1 NMS735.08.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 735 OF 2008 IN SUIT NO. 3367 OF 2007 Rashmibhai Ambalal Patel & Ors. ... Plaintiffs. V/s. Parekh Sons Builders Pvt. Ltd. & Ors. ... Defendants. Ms. S.P. Trivedi i/b. M/s. A. Bharat & Co. for the Plaintiffs. Mr. Satish Shetye i/b. M/s. Prakash & Co. for Defendants 1 and 2. None for other Defendants. CORAM : R.Y. GANOO, J. DATED : 8th SEPTEMBER 2010. P.C. :- At the outset it is required to be mentioned that Defendant Nos.1 and 2 though have represented themselves in the Court through Counsels, no affidavit in reply is filed. Other Defendants are absent. Merely because Defendant Nos. 1 and 2 have not filed affidavit in reply, it cannot be said that every averment in the plaint is required to be accepted as it is. 2 NMS735.08.sxw 2. The Plaintiffs three in number have instituted this Suit for specific performance of agreements which are said to have been executed in their favour in terms of letters of allotment dated 17th January 1997 being Exhibits ‘B’, ‘C’ and ‘D’. According to Plaintiffs, commercial area of 3333 sq.ft. super built up was agreed to be sold to Plaintiff Nos.1,2 and commercial area of 2000 sq.ft. was agreed to be sold to Plaintiff No. 3. The Plaintiffs have also prayed for other necessary reliefs in terms of damages so as to protect their interest. 3. By this Notice of Motion, the Plaintiffs want an order of injunction restraining the Defendant Nos. 1 to 5 from selling and/or creating third party rights in regard to commercial area of 3333 sq.ft. super built up agreed to be sold to Plaintiff Nos. 1 and 2 and commercial area of 2000 sq.ft. agreed to sold to Plaintiff No. 3 in the building to be constructed on the plot of land more particularly described in Exhibit ‘A’. Prayer for Receiver is asked in terms of prayer clause (b). 4. I have heard learned Counsel on both sides extensively. I have perused letters at Exhibits ‘B’, ‘C’ and ‘D’ to the plaint 3 NMS735.08.sxw on the basis of which, claim for specific performance is made. Those letters at the most may indicate that Mr. Shiv Kumar Acharya, Mr. Suresh Shah and Mr. Atul Parekh wanted to enter into a transaction with Rashmibhai Ambalal Patel and others in regard to certain immovable property. Those letters do not mention the actual serial number of the units, dimensions of the said units and consideration for the said units and the manner in which the said consideration is to be paid. A close perusal of these letters will indicate that the precise terms of the transaction has not been described. Even otherwise, there is nothing to come to a conclusion that parties had arrived at agreements which are otherwise required to be executed for the purposes of sale of immovable properties. 5. Learned Counsel for the Plaintiffs had submitted that Defendant Nos.1,2 and 3 had made certain representations to the Plaintiffs and based on those representations, the Plaintiffs had agreed to purchase units from the Defendants. Learned Counsels for the Plaintiffs submitted that since the project did not come up another organizations by name KMG Enterprises i.e. Defendant No.5 wanted to take over the project. It is seen on the basis of a supplementary agreement entered into by 4 NMS735.08.sxw and between in all 19 persons including Plaintiff Nos.1 to 3 and M/s. KMG Enterprises that those 19 persons were treated as persons belonging to Parekh Group and M/s. KMG Enterprises had in terms of the said agreement indicated that claims of the present Plaintiffs are to be settled by persons belonging to Parekh Group. This may at the most go to show that some arrangement was arrived at between Parekh Group and M/s. KMG Enterprises to deal with claims of the Plaintiffs. Here again, there is nothing specific in terms of an area, in terms of specific numbers and other related matters so as to come to a conclusion atleast prima-facie that parties viz. Plaintiff Nos.1 to 3 and Defendant No.5 had agreed to have a transaction related to an immovable property. The minimum requirements concerning sale of an immovable property in terms of a provision of Specific Reliefs Act are not fulfilled. 6. Learned Counsels for the Plaintiffs had contended that substantial amount was paid by the Plaintiffs to the vendors and in support of that she had produced two receipts which are at Exhibit ‘P’ to the plaint. Those receipts are purported to be executed by Defendant No.1 in favour of Ashok H. Advani. First receipt dated 1st May 1995 is for Rs.17,00,000/-. Another 5 NMS735.08.sxw receipts dated 12th May 1995 is also for Rs.17,00,000/-. However, there is no mention in the said receipt as to why and what was the occasion for Plaintiff No.3 to pay to Defendant No.1 such a huge amount. Surely, if these monies were paid to Defendant No.1 towards purchase of an immovable property, there ought to have been some whisper about it. Hence, even if it is accepted for the moment and if these payments were made by Plaintiff No.3 to Defendant No.1, it cannot be said even prima-facie that said monies were paid towards purchase of immovable property. No documentary evidence is placed by Plaintiff Nos.1 and 2 to show that monies were paid after Exhibit ‘B’, ‘C’ and ‘D’ were received by them. Even the persons to whom letters at Exhibit ‘B’, ‘C’ and ‘D’ are addressed are not certain inasmuch as one finds that letter is addressed to Rashmibhai. Reference to surname is absent. The word “and another” cannot be linked with Plaintiff Nos.2 and 3. If it is done, it would be mean a guess work. 7. Looking to the facts which are placed before the Court through the entire record by the Plaintiffs, there is nothing to come to a conclusion even prima-facie that Plaintiff Nos.1 to 3 6 NMS735.08.sxw entered into an agreement with Defendant Nos.1 to 3 or even other Defendants for the purposes of purchase of immovable properties with specific description. If this is the position, the Plaintiffs have failed to make out a prima-facie case that they are entitled to specific performance of the agreement for purchase of immovable property. In view of this, the Plaintiffs’ Notice of Motion for relief in terms of prayer clauses (a), (b) and (c) cannot be granted. Question of balance of convenience certainly does not lie in favour of the Plaintiffs. 8. For the reasons mentioned aforesaid, the Motion is required to be dismissed. 9. Hence, following order is passed :- (i) The Plaintiffs’ Motion is dismissed with no order as to costs. (ii) Learned Counsel for Defendant Nos.1 and 2 waives service of the Writ of Summons, seeks time to file written statement. Defendant Nos.1 and 2 to file written 7 NMS735.08.sxw statement directly in the office on or before 23rd December 2010. 9. Learned Counsel for the Plaintiffs states that proceedings are pending before the Prothonotary & Senior Master as regards issuing necessary directions for service of writ of summons upon Defendant No.3 onwards. (R.Y. GANOO, J.)