1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4093 OF 2008 IN SUIT NO.203 OF 2007 MANJU RAKESH JAIN ..PLAINTIFF VS. ARVIND KASHINATH BANDEKAR & ANR ..DEFENDANTS Mr. D.D.Madon with K.H.Mody i/b S.Pathak & co. for the Plaintiff Mr. Yogesh Adhia for Defendant No.1 Mr. G.S.Rao i/b Lex Consultus for Defendant No.2 CORAM: SMT ROSHAN DALVI, J. DATED: 26 th February, 2009 P.C.: 1. The Plaintiff has sued for specific performance of the Memorandum of Understanding (MOU) dated 22.08.2000. The said agreement is unregistered. The Plaintiff has paid Rs.5,00,000 /- as earnest to the Defendant No.1 thereunder. The Plaintiff was to pay consideration of Rs.1 crore to Defendant No.1 which was inclusive of the amount payable for vacating 4 or 5 tenants on the suit property. The time for payment was the essence of the contract. Defendant No.1, 2 who is the owner, was to obtain vacant possession of the tenements from the tenants. If he was unable to do so the Plaintiff, as a developer, in her own discretion was entitled to do so and deduct the amount paid to the tenants from the consideration amount of Rs.1 crore payable to Defendant No.1. 2. The Plaintiff was to remove two encroachers which the Plaintiff has done. 3. Defendant No.1 was to make out a marketable title and the Plaintiff was entitled to utilise the FSI not only of the suit properties but the other properties by way of TDR. 4. The Defendant No.1 was to handover the title deeds of the suit property to the Plaintiff within 8 days of the execution of the MOU. The title deeds were not handed over and that remained with Defendant No.1 who later handed them over to Defendant No.2 upon the execution of the agreement between them. 5. The consideration amount has not been paid. The tenants have not been vacated. The Defendant No.1 was unable to have them vacated. The Plaintiff has not exerted to have them vacated. The Plaintiff has not demanded the title deeds. 3 The Plaintiff has not got the agreement registered. The agreement has remained unregistered since 27.08.2000. 6. The Plaintiff is required to show her readiness and willingness to perform her part of the obligations under the Agreement. She is entitled to develop the suit property as a developer. She has to be put in possession for development. She could have been put in possession only upon payment of the consideration of Rs.1 crore less the amount paid for vacating the tenants. She has neither vacated the tenants nor paid the consideration amount. In fact she did nothing after the execution of the MOU. Defendant No.1 mortgaged the property with Union Bank of India on 06.05.2004 by which time nothing was done by the Plaintiff. 7. Defendant No.1 & 2 entered into agreement for sale on 11.11.2005. Upon such agreement Defendant No.2 got the property released from Union Bank of India and issued a public notice on 12.11.2005. The Plaintiff was accordingly put to notice of the claim of Defendant No.2 and the transaction between Defendant No.1 & 2. Even thereafter the Plaintiff did nothing. Defendants No.1 & 2 entered into a conveyance on 22.12.2005. 8. It is after Defendant No.2 put up construction that the 4 Plaintiff sued in 2007. The Plaintiff is not entitled to equitable relief. Notice of Motion is dismissed. The Ad- interim order is continued for two weeks. (Smt Roshan Dalvi, J)