Judgment

S.Panda, J.

As both the Civil Miscellaneous Petitions involve common questions, parties are same and the dispute arises out of a suit, the matters are taken up for hearing together and are disposed of by this common judgment.

2. C.M.P No.384 of 2014 has been filed by the petitioner-Company challenging the judgment dated 05.12.2013 passed by the learned District Judge, Bhubaneswar in F.A.O No.134 of 2013 dismissing the appeal thereby confirming the order dated 28.09.2013 passed by the learned Civil Judge (Senior Division), Bhubaneswar in I.A No.686 of 2013 arising out of C.S No.1361 of 2013 rejecting the application filed by the petitioner-Company under Order 39, Rules 1 and 2 read with Section 151 of C.P.C. for an interim order of injunction restraining the opposite party-Company from acting upon the undated termination letter received on 07.8.2013 and for a direction to the opposite party-Company to act in accordance with the terms and conditions of the Memorandum of Agreed Terms dated 17.5.2013 in true letter and spirit and further to restrain the opposite party-Company for entering into any contract / agreement / Memorandum of Agreed Terms / Lease Agreement or any other Deed with any third party to create third party interest in respect of the suit premises.

2.1 Similarly C.M.P No.385 of 2014 has been filed by the petitioner-Company challenging the judgment dated 05.12.2013 passed by the learned District Judge, Bhubaneswar in F.A.O No.135 of 2013 dismissing the appeal thereby confirming the order dated 28.9.2013 passed by the learned Civil Judge (Senior Division), Bhubaneswar in I.A No.740 of 2013 rejecting the application filed by the petitioner-Company for an interim order of injunction restraining the opposite party-Company from making any construction over the suit premises beyond the specification / layout provided by the petitioner-Company in the Memorandum of Agreed Terms dated 17.5.2013.

3. The brief facts of the case are that the petitioner-M/s Shoppers Stop Ltd., is a Company incorporated under the Companies Act, 1965 having its Registered Office at Mumbai. The petitioner-Company is represented through its Vice President (Legal) and Company Secretary. The opposite party-M/s Lalchand Builders Pvt. Ltd., is also a Company like the petitioner having its Registered Office at Bhubaneswar. The opposite party-Company is represented through its Managing Director. The opposite party-Company was setting up and constructing an interconnected Shopping-cum-Entertainment Complex/Mall at Plot No.795, Sahidnagar, Bhubaneswar for general and commercial user. The petitioner-Company by assessing the unique location and commercial advantage of the place approached the opposite party-Company for taking on lease the said Mall and finally the opposite party-Company agreed to lease out the Mall to the petitioner-Company. Accordingly, both the parties entered into a Memorandum of Agreed Terms (hereinafter referred to as ‘MOAT’) agreeing to the basic and essential commercial terms and conditions on a lease of a premise as huge investments are to be made and each retailer has a specific formant. The agreement was executed even before completion of the construction so that the constructions are to be made in accordance with the requirements of the specific retailer. After several communications made between the parties, the terms and conditions of the MOAT finally fixed on 15.5.2013. The petitioner-Company by an email under Annexure-1 sent the draft MOAT along with other requisites and lay out intimating the opposite party-Company to comply the requirements. Consequent upon receipt of the said email communication, the Authorized Signatory of the opposite party-Company executed the MOAT on 17.5.2013 and sent the same to the Registered Office of the petitioner-Company at Mumbai, which was received on 20.5.2013. As the opposite party-Company sent only one copy of the MOAT, contrary to the instructions given in the email dated 15.5.2013,