1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Arbitration Petition No.438 of 2010 M/s.Sobhaniye Constructions Pvt. Ltd. .. Petitioners v/s. Shri Sandeep Kumar Nathmal Agarwal ..Respondent Mr.D.H.Mehta with Ms. Aruna Mehta i/b.Pathak & Co. for the Petitioners Dr.Birendra Saraf with Yogesh Adhia for the Respondent CORAM : R.Y.GANOO, J. DATED : 6th April, 2010 P.C. : 1. The respondent is the owner of the property, more particularly described in document Exhibit C being Memorandum of Understanding dated 10.10.2006. It has been executed between the respondent on the one hand and the petitioners on the other. 2. The petitioners want that an order of injunction should be passed against the respondent restraining the respondent from creating third party 2 right and or taking steps for development of the property in question, pending the arbitration. Petitioners also want appointment of Court Receiver. Affidavit in reply is filed. Hearing of this petition proceeded on the basis of denial so far as the affidavit in reply is concerned. 3. I have heard learned Advocates on both the sides. A perusal of the Memorandum of Understanding dated 10.10.2006 indicates that the present petitioners were permitted to negotiate with some of the tenants and explore the possibility of redevelopment of the suit property. Certain terms regarding payment of consideration are found at serial no.5 of the said agreement. It is seen that certain amount has been paid towards this Memorandum of Understanding. It is noticed that at a particular stage a regular development agreement was to be executed in favour of the petitioners. It is a common ground that as of today no such development agreement has been entered into. Affidavit in reply mentions at para 4 that by Memorandum of Understanding dated 15.8.2009 the respondents have created rights in favour of Mr. Sanjay Jain and two others. With this development, learned Counsel Mr. Mehta submitted that when the petitioners have exercised their option in terms of the document dated 10.10.2006 by writing letter dated 8.1.2010 it was obligatory upon the 3 respondent to enter into the development agreement and in any case the transaction purported to have been executed with Mr.Sanjay Jain as is claimed in the affidavit in reply is illegal and cannot be acted upon. 4. As against this, it was argued on behalf of the respondent that the Memorandum of Understanding dated 10.10.2006 does not confer vested rights in favour of the petitioners as it was an agreement to enter a development agreement. According to Dr. Saraf, at this stage the petitioners are not entitled to any interim relief, particularly because the petitioners have not taken steps to have the arbitrator appointed. 5. After having heard learned Advocates on both the sides, I am inclined to observe that the Memorandum of Understanding dated 10.10.2006 was a preliminary document between the petitioners and the respondent and it did not confer any substantive right in favour of the petitioners except to have the Development Agreement in future. The fact remains that as of today no Development Agreement has been entered into for diverse reasons. If this be so, the petitioners will not be able to claim that they have a vested right in regard to the property covered by Memorandum of Understanding dated 10.10.2006 and the petitioners can’t claim the order of injunction and or 4 Appointment of Receiver in regard to the property in question qua the respondents. 6. In my view, in the peculiar facts and the developments which have taken place, the petitioners are not entitled to any interim relief in the manner in which it has been pressed and pleaded, no case is made out and the petition will have to be dismissed. 7. It has been the stand of the respondent that Memorandum of Understanding dated 10.8.2006 got terminated in view of inaction on the part of the petitioners and therefore this Court can not now look to the Memorandum of Understanding dated 10.10.2006 to confer any benefit on the petitioners till the Arbitration is decided. I have not considered the effect of the so called termination as contended by the respondent. I have already indicated that by Memorandum of Understanding dated 10.10.2006 no substantive rights were created in favour of the Petitioners and hence no interim relief is being granted. 7. It is clarified that till today, no interim order is running against the respondent. Hence the following order is passed. 5 ORDER Petition is dismissed. There shall be no order as to costs. [R.Y.GANOO, J.]