1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1828 OF 2009 IN SUIT NO. 1241 OF 2009 Sports and Leisure Apparel Ltd., ... Plaintiffs. V/s. 1. Bansi Mall Management Co. & Pvt. Ltd., & Ors. ... Defendants. --- Mr. F. Divetre, Sr. Counsel a/w Mr. G. Patel & R. Tolat i/by M/s. L.C. Tolat & Co. for the Plaintiffs. Mr. Virag Tulzapurkar, Sr. Counsel a/w. Vineet Naikand Ameet Naik & Ms. Hemangi Abhyankar i/by Naik and Company for the Defendant Nos. 1 to 5. --- CORAM : A. P. DESHPANDE, J. DATED : 3rd JULY, 2009 P.C. : The notice of motion is moved for ad-interim reliefs. Heard the learned senior counsel appearing for the respective parties. 2. In the suit the plaintiffs have prayed for various reliefs including declaration that there exists a binding and enforceable agreement between the 2 plaintiffs and the defendants in respect of the two shops tentatively bearing nos. 5 and 6 and /or 1 and 2 in the renovated mall on the ground floor, admeasuring about 2500 or 5000 sq.ft. Super built up area. The next prayer is for specific performance of the agreement in relation to premises covered by prayer clause (a). Other consequential reliefs in the nature of compensation etc. are also claimed. The relief claimed in the notice of motion is for grant of injunction, restraining the defendants from creating any third party interest or parting with the possession of the shops on the ground floor tentatively numbered as shop nos. 6A and 6B and /or 1 and 2 of an area equivalent to 2500 to 5000 sq.ft. and for appointment of the court receiver for taking possession in respect of the shop numbers 6A and 6B or shop numbers 1 and 2. 3. Few facts that are necessary to determine the controversy are narrated herein in below : 4. The plaintiff is a company which is engaged in manufacturing and retailing of international brand apparels and other products including shoes and accessories and are trading under the popular registered trademark and 3 brand name “Lacoste”. The defendant nos. 1 to 5 are part of what is popularly known as “Future Group” and owners of the property earlier known as Crossroad Mall. The Crossroad Mall was owned by the defendant no. 6 - Peninsula Land Ltd. prior to its sale by the sixth defendant in favour of the defendant nos. 1 to 5. It is the case of the plaintiffs that the defendant no. 6 at the relevant time was the owner of the property and pursuant to an agreement dated 6th of May, 1999, the plaintiffs were put in possession of the shops bearing nos. C-213 and 214 in the said Mall initially, for the period of four years for an agreed consideration, which period came to be extended by further period of 9 years by an agreement dated 25th August, 2003 and thus the plaintiffs had a right to continue in possession of the two shops premises till 26th of August, 2012. However, some time in the year 2006 the defendants nos. 1 to 5, namely, the Future Group acquired the property known as Crossroad Mall including the land from the defendant no.6. After acquisition of the property the agent of the Future Group represented to the plaintiffs the intention of the defendants to redesign the Crossroads Mall in to a new luxury mall. The plaintiffs were also supplied with the plan of renovated mall. It is also claimed by the plaintiffs that the agent of the Future Group requested the plaintiffs to hand over vacant possession of the said two shops prior to the expiry of 9 years period available to the plaintiffs 4 under the agreement with the defendant no.6. According to the plaintiffs , the defendant no.2 vide letter dated 15th of March 2007 addressed to the plaintiffs recorded their intention to re-design the mall in to highend luxury mall and further assured the plaintiffs that the plaintiffs would be part of the future tenant mix in the said re-designed luxury mall. It is also the case of the plaintiffs that the plaintiffs were assured that they would be allotted a space in cluster class of international brands. A further assurance is claimed to have been given to the plaintiffs by the Future Group that they would be given preference to select the space over the other retailers and the said offer was made subject to the plaintiffs vacating the shops in their possession. The plaintiffs and the defendants, namely, Future Group, entered into negotiations by exchange of e-mails, personal discussion and exchanging drafts. However, the negotiations did not culminate into execution of any agreement or MOU between the parties. Proceeding on the premise that the defendants have not honoured their commitment which had culminated into an agreement enforciable at law, the present suit has been filed. 5. Per contra, it is the case of the defendants (Future Group) that they have purchased the property from defendant no. 6 and the defendant no.6 had agreed to hand over vacant possession of the property. It is claimed by 5 the defendant that the plaintiffs have vacated two shops pursuant to an agreement entered into by the plaintiffs with the defendant no.6 on receipt of consideration and the defendants No.1 to 5 have no concern with the said agreement. The agreement pursuant to which the plaintiffs vacated two shops is dated 30th of April, 2007, a copy which is placed on record at Exh. `D’. Under the said agreement, the plaintiffs agreed to stop the business operations and also agreed to hand over vacant and peaceful possession of the two shops on or before 6th of May, 2007 to the defendant no.6. It was also agreed that the services to the units shall be discontinued by the defendant No.6 from 6th May, 2007. In consideration of plaintiffs vacating the shops the defendant no. 6 had agreed to pay and did pay compensation of Rs. 1,25,00,000/- and returned the bank guarantee of Rs. 5,00,000/-, besides waving of all outstanding service fee, turnover commission, electricity charges and other charges. It is relevant to note that the said agreement where under the plaintiffs vacated the premises i.e. Unit No. C-213 and C-214 situated on the second floor of Crossroads Mall, is not a tri-partite agreement but a bipartite agreement entered into by the plaintiffs with the defendant no.6. Other defendants did not figure in the said agreement. Thus prima facie the plaintiffs have failed to establish that they had vacated the shop premises as they were assured of allotment of a definite identified 6 premises in the renovated Mall by the defendant nos. 1 to 5 ( Future Group). Had the alleged assurance from the defendant nos. 1 to 5 been the basis for plaintiffs vacating the shop premises, the defendant nos. 1 to 5 would have been party to the agreement where under the plaintiffs vacated the shops. However, there is no tri-partite agreement between the plaintiffs, the defendant nos. 1 to 5 and defendant no.6. The entire correspondence placed on record by the plaintiffs only show that the plaintiffs and the defendant nos. 1 to 5 were negotiating a possible allotment of premises to the plaintiffs in the renovated mall if and in case location is finalized and other commercial terms are agreed upon. True it is that the defendants represented to the plaintiffs that they would be given a preference in selecting space over other retailers. However, neither the location of the premises was finalized nor was the area, floor, the rate at which the compensation / rentals are to be paid and no other commercial terms were finally settled between the parties. Perusal of the entire correspondence reveals that the plaintiffs showed its interest in taking shops bearing nos. 6A and 6B or shop nos. 1 and 2 on the ground floor or any other similar location in block B, as may be mutually acceptable to them. No terms were concluded. In the absence of the concluded terms, it is difficult to hold that there exists an agreement between the plaintiffs and the defendants which could be enforced 7 in a Court of law. From perusal of the various letters exchanged between the parties in regard to the premises, the following position prima facie emerges : (i) that the plaintiffs vacated the shops in Crossroad Mall bearing no. C-213 and C-214 and handed over possession to defendant no.6 after receiving consideration from the defendant no.6. Thus the defendant nos. 1 to 5 did not come in picture when conditions were settled and consideration was finalized by the plaintiffs and the defendant no.6 in regard to handing over of the possession. (ii) the plaintiffs were interested in getting the premises in the renovated mall and hence had engaged in negotiations with the defendant nos. 1 and 5. The defendant nos. 1 to 5 as well were interested in letting out the premises to individual lessee and had also offered to give preference to the present plaintiffs in selecting the premises in the renovated mall; obviously subject to the terms and conditions being agreed upon. However the negotiations did not culiminate into an agreement. 6. No agreement was arrived at as no terms were finalized. The location of the premises, the area of the premises, the rentals or compensation and other commercial terms were never finalized much less agreed upon by the parties. 8 7. From the narration of the facts and events set out herein in above, it is crystal clear that the premises in relation to which the present suit for specific performance has been filed are not identified or identifiable premises. Identifiable premises would be those in regard to which some details are agreed upon and the property is capable of being identified. In the present case the property is neither identified nor is identifiable. Hence, the plaintiffs have failed to make out a prima facie case for claiming interim relief. 8. The learned counsel for the defendants has placed on record the judgment of the Apex Court in the case of Nahar Singh vs. Harnak Singh & Ors.reported in (1996) 6 Supreme Court Cases 699, wherein it is held that for grant of relief of specific performance of an agreement the property has to be identifiable property and in the absence thereof, no relief can be granted. 9. In this view of the matter, I have no hesitation in concluding that the plaintiffs have failed to make out a prima facie case. The plaintiffs are not going to suffer any irreparable loss, as they can be compensated in terms of money in the event the plaintiffs succeed. It will not be out of place to 9 mention that the plaintiffs have not paid any amount whatsoever to the defendant nos. 1 to 5 for obtaining the premises in the renovated mall. The plaintiffs have also failed to establish that the balance of convenience lies in its favour. Having regard to the totality of facts and circumstances, I hold that the plaintiffs are not entitled to any ad-interim relief. Hence, the notice of motion for ad-interim relief stands dismissed. (A.P. DESHAPNDE, J) .....