1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1990 OF 2006 IN SUIT NO.4326 OF 1997 White Rose Developers Pvt.Ltd. .. Plaintiffs Versus Sharanpal Balmukund Chopra .. Defendant Mr.C.Ardeshir with J.Singh i/b. Wadia Gandhy & Co. for plaintiffs Mr.H.J.Thakkar, Senior Advocate with Ms.G.Shastri for defendant. CORAM : S.C.DHARMADHIKARI, J. DATE : 10th October 2008 P.C. . Heard Mr.Ardeshir learned Counsel appearing for plaintiff and Mr.Thakkar, learned Senior Counsel for defendants. The plaintiff in this suit for specific performance seeks interim relief. The interim relief is of injunction in terms of prayer clause (a) of the notice of motion and for Receiver in terms of prayer clause 2 (b) thereof. 2. The suit is filed on 23rd October 1997. In the suit prayers are that the agreement dated 27th October 1994 as modified by the minutes of the meeting held on 27th February 1997 is valid, subsisting and binding and that the defendant be ordered and decreed to specifically perform the agreement. 3. It is common ground before me that the plaintiff and the defendants have entered into an agreement, a copy of this is at Exh.C and which is modified/varied by the minutes at Annexures "K". 4. It is averred in the plaint that on 2nd September 1997 (Annexure "L") the defendants terminated the agreement and informed the plaintiff that the amount received till that date stands forfeited. 3 5. The suit is filed on 23rd October 1997 after giving a reply to this termination notice. The notice of motion is moved only after 9 years from the date of filing of the suit, claiming the aforesaid interim relief. In the affidavit in support all that is alleged is that in the last week of June 2006 the constituted attorney of the plaintiff visited residence of the defendant and there were two brokers present. The Constituted Attorney avers that the defendant was not aware of his being constituted attorney nor has he disclosed it to the defendant. Defendant at the relevant time was 84 years of age and beyond this averment/statement in para 6, nothing has been pointed out by the plaintiff warranting grant of interim relief by this Court, much less of an injunction and Receiver. 6. Now at the hearing of the motion, it is urged that in reply to this affidavit in support, 4 an affidavit was filed on 15th July 2006 by the defendant and apart from other contentions, it is urged in para 9 that the defendant has no intention to sell his property. Once there is no intention to sell the property, then, it is urged that the relief of interim injunction at least be granted. 7. It is further urged that a prima facie case has been made out and mere delay in moving the court for interim reliefs does not prevent this Court from granting the reliefs claimed. Reliance was placed upon an order in Notice of Motion made by learned Judge in a suit for specific performance. Further, my attention was invited to the fact that an arguable case is made out inasmuch as it cannot by any stretch of imagination be held that at the interlocutory stage that the agreement in question is an agreement of Development of immovable property and no right, title and interest therein is 5 created. The clauses in the agreement point towards it being a sale and the plaintiff was empowered to create further rights in the property, after a portion of it was agreed to be handed over to the defendant. The computtion of F.S.I. was brought to my notice and it was urged by the learned Counsel for the plaintiff that the balance F.S.I. should be utilised and the construction disposed of in open market. There is an obligation to transfer the property either to the plaintiffs or to their nominees or such entity as is formed by the flat purchasers. 8. In these circumstances, it was urged that the plaintiff has made out a strong prima facie case, the balance of convenience is in favour of plaintiff and that grave and irreparable loss, harm and injury will be caused if the interim relief is not granted. 9. On the other hand, Mr.Thakkar learned Senior 6 Counsel appearing for defendant invited my attention to the agreement, the minutes and the letter of termination dated 2nd September 1997. He contended that there are several breaches committed by the plaintiff of their obligation under these documents. Firstly, they have not settled the dispute with one Mr.Anand. Secondly, they have not paid the amount of Rs.1,25,460/- which was later on reduced proportionately, within four months from the date of the order of appropriate authority under I.Tax Act. Thirdly, there is a breach of the obligations with regard to the balance to be submitted to the Municipal Corporation and fourthly, the criminal cases which were to be prosecuted by the plaintiff as agreed in the agreement have not been so prosecuted. He submitted that each of these breaches have been highlighted in the termination letter and the termination itself is intimated in September 1997. Mr.Thakkar was at pains to point out that in reply to the termination notice, 7 nothing is indicated with regard to compliance with the terms and conditions of the agreement and the minutes. He submits that all arguments with regard to readiness and willingness and compliance with the agreement are with reference to the clauses in the agreement and overlooking the minutes dated 27th February 1997. He submits that if the parties have modified or varied certain terms and conditions, then compliance has to be reported even with regard thereto. At this stage when the agreement is already terminated and the amount forfeited until and unless this action is declared illegal, the plaintiffs will not be able to get specific performance of their agreement. Further, the specific performance can be granted only after all conditions are complied with, including proving readiness and willingness. It is a relief in discretion and equity and it is not as if this court will grant it straight away. In such circumstances, by a mere statement that some brokers had visited the 8 defendants without anything more, this Court would not be in a position to hold that a strong prima facie case is made out and for this reason the motion be dismissed. 10. With the assistance of the learned Counsel for both sides, I have perused the plaint, its annexures and the reply so also the rejoinder affidavit. I have also perused the Decision brought to my notice. The relief of specific performance at the stage of hearing of the suit upon conclusion of trial is something which is depending upon facts and circumstances of each case. Ultimately, the aspect of delay, if fatal or not, is something which must be gone into in the facts of each case. In the present case, admittedly for nearly Nine years, no attempt was made to obtain and claim any interim reliefs in the suit. After a period of nine years from filing of the suit, an application for interim relief is made with the sole averment and 9 statement in para 6 of the affidavit in support. Apart from the delay, I find that there is no material produced to show that the defendant is disposing of or selling the property. The denial of the defendant must not be read in isolation and the entire para will have to be seen. Reading of para 9 of the defendant’s reply indicates that the defendants deny the story of any brokers visiting him. He has stated that the story is false and cannot be believed. It is in that context, there is a denial that the defendants have no intention to dispose of the property. By statement of this nature alone no prima facie case is made out. All the more when the plaintiff does not move for any interlocutory relief in a suit filed in the year 1997. 11. Further, as to whether the agreement is an agreement for development or development cum sale or whether all obligations of the plaintiff have been complied with in accordance therewith 10 so also the variations as per the minutes dated 27th February 1994 are matters which will have to be gone into in depth at the trial. whether the termination is justified or whether the agreement is valid, subsisting and binding is something which the plaintiff must prove in addition to its readiness and willingness after leading evidence. In the peculiar facts of this case, when no interim relief was granted in this suit, it will not be possible to accede to the submissions of Mr.Ardeshir and grant interim relief as prayed. 12. In this case written statement has already been filed and issues have been framed. The defendant is 86 years old. The defendant has agreed to go for a trial. Even the plaintiff has filed affidavit of original documents. In such circumstances, directions with regard to expeditious trial can also be issued and that is another reason for the interim relief being denied. Thus, on the ground that no 11 prima facie case is made out, balance of convenience is also not being in favour of plaintiffs, Notice of motion is dismissed. 13. By consent of parties, Mr.Salil Shah, a practicing Advocate of this Court is appointed as Commissioner to record evidence. The plaintiff to file original documents and affidavit in lieu of examination in chief be filed within four weeks from today. Thereafter, the defendant shall file the documents and the affidavit in lieu of examination in chief. The parties to appear before the Commissioner on 17th November 2008 and the Commissioner to endeavour and complete the assignment of recording evidence by 19th January 2009. All observations made herein are for the purpose of disposal of this motion and shall not influence the final decision in the suit. Notice of motion dismissed. No costs. 12 (S.C.Dharmadhikari, J)