-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 210 OF 2010 IN NOTICE OF MOTION NO. 3049 OF 2008 IN SUIT NO. 2509 OF 2008 Suresh G. Kumar. ..Appellant. Versus 1. M/s. Metro Development Corp. 2. M/s. Lotus Logistics Pvt. Ltd. ..Respondents. Mr. S. C. Naidu with Mr. R. D. Suryawanshi for the appellant. Mr. D. D. Madan, Sr. counsel with Mr. V. R. Walawalkar and Mr. V. S. Kapse for respondent no. 1. Mr. P. K. Samdani with Mr. A. A. Joshi and Mr. Nitin Srivastava for respondent no.2. Coram : F.. I. REBELLO & R. V. MORE, J. Date : June 18, 2010. Oral Order (Per R. V. More, J.) : 1. Heard Mr. S. C. Naidu, learned counsel for the appellant, Mr. D. D. Madan, learned senior counsel for respondent no.1 and Mr. P. K. Samdani, learned senior counsel for respondent no.2. The appellant challenges the legality and propriety of the order of learned Single Judge passed on 22nd March 2010 whereunder his Notice of Motion No. 3049 of 2008 came to be dismissed. 2. The appellant has filed the above suit, being Suit No. 2509 of 2008 for declaration that Memorandum of Understanding (for short “MoU”) -: 2 :- between the appellant and respondent no.1 is valid and subsisting and binding on the respondents. The declaration is also sought that the development agreement between respondent no.1 and respondent no.2 executed on 28th December 2008 is null and void and not binding on the appellant. In this suit, appellant took out Notice of Motion No. 3049 of 2008 for temporary injunction restraining the respondent from disposing off, alienating, encumbering and/or dispossessing or disturbing the possession of the appellant and/or creating any third party rights and/or carrying out any development activity in respect of 25% share of the appellant in the suit property. 3. It is the case of the appellant that he and respondent no.1 on 11th April 2006 entered into a MoU thereby respondent no.1 agreed to sell in its proposed project residential area of approximately 20,000 sq. fts. at the rate of 2852/- per sq. ft and the appellant paid an amount of Rs.58 lacs. Respondent no.1 was unable to complete the project and therefore second MoU was executed between the appellant and respondent no.1 on 29th August 2006 whereunder respondent no.1 agreed to sell 25% of the plot and development rights for total consideration of an amount of Rs.1,65 crores and the appellant paid an amount of Rs. 1.25 crores to respondent no.1 as per this MoU. The dispute arose between the appellant and respondent no.1 and therefore third MoU dated 14th June 2007 came to be executed between them, thereby respondent no.1 agreed to pay an amount -: 3 :- of Rs.2.60 crores to the appellant towards the full and final settlement of appellant’s claim in respect of MoU dated 29th August 2006. Respondent no.1 gave post dated cheques to the appellant for an amount of Rs.2.60 crores. However, the said cheques on presentation were dishonoured and therefore appellant filed 4 criminal cases under section 138 of the Negotiable Instruments Act against respondent no.1. On 1st March 2008 a Deed of Cancellation was executed between the appellant and respondent no.1 thereby appellant accepted an amount of Rs.1.82 crores from respondent no.1 towards the full and final settlement of his claims under the MoU dated 11th April 2006. 4. Thus, in short it is the case of the appellant that the MoU dated 29th August 2006 subsists as the cheques issued by respondent no.1 for an amount of Rs. 2.60 crores under MoU dated 14th June 2006 came to be dishonoured. 5. Respondent nos. 1 & 2 contested the relief claimed by the appellant in notice of motion on various grounds. It is the case of the respondent that the plaintiff is guilty of suppression of material facts. The maintainability of the suit was also challenged on the ground of provisoin of section 34 of the Specific Relief Act. The respondent contend that the appellants though made passing reference of MoU dated 1st March 2008, deliberately did not annexe the same to the plaint. It is the specific case of the respondent that by virtue of the MoU dated 1st March 2008, the -: 4 :- appellant has relinquished all his right, title and interest in the suit property by accepting an amount of Rs. 1.82 crores in full and final settlement. It is also contended that respondent no.1 has validly entered into development agreement with respondent no.2 on 28th December 2006and appellant cannot make any grievance in that regard. The respondents consequently prayed for dismissal of the appeal. 6. There does not seem to be any dispute between the parties that the 1st MoU dated 11th April 2006 is cancelled by virtue of Deed of Cancellation dated 1st March 2008 after receipt of an amount of Rs. 1.82 crores by the appellant from respondent no.1. The dispute between the parties is whether 2nd MoU dated 29th August 2006 subsists and whether the appellant is entitled to enforce the same. The appellant’s case is that since the cheques for an amount of Rs.2.60 crores given by respondent no.1 came to be dishonoured, he is entitled for declaration that 2nd MoU dated 29th August 2006 subsists. On the contrary, it is the case of respondent nos. 1 & 2 that by Deed of Cancellation dated 1st March 2008, the appellant accepted an amount of Rs.1.82 crores towards the full and final settlement of all his claims and relinquished all his rights of whatsoever nature in the suit property. 7. We have perused the plaint. Though a passing reference regarding the Deed of Cancellation dated 1st March 2008 is made in the plaint, the said Deed of Cancellation is not annexed to the plaint. The said Deed of -: 5 :- Cancellation dated 1st March 2008 was produced by respondent no.1 alongwith his reply to the notice of motion. After perusal of the said Deed of Cancellation dated 1st March 2008, we prima facie find that the parties not only agreed to cancell the MoU dated 11st April 2006, but the appellant also relinquished all his rights of whatsoever nature in the land situated at Hissa No. 3, S. No. 40, Taluka Valnai, Malad (W), Mumbai, i.e., the suit property. Probably for this reason only the appellant did not annexe the said Deed of Cancellation dated 1st March 2008. 8. The appellant has prayed for declaration that MoU dated 29th August 2006 entered into between himself and respondent no.1 is valid and subsisting. Under the said MoU, respondent no.1 agreed to sell and appellant agreed to purchase the development rights to the extent of 25% of the suit property for a consideration of an amount of Rs. 1.64 crores. The appellant has not asked any relief for specific performance of the said MoU. In the absence of any claim for such relief, in our prima facie view, the appellant’s suit is not maintainable and is hit by the provisions of section 34 of the Specific Relief Act, 1956. The appellant on the basis of a recital in clause (3) of MoU dated 29th August 2006 claims to be in possession of 25% share of the suit property. Perusal of clause (3) of the said MoU dated 29th June 2008 does not disclose that the appellant was put in possession of 25% share of the suit property. In that view of the matter, the appellant cannot claim injunction restraining the respondents -: 6 :- from disturbing his alleged possession. 9. Taking totality of the facts and circumstances into consideration, we are of the opinion that the appellant has failed to show that prima facie case and balance of convenience lies in his favour. Learned Single Judge after appreciating the facts on record has come to a correct conclusion and we do not find any error so as to enable us to interfere with the same. In the light of that, appeal is dismissed. 10. However, it is open for the plaintiff to apply for the amendment in the plaint. In the event of such application, the trial Court shall decide the same independently and on its on merits. 11. It is clarified that the observations made hereinabove are prima facie, tentative and made for the limited purpose of disposing of this appeal and the trial Court shall decide the suit on its own merits independently uninfluenced by the observations made hereinabove. (R.V. MORE, J.) (F. I. REBELLO, J.)