1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.600 OF 2007 IN SUIT NO.426 OF 2007 Hilton Builders & Textiles Pvt Ltd. ..Plaintiffs vs. Special Paints Limited & Anr. ..Defendants Mr. Rahul Narichania alongwith Ms. Shoma Mita i/b Desai & Desai & Carrimjee for the Plaintiffs Mr. Gaurav Joshi alongwith Mr. Jayesh Mestry i/b RMG Law Associates for Defendant No.1 Mr. Suhas Patil i/b Navdeep Vora for Defendant No.2 CORAM: Smt. ROSHAN DALVI, J. DATED: 31ST March, 2009 P.C.: 1. Defendant No.2 is the owner of the suit property. Defendant No.1 is the assignee of Defendant No.2. The Plaintiffs claim to have entered into oral Agreement with Defendant No.1 for developing the suit property. Pursuant to their Agreement 2 the parties have had correspondence. Defendant No.1 contends that the parties only negotiated. The negotiations were inconclusive. No concluded agreement has been entered into. 2. A sum of Rs.1 crore has been paid by the Plaintiffs to Defendant No.1. The Plaintiffs claim that, that is approximately 30% of the consideration amount agreed between the parties. The Plaintiffs claim that the total consideration for the suit property is Rs.3.33 crores. Defendant No.1 has refuted this claim. It is the case of the Plaintiff that the Plaintiffs were to pay Defendant No.1 Rs.3.33 crores and transfer charge of Rs.20 lacs to Defendant No.2. Defendant No.1 would have to obtain consent of Defendant No.2 to get the suit plot sold to the Plaintiffs. The suit land was mortgaged to certain banks. The Defendants had to free the suit plot from all the encumbrances. 3. Consequently therefore consequent upon negotiations between the parties a written agreement setting out the terms and obligations of the parties under the Agreement had to be executed. On 28.07.2006 a draft MOU came to be forwarded by Defendant No.1 to the Plaintiffs. The Plaintiffs' attorney made certain corrections in the draft and forwarded 3 the same to the Defendant No.1 under their email dated 22.08.2006, Exhibit F to the Plaint. This draft MOU shows several additions made in red. These have noted several obligations of the parties in view of the consent essentially required to be obtained and in view of the various encumbrances required to be removed. 4. It is the Plaintiffs' case that the Plaintiffs found the draft at variance with the oral agreement between the parties and hence called for a joint meeting. The attorneys of Defendant No.1 thereafter contended that without prejudice negotiations were held between the parties in the said meeting. It was informed to the Plaintiffs that Defendant No.1 had proposed to sell of the suit property on ''as is where is basis''. The full amount would be paid to Defendant No.1 on signing the contract between the parties and Defendant No.1 would execute all the necessary documents for completing the sale. It was clarified that if those terms were not agreeable to the Plaintiffs, the amount received by Defendant No.1 would be refunded. Therefore, the detailed draft showing detailed additions incorporated by the Plaintiffs upon the contention that, that was orally agreed between the parties, was not further corrected and resent. 5. The suit property is assigned to Defendant No.1 by 4 Defendant No.2. It is mortgaged to certain banks. Defendant No.1 was to sell the suit property to the Plaintiffs. That is a usual transaction between such parties. The Plaintiffs would be required to perform the formalities required for the consent of the assignor as well as removal of the encumbrances. Defendant No.1 would be interested only in the purchase price. Once that is received, Defendant No.1 would execute all the necessary documents required by the Plaintiffs. Hence such a contract or oral agreement can be entered into. However, the agreement as revised with the detailed additions cannot be taken to have been entered into between the parties in any joint meeting held by them or thereafter. 6. The main aspect of the agreement is payment of consideration. The precise extent of the consideration orally agreed between the parties is not even reflected in the draft which has been revised. 7. Further correspondence of the Plaintiffs shows that the amount already paid to Defendant No.1 was ''approximately 30% of the total agreed consideration'' paid in May 2006. If the precise consideration was agreed upon in May 2006, it would have found a place in the draft of the MOU. The Consideration clause in the MOU shows blanks with regard 5 to the payment of earnest as well as the balance amount. The consideration is bifurcated into only two payments the earnest amount and the balance amount. This lends credence to the email of the 1st Defendant's attorney showing the terms and conditions upon which the agreement could be entered into between the parties which was on ''as is where is basis'' for a lumpsum consideration. Hence further additions in the draft are a pointer only to negotiations between the parties. 8. The oral agreement as contended by the Plaintiffs is not primia facie shown. No case for specific performance of the agreement is made out. Notice of Motion is dismissed. The suit is adjourned to 07.07.2009 for framing issues. (Smt. Roshan Dalvi, J)