1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3841 OF 2007 IN SUIT NO.2869 OF 2007 M/s, Harmony Construction Company ..Plaintiff -versus Basant Arati Co Operative Housing Society Ltd .. Defendant Arif Bookwala, Senior Counsel a/w Mr. Deepak Chitnis i/b M/s Deepak Chitnis-Chiparkar & Co. for the Plaintiff. Mr. H. J. Thakkar, Senior Counsel a/w Mr. Uday Bobade, i/b M/s Desai & Desai, for the Defendant. CORAM: S. J. VAZIFDAR, J DATED: 30th November,, 2009. P.C. 1. This is a suit for specific performance of an alleged/purported agreement entered into between the parties. The Plaintiff has taken out this Notice of Motion for the usual interlocutory reliefs in such a suit. 2. Mr. Bookwala, the learned Senior Counsel, appearing on behalf of the Plaintiff submitted that the agreement is contained in and evidenced by four letters dated 10th April, 2003, 24th July, 2003, 28th August, 2003 and 23rd June, 2004. In addition thereto, other correspondence was also relied upon in 2 support of the purported agreement. 3. The correspondence/documents relied upon, does not indicate even a semblance of a concluded agreement between the parties. The contents of the documents expressly establish that the matter rested at the stage of negotiations and did not even constitute an agreement to enter into an agreement. I am constrained to add that the suit is a purely speculative litigation. Any interim relief granted in the suit would irreparably prejudice the rights and interests of the l4 members of the defendant society from enjoying their rights in respect of the property. 4. The Defendant had issued an advertisement on 24th March, 2007 for the redevelopment of its property by utilizing the full FSI including TDR. The developers interested in making an offer were invited to submit their offers on or before 29th March, 2003. 5. The Plaintiff submitted an offer under cover of a letter dated 10th April, 2003. By a letter dated 24th July, 2003, the Plaintiff recorded what transpired at a meeting between the Plaintiffs and l3 out of the 14 members of the Defendant society. The letter refers to various terms and conditions which were allegedly discussed and finalized at the meeting. 6. The Defendant addressed a letter dated 15th August, 2003 to the Plaintiffs. It is important to note that the letter makes it clear that only 12 out of l4 members, had signed the 3 letter which conveyed their consent for the appointment of the Plaintiff for the said work. It is also important to note that it is expressly stated that the Plaintiff’s appointment was being made by the said members formally and would be effective, “Only after memorandum of understanding is signed between the members of the society and the Plaintiff”. The Letter further states as under: “Members/Solicitor/s Advocate/s Chartered Accountant/s of Besant Arati C. H.S. Ltd., will have right to alter the conditions laid down in the Tender Document and conditions/counter conditions of your offer/s will not be binding on the members of the Society. Kindly acknowledge the receipt of this letter and send us a summarized offer which will be a basis for us to proceed further for the MOU to be made by us/our Solicitor/s/ our Advocates/s our Chartered Accountant/s as the case may be. Immediately after acknowledgment of this letter together with your summarized offer, we will deposit your Cheque No.494683 dtd 10/04/2003 for Rs.50,000.00 received by us as Earnest Money Deposit alongwith your offer in response to our Tender Document.” 7. Thus, the acceptance of a sum of Rs.50,000/- by the Defendant is of no consequence whatsoever. It was clearly pending further negotiations. The fact that the Defendant reserved the rights of its members to alter the conditions laid 4 down in the tender and expressly stated that the Plaintiff’s offer would not be binding on its members establishes that there was not even an agreement to enter into an agreement at this stage. Further the revised offer was only to be the basis for further negotiations. Thus, the letter far from establishing the plaintiff’s case, destroys the same. 8. The Plaintiffs addressed a letter dated 28th August, 2003, stipulating various terms and conditions prefacing the same by stating “our summarized offer is as under” Thus, what was conveyed in the said letter was only an offer. 9. The Defendant by a letter dated 20th December, 2003, inter alia stated that efforts were on with the last member for obtaining her consent for the Plaintiff’s appointment. The Defendant further stated that they hoped to arrive at an early settlement even with those members and therefore, requested the Plaintiffs to go ahead in the matter in anticipation of giving her consent. Pausing here for a moment, it is necessary to note that it is clear therefore, that any steps that may have been taken by the Plaintiffs in respect of developing the property was not pursuant to a concluded contract but only in anticipation of a contract being entered into. It is alleged that the Plaintiffs appointed an Architect and obtained various permissions for the redevelopment of the property. Even assuming that the Plaintiffs did so it would therefore, make no difference. The 5 Plaintiffs did so at their own risk knowing that there was no concluded contract between the parties. It is pertinent to note that the letter notes that the Defendant’s request to the Plaintiffs was “to send their final offer”. The Plaintiffs had already made a final offer by the said letter dated 28th August, 2003. This makes it clear that the offer made by the letter dated 28th August, 2003, was not accepted by the Defendant and that the Plaintiff was therefore, called upon to a make further offer. 10. Mr. Bookwala, then relied upon the letter dated 23rd June, 2004. This letter in fact clearly militates against the Plaintiff’s case. The letter enclosed therewith a draft of a Memorandum of Understanding. The Defendant stated that in case the Plaintiff’s desired any changes in respect thereof they should inform them to enable them to revert in the matter. 11. There may have been something to be stated in favour of the Plaintiffs had the Defendants accepted unconditionally the terms and conditions of the offer, contained in the said letter dated 23rd June, 2004. The Plaintiff’s response to the said letter contained in their letter 28th July, 2004 makes it clear that they did not. In fact they made a counter offer therein stipulating at least four major conditions therein. This letter was prefaced by stating that the said terms needed to be necessarily included in the final Memorandum of Understanding indicating that the Plaintiffs did not accept the 6 offer dated 23rd June, 2004. I am unable to accept Mr. Bookwala’s contention that the letter merely contain comments and suggestions. The fact that the Plaintiffs stated that their counter offer needed to be necessarily included in the final M.O.U indicates that the Plaintiffs did not accept the Defendant’s offer. 12. Thus, the four letters relied upon by Mr. Bookwala, as establishing an agreement clearly militate against any agreement having been entered into. 13. The Plaintiffs also relied upon the further correspondence between the parties to establish their case regarding the agreement. 14. The further correspondence in fact establishes the contrary and fully supports the Defendant’s case. For instance the Plaintiffs by a letter dated 27th December, 2006 addressed to the Defendant referred to a meeting. The Plaintiffs stated that they understood that rentals had shot up and therefore, revised their offer. In response thereto the Defendants by their letter dated 28th December, 2006 expressly made a counter offer for the Plaintiffs reconsideration. There was no response to this letter. Thereafter correspondence ensued between the advocates of the parties . 15. Thus at no stage of the negotiations was any agreement arrived at between the parties. At the cost of repetition, in my view the matter rested only at the stage of 7 negotiations and did not even reach the stage of the parties having entered into an agreement to enter into an agreement which would also be unenforcible in law 16. The grant of any interim reliefs would in these circumstances be clearly unwarranted. The Plaintiffs must be relegated to a claim for damages even assuming that there is a semblance of an agreement between the parties. The balance of convenience is clearly in favour of the Defendant. Any interim relief would deprive the members of their rights to redevelop their property during the pendency of the suit. It would be impossible to compensate the members at the hearing in the event of the suit ultimately being dismissed or even in the event of specific performance not being granted. 17. In th circumstances the Notice of Motion is dismissed with costs fixed at Rs.10,000/- to be paid on or before 12th January,2010. The ad interim order shall continue upto and including 11th January, 2010.