MARGARETH MARY PINTO Vs. ARMANDO GONSALVES

JUDGEMENT

(1.) THIS appeal arises from the order dated 5th May 1997 passed by the Civil Judge, Senior Division, Panaji in Civil Miscellaneous Application No. 181/96/a in Special Civil Suit No. 88/96/a. By the impugned order the trial Court has confirmed the ex parte order dated 6th May 1996 and thereby allowed the application for temporary injunction filed by the respondent herein seeking to restrain the appellants from committing breach of the agreement dated 23rd December 1993 styled as Memorandum of Understanding in any manner whatsoever including by filing of any consent terms in Special Civil Suit Nos. 255/92/a and 100/93/a. The said Memorandum of Understanding dated 23rd December 1993 is hereinafter referred to as the said MOU. .

(2.) THE facts in brief relevant for the decision are that the respondent filed Special Civil Suit No. 88/96/a for perpetual injunction against the appellants praying therein as under: (a) by perpetual injunction the defendants be restrained from breaching the agreement dated 23rd December 1993 with the plaintiff in any manner and specifically by filing consent terms in Special Civil Suit No. 255/92/a and 100/93/a which will have the effect of breaching the agreement".

(3.) THE case of the respondent/plaintiff in the plaint is that the respondent is a businessman and he has been doing construction work and real estate development; that the appellants/defendants are the owners of the property described in the plaint having acquired title to the same by succession; that the said properties were originally belonging to late Jose Cristovao do Patrocinio do S. Francisco Xavier Pinto and upon his death inventory proceedings bearing No. 1417/1947 were instituted in the Civil Court at Panaji and in the said inventory proceedings the said properties were allotted to one of his son by name Antonio Rogerio Jose Hanrique Jesus do Carmello Pinto by order dated 13th September 1948; that the said Anthony Pinto expired on 18th April 1982 leaving behind the present appellants as his legal representatives; that there was interference in the said two properties by Alvaro Jose Toofilo Pinto and Joss Cristovam Pinto in the nature of carrying out construction activities therein that since the appellants were staying in London they were informed about the same by the respondent and thereafter the appellant No. 2 came down to Goa and filed Civil Suit No. 255/92/a to restrain said Alvaro and Cristovam from proceeding with the construction and for mandatory injunction to restore the property to its original condition; that in the Suit No. 255/92/a the appellants filed also an application for temporary injunction which was granted on 9th June 1993. The said Suit No. 255/92/a is hereinafter referred to as the Suit No. 255; that there were land acquisition proceedings in respect of third property described in the plaint and since the said proceedings were ab initio null and void, the appellants herein filed another suit and on application for temporary injunction therein seeking to restrain the company, for whose benefit the acquisition was sought to be made, from developing the property for its hotel project; that the said civil suit is hereinafter referred to us the Suit No. 100; that by an agreement between the parties hereto the respondent proposed to the appellants to purchase the properties which were subject matter of the said Suit No. 255 and the said Suit No. 100, though the said properties were subject matter of litigation. The said Suit No. 255 and the said Suit No. 100 both taken together are hereinafter called as the said two suits. It is further the case of respondent in the plaint that both the parties accepted that the sale would be made by the appellants only in the event of their succeeding in the said two suits; simultaneously the respondent also agreed to negotiate between the parties in the said two suits to settle the said two suits; the agreement to that effect in writing, i. e. M. O. U. , was signed by the parties and one copy of the same was kept with Shri M. S. Usgaonkar, Senior Advocate and the other copy with Shri Pradip Mahatma, Chartered Accountant and no copy was given in the custody of the respondent; that in terms of the said M. O. U. it is the case of the respondent that the appellants agreed to sell all the properties which were subject matter of the said two suits to the respondent on the terms and conditions set out in the said M. O. U. ; as per the said terms, it is the case of the respondent that the respondent is authorised to settle the two suits with the parties to those suits and thereupon the properties left in the ownership of the appellants herein are agreed to be sold to the respondent; that pursuant to the said M. O. U. the respondent initiated settlement talks with the parties in the said two suits and the matter was almost at the fag end of settlement; at this stage the appellants tried to settle the said suits without the consent of the respondent herein and to the detriment of the interest which the respondent has acquired in the properties which are the subject matter of the said two suits; that the respondent has incurred expenditure and investment in pursuance of the said agreement and in view of the said terms of the said M. O. U. the appellants are not entitled to settle the suits in breach of the said M. O. U. and therefore the respondent is entitled to restrain the appellants from filing the consent terms in the said two suits in breach of the terms of the said M. O. U. The properties which are the subject matter of the said two suits are hereinafter referred to as the suit properties.