1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.492 OF 2009 IN SUIT NO.202 OF 2009 Kukreja Construction Company .. Plaintiff Versus Ganesh Sharma & Ors. ` .. Defendants Mr.Janak Dwarkadas, Senior Advocate with Naushad Engineer and Chirag Mody i/b. DSK Legal for plaintiff Mr.T.M.Nadar for defendant Nos. 1 to 3 Mr.Arif Bookwala, Senior Advocate with Amol Mhatre for defendant No. 6. CORAM : S.C.DHARMADHIKARI, J. DATE : 29th August 2009. P.C.: 1] This motion was already placed for ad-interim reliefs before this Court and after hearing plaintiffs and defendant Nos. 1 to 5, this Court passed an ad-interim order directing plaintiffs to deposit a sum of Rs.25 lakhs on or before 6th March 2009 and, thereafter, listed the motion for hearing and final disposal. 2 2] I am informed that the sum of Rs.25 lakhs is deposited in this Court. The notice of motion is placed for hearing and final disposal as per its turn. When the matter was placed before me today, I enquired from Counsel as to whether ad-interim order can continue until hearing and final disposal of the suit. On this query, defendants urged that they would like to be heard further as now the affidavits have been filed on their behalf. 3] It is in this light that I have heard brief oral submissions made by Mr.Dwarkadas, learned Senior Counsel for plaintiff, Mr.Nadar for defendant Nos. 1 to 5 and Mr.Bookwalla, learned Senior Counsel for defendant No.6. 4] With their assistance, I have perused the plaint and annexures thereto. What is apparent to me is that prima facie there are documents creating some rights in favour of the plaintiffs in respect of immovable property more particularly described in the plaint and the annexures thereto. The nature of the rights is something which must be adjudicated after the parties are given full opportunity to lead evidence. At this 3 interlocutory stage, when each of the defendants confirm receipt of certain amounts and when the plaintiff has complied with the ad-interim order, then, interest of justice demands that prayer clause (a) of the motion is granted. 5] It is not necessary to give any elaborate reasons save and except setting out that annexed to the plaint is the schedule of the property (Annexure A) copy of Power of Attorney in favour of Mr.R.A.Gagrat (since deceased) on the strength of which the property has been dealt with. Further, there is Memorandum of Understanding dated 14th October 2006 between the constituted attorneys of Mr.Gagrat (since deceased), the first confirming party and although, it is now alleged that the second confirming party’s name has been added on page 1 of this Memorandum, it is apparent that his initials are appearing on each of the pages. Further, the recitals which are prima facie stated to be part and parcel of the substantive agreement, clearly recite as to how Mr.Gagrat was authorised to deal with the property and how a development agreement was entered into on 13th June 1999 by him and as to how municipal reservations and other aspects led to the property not being developed. 4 6] Thus, the rights that are stated to be conferred on the plaintiffs are confirmed by the confirming parties to whom certain sums have been paid and in pursuance thereof, a further agreement for development of the property was executed. 7] It is pertinent to note that defendant Nos. 1 to 5 have filed an affidavit in reply wherein only a technical defence is sought to be raised that the schedule to the agreement at Exh.D to the plaint is not signed by the person signing it on behalf of all the heirs. Reliance is also placed by the defendant Nos. 1 to 5 on a tri-partite agreement dated 19th August 2006 under which a sum of Rs.30 lakhs is stated to have been received and it is alleged that defendant No.6 who is confirming party under that agreement has not complied with his obligations. 8] Beyond stating that this is nothing in the affidavit in reply which would at this stage permit me to hold that the Memorandum of Understanding was not executed or that no rights were created thereunder. This is apparent from a reading of para 8 of the affidavit in 5 reply of defendant Nos. 1 to 5. 9] As far as defendant No.6 is concerned, my attention is rightly invited to a letter dated 25th December 2007, wherein, all that is stated in the preamble to the agreement, the defendant No.6 has not been made a party. However, each of the recitals of the agreement and the clauses thereunder have been confirmed. Besides pointing out the litigation in the Bombay City Civil Court instituted by Mrs.Savita Sharma against defendant No.6. Therefore, from a reading of this letter, it is apparent that the defendant No.6 has not disputed prima facie, the agreement which is the subject matter of the instant suit. All that is urged by Mr.Bookwala is that the reliefs claimed in the present matter do not show that the specific performance of the agreement / MOU is sought. My attention is also invited to some paras of the plaint and it is stated that plaintiff has committed breach of the terms and conditions of the agreement qua defendant No.6. Lastly, my attention is invited by Mr.Bookwala to the fact that there is no real apprehension that the property would change hands or some rights in favour of the third party would be created. Allegations in that behalf are vague. 6 10] However, after perusing all further affidavits, I am of the opinion that there is no substance in the contentions, at this prima facie stage, of the defendants that the ad-interim order should not be continued. All the pleas that have been raised today were raised before the Court at the time of the ad-interim order as is apparent from the fact that some affidavits have been filed prior to that date. That apart, this is not a case where rights of the parties under this agreement/ MOU can be adjudicated finally. As observed above, parties will have to be given full opportunity to lead evidence. When the receipt of the amounts under the MOU has not been denied, when it is pointed out that there is litigation between the defendant No.6 and Mrs.Savita Sharma. When it is pointed out that there is an order of status quo atleast with regard to some portion of the suit property and when the plaintiff has complied with the ad-interim order, then, to my mind, no to continue the same would mean that the litigation would be rendered infructuous. Ultimately, it is not as if this Court has ruled upon as to whether the plaintiffs are entitled to any reliefs. There are serious issues which requir indepth and detailed investigation at the time of trial. That is apparent from the fact that the defendants before this 7 Court are relying upon some documents in their favour, inter se as well. In such circumstances, subject matter of the litigation needs to be protected and preserved. 11] In the result, motion succeeds. The ad-interim order dated 4th March 2009 is confirmed but with a slight modification that there will be an interim injunction in terms of prayer clause (a) of the notice of motion except the bracketed words “dealing with”. (S.C.DHARMADHIKARI, J)