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MNM

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE OF MOTION NO. 4123 OF 2008

IN

SUIT NO. 3199 OF 2008

South Asian Hospitality Services Pvt. Ltd.

...Plaintiffs

Vs.

Mr. Faiz Ahmed Nunaf Mamdani

& Ors.

...Defendants

Mr.N.S.Nappinai, Advocate for the Plaintiff

Ms. Sunita Poddar with Mr. M.Y.Sayani, Advocate for Defendant No.1

Mr. Suneet Moholkar for Defendant No.2

CORAM : SMT. ROSHAN DALVI, J.

DATED : 18^TH MARCH, 2010

P.C. :

1. The parties entered into an undated agreement referred to as the Letter Of

Intent (LOI). It is admittedly executed. The agreement was for letting out

of one room as a business premises in “Atria-The Millennium Mall”. The

essential terms of the LOI was the payment of rent of Rs.92,000/- p.m

along with the Common Area Maintenance (CAM) of Rs.36/- per sq. ft., of

super-built up area (which is shown to be 510 sq. ft., in the LOI). The

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Plaintiffs were to pay non-refundable security deposit of Rs.70,000/-p.m

for 4 months to make it Rs.2.70 lakhs (instead of Rs.2.80 lakhs).

2. The Plaintiffs seek specific performance of this agreement. The Plaintiff

paid a cheque of Rs.90,000/- on 10

th January 2008. The Plaintiff required

possession to be given to it on 21

st May 2008 upon paying Rs.90,000/-.

3. A Business Conducting Agreement (BCA) was to be executed, a draft of

which signed by the Defendant No.1 was sent to the Plaintiff.

4. Thereafter, the parties have entered into E-mails.

5. The first of such E-mails is dated 7

th

June 2008 of the

Broker/Representative of the Plaintiff to the Defendant No.1. In that an

issue relating to Municipal and other taxes which were to be paid was

taken up. The Plaintiff contended that it is the duty of the owner to pay

the taxes. The Plaintiff’s Broker summed up the letter thus:-

“If it is O.K by you we would request you to guide us

when the Company can take possession of the property.

AND

If it is not O.K, then I would request you to send the

cheque in the name of the Company as written on the

LOI as the deal will stand cancelled.”

This letter written by the Plaintiff’s Broker/Representative shows that the

negotiations were on and the Plaintiff was amenable to cancell the agreement

and get the return of the amount of the cheque paid by the Plaintiff, if the

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terms mentioned in the Plaintiff’s Broker’s E-mail was not agreeable to the

Defendant. In any event the Plaintiff did not sign the BCA sent by Defendant

No.1 and made inquiries and counter-offer.

6. Thereafter on 16^th June 2008 the E-mail sent by the Plaintiff it contends

that there are no extra charges @ of Rs.15/- payable under the LOI for Mali

Management. It further shows that payment @ Rs.36/- in the LOI does not

show that Rs.6/- was towards the property and Municipal Taxes. The E-

mail shows that the Plaintiffs disagreed over terms in the agreement and

LOI signed. The Plaintiff has requested return of Rs.90,000/- token

amount paid to the Defendant No.1.

This Email also shows that the Plaintiff was amenable to cancell the LOI

because of disagreement with certain other terms which cropped up thereafter

between the parties.

7. Thereafter, the Plaintiff’s Broker in the E-mail dated 10

th July 2008

requested certain changes in the attached agreement.

This Email shows that still the parties were negotiating certain changes in the

agreement.

8. In further E-mail dated 23

rd July 3008 of the Plaintiff’s Broker the condition

that the Plaintiff would pay Rs.92,000/- plus Rs.30/- per sq. ft. towards

CAM charges and the Defendant would pay Rs.6/- towards property tax as

the owner of the property has been set out.

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This E-mail shows further changes in the agreement between the parties.

9. On 24^th July 2008 the Plaintiff’s Broker requested possession of the

property to be handed over.

10.On 25^th July 2008 the Defendants sent their E-mail stating that the Plaintiff

had