1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.32 OF 2009 WITH CIVIL APPLICATION NO.32 OF 2009 Kirti Hemraj Bafna ..Appellant V/s Shantilal L. Jain & anr. ..Respondents WITH APPEAL FROM ORDER NO.33 OF 2009 WITH CIVIL APPLICATION NO.33 OF 2009 Kirti Hemraj Bafna ..Appellant V/s Arvindkumar L. Jain & anr. ..Respondents WITH APPEAL FROM ORDER NO.34 OF 2009 WITH CIVIL APPLICATION NO.34 OF 2009 Kirti Hemraj Bafna ..Appellant V/s Pravinkumar L. Jain & anr. ..Respondents 2 WITH APPEAL FROM ORDER NO.35 OF 2009 WITH CIVIL APPLICATION NO.35 OF 2009 Kirti Hemraj Bafna ..Appellant V/s Pravinkumar L. Jain & anr. ..Respondents Mr.N.B.Shah i/b.Mr.Piyush N. Shah, Advocate, for the appellant Mr.Narula i/b.M/s.Jhangiani Narula & Associates, Advocate, for the respondent No.1 Mr.S.K.Shinde, Advocate, for the respondent No.2 CORAM : R.M.SAVANT, J. DATE : 11TH FEBRUARY, 2009 P.C. . The above appeals filed by the original defendant No.2 take exception to the Order dated 22nd October, 2008, passed on the Exhibit 5 applications filed by the plaintiff i.e.the respondent No.1 herein in Special Civil Suit No.25 of 2008, Special Civil Suit No.26 of 2008, Special Civil Suit No.24 of 2008 and Special Civil Suit No.23 of 3 2008. By the said orders, the applications Exhibit 5 for temporary injunction, for appointment of Court Receiver was partly allowed, whereas the prayer for appointment of Court Receiver was rejected, the defendant Nos.1 & 2 were restrained by temporary injunction from creating third party interest in the suit properties which are mentioned in paragraph 1 of each of the plaints and also mentioned in the Schedule to the plaints. 2. Since common questions are involved in the above Appeals, all the above Appeals are heard together. However, for the sake of convenience the facts in Appeal from Order No.32 of 2009 are referred to. 3. The respondent No.1, who is the original plaintiff has filed the said suits for specific performance of contract, for a declaration and perpetual injunction. The defendant No.1 in all the suits approached the plaintiff that they have right, title & interest in the properties mentioned in paragraph 1 of the plaint. Thereafter, 4 negotiations took place between the parties and a Memorandum of Understanding was entered into between the plaintiffs and the defendant No.1 on 10th December, 2006. Under the said Memorandum of Understanding, the defendant No.1 in Special Civil Suit No.25 of 2008 agreed to sale to the plaintiffs the suit property at a consideration of Rs.74,00,000/-. The said consideration in terms of the said Memorandum of Understanding was to vary depending upon the measurement to be carried out by the D.I.L.R. Pursuant to the said Memorandum of Understanding, the plaintiff paid to the defendant No.1 a sum of Rs.2,50,000/- by way of an earnest money which has been recorded in the M.O.U. The defendant No.1 also executed a Power of Attorney in favour of the plaintiffs authorising him to obtain necessary approvals from the Revenue Authorities and also for challenging and seeking cancellation of certain Mutation Entries wrongly recorded by the Revenue Authorities. There was a common Power of Attorney in favour of the plaintiff in respect of all the MOU'S which are the subject matter of the above suits. 5 4. Upon the suit interse between the family members of the defendant No.1 being Suit No.812 of 1996 being dismissed on 22nd November, 2007, the plaintiff called upon the defendant No.1 to comply with the terms of the Memorandum of Understanding. The defendant No.1 by a letter dated 7th February, 2008 purported to cancel the Development Agreement as also the Power of Attorney and sought to return the earnest money paid by the plaintiff. Thereafter, correspondence ensued between the parties and whilst the plaintiff was awaiting a favourable reply from the defendant No.1, the plaintiff learnt that the defendant No.1 has purported to sale and convey the suit property in favour of the appellant herein, who is the defendant No.2 in the said suit for a consideration of Rs.80,000,00/- by Conveyance Deed dated 19th April, 2008. It appears that in the said Conveyance Deed the defendant Nos.1 & 2 have specifically acknowledged the claim of the plaintiff in respect of the suit property and purported purchase of the suit property by the defendant No.2 is on “as is where is basis”. The plaintiff, therefore, communicated to the defendant No.1 that he is ready and willing to perform his part of 6 the contract and pay the balance consideration of Rs.71,50,000/-. On failure of the defendant No.1 to respond, the plaintiff has filed the said Special Civil Suit No.25 of 2008 for specific performance and filed application Exhibit 5 for temporary injunction and for the other prayers which are mentioned here in above. 5. The application for temporary injunction was resisted by the defendant No.1 by filing his Say and Written Statement. The sum and substance of the case of the defendant No.1 is that the Memorandum of Understanding is not a concluded contract and therefore, a suit could not be filed for specific performance based on the said Memorandum of Understanding. It was, therefore, contended that the plaintiff has no right to file the suit on the basis of the said M.O.U. The defendant No.2, who is the subsequent purchaser also filed his Written Statement and Say which is almost on the same lines as the Say of the defendant No.1. 6. The Trial Court considered the said application Exh.5 and 7 by the impugned order dated 22nd October, 2008, allowed the said aplication to the extent mentioned here in above. The Trial Court took into consideration the fact that there was no dispute about execution of the M.O.U dated 10th December, 2006, and the payment of Rs.2,50,000/- as an earnest money to the defendant No.1 and payment of the balance amount of Rs.71,50,000/- which was to be paid at the time of the execution of the Conveyance Deed. The Trial Court also took into consideration that there was also no dispute of the execution of the Power of Attorney in favour of the plaintiff. The Trial Court was of the view that inspite of knowing all these facts, the defendant No.1 i.e.owner of the land executed a Conveyance Deed in favour of the defendant No.2 on 19th April, 2008, and even the defendant No.2 was aware of the execution of the M.O.U dated 10th December, 2006, in favour of the plaintiff. The Trial Court was, therefore, of the view that whether M.O.U is a concluded contract or not and whether termination letter issued by the defendant No.1 dated 7th February, 2008, is valid or invalid could be determined at the time of the final hearing of the suit. However, considering the fact that 8 there was an M.O.U and Power of Attorney in favour of the plaintiff and the plaintiff having acted pursuant thereto by doing several acts and also having paid the earnest money and also showing his readiness and willingness to perform the balance of the obligations, the Trial Court held that the plaintiff has made out a prima facie case for grant of the termporary injunction and further to avoid multiplicity of litigation the Trial Court has granted the reliefs to the extent mentioned in the impugned order dated 22nd October, 2008. 7. On behalf of the plaintiffs it is contended by the learned counsel Mr.N.B.Shah relying upon certain Clauses of the Memorandum of Understanding that the same does not amount to concluded contract as the parties were still negotiating and therefore, the Trial Court has erred in granting the relief to the extent granted by the impugned order. It is further contended by the learned counsel that the plaintiffs could be adequately compensated, in the event the Court comes to the conclusion in the suit that the plaintiffs are entitled to any relief. On the other hand, Mr.Narula the learned counsel 9 appearing on behalf of the respondent No.1 by drawing the Court's attention to Clause (G) of the Memorandum of Understanding as well as Clause (d) and (f) of the Memorandum of Understanding submitted that the said Memorandum of Understanding is a concluded contract as it talks about execution of the Conveyance Deed i.e.for effecting the transfer to the plaintiffs. Having perused the said Clauses in the Memorandum of Understanding, there is merit in the submission of Mr.Narula. In fact, by Clause (d) which is in the nature of negative covenant the owner has agreed not to negotiate with anyone else regarding sale of the aforesaid property until the subsistence of the Memorandum of Understanding. Without further dilating on the said issue, in my view, the Trial Court is right in recording a finding that the plaintiff has made out a prima facie case for the grant of the reliefs as prayed for in the said application Exh.5. In so far as whether M.O.U is a concluded contract or not and whether the termination letter is valid or not as held by the Trial Court the same would be a matter of evidence which can be decided at the hearing of the suit. 10 8. In the conspectus of the facts as narrated above and having considered the reasons mentioned by the Trial Court for granting the reliefs as granted by the impugned order dated 22nd October, 2008, in my view, no case for interference is made out. The above Appeal from Orders are accordingly dismissed. 9. Needless to say that the observations made here in above are prima facie and the suits would therefore be tried on their own merits and in accordance with law. 10. In view of the dismissal of the Appeal from Orders, the Civil Applications do not survive and the same are accordingly disposed of. (R.M.SAVANT, J.)