1 A280-289 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.280 OF 2008 IN NOTICE OF MOTION NO.3499 OF 2007 IN SUIT NO.2618 OF 2007 Makers Development Services Private Ltd. ...Appellant vs. M.Visvesvaraya Industrial Research & Development Centre. ...Respondent --- Mr.Pravin Samdhani, Sr.Advocate @ Mr.G.Joshi & Mr.J.P.Sen & Ms.Pratibha Mehta & Ms.Christine R. i/b. M/s.Little & Co., for Appellant. Janak Dwarkadas, Sr.Advocate with Mr.F.Puniwala & Sharan Y. i/b. M/s.Wadia Gandhy & Co., for Respondent. AND APPEAL NO.289 OF 2008 IN NOTICE OF MOTION NO.3499 OF 2007 IN SUIT NO.2618 OF 2007 M.Visversvarya Industrial Research and Development Centre. ...Appellant vs. Makers Development Services Pvt.Ltd. ...Respondent 2 A280-289 --- Janak Dwarkadas, Sr.Advocate with Mr.F.Puniwala & Sharan Y. i/b. M/s.Wadia Gandhy & Co., for Appellant. Mr.Pravin Samdhani, Sr.Advocate @ Mr.G.Joshi & Mr.J.P.Sen & Ms.Pratibha Mehta & Ms.Christine R. i/b. M/s.Little & Co., for Respondent. --- CORAM: D.K.DESHMUKH & RANJIT MORE,JJ. DATED: 28th June,2011. P.C.:- 1. Both these appeals take exception to the same order passed by the learned Single Judge of this Court in Notice of Motion no.3499 of 2007 taken out by the plaintiffs in Suit no.2618 of 2007, therefore, both the appeals can be conveniently dispose of by common order. 2. By prayer clauses (a) to (f) of Notice of Motion no.3499 of 2007, the plaintiff (Makers 3 A280-289 Development Services Pvt.Ltd.) who is appellant in Appeal no.280 of 2008 sought orders directing the defendant (M.Visvesvaraya Industrial Research & Development Centre) which is appellant in Appeal no.289 of 2008, to do and perform all the acts, deeds, matters and things and to execute all documents and writings to enable it to continue construction on the suit land in terms of the suit contract and for orders consequent thereto and in connection therewith. By prayer clause (g) of that notice of motion the plaintiff sought an order injuncting the defendant from selling, transferring, dealing with, disposing of or creating any third party rights or interest in or entering into any agreement or arrangement with anyone else in respect of the suit land or any part thereof. The learned Single Judge by his order dated 25.4.2008 has declined to grant any interim order in terms of prayer clause (a) to (f) of the notice of motion. However, he has granted interim relief in 4 A280-289 terms of prayer clause (g) of the notice of motion. The plaintiff has filed Appeal no.280 of 2008 challenging the order of the learned Single Judge in so far as it declines to grant interim reliefs in terms of prayer clauses (a) to (f) of the notice of motion and the defendant has filed Appeal no.289 of 2008 challenging the order of the learned Single Judge in so far as it grants interim relief in terms of prayer clause (g) of the notice of motion in favour of the plaintiff. 3. The plaintiff is a company registered under the Companies Act,1956. The defendant is a company incorporated as a Section 25 Company under the Companies Act,1956. The Government of Maharashtra has granted to the defendant certain plots of land at Backbay Reclamation, Cuffe Parade, Mumbai. A portion of that land admeasuring 13,326 sq.meters is the subject matter of the civil suit. The plaintiff has filed a suit for decree of specific performance 5 A280-289 of the agreement referred to as suit agreement in the plaint which is set out in paragraph 65 of the plaint. The plaintiff has also prayed for a permanent injunction restraining the defendant from disturbing the possession of the plaintiff and also restraining the defendant from withdrawing the authority granted by it in favour of the plaintiff. It is an admitted position that the agreement of which the specific performance is sought, which is set out in paragraph 65 of the plaint, is not formally reduced into writing in the form of an agreement between the parties. The learned Single Judge, after referring the documents and the affidavits on record, has held that prima facie it appears that there is a concluded agreement between the parties. The learned Single Judge, therefore, held that there is a prima facie case in favour of grant of limited interim relief in favour of the plaintiff. The learned Single Judge, however, held that an order which permits the plaintiff 6 A280-289 to carry on construction on the land cannot be granted. 4. We have heard the learned Counsel appearing for both the sides. The learned Counsel appearing for plaintiff submitted that in view of the clear finding recorded by the learned Single Judge that the plaintiff has made out a prima facie case in relation to the existence of the contract between the parties, the learned Single Judge should have granted an order to the plaintiff which permits the plaintiff to carry on construction, specially, because it is an admitted position that the construction of about 80 feet raised by the plaintiff on the suit land is in existence. The learned Counsel appearing for defendant, on the other hand, submits that there is no existing agreement between the parties. The only agreement between the parties is that the parties have agreed to enter into an agreement, and therefore, the learned Single 7 A280-289 Judge was not justified in granting interim order in terms of prayer clause (g). Both the learned Counsel took us through the entire record. 5. Now first taking up the appeal filed by the defendant for consideration, the learned Counsel appearing for defendant reiterated the contentions that were urged by him before the learned Single Judge. He submitted that there is no concluded contract enforceable in law between the defendant and the plaintiff, and an intention to enter into an agreement is unenforceable. He further submitted that even assuming that the contract as pleaded by the plaintiff is, prima facie, established, such a contract is unenforceable. He submitted that the construction thus far undertaken was only on ad-hoc basis pending negotiations and the plaintiff can be paid for the same on quantum merit basis. It was also contended that in any case the plaintiff is in breach of or was not ready and willing to 8 A280-289 perform the alleged contract as pleaded by the plaintiff. Perusal of the order of the learned Single Judge shows that all these aspects of the matter have been considered in detail by the learned Single Judge. He has reproduced the contents of letter dated 10.11.1980 in paragraph 11 of his order. He has also referred to the correspondence between the parties subsequent to letter dated 10.11.1980. The learned Single Judge in paragraph 19A of his order has referred to letter dated 21.5.1986 addressed to the defendant by the plaintiff confirming its acceptance of the conditions of the State Government order, wherein the plaintiff had in clear terms informed the Government that there is a concluded agreement between the defendant and the plaintiff in relation to the suit land. The learned Single Judge has, therefore, in paragraph 19B observed thus:- The contents of the letter and the 9 A280-289 purport thereof are clear. What the plaintiff conveyed was that in view of the concluded agreement dated 10.11.1980 the Defendant was not in a position to invite fresh tenders for the sub-lease of the land. Then, the learned Single Judge has referred to the modification which was agreed upon between the parties in the agreement which is reflected in letter dated 10.11.1980. The learned Single Judge has also observed that the defendant by its reply dated 30.4.1990 agreed to the suggestion that the plaintiff starts work on the basis of the plans approved by the BMRDA. The learned Single Judge has noted that the defendant not only agreed with the plaintiff that the plaintiff should commence the work, but to enable the plaintiff to commence and proceed with the work the defendant authorised it to deal on its behalf with the BMRDA and BMC and other concerned authorities for obtaining all such permissions 10 A280-289 and sanctions as may be necessary. The learned Single Judge has also referred to the fact that when the plaintiff pointed out that existence of BEST receiving station was an impediment in carrying on the construction, the defendant entered into a correspondence with the BEST authorities for removal of receiving station and on the BEST agreeing to remove the receiving station asked the plaintiff to continue with the construction with speed. It is an admitted position that the plaintiff, pursuant to the permission granted by the defendant, has raised construction on the suit land and the construction that is presently standing on the suit land is of the height of 80 ft. The learned Single Judge in paragraph 83 and 84 has observed thus:- Mr.Samdani was unable to explain the innumerable categoric and clear admissions by the Defendant about the existence of a contract between the parties. He did not contended 11 A280-289 that the admissions were a mistake. Nor did he contend that the admissions were due to a misapprehension of the legal position regarding concluded agreements. Indeed, at least at the interlocutory stage, it would have been difficult for him to so contended successfully for the admissions were admittedly based not merely upon the Defendants perception of the matter but also upon the advice received by the Defendant from its solicitors. 84. Mr.Samdani however contended that the admissions were in respect of the original agreement dated 10.11.1980 and not in respect of the modification thereof. Let me assume that to be so. It would not carry his case any further. The learned Counsel appearing for defendant did not even contend before us that what is observed by the learned Single Judge in paragraph 83 and 84 is in any way wrong. Thus, it is clear from 12 A280-289 the record that the parties had arrived at an agreement. In pursuance of that agreement, the defendant permitted the plaintiff to enter on the suit land and to carry on construction and the plaintiff carried on construction on the land, with the result till the year 2007 when the civil suit was filed, the construction of the height of about 80 ft. was standing on the land. In our opinion, the learned Single Judge was, therefore, perfectly justified in granting limited interim relief in favour of the plaintiff so that the defendant does not transfer the land which may render the suit infructuous. We, thus, find no reason to interfere with the order passed by the learned Single Judge granting limited interim relief in favour of the plaintiff. 6. So far as the appeal filed by the plaintiff is concerned, it challenges the order passed by the learned Single Judge declining to grant interim order in favour of the plaintiff 13 A280-289 which enables the plaintiff to continue with the construction on the land. What was claimed by the plaintiff was a mandatory injunction which would permit the plaintiff to alter the status-quo on the suit land as it existed on the date of the suit. The learned Single Judge has declined to grant that interim order because according to the learned Single Judge the balance of convenience is not in favour of granting such a drastic interim order in favour of the plaintiff. We also find from the record that the conduct of the plaintiff also does not entitle the plaintiff to such a drastic interim order. It is pertinent to be noted that by letter dated 20.5.1996, the plaintiff stated that it is proceeding further with the construction of the proposed tower and the height of the construction reached to 62 ft. Five years thereafter, by letter dated 10.9.2001 the plaintiff informed that the construction had progressed upto 80 ft. It was contended on behalf of the plaintiff that because of existence 14 A280-289 of receiving station of BEST on the land, it was not possible for the plaintiff to carry on further construction. Even assuming that to be so, by letter dated 13.6.2002 the defendant informed the plaintiff that the BEST had given their no objection to the demolition of the temporary receiving station and the plaintiff can proceed with the demolition of that receiving station and continue the construction. The defendant prevented the plaintiff, according to the averments in the plaint, from entering the land in the year 2007. Even in 2007, however, the height of the construction was only 80 ft. It, thus, appears from the record that from 2001 to 2007 the plaintiff was not carrying on construction though there is nothing on record to indicate that the defendant was preventing the plaintiff from carrying on the construction. The plaintiff, thus, it appears did not carry on construction from at least 2001 to 2007 without there being any impediment from the defendant. 15 A280-289 Therefore, in our opinion, now that the defendant is even disputing the existence of the agreement, the plaintiff cannot be permitted to carry on construction during the pendency of the suit. Had the plaintiff been keen to carry on construction, the plaintiff would have done that from 2001 to 2007. In these circumstances, therefore, in our opinion, the learned Single Judge was perfectly justified in declining to grant interim order in terms of prayer clause (a) to (f) in favour of the plaintiff, and therefore, we find no reason to interfere with the order impugned. Both the appeals, therefore, have to be dismissed. In the result, therefore, both the appeals fail and are dismissed. (D.K.DESHMUKH, J.) (RANJIT MORE, J.) ---