1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1164 OF 2009 IN SUIT NO.660 OF 2009 Bharat Nathalal Kansara .. Plaintiff Versus Praful Nathalal Kansara & Anr. .. Defendants Mr.N.N.Vaishnawa for plaintiff Ms.K.C.Nichani for defendants. CORAM : S.C.DHARMADHIKARI, J. DATE : 25th August 2009. P.C.: 1] The plaintiff has filed the present suit for a decree in the sum of Rs.1 Crore 15 lakhs along with interest and in the alternative to this prayer has sought a declaration that a Memorandum of Understanding dated 22nd September 2001 by which he allegedly surrendered his right, title and interest in the suit property is without any consideration, bad in law and, therefore, not binding upon him. 2 2] It is only in the event of the alternate prayer being granted that the relief of possession is claimed in terms of prayer clause (c) of the plaint. 3] In this notice of motion interim injunction is pressed to restrain alienation of the suit property more particularly described in Exh.”B” to the plaint. 4] Mr.Vaishnav appearing for plaintiff would contend that there is no dispute that prima facie the MOU was executed but the circumstances in which the MOU has been executed are set out in the plaint. 5] Mr.Vaishnav states that Government of Maharashtra granted a lease of Government Land in favour of one partnership firm M/s.Metal Press India. This is a partnership firm consisting family members of Nathalal Chotalal Kansara (deceased), who is father of plaintiff and defendant Nos. 1 and 2. Copy of the lease deed is annexed as Annexure A to the plaint and, thereafter it is urged that 3 this firm was formed in the year 1966 and from time to time its constitution changed. The nature of the firm’s business and shares of partners are set out in para 4 and according to Mr.Vaishnav, plaintiff was one of the partners of this firm. Additionally, he commenced business in partnership in the name and style of N.C.Industries. This was distinct firm consisting of deceased father and wife of plaintiff Mrs.Charu so also Bharat Kansara, HUF as partners. It was started in the year 1989-90 and carried on business in the premises which are more particularly described in Exh.D to the plaint. 6] It is not the case of the plaintiff that he ceased to be partner of this N.C.Industries or that this firm ceased to operate. His case is that even the father was partner of this firm but subsequently, he retired. 7] The plaintiff retired from the partnership firm of M/s.Metal Press India after execution of the MOU in the year 1993. He started one more partnership firm, details of which are set out in 4 para 7 of the plaint. 8] Relying upon the mortgage which was created in respect of Government land, it is alleged that the same is without any knowledge and consent of plaintiff. The portion of the land which was belonging to the plaintiff has also been mortgaged to obtain a loan from the bank and all this was without knowledge and consent of the plaintiff. He, therefore, addressed a notice to the bank and there is correspondence to that effect. 9] It is, thereafter, that the MOU referred to in para 10 of the plaint has been executed on 22nd September 2001. 10] The averments in para 11 of the plaint read thus:- “11. The plaintiff states that for some time thereafter as no payment was received by the plaintiff, he informed the said fact to the defendants and late Shri Nathalal Kansara when they again requested for some 5 time to enable them to make the payment to the plaintiff. However, around 2004 the said Nathalal Kansara paid a sum of Rs.5 lakh to the plaintiff in cash and assured to pay the balance amount within some time. The plaintiff states that thereafter the plaintiff’s father late Shri Nathalal Kansara expired on 30.11.2005. Plaintiff states that after some time after the death of said Nathalal Kansara, the plaintiff talked to the defendants when they confirmed the said fact they they shall pay the balance amount of Rs.1 Cr.15 lakhs within some time. The said talks continued for years together.” 11] Mr.Vaishnav, therefore, submits that the MOU was without any consideration and this fact is not seriously disputed inasmuch as the defendants would rely upon some other consideration. However, according to Mr.Vaishnav, the fact remains that the MOU was executed by the plaintiff in favour of defendants and his late father on the clear understanding that he would be paid a sum of Rs.1.15 Crores. However, only a sum of Rs.10 lakhs has been 6 paid in cash and the balance sum is not paid and that is how instant suit is filed. 12] Interim relief is prayed because till such time as the monies are repaid to the plaintiff, the only security would be the immovable property and if that is dealt with, then the suit is likely to be rendered infructuous. 13] On the other hand, Ms.Nichani invited my attention to the affidavit in reply and more particularly the denials contained therein to the effect that at no stage was any agreement entered into to pay monies. All these allegations are a clear afterthought. No monies were paid under the MOU and, therefore, this is a false claim being lodged by the plaintiff. The true position is what is set out in paras 7 and 11 of the affidavit in reply, which, according to her must be read along with other paras of the affidavit and statements made therein. So read, no prima facie case is mde out nor is balance of convenience in favour of plaintiff. Instead the property would be blocked and that is the aim of this litigation. 7 14] At this prima facie stage, I need not go into the rival contentions in great length. The suit is pending. The plaint assertions will have to be proved by the plaintiff by leading evidence and I cannot assume straightway that the MOU is without consideration. 15] A copy of the MOU is annexed as Exh.H page 54 to the plaint, wherein clear reference is made to a right of occupation granted by Government for a period of 30 years in favour of M/s.Metal Press India. There were some disputes between the family members and the father and defendant Nos. 1 and 2 entered into an MOU dated 18th October 2003 to amicably resolve the same. Plaintiff is referred to in para 3 of the presents and it is stated that he was given a portion of the entire part more particularly described in first schedule to the MOU dated 1st September 2001 being his 22.5 % undivided share in the right, title and interest in the lease of the entire plot. 8 16] The plot could not be physically divided and, Mr.Bharat decided to surrender the premises more particularly described in Second Schedule to Metal Press India. Thereafter the MOU recites that plaintiff has unconditionally and irrevocably surrendered and relinquished his share of Metal Press and he has no claim of whatsoever nature. For the present Bharat denied that he is signatory to this MOU. The MOU does not recite any payment being stated to be made. On the other hand the MOU clearly records that upon execution thereof neither Bharat nor anybody claiming by or under through him has any right, share, title in respect of any portion of the premises or the lease. He has given up his 22.5% share therein and the premises described in the second Schedule shall belong exclusively to M/s.Metal Press. In the light of the fact that the MOU does not spell out any obligations much less of payment of any sums so also the assertions by the defendants in the affidavits, with regard to a loan availed of by the plaintiff, not being denied, in my view, no prima facie case is made out which would enable him to hold that any amount under this MOU is due and payable to the plaintiff or 9 otherwise as well. In such circumstances and when at the most what the plaintiff would have is a money claim, then, this is not a fit case for grant of any interim relief. More particularly, when it is not substantiated even prima facie as to how the MOU was without any consideration. If the pleas that are stated to be raised in the plaint to support this case indeed enable the plaintiff to urge so, then, it is for him to prove them by leading cogent and satisfactory evidence. As of now, the clear assertions in the MOU cannot be brushed aside. 17] For all these reasons, notice of motion is devoid of any merits and is accordingly dismissed. However, all observations are tentative and prima facie and shall not influence the Court while deciding the suit. They are made only for the present motion. (S.C.DHARMADHIKARI, J)