1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL JURISDICTION NOTICE OF PETITION NO. 4813 OF 2007 IN SUIT NO. 3467 OF 2007 M/s. Sikka & Sikka Engineering (P) Ltd. .... Plaintiff. V/s. Dr. Deepak Mukund Parikh & Anr. .... Defendants. ....... Mr. P.M. Shah for the Plaintiff. Mr. S.U. Kamdar with Mr. Shashank Thatte for the Defendants. ........ CORAM : DR. D.Y. CHANDRACHUD, J. 23RD JANUARY 2008. P.C. :- By consent, the Notice of Motion is taken up for hearing and final disposal since, Counsel appearing on behalf of the Defendants has urged that even on the basis of the averments in the plaint as they stand, the Plaintiff is not entitled to any interlocutory relief in the suit for specific performance. The suit for specific performance is based on the allegation that a concluded contract was arrived at between the parties 2 on 20th September 2004. A copy of the alleged agreement which is annexed at Exhibit `F' to the plaint would on the face thereof demonstrate that there was prima-facie no concluded agreement at all. The document is titled thus :- “FOURTH DRAFT – WITHOUT PREJUDICE & SUBJECT TO FINALIZATION OF NEGOTIATIONS AND APPROVALS OF/TO DRAFT AND OF/TO TERMS AND CONDITIONS THEREFOR/THEREIN - 3rd September, 2004.” A perusal of the document would thus reveal that it was only a draft, without prejudice and subject to finalization on negotiations. In paragraph 11 of the plaint, there appear the following averments :- “11. The Plaintiff states that pursuant to the said negotiations and the said meetings, drafts of Agreement for Sale and drafts of relevant documents were prepared by the respective Advocates of the Plaintiff and Defendant 1 and correspondences were exchanged concerning completion of the transaction in respect of the suit premises. The one of such draft approved which was corrected by the Advocate for the Plaintiff and his handwritings are on the said draft. The Plaintiff crave leave to refer to and rely upon collectively are the last draft of documents approved and corrected by the Advocate for the Plaintiff, when produced.” These averments again would establish that there was no concluded agreement. Counsel appearing on behalf of the Defendants 3 has produced on the record a photocopy of Exhibit `F' which is contained in a compilation which was served on the Plaintiff. On the photocopy there is a hand written date of 20th September 2004 immediately below the inscription which has been extracted above. Admittedly, no payment has been made. Moreover, there is merit in the submission which was urged on behalf of the Respondent that if it was the contention that there was an oral agreement on 20th September 2004 which was not performed by the Defendant, the Plaintiff would not have waited for nearly three years before instituting the suit on 12th September 2007. In view of all these circumstances, I am of the view on the basis of the averments made in the plaint, that no case for the grant of interlocutory relief is made out. The Notice of Motion is accordingly dismissed. ------