1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3078 OF 2005 IN SUIT NO. 2746 OF 2005 Shaligram Shankar Bendale ....Plaintiff Versus Jolly Brothers Pvt. Ltd. & Ors. ....Defendants Mr. Uday P. Warunjikar, Advocate for the Plaintiff. Mr. Vishwajeet Sawant a/w. Rajalakshmi Mohandas i/b. Mr. Jay Bhatia, Advocate for Defendant Nos. 1 & 2. Mr. Kapil Moye a/w. Mr. Rohan Yagnik i/b. Mr. Prashant Ghelani, Advocate for Defenant No.3. CORAM : R. V. MORE, J. DATE : 9th FEBRUARY, 2010. P.C. : Heard Mr. Warunjikar, learned Counsel for the Plaintiff, Mr. Sawant, learned Counsel for Defendant Nos. 1 & 2 and Mr. Kapil Moye, learned Counsel for Defendant No.3. 2. The notice of motion is taken out by the Plaintiff for appointment of the Court Receiver on the suit property, injunction restraining the Defendants acting upon the alleged agreement dated 10th February, 2005 between the Defendant No.1 and Defendant No.3 and injunction restraining the Defendants from creating third party interest in the suit property. 2 3. The Plaintiff's suit is for declaration that the suit agreement dated 11th March, 1997 between the Plaintiff and Defendant No.1 is valid, subsisting and binding on the Defendants. The Plaintiff has further claimed declaration that the agreement dated 10th February, 2005 between the Defendant No.1 & 3 is bad in law and illegal. The Plaintiff also claims specific performance of suit agreement dated 11th March, 1997. 4. Mr. Warunjikar, learned Counsel for the Plaintiff took me through the suit agreement annexed at Exhibit "B" to the plaint. He invited my attention to schedule of payment under the said agreement. He also pointed out the mode of termination of the agreement under clause 26 of the said agreement and pointed out pleadings in paragraph no. 18 of the plaint that the Defendant No. 1 has not given notice as contemplated under clause 26 of the agreement and submitted that the suit agreement subsists and the Plaintiff is entitled for interim relief as claimed under the notice of motion. 5. Mr. Sawant, learned Counsel for Defendant No.1 & 2, per contra submitted that the total consideration of the suit agreement was Rs.22.50 crores and Rs.25,00,000/- was to be paid on the date of execution of the agreement. The next instalment of Rs. 25,00,000/- was to be paid within a period of one month from the date of execution of the agreement and the third instalment of Rs. 25,00,000/- was to be paid within further period of one month from the date of payment of the second instalment. He submitted that Plaintiff gave two cheques for an amount of Rs.25,00,000/- each and both cheques were 3 bounced. Subsequently the Plaintiff was given notice on 7th January, 1999 with a request to pay the amount of instalments as agreed under the suit agreement. Inspite of this notice, Plaintiff did not do anything, however, gave notice of 23rd April, 1999 and raised dispute and therefore, by letter dated 7th May, 1999, the Defendant No.1 terminated the agreement. He also submitted that though the agreement was terminated in 1999, the present suit was filed in the year 2005 and therefore, relief as claimed by the Plaintiff cannot be granted, in view of the latches on his part. 6. Mr. Moye, learned Counsel for Defendant No.3 submitted that Defendant No.1 by registered agreement dated 10th February, 2005 has already given development rights in his client's favour and in pursuance of this document, old structure on the suit property is demolished and the tenants of the old structure have already been accommodated in alternative temporary premises. He submitted that the agreements have already been entered into by Defendant No.3 with the tenants for permanent accommodation in newly constructed building. 7. Having heard learned Counsel for the respective parties and having gone through the pleadings alongwith annexures thereto, I find no merit in the notice of motion. Under the suit agreement, the consideration in respect of the suit property was fixed at Rs.22.50 crores and the first instalment of an amount of Rs.25,00,000/- was to be paid on the date of execution of this agreement i.e 11th March, 2007. The second instalment was to be paid within a period of one 4 month thereafter and the third instalment was to be paid within one month from the from the date of payment of the second instalment. The Plaintiff only paid Rs.25,00,000/- on the date of execution of this agreement and regarding remaining two instalments, he gave two cheques of Rs.25,00,000/-. These two cheques have been dishonoured for want of sufficient funds. The Defendant No.1 thereafter, on 7th January, 1999 gave notice to the Plaintiff pointing out the fact that both the above said cheques are dishonoured with a request to them to deposit Rs.50,00,000/- as per the terms of agreement. Inspite of receipt of this letter, the Plaintiff did not do anything. The Plaintiff on the contrary by sending notice dated 23rd April, 1999 referred the alleged dispute interse between the Directors of Defendant No.1- Company and under that pretext refused to pay the amount of the instalments. The Plaintiff was not concerned about the interse dispute between the Directors of Defendant No.1-Company nor was there any order in this regard by the Company Law Board and therefore, in my opinion under the guise of the dispute interse between the Directors, the Plaintiff could not have delayed/withheld payment of instalments as prescribed under the suit agreement. The Defendant No.1 from the date of notice dated 7th January, 1999 waited for a period of more than three months. However, after receipt of Plaintiff’s notice dated 23rd April, 1999, the Defendant No.1 carried impression that the Plaintiff is not willing to perform his part of Contract. The impression could not be said to be unfounded and thereafter, by the notice dated 17th May, 1999, the suit agreement was terminated. 5 8. At this stage, it must be pointed out if there was doubt in the mind of the Plaintiff about performance of the suit agreement on the part of Defendant No.1 because of the dispute between the Directors of the Defendant No.1 interse, then he atleast ought to have given Bank Guarantee as contemplated under clause (3) of the suit agreement. The Plaintiff out of total consideration of an amount of Rs.22.50 crore paid meagre amount of Rs.25,00,000/- only. The agreement was terminated long back in the month of May, 1999. The Plaintiff kept silence for a period of six years and filed the present suit in the year 2005, only after the transaction between Defendant No.1 and Defendant No.3 was entered into on 10th February, 2005. In the above facts and circumstances, I am of the view that the Plaintiff has failed to prove prima facie case. 9. Admittedly, the old structure on the suit premises is already demolished by Defendant No.3 in pursuance of an agreement dated 10th February, 2005. A solemn statement is made by Defendant No.3 that the tenants of the old structure have been accommodated in the alternative temporary accommodation and agreements have also been executed for permanent alternative accommodation in the building that will be constructed in place of the old structure. The Defendant No.3 has also obtained IOD from BMC. In these circumstances and especially in view of the latches on the part of the Plaintiff, I find that even the balance of convenience is not in favour of the Plaintiff. Taking over all circumstances into consideration, I am of the opinion that the Plaintiff is not entitled for any interim relief during the pendency of the suit. The notice of motion is accordingly, dismissed. 6 10. The Defendant Nos. 1 & 2 have already filed their written statement. Mr. Moye, learned Counsel for Defendant Nos. 3 states that Defendant No.3 will file his written statement within a period of four weeks from today. 11. Office to place the suit for “Direction” on 23rd March, 2010. Sd/- (R. V. MORE, J.)