2009 Supreme(Bom) 1522

High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE ANOOP V. MOHTA
Milan Commercial Pvt. Ltd.
Versus
Asian Healthcare Services Limited & Others
Notice of Motion No.1691 of 2008 in Suit No.1452 of 2008
Decided on : 16-11-2009

Headnote:Specific Relief Act, 1963 - Sections 10 and 12 - Civil Procedure Code, 1908, Order XXXIX, Rules 1 and 2 - Suit for specific performance of agreement - Praying for grant of interim relief - Plaintiff shareholder of defendant-1 seeking injunction against defendants 2 to 4, a joint venture company for construction of a Hospital - Notice of termination of joint venture agreement given by defendant-2 - Held - Defendant-1 not seeking specific performance - Joint venture agreement to go by clauses of association - Defendant-2, lessee-owner of land throughout - Unless notice of termination of contract declared invalid, no relief can be granted to plaintiff - Plaintiff not party to any agreement between defendants - Not entitled to claim specific performance or interim reliefs - Notice of motion dismissed. - The above principles will apply here also. The fact remains that JVA is in existence even after incorporation of the company. All the basic elements and clauses pertaining to the plot/land of defendant No. 2 are incorporated in detail. Both the parties are aware of the same. The isolated reading only of Articles will frustrate the whole scheme and the object. It is not possible to overlook the purpose and formation of the company. It was intended to construct and build the hospital. There is substantial material on record to show that defendant No. 2 has title and right over the land through out. It was never transferred or intended to transfer and basically in view of grant of land conditions itself. There is also no statutory permission or consent on record to show that any such transfer of title or right. The land just cannot be utilised but only as per the original grants and agreements even by the company. Defendant No. 2 in view of those terms and conditions cannot transfer the tile owner ship without prior due permission from the Department/ Authorities. It is difficult to accept the contention on behalf of the plaintiff that the ownership/title of the land and has been transferred by the agreement.

       If the company is established for a particular project, it need to be respected throughout. The document/agreements main object and purpose just cannot be overlooked. If the defendant/company or concerned parties though agreed but was not in a position to complete the project and in fact committed various defaults and suffering from Departmental notices for inaction or defaults, besides no consistent financial support and unless all these ingredients are answered in favour of the company or in favour of the plaintiff and unless the main prayers so raised in the suit are granted including the declaration of these two agreements being null and void at this stage, Court is not accepting the case of the plaintiffs who is seeking such reliefs in favour of defendant No. 1 stating it to be the permissible derivative action.

       Besides, the suit is for specific performance of contract and for declaration and related reliefs/injunction. The relief of specific performance is a discretionary. The injunction or such interim reliefs in aid of specific purpose and/or declaration read with compensation/damages are two other important facets in such matters. It also depends upon the facts and circumstances of each case. The injunction or interim reliefs, in such situation, need to be based upon the various elements of Order 39, Rule 1 and 2 and Order XL, Rule 1 and 2 and Specific Relief Act. Admittedly there was no concluded contract between the plaintiff and the other defendants. The plaintiffs being not a party to such agreement cannot claim the specific performance in such fashion. The company’s readiness and willingness to perform its part of the obligation just cannot be answered or defended by the plaintiff in such proceedings. The company has its own remedy available as per the agreement itself. The plaintiff cannot seek specific performance on behalf of third party like the company or defendants 3 and 4, even it is accepted that it is derivative action on belay of the company still in the present facts and circumstances of the case specially when there is a specific clause of arbitration agreement. In Court view the suit is not bona fide, specially when the material and evidence and the proof in support of the submissions as noted above, are unclear and unanswered.

       In view of the above, Court is not inclined to grant any relief. The Notice of Motion is accordingly dismissed.