1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTIC OF MOTION NO. 1673 OF 2006 IN SUIT NO. 1434 OF 2006 Bachher Investment Pvt. Ltd. ...Plaintiff Vs. Model MIG Co-op.Hsng. Soc.Ltd. ...Defendant Mr. Manoj Nickolse i/b. Mr. N.G. Bhatt for Plaintiff Mr. Birendra Saraf with Ms. Neeta Jain i/b. I.C. Legal for Defendant CORAM: SMT.ROSHAN DALVI, J. DATED: 9 THJUNE, 2009 P.C. 1. The Plaintiff’s suit is for declaration that there is a valid and binding contract between the parties for redevelopment of the property of the Defendant Society and for injunction restraining the Defendants from obstructing the Plaintiff from carrying out the contract of redevelopment as also for injunction restraining Defendants from developing the suit property otherwise through the Plaintiff or creating any 3 rd party rights therein. The Plaintiff has also applied for appointment of Court Receiver. 2 2. The valid and binding agreement that the Plaintiff contends must be reflected in the correspondence that ensued between the parties, as there is no registered agreement between the parties executed by them. Correspondence between the parties has commenced from 6 th April, 2005 when the Defendants showed their intention to redevelop the property to the Plaintiff. Upon negotiations between the parties the Plaintiff made an offer under their letter dated 7 th May, 2005. The offer is in writing. It is titled as “Offer for redevelopment”. The Defendants, being the Society considered the offer in their meeting and accepted the offer as approved by the members. The members of the Defendant Society could approve the offer only in the meetings by way of resolutions. A copy of the resolution pertaining to the development was attached to the acceptance of the offer by the Defendants under their letter dated 6 th June, 2005. The resolution interalia required the giving of a bank guarantee of Rs.10 Crores by the Plaintiff. 3. The Plaintiff thereafter corresponded with the Defendants with regard to the modification required in giving of the bank guarantee as also other conditions. The defendants by their letter dated 13 th June, 2005 conceded for a bank guarantee of 2% of the 3 cost of construction and guarantee to remain in force until their 64 members obtained new flats in the newly constructed building of which occupancy certificate would be given by the B.M.C. 4. The Plaintiff by its letter dated 14 th June, 2005 agreed to give the bank guarantee of Rs.10 Crores instead of the bank guarantee of 2% of the cost of construction and also agreed to the time period during which it would remain in force, but made a provision for commencement of the bank guarantee at a later date after completing the conveyance and other formalities with MHADA and other authorities. 5. The correspondence annexed to the plaint itself shows that the parties were negotiating. The offer was accepted unconditionally. The attachment of the resolution of the Society to the letter of acceptance showing the approval of the members showed that the acceptance was conditional as reflected in the resolution. The resolution stated to be attached to the letter dated 6 th June, 2005 is not part of the plaint. However, the admission that certain resolution has been passed in respect of the bank guarantee is reflected in the Plaintiff’s letter dated 6 th June, 2005 itself. The parties further negotiated. The negotiations remained at that. 4 Hence, the valid and subsisting agreement which the Plaintiff requires the declaration for, is not shown in the plaint. 6. Mr. Saraf has stated that the Defendants have entered into a formal registered agreement with another party for redevelopment of that property. Ad-interim relief has been refused. Case for grant of injunction is not made out. Hence, the Notice of Motion is also required to be dismissed. 7. The Advocate appearing for the Plaintiff has neither any instructions, nor papers with regard to the facts of the case. His only instruction is that the Advocate who appears for the Plaintiff is ill and has the papers. The Notice of Motion has remained pending since 2006. If the Advocate cannot appear, but chooses to send another Advocate to Court, he must do so, with instructions and with papers. Mr. Saraf has assisted the Court in showing the contract the Plaintiff has sought to make out. The Court has seen the Plaintiff’s case. No valid or subsisting contract is seen from the documents annexed to the plaint itself. Consequently the Notice of Motion is dismissed. (SMT. ROSHAN DALVI, J.)