*1* 210-nms-1572-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION srj NOTICE OF MOTION NO.1572 OF 2009 IN SUIT NO.952 OF 2009 Manohar M. Dhanjani & Others .. Plaintiffs V/s. Hyacinth John Credo & Others .. Defendants Mr. Rajesh Gehani , for Plaintiffs. Mr. Jayesh Mistry i/b. RMG Law Associates, for Defendant Nos. 1 to 4. Mr. Bhavik Manek i/b. Wadia Ghandy, for Defendant No.6. CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd November, 2010. P.C. 1 The Plaintiffs have filed this suit for decree and order against Defendant Nos. 1 to 4 to pay jointly and severally a sum of Rs. 1,84,14,062/- and interest on Rs.1,51,06,500/- @ 12% p.a. from the date of institution of the suit till the payment and/or realization. Further declaration is sought that the properties more particularly described in prayer clause (b) are equitably mortgaged in favour of the Plaintiffs for the said amount. By this Notice of Motion the Plaintiffs seek to protect the final and ultimate claim in the suit. 2 It is stated that the Plaintiffs proposed to acquire the property owned by the Defendant Nos.1 to 4 and for that purpose, the MOU was *2* 210-nms-1572-09 entered into on 3rd January, 2007. Since the Plaintiffs want to purchase the property, they published a public notice on 04.01.2007. It is stated that the Plaintiffs agreed to purchase this property for total consideration of Rs.3 crores and in consideration of the same, they made payment of Rs.30 lakhs. It is stated that as on date the Plaintiffs have paid total amount Rs.1.50 crores under the MoU. It is stated from that the amount which is received from the Plaintiffs, the Defendant Nos.1 and 2 have purchased the flat and the details thereof are set out in paragraph No.10 of the plaint. It is stated that the Defendant No.1 has deposited with the Plaintiffs the original agreement for sale of the said flat by way of security and that the Plaintiffs would have the first lien on the said flat. However, the Defendants failed to do so. It is stated that contrary to the understanding between the parties, the Defendants failed to comply with and abide by their undertaking given to the Plaintiffs and thus, failed to deposit the documents with the Plaintiffs. 3 It is in such circumstances and on account of the proposed acquisition proceedings, the MoU has become infructuous and, therefore, the Plaintiffs have filed the suit, claiming a decree in the aforesaid sum. 4 During the course of arguments, I repeatedly asked Mr. Gehani as to how interim relief can be granted in such a suit, he answered that the claim of the Plaintiffs must be secured because the *3* 210-nms-1572-09 amount has been admittedly received by the Defendants. 5 Further, the MOU stands infructuous on account of the acquisition of proposals. From the amount that is received from the Plaintiffs, the Defendants have purchased another property and the request of Mr. Gehani is that they should be restrained from dealing with or disposing of that property. 6 From a reading of the plaint and the annexures thereto, so also the Notice of Motion and affidavit in support, it is clear that the Plaintiffs are seeking reliefs in respect of the properties purchased by the Defendants. This is a money suit in which the Plaintiffs seek to secure their claim by restraining the Defendants from disposing of or transferring their other property. Unless and until the Plaintiffs prima facie, show that the other property was to constitute a security for the Plaintiffs claim or that the Plaintiffs have right to claim it otherwise, there is no question of any interim relief being granted. No such right is vested in the Plaintiffs. In such circumstances, the Plaintiffs have failed to make out a prima facie case and this Notice of Motion is misconceived. 7 Accordingly, Notice of Motion is dismissed with no order as to costs. (S.C. Dharmadhikari, J)