JUDGMENT - R.M.S. KHANDEPARKAR, J.:---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'. 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'. 4.The claim of the respondent is contested by the appellants raising various pleas including non-maintainability of the suit on the ground that the respondent has not established his readiness and willingness to perform the terms of the said M.O.U. It is their case that the M.O.U. is intended merely to get on advantage for the appellants over the said Alvaro Pinto and Cristovam Pinto in the negotiation of the settlement of the said two suits and is not meant to be for an agreement of sale of the suit properties and it is not intended to create any right to purchase the suit properties by the respondent; that the respondent is not invested with exclusive power to work out a settlement regarding the said two suits by the said M.O.U.; that the appellants herein as owners of the suit properties are free to settle the matter by themselves or through Pradip Mahatma and in fact with the efforts of the said Pradip Mahatma the appellante have almost arrived at a final settlement of the entire dispute between the parties; that the respondent however is trying to insist upon separate settlement in respect of each of the said two suits and that the respondent does not take proper interest in settling the entire matter; that in their capacity as the owners of the property, the appellants have every right to settle the said two suits in the manner they deem fit and proper and the said M.O.U. does not in any manner take away the said right of the appellants to settle the said two suits in the manner the appellants want them to settle nor he can stop the appellants herein from putting an and to the litigation on the mere assumption that such settlement would defeat his alleged rights under the said M.O.U.; that the appellants are not required to consult the respondent in setting the said two suits nor the appellants are barred from parting with the suit properties in the process of settling the said two suits. 5.The trial Court by its order dated 6th May 1996 upon hearing the advocate for the respondent had granted ex parte temporary injunction thereby restraining the appellants from filing consent terms in the said two suits and from committing any breach of the said M.O.U. till further orders. 5.The trial Court by its order dated 6th May 1996 upon hearing the advocate for the respondent had granted ex parte temporary injunction thereby restraining the appellants from filing consent terms in the said two suits and from committing any breach of the said M.O.U. till further orders. While confirming the ex parte order the trial Court allowed the application for temporary injunction by the impugned order. The perusal of the impugned order discloses that the trial Court has granted the relief of temporary injunction as prayed for against the appellants herein on the following grounds:-- (1) The parties in the suit had agreed to adhere to the terms and conditions of the said M.O.U.; (2) The Clause No. 10 of the said M.O.U. cannot be held to be bad for want of mutuality; (3) The respondent herein had agreed that he would settle the said two suits; (4) The appellants under the guise of ownership of the suit properties by resiling from the terms of M.O.U. are holding the respondent at ransom; (5) The respondent is honest and straight-forward man but suddenly the appellants sought to rescind the said M.O.U. and manage to settle the dispute in the said two suits with third party keeping the respondent in darkness. 6.Upon hearing the advocates for the parties and on perusal of the entire records, it is seen that the main point for determination which arises in this case is that whether the said M.O.U. provides for any restraint upon or for curtailment of any right of the appellants herein to settle the said two suits or any one of them and if so, to what extent is the restraint upon the appellants and in favour of the respondent herein. In fact the entire claim of the respondent is based on the said M.O.U. and in particular Clause No. 10 thereof which according to the respondent empowers him to settle the said two suits and thereupon in accordance with the other terms of the said M.O.U. the appellants are duty bound to sell the suit properties which shall be available to them in pursuance of such settlement arrived at the instance of the respondent. As against this the case of the appellants herein is that the said M.O.U. is not an agreement for sale of the suit properties and at any rate the respondent is not given exclusive power to settle the said two suits. In accordance with the terms of the said M.O.U., the respondent has to obtain approval of said Pradip Mahatma in settling the said two suits and had to settle them in the manner the appellants want and the term regarding the sale of the suit properties is subject to the final decision in the said two suits either by way of contest or otherwise. Considering the case of the respondent and the appellants as put forth in their pleadings before the trial Court it was primarily necessary for the trial Court to address itself to the point regarding the scope of the said M.O.U. before deciding the matter even at the stage of temporary injunction. In fact the trial Court ought to have prima facie considered the scope of the said M.O.U. before arriving at any finding regarding the right of the parties under the said M.O.U. and whether the parties seeking the injunctive relief have made out a case for temporary injunction. Considering the grounds on which the temporary injunction has been granted by the said Court vis-a-vis the entire materials on record, it is apparant that the trial Court has not applied its mind to the real point in controversy in the matter and the findings are not corroborated by the materials on record. In fact the materials on record do not in may manner justify the findings arrived at by the trial Court for grant of temporary injunction by the impugned order. It is, therefore, clear that the trial Court did not exercise its discretion judiciously while deciding the matter in question. It is, therefore, necessary to peruse the entire materials afresh to find out whether the appellants have made out a case for grant of relief or not. 7.As already stated above the case of the respondent being solely based on the said M.O.U., it is necessary to peruse the terms of M.O.U. before arriving at any finding regarding the rights of the parties under the said M.O.U. and prima facie case in the matter. 7.As already stated above the case of the respondent being solely based on the said M.O.U., it is necessary to peruse the terms of M.O.U. before arriving at any finding regarding the rights of the parties under the said M.O.U. and prima facie case in the matter. In terms of the said M.O.U., prima facie it shows that the parties had entered into an agreement agreeing to sell to the respondent the suit properties subject to the conditions specified therein. The terms of the said M.O.U. disclose that the understanding regarding the sale was subject to favourable decision in either or both of the said two suits and this is clear from Clause 2 thereof. In the same clause, it has been also specified that if any of the matters is settled between the litigating parties in part, then to that extent, the agreement shall be given effect to. In other words, there can be settlement either of the entire matter in dispute in the said two suits or in one of the two suits or in part in one of the said two suits. Further Clause 10, on which the respondent heavily relies upon to claim right of settlement, provides that the settlement of the whole suit will be done by the respondent at no cost or risk to the owners and the draft of the consent terms will be shown to Mr. P.F. Mahatma the Attorney of the appellants. In other words, the Clause 10 empowers the respondent to endeavour for settlement of the said two suits without creating any liability upon the owners and subject to condition that the draft of consent terms will be shown to the Attorney of the owners. 8.Before trying to understand the scope of the said M.O.U. for the purpose of decision in the present matter, it will be convenient to ascertain the understanding of the said M.O.U. by the respondent himself and the same can be gathered from the pleadings of the respondent in that regard. 8.Before trying to understand the scope of the said M.O.U. for the purpose of decision in the present matter, it will be convenient to ascertain the understanding of the said M.O.U. by the respondent himself and the same can be gathered from the pleadings of the respondent in that regard. In paragraph 16 of the plaint it is stated by the respondent that :-- "It was of course accepted by both the parties that the sale will be made by the defendants only in the event of their succeeding in the said two suits." Further in paragraph 17 of the plaint it is stated that:-- "The defendants also agreed that the plaintiff was free to negotiate with the defendants in the above referred suits and to settle those suits." Further in paragraph 26 thereof it is stated that:-- "... further correspondence ensued between the plaintiff and Shri Pradip Mahatma in order to settle the consent terms to the satisfaction of the defendants." In paragraph 32 of the plaint it has been stated that:- "The plaintiff has been acting under the agreement and not under the power of attorney so for as settling the suits are concerned." Then in paragraph 39 thereof it is averred that:-- "The apprehension of the plaintiff, from the correspondence and conduct of the defendants, is that the defendants are attempting to breach the agreement which they can do if by the consent terms they part with the properties instead of retaining them in which event the agreement will be breached as the plaintiff will not be able to enforce the sale of the properties." And in paragraph 41 the plaint reads thus:-- "In any case, even if the defendants, without consulting the plaintiff intends or decides to settle the suit, the settlement terms cannot include the parting of the properties by the defendants." On plain reading of these averments in the plaint, the same clearly disclose that the grievance of the respondent is that by the said M.O.U. primarily it was the respondent who was authorised to settle the dispute and decide about consent terms in the said two suits and in any event if the appellants want to settle the said two suits without consulting the respondent then such settlement cannot include parting of the suit properties by the appellants. 9.Before one arrives at any finding, therefore, it would be convenient to appraise oneself of the terms of the said M.O.U. In fact, one has to peruse the M.O.U. to find out whether the terms of the M.O.U. provide for any such restraint upon the appellants as regards the suit properties which the respondent wants the Court to infer therefrom. The Clause 1 of the said M.O.U. as already stated above does provide for agreement to sell the suit properties. The M.O.U. also discloses the description in brief of the suit properties. The M.O.U. also provides for power of attorney in favour of the respondent. It also provides that in case of the settlement of the Suit No. 255 is delayed, then the time for enforcement of the agreement for sale will be suitably amended. It also provides that the prices fixed under the said M.O.U. shall be as on 2nd October 1993 and were subject to increase at the rate of 15% p.a. till the payment of first instalment. It further provides that the respondent will have to take these properties subject to all encumbrances whatsoever, attachments, charges and other claims and demands; and lastly the formal agreement incorporating the terms and other legal conditions will be executed by the parties. In other words, the said M.O.U. prima facie discloses that certain details regarding the proposed transactions are incorporated in various terms therein. The said M.O.U. neither discloses any purpose as sought to be alleged by the appellants nor it discloses any restraint upon the appellants as sought to be inferred by the respondent. There is, however, no doubt in the course of the execution of the said M.O.U. the parties thereto had taken care to describe in minimum details regarding various aspects of the proposed transactions between the parties and yet it nowhere provides for any restriction as such upon the appellants as is otherwise sought to be contended by the respondent. There is, however, no doubt in the course of the execution of the said M.O.U. the parties thereto had taken care to describe in minimum details regarding various aspects of the proposed transactions between the parties and yet it nowhere provides for any restriction as such upon the appellants as is otherwise sought to be contended by the respondent. There is no explanation whatsoever from the respondent either in the pleadings in the plaint or even in the rejoinder as to why such an important term imposing such restriction on parting of the suit properties or any part thereof was not provided for in the M.O.U., if and in case any such restriction was really intended to be imposed on the appellants in the matter of settlement of the suits, though M.O.U. contains various other details. It is prima facie unbelievable that the parties taking care to provide for various details in M.O.U., would fail to provide for such important clause regarding restrictions upon the appellants regarding restraint on settlement of the said suits by themselves and/or disposal of the suit properties or part thereof without intervention of the respondent. The records do not explain for exclusion of such important clause from the said M.O.U. No doubt this in a prima facie observation as regards the said M.O.U. It would be too premature to draw any such inference regarding such restriction upon the appellants at this stage as ex facie the M.O.U. does not disclose any such restriction. 10.Moreover, even the correspondence between the parties which had preceded as well as followed the said M.O.U. does not disclose any intention on the part of the parties to provide for any such restriction on the appellants in the matter of the said two suits or the suit properties or part thereof. Moreover, before the trial Court, it was the case of the respondent that Clause 10 of M.O.U. provides for exclusive right to the respondent for settlement of the said suits as is evident from the written submissions filed by the respondent before the trial Court. However, it has been fairly conceded before me by the learned Counsel for the respondent that the appellants can also settle the said two suits and there is no such exclusive right given to the respondent. However, it has been fairly conceded before me by the learned Counsel for the respondent that the appellants can also settle the said two suits and there is no such exclusive right given to the respondent. Indeed in the plaint as already transcribed above the respondent has candidly admitted that the appellants can settle the said two suits, subject however, not to part with the properties therein. As rightly submitted by the learned advocate for the appellants herein, the letter dated 24th April 1995 by the respondent himself addressed to Pradip Mahatma, clearly specifies that no time limit of any sort was stipulated for any settlement and in normal course, effect would be given to the M.O.U. after the disposal of the suits. This statement in the said letter clearly discloses the understanding of the respondent himself that the said term in respect of sale of the suit properties in the said M.O.U. will become specifically enforceable only after the disposal of the said suits or any one of them. Even the Clause 2 of the said M.O.U. itself provides that the understanding arrived at by the said M.O.U. is subject to the favourable decision in either of or both the said suits and in case of settlement between the parties to the litigation, the M.O.U. will be effective to the extent the agreement can become effective upon such settlement. Clause 2 nowhere provides that the settlement has to be with the intervention of the respondent herein. On the contrary Clause 2 thereof by itself provides that the settlement has to be between the litigating parties and the M.O.U. can be effective only on such settlement being arrived at. No doubt while understanding the said M.O.U. between the parties a term thereof cannot be interpreted in isolation of other terms and conditions therein and, therefore, even if one peruses all the terms and conditions of the M.O.U. there is neither any provision therein restraining the appellants from settling the matter in the manner they may desire to settle nor there is any specific condition in the agreement prohibiting the appellants from settling the said two suits with the exclusion of the respondent. As rightly submitted by the learned advocate for the appellants, the Clause No. 10 thereof do not provide for any agreement in negative form. As rightly submitted by the learned advocate for the appellants, the Clause No. 10 thereof do not provide for any agreement in negative form. There is neither any restriction as such provided for nor can one be inferred from the Clause No. 10, to say that the appellants are prohibited from entering into an agreement to settle the said suits without the consent of the respondent herein or that such an agreement has to be with the restriction that the appellants cannot dispose the suit properties or any part thereof in such settlement. 11.As regards the contention of the respondent that he even incurred expenditure in pursuance of the M.O.U. or that third party interest was created pursuant to some acceptance of money from strangers, it is seen that the allegations in that respect do not at all find any corroboration from any of the materials placed on the record. In respect of the so called details given regarding expenses, they are, as rightly submitted by the learned advocate for the appellants, ex facie related to office expenses of the respondent. As regards the creation of third party interest, it is seen that the money which has been stated to have been accepted from the strangers are, in fact, money received from the wife and mother-in-law of the respondent. Besides, the same were received much prior to the execution of M.O.U. As regards Shri David Jacob, admittedly, he is respondent's nominee, who represented the respondent in many meetings with Shri Pradip Mahatma. A clear statement to that effect is found in paragraph 29 of the plaint. This fact is also disclosed from the correspondence. Being so, there is no substance in the contention of the respondent that in pursuance of M.O.U. the respondent incurred any expenditure or created any third party interest in the matter. 12.Considering the said M.O.U. in its entirety and the pleadings of the parties, the findings arrived at by the trial Court cannot be sustained and are, therefore, liable to be set aside. In fact, there is no material available on record so as to certify that the respondent would have settled the said two suits. One fails to understand from where the trial Court has been able to arrive at such a finding in the impugned order. In fact, there is no material available on record so as to certify that the respondent would have settled the said two suits. One fails to understand from where the trial Court has been able to arrive at such a finding in the impugned order. Once it is not disputed that the appellants are the owners of the properties and there being no specific restriction agreed upon in the said M.O.U. as regards the settlement which the owners can arrive at in the said suits, the trial Court clearly erred in holding that the appellants under the guise of ownership were holding the respondent at ransom by rescinding the M.O.U. Before arriving at such a finding as regards any action on the part of the appellants with regard to the resiling of any terms of the M.O.U., it was necessary for the trial Court to find out if there was any such attempt on the part of the appellants. Neither the impugned order nor the records placed before me disclose any such attempt on the part of the appellants. Hence the said finding of the trial Court also is unsustainable. As already observed above since none of the terms of the said M.O.U. provides for any restriction as such upon the appellants regarding their rights to settle the said two suits, the finding arrived at by the trial Court that because the respondent had agreed upon that he would settle the matter of the said two suits as well on the finding as regards the mutuality are totally arbitrary and, therefore, cannot be sustained. The point for determination is, therefore, to be answered in negative. 13.Even though various judgments have been referred to by both the Counsel in the course of arguments, since it is evident from the record that the whole claim of the respondent being based on the said M.O.U. and neither the M.O.U. nor the other materials on record prima facie disclose the so called restrictions on the appellants as sought to be inferred by the respondent, it is not necessary to refer to the said decisions. 14.Once it is not disputed that the appellants are the lawful owners of the properties and there being no restriction imposed on the appellants in the matter of settlement of the said two suits, considering the provisions of Order XXIII, Rule 3 of C.P.C. the appellants are duly entitled to settle the said two suits and no embargo can be put on their right in that respect by injuncting them to settle the said suits. There is no prima facie case made out for the grant of any relief in favour of the respondent. Any such restriction upon the appellants would be bound to result in irreparable loss to the appellants. Undisputedly the subject matter of the said two suits are immovable properties and any such restriction would amount to the restriction of the lawful exercise of the ownership right upon the appellants in respect of these immovable properties. As already seen above the said M.O.U. does not prima facie create any interest as such in favour of the respondent in the suit properties. Being so, it cannot be said that the balance of convenience is in favour of the respondent in any manner. 15.For the reasons disclosed above the impugned order is liable to be set aside. 16.In the result, therefore, the appeal succeeds. The impugned order is set aside. However, there shall be no order as to costs. 17.At this stage the learned advocate for the respondent prays for stay of this order and for continuation of the relief of injunction for a period of 6 weeks. The same is objected to by the appellants. However, considering the fact that all throughout the matter was pending before the trial Court till today, the appellants were restrained from filing the consent terms, the appellants shall not file any such consent terms in the said two suits for a period of 6 weeks from today. Appeal allowed. *****