1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION APPEAL FROM ORDER NO.58 OF 2008 IN SPECIAL CIVIL SUIT NO.703 OF 2007 One Stop Shop India Private Limited Appellants (Orig.Plaintiffs) vs. 1. Mr.Rustom Nanabhoy Jeejeebhoy 2. Puma Sports India Private Limited 3. Landmark International (Bossini & Kappa), LMG Brands India Pvt.Ltd. Respondents (Orig.Defendants) Mr.Dinyar Madon, Sr.Counsel with Mr.Ranjit Shetty, Mr.Aney Nabar, Mfr.Shane Sapeco, Mr.Shailesh Pona i/by.M/s.Hariani & Co. for the Appellants. Mr.Ravi Kadam, Sr.Counsel with Mr.Arvind Shah i/b.M/s.Pankaj J. Das for Respondent No.1. Ms.Meenakshi Iyer and Mr.Vatsal Shah i/b.M/s.Doijode Associates for Respondent No.2. CORAM : ANOOP V. MOHTA,J. DATED : 30th April, 2008 P.C. The Appellants-original plaintiffs have filed the present Appeal against the Order dated 17th October, 2007 passed by the Civil Judge, Senior Division, Pune, whereby an interim application for injunction filed by the Appellants was dismissed. 2. The pending Suit is for declaration and injunction 2 that the Appellants alone are entitled to develop and carry on construction over the suit properties described in Schedule III and claim various injunctions. 3. The Appellants have claimed the following interim reliefs: a) The defendant No.1 may kindly be directed by a mandatory temporary injunction to hand over the suit property to the plaintiff for development and construction or cause it to be handed for development and construction so as to enable the plaintiff to carry out the development and construction. b) Alternatively if the suit property cannot be handed over immediately in view of the alleged rights created by the defendant No.1 in favour of the defendant Nos. 2 and 3 then the defendant Nos. 2 and 3 may kindly be restrained by a temporary injunction from creating any further third party interest or parting with the possession of the suit property described in the Schedule III. c) The defendant No.1 may kindly be restrained by a temporary injunction from claiming any rent/license fees from the Lessees/Licensees of the plaintiff from the Nucleus building unless and until he complies all the terms and conditions of 28-8-2006 Agreement i.e. Settlement Agreement and also be restrained by a temporary injunction from intimidating, threatening and harassing them and compelling them to vacate their respective licensed nor leased premises in occupation of the Lessees and Licensees as mentioned in Annexure B of the settlement agreement unless and until the defendant No.2 complies all the terms and conditions of the Agreement dated 28-8-2006 in letter and spirit. d) The defendant No.1 may kindly be restrained by a temporary injunction from publishing any such news items, any Public Notices, addressing letters etc. of alleged termination etc. thereby causing the 3 defamation to the plaintiff. e) That ad-interim and interim reliefs in terms of above prayer clause (a) to (d) may kindly be granted. f) Any other just and equitable reliefs not specifically prayed for may also kindly be granted in favour of the plaintiff in the interest of justice. 4. The basic prayers of the Suit apart from the above are as under: (a) It may kindly be declared that the plaintiff alone is entitled to develop and carry out the construction over the suit property that is described in Schedule "3". (b) It may also be declared that that the alleged Agreements of Lease or otherwise executed by the defendant No.1 in favour of the defendant Nos. 2 and 3 are illegal, null and void ab initio and not binding on the plaintiff. (c) It may also kindly be declared that the Agreement dated 26th July 2001 read with the Deed of Confirmation 7th October, 2003, Power of Attorney dated 7th October 2003 and the Agreement for Settlement of Project Account dated 28th August 2006 are still in existence, continuing and binding on the defendant No.1. - - - - - - - - -- - - - (i) Alternatively the defendant No.1 may kindly be ordered to pay an amount of Rs.1,05,00,000/- (Rupees One crore Five Lakhs only) to the plaintiff as and by way of damages the details of which are given in Annexure A annexed herewith in case suit property described in Schedule 3 is not made available to the plaintiff for development and construction as agreed. (j) The defendant No.1 may kindly be further ordered to pay the interest at the rate of 18% per cent per annum on the aforesaid amount mentioned in particulars of claim & 4 Annexure A, from the date of filing of suit till the amount is actually realized. 5. Mr.Rustom Nanabhoy Jeejeebhoy is original defendant No.1. Pume Sports India Private Limited is Respondent No.2. Respondent No.3 is Landmark International (Bossini & Kappa). All the respondents opposed and replied the said application. 6. After hearing both the parties and going through the record with the assistance of the learned Senior Counsel, one thing is clear that there is no written agreement on record to substantiate the case of the Appellants. The Appellants’ case is revolving around the oral Agreement which they claim on the foundation of written Agreement dated 26th July, 2001 and the Confirmation Agreement of 2003. The contracted building is Mall-cum-commercial complex. Schedule II (Nucleus) based upon Agreement dated 26th July, 2001. There is nothing to connect in writing, right over the suit property based upon the above documents. 7. The prayers of the Suit itself show that the Appellants want declaration that they alone are entitled to develop and carry out the construction over the suit property that is described in Schedule III and further declaration as sought to declare Agreement of Lease, between defendant No.1 in favour of defendant Nos. 2 5 and 3 are illegal and void which are of the year 2004. The whole declaration as sought is based upon the Agreement dated 26th July, 2001 read with Deed of Confirmation dated 7th October, 2003, Power of Attorney dated 7th October, 2003 and Agreement for Settlement of Project Account dated 28th August, 2006, claimed to be in existence, continuing and binding on defendant No.1. All the prayers as reproduced above show that there is no case of specific performance as contemplated under the Specific Relief Act. There are no ingredients whatsoever to grant the specific performance based upon any Agreement oral and/or written. The declaration as sought itself need detailed enquiry and evidence and specially in the absence of material to support the plaintiffs own case, not merely upon the respondents documents. The interim relief as sought at this prima facie stage as rejected by the learned Single Judge cannot be said to be contrary to the record and the law as rightly contended by the learned Senior Counsel for Respondent No.1. 8. The another important aspect is the Agreement of Settlement of Project Account dated 28th August, 2006 that itself shows and as prayed also, that the Appellants-plaintiffs are entitled at the most damages as claimed. Having once entered into an Agreement for Settlement of Project Account and accordingly acted 6 also, and as accepted the basic amount, now to turn around and ask for interim relief of injunction based upon the oral Agreement, at this prima facie stage, is difficult to accept. 9. Even otherwise, the basic declaration revolving around the documents are of the years 2001, 2003 and 2006 and, therefore also, unless it is declared as prayed there is no question of grant of interim relief as sought and as rightly rejected by the trial Court. 10. Defendant No.1 alleged to have terminated Power of Attorney, Project Arrangement to render service and issued notice to Public and to the licensee of the Nucleus building. This was done in the background that the Appellants/plaintiffs have already received Rs.14 crores (Rupees Fourteen crores) based upon the Settlement Agreement. The Appellants have recovered more than Rs.7 crores and still recovering from the occupants without any authority and power to collect the same. The Appellants themselves are claiming the continuation of the said documents, but as the Appellants started misusing the said documents by selling properties and/or by transferring the properties without authority issued notice to the public at large and terminated the basic contract being the owner of the property. In this background, unless declaration as 7 sought as claimed is granted the Appellants being the owners of the property and in view of the termination of the service contract cannot be prevented from collecting the rent or license fee from the licensees which the Appellants are not entitled to recover. 11. There is no contract of any kind between the Appellants and defendant Nos. 2 and 3. They have been inducted by defendant No.1 by sub-lease by Agreement dated 5th October 2006 that is to some portion. Defendant Nos. 2 and 3 have already made statement and as recorded in their reply dated 18.9.2007 also in their reply that they will not create any further transfer or create any third party interest, right in the premises. The same statement was also made before this Court. 12. The learned Senior Counsel for the Appellants has strongly relied on the judgements of this Court saying that the specific performance of development Agreement is possible to grant, based upon the facts and circumstances of the case. The learned Senior Counsel resisted the same by relying on the judgements of this Court that it all depends upon the facts and circumstances of the case. No such relief can be granted merely by asking. Therefore, the question at this stage is whether any prima facie case is made out by the Plaintiffs even to consider their case of 8 specific performance of so-called development agreement. As noted, the Agreement dated 26th July, 2001 nowhere supports the case to consider even the case of development agreement at this prima facie stage of the proceeding. There is no such clause or condition provided. The whole case of Appellants is based upon oral agreement. The burden therefore lies very heavily upon the Appellants to prove that oral agreement in such type of matters and specifically performance of alleged development agreement. 13. The written agreement as read and referred by both the parties dated 26th July 2001 nowhere gives any right to the Appellants as claimed and contended in support of their case of oral agreement. There are no other documents shown on record that there was such oral agreement intended or expressed. On the contrary these documents and clauses show that the Appellants were merely appointed as a Project Manager for rendering services. This agreement was never intended to be a development agreement. Such agreement cannot be, at this stage, be enforced as a development agreement. The MOU dated 14th October, 2004 and 15th January, 2004 also cannot be read merely because the Respondent is the confirming party to the said document as a supporting document to show the oral agreement of development and apart from this as noted there is no concluding 9 agreement between the Appellants and the Respondents in respect of the suit property. 14. The learned Senior Counsel for Respondent No.1 has strongly relied upon the various clauses of the Settlement Agreement dated 28th August, 2006 and as reproduced by the learned Judge also in the following terms: "25. In view of the matter it is desirable to quote last four lines of the Clause No.11 of agreement for settlement to project account dated 28th August, 2006. It read as: . "The commercial terms in respect of the development of Phase-2 shall be mutually agreed between the Owner and Project Manager within 6 weeks from the date of execution hereof or such time that may be decided by the parties hereto." 26. On careful reading of the Clause No.11 in settlement agreement as relied by the Plaintiff it cannot be said that there was concluded contract in respect of the suit property viz., the property described in Schedule-III, between Plaintiff and Defendant No.1." 15. This clause as reproduced above and finding as recorded by the learned Judge and in the facts and circumstances of the case and in the absence of any concluded contract, merely based upon alleged oral agreement and specially in contra to the written clause of agreements, at this stage, the claim of alleged development right cannot be granted. The Appellants, if, able to make out their case then at the most may be 10 entitled to claim alternative relief of damages. In the present case, admittedly there is an Agreement for Settlement of Project Account with respect to the development and construction of dated 28th August 2006 between the Appellants and Respondent No.1 which is also in dispute. But that itself cannot be the reason to grant interim relief as sought in the present case merely because the cheques were dishonoured by the Bankers of Respondent No.1. 16. In the present case, declaration as sought unless granted, in the present facts and circumstances and as the said Settlement Agreement and Power of Attorney given by Respondent No.1 in favour of Directors of Appellants are already terminated, in my view, also there is no prima facie case made out by the Appellants for any interim relief as sought. The action of Respondent No.1 appears to be within the frame work of law and the record. Having once found, at this prima facie stage that there is no agreement to develop the suit property as claimed. The rival citations/authorities cited by the parties to the issue i.e. whether specific performance of development rights based upon such oral agreement can be granted by the Court, need no discussion at this stage, in the present matter. That is a matter of full trial and details. 11 17. Taking all this into account, I am also of the view that there is no prima facie case made out by the Appellants. There is no balance of convenience lies in favour of the Appellants and, therefore, there is no question of grant of ad-interim relief as sought. In this background, there is no question of irreparable loss also. The reasoned order need no interference. 18. In the result, the Appeal is dismissed. No costs. 19. All paarties further agree also that there was no interim relief or such order passed in the present matter. In view of above, interim orders, as recorded on 21/2/2008 and or if any, passed by this Court also stand vacated. [ANOOP [ANOOP [ANOOP V. MOHTA,J.] V. MOHTA,J.] V. MOHTA,J.]