BGD IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL APPEAL APPEAL FROM ORDER NO.640 OF 2008 FROM ORDER NO.640 OF 2008 FROM ORDER NO.640 OF 2008 IN IN IN SPECIAL SPECIAL SPECIAL CIVIL SUIT NO.110 OF 2008 CIVIL SUIT NO.110 OF 2008 CIVIL SUIT NO.110 OF 2008 Prof. Sudarshan Kumar Luthra ... Appellants & Ors. (Ori. defendants) Vs. Binesh R. Inamdar ... Respondent (Ori. plaintiff) Mr. Rais i/b P.V. Nichani & Co. for Appellants. Mr. J.S. Vyas for the Respondent. CORAM CORAM CORAM : SMT. R.P. SONDURBALDOTA, J : SMT. R.P. SONDURBALDOTA, J : SMT. R.P. SONDURBALDOTA, J. DATE DATE DATE : 4TH AUGUST, 2008 : 4TH AUGUST, 2008 : 4TH AUGUST, 2008 P.C. P.C. P.C. :- :- :- 1. Rule is made returnable forthwith. Mr. J.S. Vyas, learned Advocate waives service for respondent. The Appeal is taken up for final hearing. Heard both the learned Advocates. 2. The Appellants who are the original defendants prefer this appeal from order against interim order dated 21st April, 2008 passed on the application made by the respondent, the original plaintiff. The parties will hereinafter be 2 referred to by their original nomenclature. The facts leading to the proceedings are as follows : . On 18th June 2006, a memorandum of understanding was executed between defendant no.1 and the plaintiff in respect of sale of the property at city survey No.151, MP No.173, admeasuring 1517 sq. mtrs., Micky Lodge, Bazar Area, Marry Road, Matheran, Tal. Karjat, District Raigad. Defendants No.2 and 3 are the other co-owners of the suit property. These co-owners however, are not parties to the M.O.U. Under the M.O.U., consideration for the sale was agreed at Rs.32,50,000/- and the plaintiff paid a sum of Rs.2,00,000/- as token amount to defendant No.1. It has been specifically mentioned in the M.O.U. that the building plan of construction in the suit property is recommended by Matheran Municipal Council as per the order of Director of Town Planning, Maharashtra State, Pune dated 4th December,2001 and defendant no.1 was to get the plan approved from the Office of the Collector/Municipal Council. As per Clause (f), the sale was to be completed within 30 days from the date of M.O.U., subject to the title clearance and furnishing of the approved building plan by 3 the vendors. The purchaser was to get physical possession of property on payment of the entire consideration. The defendants however by the letter dated 20th October, 2007 cancelled the M.O.U. and offered to refund the token amount of Rs.2,00,000/-. The reply of the plaintiff to this letter is very peculiar. It has been sent through advocate. After complaining that cancellation of M.O.U. is arbitrary, the plaintiff has called upon the defendants to return the token amount either by Demand Draft or in cash within 8 days contending that defendants have no more rights to retain the same. The plaintiff also demanded interest on the token amount and damages of Rs.1,50,000/-. The defendants immediately forwarded the Demand Draft for the amount with their covering letter dated 1st December, 2007 to the advocate for the plaintiff. This amount has not been returned to the defendants till date. 3. On the above facts, the plaintiff filed suit for specific performance of the M.O.U. and for permanent injunction to restrain the defendants, inter-alia from creating any third party rights over the suit property and / or parting with possession thereof. He took out a 4 Notice of Motion for interim injunction in the same terms as the permanent injunction. By the impugned order, the Notice of Motion came to be allowed and the defendants have been restrained from "creating third party right, title or interest in respect of the suit land and further restrained them from alienating, disposing or parting with possession of suit land till final disposal of the suit." The defendants submit that the learned Trial Judge failed to appreciate the fact that, what was executed between the parties was only an M.O.U. of which there could be no specific performance. Even that Memorandum has already been cancelled and the token amount paid by the defendants is returned to him. The defendants contend that the approved building plan dated 4th December, 2001 has been put on hold, because of the decision of the Collectors’ office that the area of Matheran is declared as an Eco Friendly Zone and the plot is declared as Heritage plot of List Grade III. Consequently, as per directions of the Apex Court, the authorities cannot sanction the building plans. All the attempts of the defendants to convince the authorities that the suit property was wrongly enlisted in the Heritage List, have been futile. 5 Therefore, it is not possible for the defendants to perform their obligations under the M.O.U. 4. The above facts have not been disputed by the plaintiff. As rightly submitted on behalf of the defendants, the plaintiff could not have sued for specific performance of the M.O.U. Further the Memorandum casts a responsibilty upon the defendants to get the building plan approved from the collectors’ office. This has become impossible. Consequently, on a prima-facie view the M.O.U. has become determinable. Further, prima-facie it is seen that the plaintiff had accepted termination of the M.O.U. by demanding receipt of the token amount and asking for damages. Mr.Vyas, learned counsel for the plaintiff, submits that, though the defendants have returned the amount by Demand Draft, the plaintiff has not yet encashed the same. This can hardly be of any consequence because the defendants demanded the amount by demand draft and have received the same. It is next to be noted that the plaintiff has merely asked for specific performance of the MOU without challenging its termination by the defendants. In the circumstances, there could not have been any 6 interim reliefs in favour of the plaintiff for whom, there is no right or interest created in the suit property. The reason given by the learned Trial Judge for granting the relief of interim injunction is nothing but a conjecture drawn by him on cancellation of the M.O.U. In the order, he has observed that the fact that the plaintiff has cancelled the M.O.U., means that he is intending to create third party interest in the suit property and if the injunction is not granted, the plaintiff would have suffered irreperable loss and great hardship. 5. The refund of the token amount by the defendants was on 11th February,2008, which is the very date on which the plaintiff filed the suit. Merely because the date of filing of the suit, the date of refund of the amount, co-incide the same cannot be of any significance. The fact remains that few months prior i.e. on 20th October,2007, the defendants had terminated the M.O.U. with the plaintiff which was much prior to filing of the suit. 6. Mr. Rais submits that the prima facie finding of the trial Court, that the plaintiff was 7 and is ready to perform his contract is also erroneous. The plaint does not contain an unequivocal averment that the plaintiff is ready and willing to perform the contract. The plaintiff instead states that he is willing to perform the contract and to pay the balance purchase amount to the defendants provided that they should pay fees, obtain building plan permission approved by Municipal Council as per terms and the promise. Thus the plaintiff’s statement is attached with a condition. Taking into consideration all the above circumstances, prima facie, there is hardly any chance for the plaintiff to succeed in the suit. Therefore, there could be no interim relief in favour of the plaintiff. Hence, the impugned order cannot be sustained. The Appeal from order is allowed. The impugned order is set aside. The application for interim reliefs at Exhibit 5 is dismissed. 9. Parties to bear their own costs. ( SMT.R.P. SONDURBALDOTA, J.) SMT.R.P. SONDURBALDOTA, J.) SMT.R.P. SONDURBALDOTA, J.)