1 nm-3314 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.3314 of 2008 IN Suit No.2651 of 2008 Ramesh Devichand Jain .. .. Plaintiff v/s. Shohum Constructions & ors. .. .. Defendants Ms.Nasim Khan i/by Mr.A.G.Pandit for Plff. Mr.Roshan Pinto i/by M/s.M Shrivastava & Co. for Deft.No.2. Mr.Ralston Fernandes for Deft.No.3. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 2nd August, 2010 P.C. : 1.This Notice of Motion has been taken out in July 2008 and is admittedly served in August 2008. No Affidavit- in-reply is filed. The Plaintiff has applied for only the usual injunction for protection of the suit property pending the suit. 2.I am told that the Defendants have also filed another Suit being Suit No.3691 of 1994 in this Court. The Defendants Notice of Motion in that suit has been dismissed. 2 nm-3314 3.This suit is based upon an Agreement dated 2.5.1994 between Plaintiff No.1 and Defendant No.1, which is sought to be specifically enforced. The Defendants Advocate specially drew my attention to the fact that under Clause-1 of the Agreement the development rights, which are sought to be assigned to the Defendants are shown to be 25,000 sq. ft. FSI, which was tentatively worked out. The said clause itself shows that the actual FSI would be determined on approval of the building plans by the Mumbai Municipal Corporation (MMC). It is, therefore, for the suit property extending to the extent of the FSI that the relief is prayed for and is required to be granted. 4.The Defendants have cancelled and terminated the Power of Attorney granted to the Plaintiff which is challenged. Consequent upon the termination of the Power of Attorney, the Plaintiff has not been able to develop the suit property. The Defendants claim to have terminated the agreement. It would have to be seen whether the termination is valid. The termination is stated to be made under a Public Notice. Since no Affidavit-in-reply is filed, the Public Notice is not on record. The Plaintiff cannot make out a case of termination of agreement simiplicitor by the Public Notice. In any event, the termination of the Agreement 3 nm-3314 by a notice specially to the Plaintiff showing how the Defendants could validly terminate the agreement is not shown. Hence, the relief, as prayed for, is required to be granted. 5.The Notice of Motion is made absolute in terms of the initial part of prayer (a). The Defendants shall not alienate, encumber, part with possession, induct any third party or create any other rights in the suit property pending the suit. 6.The Notice of Motion is disposed of accordingly. (SMT.ROSHAN DALVI, J.)