BHUPENDRA E JHAVERI Vs. SULOCHANA Y JALGAONKAR

JUDGEMENT

(1.) HEARD learned counsel for the plaintiff and defendant no.1. Nobody appears on behalf of defendant No.2 despite service.

(2.) IN this action initiated by plaintiff by way of suit it is prayed that termination and cancellation of Memorandum of Understanding dated 16.10.1990 and Power of Attorney dated 3.2.1991 by defendant no.1 in respect of the property described in Ex.A to the plaint be declared null and void and that defendant No.1 be directed to specifically perform the Memorandum of Understanding dated 16.10.1990 and to take all necessary steps for effectual transfer in favour of the plaintiff. The plaintiff has also prayed that Memorandum of Understanding entered into between the defendant no.1 and defendant no.2 on 6th November, 95 be declared illegal, null and void and not binding and unenforceable against the plaintiff. It is the case of the plaintiff that by Memorandum of Understanding dated 15th October,1990 made and executed by the plaintiff and defendant no.1, the defendant no.1 agreed that disputed property be developed by defendant no.1 in which the plaintiff was entitled to half equal share in all right, title, interest, claims, benefits, advantages while defendant no.1 was entitled to half equal share. On 3.9.1991 the defendant no.1 executed power of attorney in favour of plaintiff. In respect of the disputed property already litigations were going on between the defendant no.1 and Shri S.L.Pedamkar and others and to resist that the plaintiff was to assist, guide and give assistance including financial to enable defendant no.1 to take all necessary and proper steps in establishment of the title to the said property and thereafter for the purpose of its development by putting construction as per sanctioned plan. It is the case of the plaintiff that accordingly he assisted the defendant no.1 in filing suit against Pedamkar and others before this Court which was registered as No.319/91 and in that suit the order of status quo was passed on 1.11.1991 in notice of motion taken out by defendant no.1 and ultimately by an order dated 1.12.1995 the order of status quo was confirmed till disposal of that suit. The grievance of the plaintiff is that though he assisted the defendant no.1 in filing of the suit for establishment of a title, she without justifiable reason sought to cancel the Memorandum of Understanding by notice dated 10th July, 1996 necessitating filing of the present suit. Since before cancelling the Memorandum of Understanding entered into between the plaintiff and defendant no.1. the defendant no.1 had also entered into one Memorandum of Understanding with defendant no.2 on 6.11.1995. relief has been sought in that regard as well. In the notice of motion taken out by the plaintiff it is prayed that defendant be restrained from taking any further steps pursuant to the Memorandum of Agreement dated 6.11.1995 and that the operation of the notice dated 10.7.1996 cancelling the plaintiff's Memorandum of Agreement dated 10th October, 1990 and Power of Attorney dated 30.9.1991 be stayed. The plaintiff has also prayed for appointment of Court Receiver.

(3.) THERE is no dispute between the parties that Memorandum of Agreement was entered into between the plaintiff and defendant no.1 on 16.10.1990 . According to defendant no.1 the plaintiff did not take any steps in giving assistance including financial assistance to enable her to take all necessary and proper steps to establish her title and for the purpose of development of the property and, therefore, she had no option but to cancel the Memorandum of Understanding dated 16.10.1990. On the other hand plaintiff has averred that she assisted the defendant no.1 filing suit against Shri Pedamkar and others for establishing her right, title in the property and since in that suit there was order of status quo, nothing further could have been done by her. From the available material, it appears that defendant no.1 filed suit against Shri Narayan R. Pedamkar and others in the year 1991 for establishment of her right and title in the property and in the notice of motion taken out by her on 1st November, 1991 this Court directed the parties to maintain statusquo. The order of statusquo was confirmed till the disposal of the suit by the order dated 1.12.1995. The land in question admittedly is reserved for municipal garden and there is no dispute that the plaintiff did not take any steps for dereservation of the plot. So long as the plot in question remains reserved for public garden, question of development of the property does not arise. The plaintiff having not taken any action admittedly for about six years for dereservation has disentitled herself from the grant of any interim injunction from this Court during the pendency of the suit. For the self-same reason the prayer for appointment of receiver also wholly misconceived. The question whether the Memorandum of Understanding entered into between the plaintiff and defendant was rightly cancelled by the notice dated 10.7.1996 or not shall be determined after recording the evidence in the suit but the fact remains that presently the land in question is reserved for municipal garden and it cannot be developed and the plaintiff did not take any steps for dereservation of the said plot. In the circumstances, I am satisfied that plaintiff has not been able to show any prima facie case and is not entitled to any relief in the notice of motion.