1 IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINA CIVIL JURISDICTION NOTICE OF MOTION NO. 44 OF 2007 IN SUIT NO. 1593 OF 2006 Sumer Associates ......Plaintiffs V. Mustansir H. Tambawala and others .......Defendants Mr.D.D. Madon, Sr. Advocate a/w Mr. V.RF. Dhond, Ms Yasmin Bhansali i/b Yasmmin Bhansali Associates for the plaintiffs Ms Anee Mehta a/w M/s Sachari Nandi i/b M/s Yusuf & Assocates for the defendants CORAM : A.A. SAYED, J. DATE : 3RD JULY, 2009. P.C. 1 This Notice of Motion has been taken out by the plaintiff for the relief in terms of prayer clause (a) which reads thus:- "(a) Without prejudice to the pending Suit the Defendants be directed to hand over possession of the suit premises being Unit No. 240F Atlas Mills Compound, Matherpakhadi Road, Reay Road, Mumbai-400 010 admeasuring 60.22 sq. feet shown on the sketch plan annexed to letter dated 07-03-2006 at Exhibit-"B" to the Plaint on receipt of the sum of Rs. 51,23,080/- and on the Plaintiffs depositing with the office of the Prothonotary and Senior Master the sum of Rs. 27,58,240/- for the open space of 861.75 sq. ft. of the suit premises." 2 2 The case of the plaintiffs is that they are owners of the suit property and the defendants are their tenants occupying premises being Unit No. 240F in the suit property. The plaintiffs are seeking specific performance of an agreement, which is in the form of a letter dated 30-09-05, whereby the defendants had agreed to surrender the premises in their occupation within a period of 6 -12 months and accepted payment of Rs. 15 lacs on account and the balance amount @ Rs. 3200/- per sq. ft was to be paid after joint measurement of the area in their occupation. It appears that there were certain dispute between the parties with regard to the area in occupation of the defendants and the defendants continued to remain in occupation and terminated the agreement vide their Advocate’s letter dated 24-04-06. 3 Perusal of the record discloses that a similar Notice of Motion being Notice of Motion No. 1824 of 2006 was taken out wherein an order dated 22nd Oct 2008 came to be passed whereby the statement which came to be recorded by the parties for maintaining status quo in respect of the suit premises made before the Division Bench in Appeal, was directed to be continued during the pendency of the suit. This order has not been challenged and has attained finality. Reliance on Rule 295 of the Bombay High Court (OS) Rules, by the Ld. Counsel for the Plaintiffs would, in my view, be misplaced inasmuch as unless the order dated 22nd Oct 2008 is set aside, Rule 295 would have no application in the facts of the present case. 4 In any event, the defendants have already terminated the agreement by their Advocate’s letter dated 24th April 2006. The plaintiffs have also filed a suit for eviction against the defendants in the Court of Small Causes at 3 Mumbai. The granting of the prayer in the Notice of Motion of handing over possession of the suit premises to the plaintiffs by the defendants would amount to decreeing the suit at this stage. 5 The Notice of Motion is devoid of merits and is dismissed with costs quantified at Rs. 10,000/- to be paid by the plaintiffs to the defendants within 4 weeks. 6 Notice of Motion to stand disposed of. A.A. SAYED. J.