1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1116/2009 IN SUIT No.639/2009 Amcon Developers Pvt.Ltd.. ..Plaintiff -VERSUS- New Azad Co-operative Housing Society Ltd. and another. ..Defendants ............... Mr.Y.N.Adhia, Advocate for the Plaintiff. Mr.Anil Sakhre i/b Mr.Clement Lobo, Advocate for the Defendant No.1. Mr.Anil Sakhre i/b Mr.Peter Courtinto, Advocate for the Defendants Nos.2 to 16 and 18 to 49. ............... CORAM: A.P.DESHPANDE, J. 25th June, 2009. PC:- 1 Though this Notice of Motion is fixed for ad-interim relief, however, by consent of the learned counsel appearing for the parties the Notice of Motion itself is taken up for final hearing and disposal. 2 The suit is for declaration that there is a concluded agreement/ contract between the Plaintiff and the Defendant No.1 Society for redevelopment of the Society’s property. The Plaintiff is a builder/developer whereas the Defendant No.1 is a Co-operative Housing Society having about 48 members who are in possession of the flats. The Plaintiff is also seeking a decree for specific performance of contract. The record reveals that the Plaintiff and the Defendant No.1 had discussed the issue of redevelopment and were negotiating the terms subject to which the contract would be finalized. It is a matter of record that the draft MOUs were exchanged between the parties, however, the parties had not reached a final settlement in regards to the terms and conditions subject to which the contract for redevelopment was to be offered to the Plaintiff. 2 3 I am taken through the various letters exchanged between the parties and the drafts, however, none of those letters and drafts conclude the agreement/ contract between the parties. The Plaintiff has not paid a single pai to the Defendant No.1 nor the Defendant No.1 handed over the possession. None of the terms and conditions spelt out in the letters and drafts are acted upon by the parties. There is no concluded agreement which could be enforced in the Court of law. Various offers and counter offers were being made. 4 The learned counsel for the Plaintiff mainly relies upon the draft of MOU which is not signed by the parties and which is full of blanks at various places as a document which concludes the agreement and thus, terms it as a contract being enforceable in law. This submission is made because of presence of the seal of the Defendant No.1 Society appearing on the draft. There is no substance in the contention and at any rate the seal of the Society is not indicative of acceptance of the terms contained in the draft for the reason that the document is not signed by the parties. The submission cannot be accepted. 5 The Plaintiff has utterly failed to make out prima facie case for grant of injunction prayed for in the Notice of Motion. There is no question of irreparable loss being caused to the Plaintiff as the Plaintiff has not incurred any liability or monetary obligations. Failure to finalize the terms and conditions in regard to redevelopment does not cause any loss to the Plaintiff much less which could be termed as irreparable entitling it to claim ad-interim relief. Balance of convenience is also not in favour of the Plaintiff. 6 Last but not the least it is relevant to note that the Defendant No.1 had informed the Plaintiff way back on 09.08.2007 that the members of the Defendant No.1 Society have unanimously decided not to go ahead with redevelopment with the Plaintiff. Various reasons have also been spelt out as to why the Defendant No.1 is not ready and willing to enter into an agreement with the Plaintiff for redevelopment of its property. After receipt of the said letter dated 09.08.2007 the Plaintiff took no steps whatsoever with a view to assert its right under the so called concluded agreement for a long period, however, belatedly by filing the present suit in the year 2009 specific 3 performance is sought and various interim reliefs are prayed for in the Notice of Motion. According to the learned counsel for the Plaintiff, the Plaintiff was awaiting favourable reply from the Defendant No.1 and having sensed that the Defendant No.1 is intending to enter into a contract with some other developer, the Plaintiff has chosen to file the present suit. This can be hardly any explanation for delay much less satisfactory. The inordinate delay by itself would dis-entitle the Plaintiff from claiming equitable reliefs. 7 In the result, there being no merit in the motion and as the Plaintiff has failed to establish prima facie case, I proceed to reject the Notice of Motion. The Notice of Motion is dismissed accordingly. JUDGE kps