1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURSIDCITION APPEAL NO. 346 OF 2009 IN NOTICE OF MOTION NO. 1828 OF 2009 IN SUIT NO. 1241 OF 2009 Sports and Leisure Apparel Ltd. ).. Appellants Versus Bansi Mall Management Co. Pvt. Ltd. and others ).. Respondents Mr. G.S. Patel i/b L.C. Tolat & Co. for the Appellants. Mr. Virag Tulzapurkar, Senior Advocate, with Mr.Vineet Naik, Ms.Hemangi Abhyankar i/b Naik, Naik & Co. for Respondent Nos.1 to 5. CORAM : ANIL R. DAVE, C.J. AND S.C. DHARMADHIKARI, J. RESERVED ON : 16TH FEBRUARY 2010 PRONOUNCED ON : 23RD MARCH 2010 ORAL ORDER (Per Chief Justice) Being aggrieved by an order dated 3rd July 2009 passed in Notice of Motion No. 1828 of 2009 in Suit No. 1241 of 2009, this Appeal has been filed by the Appellants-original Plaintiff Company. 2 2. After hearing the learned Advocates, the learned Single Judge has dismissed the Notice of Motion for the reason that the learned Single Judge did not find any case for granting any order for specific performance in respect of the agreement referred to by the Plaintiff. 3. Facts giving rise to the present Appeal in a nutshell are as under : The Plaintiff Company was in occupation of two shops at a place called Crossroad Mall. Defendant No.6 had leased the shops in question in favour of the Plaintiff Company. Initially the lease was for a period of three years but the said period had been extended by a further period of nine years by an agreement dated 25th August 2002 and, therefore, the Plaintiff Company had a right to continue in occupation of the said shops till 26th August 2012. 4. Defendant No.6, who had leased the premises in question to the Plaintiff Company, had entered into an agreement with Defendant Nos.1 to 5 for the purpose of development of the said property and at the same time had agreed into an agreement 3 with the Plaintiff Company whereunder a sum of Rs.1,25,00,000/- had been given to the Plaintiff Company by way of compensation for handing over possession of the shops in question and had returned the Bank Guarantee of Rs.5 lakhs to the Plaintiff Company. 5. Thereafter, Defendant No.6 had entered into an agreement with Defendant Nos.1 to 5 for the development. 6. It is the case of the Plaintiff Company in the Suit for specific performance that the Plaintiff Company have a right to have two shops in the new complex which is being constructed by Defendant Nos.1 to 5. 7. As the Plaintiff Company could not establish any right in respect of its claim over two shops before the learned Single Judge and, therefore, the Plaintiff Company’s alleged right in respect of the said shops had not been accepted. 8. We have heard the learned Advocates and have considered the facts of the case. Looking to the facts of the case, we find that the Plaintiff Company had been admittedly paid a sum of 4 Rs.1,25,00,000/- by way of compensation and had been returned the Bank Guarantee which was to the tune of Rs.5 lakhs in consideration of the Plaintiff Company vacating the shops in question. 9. The case of the Plaintiff Company in the Notice of Motion, praying for an injunction restraining Defendant Nos.1 to 5 from parting with the shops in question or for not creating any third party right in the shops in question was not accepted for the reason that there was no agreement with regard to giving possession of two specified shops to the Plaintiff Company by Defendant Nos.1 to 5. 10. Though the learned Advocate appearing for the Plaintiff Company has referred to certain correspondence, the learned Single Judge did not consider the said correspondence as an agreement and we too are in agreement with the view expressed by the learned Single Judge. 11. So as to establish its prima facie right, the Plaintiff Company ought to have shown some document or agreement executed by Defendant No.6 or Defendant Nos.1 to 5 giving right to the Plaintiff Company to have two specified shops. The Plaintiff 5 Company has failed to do so and when Defendant No.6 had paid compensation to the tune of Rs.1,25,00,000/- to the Plaintiff Company, in our opinion, the Plaintiff Company might not have any right even in respect of the property which had been leased to it. 12. It is a well settled legal position that in case a Suit for specific performance is filed, the Plaintiff must give specific description of the property in question. In the instant case, the Plaintiff Company could not show the shops in respect of which it was given any right by Defendant Nos.1 to 5. Even before this Court, the learned Advocate appearing for the Plaintiff Company, could not pin point any particular shop in respect of which the Plaintiff Company had a right to have occupation. 13. It may be clarified here that the afore-stated observations are not to be considered by the learned Judge as the Suit will have to be ultimately decided on the basis of evidence which might be adduced in the course of the trial. 14. For the afore-stated reasons, in our opinion, the learned Single Judge has rightly dismissed the Notice of Motion and we do 6 not see any reason to interfere with the order passed by the learned Single Judge. 15. The Appeal is dismissed with no order as to costs. CHIEF JUSTICE S.C. DHARMADHIKARI, J. uday/judgments2010-app346-09