to return the cheque and the cash amount to the Plaintiffs as mentioned in his Advocates letter dated 24 th May 2007. 16. The Plaintiffs shall be entitled to collect the same. 6 17. No other order in Notice of Motion. No orders as to costs. (SMT. ROSHAN DALVI, J.)