1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2772 OF 2008 IN SUIT NO.2253 OF 2008 The Greater Bombay Co-operative Bank Ltd. .....Plaintiffs. V/s Circle K.S. Polyset Industries Pvt. Ltd. and Ors. ..... Defenants. Ms. Sonal with Mr. Ravi Goenka i/b Goenka Law Associates for plaintiffs. None for defendants. CORAM: V.M. KANADE, J. DATE : 26TH AUGUST, 2009 P.C.: 1. Heard the learned Counsel appearing on behalf of plaintiffs. None appears on behalf of defendants. 2 Plaintiffs have taken out this Notice of Motion seeking the following reliefs:- 2 “a) that pending the hearing and final disposal of the suit the Defendant No.7 through its servants, agents and or anybody acting through be restrained by an order of this Hon’ble Court not to deal with the property bearing Plot No. 3712 and 3714. b) that pending the hearing and final disposal of suit Defendant No.7 (GIDC) be directed to deposit the amount of Rs 15,17,645.00 (Rs Fifteen Lacs Seventeen Thousand Six Hundred and Forty Five) which is paid by he Plaintiff to Defendant No.7. c) for such other relief which the Hon’ble Court consider just and proper may also be granted in favour of the plaintiff. d) costs of the Notice of Motion be provided for. 3 3. Brief facts are as under:- 4. Plaintiffs had given loan to defendant No.1 - Company in order to enable the said Company to purchase two plots which were offered by defendant No.7. According to plaintiffs, defendant No.1 had made a representation that defendant Nos. 8 and 9 are sister concerns of defendant No.1 and that the plots which would be allotted by defendant No.1 would be accordingly mortgaged in their favour. Plaintiffs, relying on this representation, disbursed the loan amount of Rs 15 lacs by issuing demand draft in favour of defendant No.7. Subsequently, however, plaintiffs came to know that defendant No.7 had transferred the two plots in favour of defendant Nos. 10 and 11. Plaintiffs have, therefore, filed this suit for recovery of the said amount from defendant No.7 and for consequential reliefs. 4 5. In this Notice of Motion, the relief which is claimed against defendant No.7 is that the defendant No.7 be directed to deposit the said amount in this Court. By an order dated 24/9/2008, this Court was pleased to reject the application made by plaintiffs for grant of ad-interim relief. 6. The learned Counsel appearing on behalf of plaintiffs submitted that the demand draft of Rs 15 lacs was paid to defendant No.7 and in the said letter which was sent alongwith the demand draft dated 29 th June 2003 it was stated that the demand draft should be encashed by defendant No.7 only if conditions mentioned in the said letter were accepted by the said defendant. It is submitted that since defendant No.7 had encahsed the demand draft, it was bound by conditions which were imposed in the said letter. In the said letter following conditions were mentioned:- 5 “1. You have no objection to create mortgage in favour of GREATER BOMBAY CO-OP BANK LTD by M/s Circle KS Polyset Industries Pvt. Ltd. the aforesaid plots. 2. You shall note our charge in your books in respect of the said plots. 3. You shall execute the necessary lease agreement with M/s Circle KS Polyset Industries Pvt. Ltd and forward the same duly registered directly to our bank. 4. You shall execute the required tri-partiate agreement with us- 5. There are no other dues to be recovered by you towards these plots and shall give a certificate to that effect.” It is, therefore, submitted that by virtue of the said conditions, defendant No.7 was duty bound to execute the tripartite agreement. However, after having encashed the said demand draft, defendant No.7 did not execute the said agreement. It is submitted that, therefore, there is a valid and subsisting contract 6 between plaintiffs and defendant No.7. It is, therefore, submitted that defendant No.7 is liable to deposit this amount in this court. 7. The said submissions cannot be accepted. Prima facie, it cannot be said that there was concluded contract between plaintiffs and defendant No.7. Plaintiffs have entered into agreement with defendant No.1 and, pursuant to the said agreement, had disbursed the loan to defendant No.1 and the said amount was directly paid to defendant No.7. Merely because defendant No.7 has encashed the demand draft, it would not be liable to pay the amount, unless it is established that there was concluded contract between plaintiffs and defendant No.7. In any event, at an ad-interim stage, no case is made out by plaintiffs for direction, directing defendant No.7 to deposit this amount in this Court. If plaintiffs succeed in the suit, plaintiffs can execute the decree. Defendant No.7 is a Govt. Corporation and, as such, the amount is fully secured in that sense. No case, 7 therefore, is made out for grant of any relief in this notice of motion. Notice of Motion is accordingly dismissed. 8. Place the suit for directions on board after four weeks. (V.M. KANADE, J.)