1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTIC OF MOTION NO.4136 OF 2007 IN SUIT NO. 3026 OF 2007 Cinevistaas Limited ...Plaintiffs Vs. M/s. Bright Brothers Ltd. ...Defendants Mr.Satyen Vaishnawa i/b. N.N.Vaishnawa for Plaintiffs Mr.N.S.Patel i/b. M/s. Patel & Co., for Defendants CORAM: SMT.ROSHAN DALVI, J. DATED: 2 ND MARCH , 2009 P.C. 1. The Plaintiffs have sued for specific performance of Memorandum Of Understanding (MOU) dated 25 th January 2001 between the Plaintiffs and the Defendants. 2. The MOU is in respect of the agreement to sell the portion of the Defendant's property, a larger portion of the Defendants' property having been agreed to be sold to the Plaintiffs earlier. The Defendants' property was divided into two parts on account of certain acquisitions. The Defendants required an access road to their property. 2 3. The Maharashtra State Road Development Corporation (MSRTC) was to grant the access. The Suit property was a portion of the Defendants' property which did not have an access road and hence, parties had entered into a separate MOU with regard thereto. 4. Under the MOU dated 25 th January 2001 it was recited that the work of providing access was to be completed by the Public Works Department (PWD) of the MSRTC by end of May 2001. The total consideration in respect of the suit land was Rs.1,37,50,000 /- . The Plaintiffs paid earnest of Rs.2.5 lakhs. The Plaintiffs were to pay Rs.13.75 Lakhs upon the Defendants obtaining access to their property and the balance amount upon completion of sale. 5. The parties specifically agreed that if the Defendants were unable to obtain the access to the Suit property within 3 years and 3 months from the date of MOU for any reason whatsoever, the MOU would stand terminated and cancelled and the Defendants would return the earnest to the Plaintiffs without interest and none of the parties would have any claim upon the other. 6. The MOU expired by afflux of time on 24th April 2004 as access road was not provided. The Plaintiffs' claim that 3 there was an extension of the agreement by the parties. This extension is sought to be shown upon a Minutes of a Meeting dated 9 th July 2007 of the officers of MSRTC. The Minutes show that efforts were made to complete the task on providing the access road. That job would be completed by October 2004 without fail. 7. It is the Plaintiffs' case that the Defendants have given the Plaintiffs the Minutes of the said Meeting. The Plaintiffs claim that the extension of the agreement is by implication. 8. On 11 th November 2004 the Contractor of the MSRTC has written a letter to the MSRTC that they had completed the work of the access road in all respects as per the deadline committed by them to the Court. This shows that the work of the access road was completed since November 2004. 9. The Plaintiffs have written their first letter to the Defendants on 31 st March 2007 stating that they have been waiting for 4 years to obtain possession of the Defendant's land with accessibility. The letter is stated to have been hand delivered. The receipt of the letter is denied. An illegible initial and name of some party is shown on the copy letter annexed with the plaint. 4 10. The further letter written by the Plaintiffs is on 11 th August 2007. It shows that Plaintiff's statement that the Defendants had then finalised obtaining the access road. The Plaintiffs called upon the Defendants to confirm that the access road was obtained to enable the Plaintiffs to pay further consideration. The receipt of this letter is admitted. The letter is replied. The letter shows the refusal of the Defendants to perform the agreement called upon by the Plaintiff. The letter shows the specific period of time by which the access road had to be obtained by the Defendants and failing which, the agreement was to be terminated. It shows that the agreement stood terminated in April 2004 itself. It further shows that the earnest amount which is stated to have been paid by the Plaintiffs was adjusted. 11. It is the Plaintiffs' contention that the period of 3 years and 3 months under the agreement was extended. The extension, if any, has to be made within the period of stipulated in the agreement. There is absolutely nothing produced by the Plaintiffs showing that the agreement was extended beyond 24 th April 2004. The first extension is shown by the Minutes of the Meeting dated 9th July 2004. It is not shown how and by whom the Plaintiffs were given the said document. The averment in paragraph 5 of the plaint is 5 that the Plaintiffs received the copy of the Minutes from the Defendants. The Minutes is of a Public Body. There has been certain litigation with regard to the access road. The Contractor's letter dated 1st November 2004 refers to the deadline given by the Court for completion of the access road. The Plaintiff could have obtained the document from any public source. The vague averment in the plaint about receipt from the Defendants cannot show the extension of the contract by the Defendants. 12. Further averment in the said paragraph 5 of the plaint is that the Defendants pleaded that they could not provide the access road and asked for extension of time from time to time. That averment is also equally vague. It does not show when the pleadings were made by the Defendants again and again. Mr. Vaishnawa stated that these pleadings were oral. These pleadings, if any, are after July 2004 which is well after the agreement stood terminated by afflux of time. 13. About 3 years after the agreement stood terminated the Plaintiffs are stated to have written their first letter, the receipt of which is denied. The second letter of the Plaintiffs is promptly replied. That is the letter which shows refusal of performance. 6 14. The properties of the parties are adjoining one another. The Plaintiffs would know when the access road is actually made available to the Defendants. Hence, the Plaintiffs' letters to the Defendants stating that the Plaintiffs were awaiting and inquiring about the accessibility or that the Defendants had then finalised the access road is an effort made for the first time in August 2007 to seek performance of the agreement which had stood terminated since April 2004. 15. Mr. Vaishnawa argued that the earnest was not refunded. The Plaintiffs have not claimed refund of earnest or extension of the agreement or specific performance on the part of the Defendants during the period the agreement was in force i.e., till April 2004. The Defendants have contended that the earnest has been adjusted under certain other transactions between the parties, with which the Suit is not concerned. 16. The Plaintiffs' action is far too delayed. No case of grant of any injunction is made out. 17. Notice of Motion is dismissed. 18. The Ad-interim order shall continue for 4 weeks. 7 (SMT. ROSHAN DALVI, J.)