: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1190 OF 2008 WITH CIVIL APPLICATION NO.1448 OF 2008 Crystal Developers Pvt.Ltd. ....Appellant V/s. Badrivishal Co-Operative Housing . Society Ltd. & Ors. ....Respondents Mr.S.U. Kamdar, Senior Counsel i/b M/s.Purnanand & Co. for the Appellant. Mr.Rajesh S. Sharma with Mr.Sunil B. Jadhav for Respondent Nos.1 and 15. Ms.Akanksha Thakkar for Respondent Nos.6 to 11, 17 and 21. CORAM : S.J. VAZIFDAR, J. DATED : 21ST NOVEMBER, 2008. P.C. : 1. This Appeal from Order filed by the Plaintiff against an order refusing an interim injunction is without any merit. The Appellant has embarked on a purely speculative litigation. Any order in its favour would destroy the valuable rights of hundreds of innocent and helpless members of the Respondent societies, who belong to the lower middle class. 2. Knowing that a suit for specific performance : 2 : would be absolutely unsustainable for more than one reason, including that there is not even a semblance of a concluded agreement, the Appellant filed the suit merely for an injunction restraining the Respondents from acting contrary to a letter dated 28.11.2006 and/or in any manner dealing with any other developer for the purpose of redevelopment of the suit property. The attempt is to force the Respondents to enter into an agreement knowing full well that there is no concluded contract between the parties. Indeed in the facts of this case, if there was a concluded contract between the parties, the Appellant would have filed a suit for specific performance. 3. The Appellant filed the suit contending that nine societies had come together to form Defendant No.10 with a view to redevelop the fourteen buildings of the nine societies. Each building comprises of several lower middle class occupants who are eager to redevelop their buildings. 4. Initially an alleged M.O.U. dated 28.2.2006 was entered into between the nine societies and Defendant No.10 with M/s.Sheth Construction Company. Admittedly the said M/s.Sheth Construction Company did not proceed with the alleged M.O.U. : 3 : . Thereafter negotiations ensued between the said nine societies and the Plaintiff. The negotiations are all that transpired between the parties. As I will now demonstrate there is not even a semblance of a case of any concluded contract between the Plaintiff and the said societies including Defendant No.10. 5(A). The negotiations commenced by a letter dated 3.10.2006 addressed by the Plaintiff to the Chief Promoter of Defendant No.10 ; a proposed society. As per the tender requirements, the Plaintiff agreed to deposit Rs.50,00,000/- as an earnest money deposit. It is not even the Plaintiff’s case that this letter constituted a concluded contract. It did not. It is expressly stated therein that the projects would be carried out only upon cancellation of the earlier M.O.U. It further stated that the Plaintiff would await confirmation of their offer to enable them to enter into an M.O.U. (B). The letters dated 5.10.2006 addressed by Defendant No.10 to the Plaintiff also do not constitute a concluded contract. For instance, it is expressly stated therein that the details would be worked out after seeking the approval of all the members. : 4 : (C). By a letter dated 16.10.2006 addressed by the Plaintiff to Defendant No.10, a detail offer was made along with the earnest money deposit of Rs.50,00,000/-. The letter itself states that it is only an offer. It is not even contended that the same constituted an agreement. 6. Mr.Kamdar, the learned Senior Counsel appearing on behalf of the Appellant/Plaintiff relied upon a letter dated 28.11.2006 addressed by Defendant No.10 to the Plaintiff in support of his contention that a concluded contract had been entered into. 7. The submission is ex-facie unfounded. The letter states that Defendant No.10 was pleased to appoint the Plaintiff as a developer to develop the said fourteen buildings. It is of vital importance to note that the letter itself states that at the development committee meeting of the society, it was felt that vast changes had taken place in the property market, that the offer with the erstwhile construction company M/s.Sheth Construction company was finalised almost nine months ago in accordance with the market trends prevalent then and that the offer conveyed by the Plaintiff "needs improvement in the following areas". Eleven demands were raised by the said letter : 5 : each of which would constitute a material term to the formation of any contract. It would be useful to set them out in detail. They are as follows :- "1) The corpus amount @ Rs.1500/- per sq.ft. should be raised proportionate to the increase in market value of the property. 2) The rent of Rs.30/- per sq.ft. per month needs to be raised at least upto Rs.40/- per sq. ft. per month keeping in view the market trend, which has become volatile in Andheri (W) due to mass Redevelopment movement. It is presumed that if the project is not completed within 24 months, the rent will continue to be paid by you beyond 24 months. 3) Since there is a practice of renewing the 11 months lease agreement the brokerage is demanded again by the brokers and therefore a provision of brokerage on renewal may be considered. 4) The cost of construction has escalated due to increase in cost of steel/cement etc. The amount of Rs.10 crores is therefore inadequate to cover the cost of construction which should be increased to Rs.15 crores. This will give adequate protection to our residents who have to leave their houses for demolition. 5) In case if the ratio of TDR from 1 + 1 is increased by the Government provision may be made accordingly to pass the benefit to our residents. 6) We have vide our letter dt.5/10/06 expressed our desire to lift the road level of Sahakar Nagar to a permissible level during the Redevelopment of these 9 societies which needs to be confirmed. 7) The EMD of Rs.50,00,000/- (Rupees Fifty lacs) furnished by you will be interest free. We shall deposit your cheque immediately on receipt of your confirmation. : 6 : 8) We are issuing a letter of termination of our MOAT dt.28/2/06 with M/s. Sheth Construction Co. a copy of which will be sent to you shortly. You may if desired/consult your solicitors before proceeding further in the matter. In case of any eventuality arising in regard to cancellation of MOAT dt.28/2/06, we shall be grateful for your extending required help/assistance so that we can proceed with the project without any encumbrances. 9) You will furnish us a copy of the layout and floor plans of each tower on the basis of the area already furnished to you. Some unused area of the actual FSI permissible at the time of construction of our building in 1971/73 are required to be taken into consideration upon finalisation by some societies. This position is explained already to your representative Shri Ipsit Shah. 10) As regards amenities the quality of items to be used will be discussed and finalised at the time of Development Agreement. We have to bring to your kind notice that the following items were discussed & agreed with Sheth Const. Co. but not incorporated in MOAT dt.28/2/06. (i) Generators for Backup power for lifts & common lights. (ii) Safety door to all the flats. This may please be kept in view, while formulating the final list of amenities. 11) Although you have vide your letter dt.3/11/06 informed us of the status of the R.G.Plot/common Road - The power of Attorney etc., we shall be grateful if you could provide us with a copy of these documents for our record." . It is not even suggested anywhere that there was any agreement/communication on the part of the Plaintiff accepting these terms. An acceptance or : 7 : settlement in respect of these terms was essential to the formation of the contract. . After setting out all the details, it is further stated as follows : "We shall be able to procure the consent letters from our members after your response to above request and confirm the same in writing at your earliest." (emphasis supplied) 8. It can hardly be suggested that this letter absent acceptance thereof could constitute an agreement. It is not even contended before me that thereafter there were meetings or negotiations whereat these terms were accepted. Clause 10 makes it abundantly clear that the items therein were yet to be decided upon. Admittedly no decision in that regard had been taken. The other terms are also of vital importance with enormous financial implications. It can hardly be suggested that the terms were accepted without even an informal communication or writing evidencing the same. 9. Mr.Kamdar then submitted that pursuant to these consent terms, consent of about 200 members was obtained. This even if true, not only does not help the Plaintiff but militates against the Plaintiff’s : 8 : case. There are about 800 members. Even assuming that 200 members had given their consent letters, it could not lead to a concluded agreement. These consent letters from some of the members by themselves would not constitute a concluded contract when the terms and conditions had yet not been finalized or accepted even by the Plaintiff but alone the overwhelming majority of the other members. 10. Thereafter Defendant No.10 addressed a letter dated 8.5.2007 forwarding certain documents such as copies of the consent letters and copies of the conveyance and Index-II. The letter further states that the details regarding the present occupation would also be forwarded. Mr.Kamdar submitted that this letter read with the letter dated 28.11.2006 constituted a concluded agreement. 11. This letter by no means suggests that read by itself or with the letter dated 28.11.2006 constitutes a concluded contract. The letter dated 8.5.2007 merely forwarded further documents in the course of negotiations. 12. Mr.Kamdar then relied upon a letter dated 10.10.2007 addressed by Defendant No.10 forwarding copies of resolutions passed by eight out of the nine : 9 : societies for appointing the Plaintiff for the project for redevelopment of the buildings. . It is important to note that the resolutions themselves do not even remotely suggests that the terms and conditions had been finalized. In fact the resolutions do not even refer to any of the terms and conditions. The mere fact that the resolutions state that it was resolved to appoint the Plaintiff as a developer would make no difference. Clause 3 of the resolution in fact states that " it is resolved to agree to enter into a Development Agreement with the Plaintiff for development of 14 buildings of the said nine societies." (emphasis supplied) It is settled law that an agreement to enter into an agreement is not enforceable. This was not a reference to a mere formal document being executed in future between the parties. 13. To reiterate therefore, there is not even an iota of evidence to suggest that a concluded agreement has been entered into. 14. Mr.Kamdar submitted that the entire contract was contained in the letter of offer dated 16.10.2006 as modified by the letter dated 28.11.2006. This is not a case where the Appellant claims any right to : 10 : deal with the property or any part thereof by selling any constructed portion to third parties as is often provided in development agreements. 15. In that event the alleged agreement is in effect a construction contract and at the highest a development agreement. Admittedly nothing pursuant to the alleged contract has been done. It is highly doubtful whether in such circumstances specific performance would be granted even assuming that that a concluded agreement had been entered into. In these circumstances, a relief of injunction is even less likely to be granted. 16. The balance of convenience is also clearly in the Respondents’ favour. The Appellant has not made out any prima-facie case. The grant of any interim reliefs would deprive the hundreds of members the opportunity of having their homes developed/re-developed. The Appellant’s only object is to earn profit by the said construction work. The Appellant’s case at the highest would be in damages. Even assuming that there was an arguable case regarding the concluded contract in the facts and circumstance of this case, no injunction is warranted. I see no reason why the development of the buildings of 800 members especially of the lower income group : 11 : ought to be prevented by an injunction. 17. In the circumstances, the Appeal from Order is dismissed. 18. The ad-interim order granted by the trial Court shall continue for a period of four weeks from today to enable the Appellant to challenge the same.