M.R. Shah, J.

Admit. Shri Amit Thakkar, learned Advocate waives service of notice of Admission on behalf of the contesting respondent No.4. In the facts and circumstances of the case and with the consent of learned Advocates appearing for respective parties, present First Appeal is taken up for final hearing today.

2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 29.11.2017 passed by the learned Judge, Commercial Court, Vadodara (hereinafter referred to as "learned Commercial Judge") below Exh.49 in Commercial Civil Suit No.44/2017 by which the learned Judge has allowed the said application submitted by the original defendant No.4 and has rejected the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"), the original plaintiff has preferred the present First Appeal.

3. The facts leading to the present First Appeal in nutshell are as under:

3.1 That the appellant herein original plaintiff has instituted the Commercial Civil Suit No.44/2017 in the Commercial Court, Vadodara for seeking the relief of specific performance of the Memorandum of Understanding dated 09.09.2004 (hereinafter referred to as "the said MOU") executed between the plaintiff and defendant Nos.1 and 2 in respect of the suit properties situated at Vadodara. It was the case on behalf of the plaintiff that the defendant agreed to sell 4 lakh Sq. Feet of land to the plaintiff at the rate of Rs.411 per Sq. Feet for a total sum of Rs.16,44,00,000/-. It was the case of the plaintiff that original defendant No.1 Company vide its Resolution dated 15.09.2004 passed in meeting of Board of Directors authorized the defendant No.2 to execute the said MOU. It was the case on behalf of the plaintiff that as per the agreed terms of the said MOU, the defendant Company was to clear its all liabilities of the suit properties and thereafter to hand over the suit properties with clear and marketable title by January 2006. The amount of consideration was to be paid by the plaintiff to the defendant No.1 Company and the defendant No.1 Company was required to transfer the suit properties in the name of the plaintiff Company or other person as suggested by the plaintiff into two separate piece of land parcel by executing the sale deed or by any other mode/way. It was the case on behalf of the plaintiff that in respect of the suit properties, the original defendant No.2 Chairman and Director of the defendant No.1 Company was paid Rs.31 lakh pursuant to the said MOU and thus, total Rs.56 lakh was paid. It was also the case on behalf of the plaintiff that thereafter the defendant No.2 had taken total 15 cheques each of Rs.17 lakh totalling to Rs.2,55,00,000/- towards the suit properties in order to clear the litigation of ONGC and it was agreed by the defendant No.2 that he will not deposit the cheques in the bank. It was also the case on behalf of the plaintiff that in addition to the aforesaid further 11 cheques of Rs.10 lakh were given and it was agreed by the defendant No.2 that he will not deposit the cheques in the bank. It was the case on behalf of the plaintiff that inspite of the aforesaid fact, with a malafide intention, the defendant No.2 has deposited cheques in the bank, as a result of which, all the said cheques have been dishonored due to which the plaintiff failed to perform its part of the said MOU. It was also the case on behalf of the plaintiff that as per instruction of defendant No.2, on 21.08.2007, the plaintiff issued cheque No.842891 dated 21.08.2007, drawn on State Bank of Indore for Rs.10,90,000/- in favour of one Jahnvi Developers and Finance Ltd., but the defendant No.2 did not deposit the said cheque in the bank. But thereafter the defendant No.2 demanded for cash payment of Rs.10,90,000/- and also threatened if the plaintiff fail or refuse to pay the amount in cash then the defendant will proceed for selling the suit properties to any other person and also gave thr