JUDGMENT : 1. I have heard Mr. Dwarkadas for the Plaintiff, Mr. Khandeparkar for the 1st Defendant, Mr. Khambata and Mr. Jeejeebhoy for the 2nd Defendant, and Mr. Chinoy for the 3rd Defendant at some length in this Notice of Motion for two distinct restraint orders in a suit for specific performance. For the reasons that follow, I am not satisfied that a prima facie case is made out for the grant of relief. I have dismissed the Notice of Motion. 2. First, as to the array of parties. The Plaintiff is a private limited company. Defendant No. 1 (“Deserve Builders”) is also a private limited company engaged in construction and development. The 2nd Defendant (“Deserve Exim”) is Deserve Builders’ holding company, although described as a sister concern, and is a partner with Wadhwa Group Holding Private Limited in Defendant No. 3 (“the LLP”), a limited liability partnership. 3. The land in question is Survey No 178 at Kurla (West) in the Mumbai Suburban District. This is by all accounts a very large tract of land of about 3262.54 sq yards. Even when the Plaintiff acquired this land there were on it several structures and pre-existing reservations for public purposes. 4. Some time in 2010, Deserve Builders suggested a development of the Kurla land and to that end, the Plaintiff says, suggested the Plaintiff should acquire it. The Plaintiff bought the Kurla land from Sai Construction, the original owner. The Plaintiff and the 1st Defendant then entered into a Development-cum-Sale Agreement. Plaint, Exhibit “B1”, pp. 41-59 I will refer to this as “the Kurla Agreement” since that is how it has been referred to throughout. Various other documents common in such transactions were also executed. For instance, a Power of Attorney, Plaint, Exhibit “B2”, pp. 60-70 The Kurla Agreement granted Deserve Builders development rights in the Kurla property. The 1st Defendant paid the Plaintiff Rs 50 lakhs as consideration. In addition, the Plaintiff was to receive portions of the saleable area once development was completed. This saleable area was linked to the time projected for completion of construction, so that the longer the development took, the more area was supposedly earmarked for the Plaintiff. There is no dispute that the 1st Defendant was put in possession of the Kurla property. This saleable area was linked to the time projected for completion of construction, so that the longer the development took, the more area was supposedly earmarked for the Plaintiff. There is no dispute that the 1st Defendant was put in possession of the Kurla property. There also appears to have been a buyback agreement of 20th December 2010, Plaint, Exhibit “C”, p. 71-76 but this is not immediately relevant and I will pass over it. 5. Two years went by. According to the Plaintiff there was “no progress” towards development. The 1st Defendant, of course, says otherwise. It says that despite having spent a large amount of money — in all by today about Rs 10 crores — it was unable to clear the encroachments or remove the reservations, the continuance of which made the project entirely unviable. The 1st Defendant even attempted to have the area declared as a notified slum, but this was opposed by those occupying the structures. The project therefore remained at a standstill. On 21st December 2012, the Plaintiff wrote to Deserve Builders Plaint, Exhibit “D”, p. 77 asking for an update on the status and progress of the project. 6. Between June and November 2012 representatives of the Plaintiff and Deserve Builders met and tried to resolve the matter. On 11th July 2013 a Supplementary Agreement the Plaintiff, Deserve Builders and Deserve Exim executed a Supplementary Agreement. Plaint, Exhibit “E”, pp. 78-92 On 23rd February 2015, Plaint, Exhibit “G1”, pp. 94-96 the Plaintiff again complained to Deserve Builders about the continued lack of progress. A reminder followed on 25th March 2015. Plaint, Exhibit “G2”, pp. 97-98 There is a reply of 23rd April 2015 from Deserve Builders Plaint, Exhibit “H”, pp. 99-106 that takes a decidedly peculiar stand, but the disputes do not seem ever to have been resolved. On 30th July 2015, the parties did arrive at some sort of a draft Memorandum of Understanding but none have said that it was executed or is binding. On 29th April 2016, Plaint, Exhibit “K”, pp. 116-122 Deserve Builders terminated both the Kurla Agreement and the Supplementary Agreement. The Plaintiff issued a public notice on 2nd May 2016. Plaint, Exhibit “L”, pp. 123-126 Deserve Builders responded with its own public notice on 7th May 2016. Plaint, Exhibit “M”, p. 127 The Plaintiff replied to the termination notice on 1st June 2017. 116-122 Deserve Builders terminated both the Kurla Agreement and the Supplementary Agreement. The Plaintiff issued a public notice on 2nd May 2016. Plaint, Exhibit “L”, pp. 123-126 Deserve Builders responded with its own public notice on 7th May 2016. Plaint, Exhibit “M”, p. 127 The Plaintiff replied to the termination notice on 1st June 2017. Plaint, Exhibit “N”, p. 128. The Suit was filed shortly thereafter. It was moved for ad-interim reliefs in July 2016 when SJ Kathawalla J directed pleadings to be filed and posted it for final hearing. 7. First as to the Kurla Agreement. A few portions of this Agreement must be noticed. Recitals “G”, “K” and “N” read as follows: “G. The said property is full of structures and the all are occupied by various occupants/ tenants as evident from Electoral List issued by the Concerned Authorities of Government of Maharashtra; K. The Municipal Corporation of Greater Mumbai vide its Communication No. CHE/295/DPES dated 20th December, 2007 has reserved most of the said property for public purpose of Municipal Retail Market, Shopping Centre and Public Housing (MRM, SC and PH) along with the adjoining land and for widening of the existing Station Road as more particularly set out in the said Communication; N. By virtue of aforesaid facts and documents, the Owner herein became the owner of and subject to the claim of the occupants/tenants of the existing structures as well a the reservation made on the said property are seized and possessed off and/or well and sufficiently entitled to the said property;” 8. These make it clear that there is no dispute about the status of the property, viz., that there are several structures and occupants on it, and that it carries a number of town planning public reservations: specifically, for a municipal retail market, a shopping centre and for public housing. According to Mr. Dwarkadas, Deserve Builders could have been under no misapprehension about what development on this property involved. The recitals in this Agreement make that plain, he says, and it was never open to Deserve Builders to complain of these very situations on the ground. It was always aware of these. The Kurla Agreement specifically notes them. Clause 2 and its sub-clauses make this abundantly clear: “2. The recitals in this Agreement make that plain, he says, and it was never open to Deserve Builders to complain of these very situations on the ground. It was always aware of these. The Kurla Agreement specifically notes them. Clause 2 and its sub-clauses make this abundantly clear: “2. The Developers hereby declare and confirm that: 2.1 They have perused all the documents and investigated the title of the Owner in respect of the said property and have accepted the same as clear and marketable; 2.2 They shall not raised any requisition or objection with regard to the said property on the Owner; 2.3 They are full well aware that the entire property is fully tenanted and occupied by various authorised tenants as well as unauthorised occupants and that most of the said property is reserved for/purpose of Municipal Retail market, Shopping Centre and Public Housing as well as for widening the existing Station Road; The Owner has made available and given the said property for development thereof to the Developers and the Developers have taken the said property for development pursuant to this Agreement on “as is where is basis”.” 9. The last of these is critical, Mr. Dwarkadas says, for Deserve Builders signed the Agreement, took possession and undertook to develop the project on an ‘as-is-where-is’ basis. Clause 3 and its various sub-clauses provided for the consideration to be paid and Clauses 6 and 7 made it clear that it was Deserve Builders’ responsibility to negotiate with the tenants/occupants, to obtain the necessary permissions and to deal with any complications or impediments to development presented by these reservations. Clause 22 made this even more clear by saying that all development was at Deserve Builders’ risk as to costs and expenses. Clause 23 provided for a cure period, failing which the Plaintiff was entitled to terminate. 10. It is true that the Kurla Agreement has an arbitration clause in Clause 28 but all are agreed that this will not bind, and has never been invoked. In any case, Defendants Nos. 2 and 3 are not parties to the Kurla Agreement. Defendant No. 3, the LLP, is not a party to either of the Agreements. 11. 10. It is true that the Kurla Agreement has an arbitration clause in Clause 28 but all are agreed that this will not bind, and has never been invoked. In any case, Defendants Nos. 2 and 3 are not parties to the Kurla Agreement. Defendant No. 3, the LLP, is not a party to either of the Agreements. 11. These are the two prayers in the Notice of Motion: “(a) THAT pending the hearing and final disposal of this Notice of Motion and the Suit, this Hon’ble Court may be pleased to restrain the Defendants, their directors, officers, servants, agents, partner and sub ordinates or persons claiming through or under them, by an Order and Injunction of this Hon’ble Court from, in any manner selling, transferring, dealing with, disposing, alienating, encumbering or creating any third party rights or interest in or from parting with the possession of 48,482 sq.ft area in the proposed under construction building forming part of the project at Chembur described in the Plaint; (b) THAT pending the hearing and final disposal of this Notice of Motion and the Suit,t he Defendants, their directors, officers, servants, agents, partners, trustees and subordinates and/or any such person claiming through or under them by an Order and Injunction of this Hon’ble Court from executing any Agreement/s, Deeds, or any such writings thereby in any manner transferring or parting with the possession of 48,482 sq.ft area in the proposed under construction building forming part of the project at Chembur described in the Plaint.” 12. Clearly these prayers are unrelated to any direct provision of the Kurla Agreement. They are instead directly related to the Supplementary Agreement. Deserve Exim was a party to the Supplementary Agreement, along with the Plaintiff and Deserve Builders. The recitals at pages 81 and 82 are crucial: AND WHEREAS (a) Deserve Exim Pvt. Ltd, the Confirming Party herein, is the sister concern of the Developers herein and carrying out the redevelopment of the Plot/Property more particularly described in the Second Schedule hereunder written (hereinafter referred to as the said Property no. 2 under 33(10) of DCR under slum rehabilitation scheme Jointly with Wadhwa Group Holding Pvt. Ltd under the Deed of Limited Liability Partnership and have obtained LOI bearing No. SRA/ENG/1694/ME/STGL/LOI dated 30th March 2012 which is duly revalidated on 8th May 2013. 2 under 33(10) of DCR under slum rehabilitation scheme Jointly with Wadhwa Group Holding Pvt. Ltd under the Deed of Limited Liability Partnership and have obtained LOI bearing No. SRA/ENG/1694/ME/STGL/LOI dated 30th March 2012 which is duly revalidated on 8th May 2013. AND WHEREAS (a) Vide the said Development cum Sale Agreement dated 20th December 2010, the Developers herein have agreed to give and allot to the Owners herein certain constructed area on ownership basis and free of all costs constructed saleable area to be constructed on the said property No. 1 as more particularly set out in Clause 3 thereof Subject to the terms as mutually agreed upon by a separate writings. However, in spite of taking all the requisite steps as agreed in Development Agreement due to unavoidable circumstances beyond control of the Developers herein, which was not apprehended by the Developers at the time of executing the said Development-Cum-Sale Agreement, the Developers herein through its sister concern, the Confirming Party herein, desire and agree to cause to allot to the Owners herein certain constructed area in its ongoing project in Property No. 2 in part performance of the said Development Cum Sale Agreement dated 20th December 2010 by the Developers subject to the terms mutually agreed upon the Owners and the Developers herein have mutually decided to modify certain terms and conditions of the said Development cum Sale Agreement dated 20th December 2010 and record the same under these presents. (b) Pursuant to mutual understanding arrived by and between the parties hereto, they have agreed to modify the Development Cum Sale Agreement dated 20th December 2010 and the Owners herein have agreed to accept the allotment of Saleable constructed area adm. 22500 sq.ft saleable area in the buildings to be constructed on the said Property no. 2 by the Confirming Party and others being the said LLP in lieu of saleable constructed area agree to be allotted in the building to be constructed on the said Property no. 1 by the Developers and more particularly set out in the said Development cum Sale Agreement, which the Owners herein agree and accept the same on following terms and conditions.” (Emphasis added) 13. The second of these requires a closer examination. This recital indicates, as Mr. Khandeparkar says, that all agreed there were in fact unforeseen difficulties in developing the project at Kurla. The quoted clause says so. The second of these requires a closer examination. This recital indicates, as Mr. Khandeparkar says, that all agreed there were in fact unforeseen difficulties in developing the project at Kurla. The quoted clause says so. The Plaintiffs signed it and therefore accepted this. Deserve Exim is described as a sister concern but that description is inconsequential. Mr. Dwarkadas says that since the Plaintiff had not been given what it was entitled under the Kurla Agreement the Plaintiff got its ‘sister concern’ Deserve Exim to commit to allotting to the Plaintiff a defined portion of property that Deserve Exim was developing in the LLP with the Wadhwa Group at Chembur. This was additional consideration and the Supplementary Agreement identifies not only the Chembur project but also the amount of area in that project that was to be made available to the Plaintiff, i.e., 22,500 sq ft saleable area. 14. A few clauses of this Supplementary Agreement are important for my immediate purposes. In this document, the ‘Owners’ are the Plaintiff, the ‘Developers’ are the 1st Defendant, Deserve Builders, and the ‘Confirming Party’ is the 2nd Defendant, Deserve Exim. 2. The Owners and the Developers hereby agree that hat the Development cum Sale Agreement dated 20th December 2010 executed by and between them is and shall remain valid, subsisting and binding upon the Owners and the Developers herein except to the extent it stands modified by this Agreement. 3. The Confirming Party, on the request of the Developers herein, agrees to cause to allot to the Owners herein within 3 months of the receipt of Commencement Certificate for construction of the Sale Buildings on the said Property No. 2, more particularly described in the Second Schedule hereunder written, free, clear, marketable and totally unencumbered constructed area adm. 22500 sq.ft saleable area (as calculated by BMC plus 50%@ Rs. 16000/- per sq.ft. approximately in the buildings to be constructed on the said Property no. 2 in lieu of the saleable constructed area agreed to be allotted by the Developers herein to the Owners under the said Development cum Sale Agreement dated 20th December 2010 in the building to be constructed on the Property No. 1 or to be calculated as per rate at the time of launch of project on the said Property no. 2 in lieu of the saleable constructed area agreed to be allotted by the Developers herein to the Owners under the said Development cum Sale Agreement dated 20th December 2010 in the building to be constructed on the Property No. 1 or to be calculated as per rate at the time of launch of project on the said Property no. 2 (hereinafter referred to as the said Constructed Area) and issue requisite allotment Letter/s to the Owners herein with regard to the said Constructed Area on the other usual terms for such allotment to be recorded therein. The exact location of the said Constructed Area shall be mutually decided by the parties hereto. 4. It is agreed by and between the parties hereto that if at the time of allotment of the constructed area rate of the constructed area to be allotted is less or more than Rs. 16,000/- per sq.ft as agreed herein then in that event the area to be allotted will be suitably adjusted at the mutually agreed rate. 6. It is agreed by and between the parties hereto that the Developers herein shall have option either to pay to the Owners herein the amount/consideration of the Constructed Area caused to be allotted under these present within 16 months from the date of execution of this Agreement at the rate agreed hereunder in Clause no. 3 hereinabove or allot to the Owners herein the said Constructed Area within 3 months upon issuance of the Commencement Certificate for construction of sale Building on the said Property No. 2. All the documents (including letters of allotment) shall be duly registered and stamp duty and registration charges shall be borne by the Developers or the Confirming party shall always have an option to buy back the said Constructed Area so allotted on usual terms and at the rate mutually agreed upon by the parties hereto at any time after the issuance of allotment letter by executing all the requisite documents and payment of consideration mutually agreed upon. 7. 7. It is agreed by and between the parties hereto that in case the Developer herein is unable to cause the confirming party to allot the constructed area within 3 months upon issuance of the Commencement Certificate for construction of the sale Building on the said Property No. 2 as agreed under these presents or pay the consideration within 16 months from the date of this presence, i.e., on or before 31st October 2014, the owner shall be entitled to further compensation @ 33% p.a. till the payment is made/realized as per the mutually agreed terms. 16. It is hereby agreed by the Parties herein that in the event the said Saleable Constructed Area to be allotted or cause to be allotted by the Confirming Party to the Owners herein does not take place due to any reason whatsoever, the Development-Cum-Sale Agreement dated 20th December 2010 and other writing executed in pursuance thereof shall remain valid and subsisting and enforceable as provided therein with regard to the constructed area agreed to be provided to the owner thereunder. In the alternative, the Developers shall be liable to pay compensation in the form of cash not exceeding the value of the Said Saleable Constructed Area to be allotted by the Confirming Party herein in Property no. 2 @ Rs. 16,000/- per sq.ft aggregating to Rs.35,98,35,829/- (Rupees Thirty Five Crore Ninety Eight Lakhs Thirty Five Thousand Eight Hundred Twenty Nine Only). The owner shall not claim any other direct or indirect losses and /or expenses and/or damages whatsoever.” (Emphasis added) 15. Mr. Dwarkadas submits that read together these clauses make it abundantly clear that Deserve Exim committed itself to making available to the Plaintiff this defined area in the Chembur project. Deserve Exim was a partner with the Wadha Group in the LLP. As far as the Plaintiff is concerned, Deserve Exim had the ostensible authority to bind the LLP. How it obtained the saleable area in the Chembur was a matter between it and its LLP partner; the Plaintiff was and is unconcerned with that. It is no answer to say today, he says, as the Defendants now do, that the actions of Deserve Exim could not and did not bind the LLP of which it was a partner. How it obtained the saleable area in the Chembur was a matter between it and its LLP partner; the Plaintiff was and is unconcerned with that. It is no answer to say today, he says, as the Defendants now do, that the actions of Deserve Exim could not and did not bind the LLP of which it was a partner. Clause 2, 3 and 4 put it beyond any controversy that Deserve Exim assumed responsibility to provide the specified square footage of the Chembur property as consideration or further consideration for the Kurla Agreement. Consequently, Mr. Dwarkadas submits, he is entitled at the very least in this suit for specific performance of both agreements to these injunctions in regard to the Chembur property. 16. Mr. Chinoy for the 3rd Defendant, the LLP, says that the supplemental agreement is being completely misread by the Plaintiff. There is, in his submission, one I am inclined to accept. No question of Deserve Exim ever acting as an agent of the LLP or of binding the LLP. This is not an agreement by which any property in Chembur has actually been allotted. The case is not one of allotment but an understanding between the Plaintiff and the Deserve entities to “cause” an allotment to be made by the LLP in favour of the Plaintiff, a very different thing. Paragraphs 3(XIII) of the Plaint again speaks of a situation where the Plaintiff “was to be allotted” a portion of the Chembur property, i.e., not of the Plaintiff actually being allotted any portion of the Chembur property. The only pleading on agency is actually to be found in paragraph 3(XVII) at page 23 where the Plaintiffs say that the 2nd Defendant, Deserve Exim, acted as an gent of the 3rd Defendant, the LLP and which is bound by it. 17. In any case, and this is a submission from both Mr. Chinoy and Mr. Khambata for the 2nd Defendant, in order that the 2nd Defendant bind its partner in the LLP, that which it transacted to do must be shown to have been in the ordinary course of the LLP’s business. 17. In any case, and this is a submission from both Mr. Chinoy and Mr. Khambata for the 2nd Defendant, in order that the 2nd Defendant bind its partner in the LLP, that which it transacted to do must be shown to have been in the ordinary course of the LLP’s business. No part of that business extended to the 2nd Defendant compromising its sister concern’s entirely separate and distinct obligations or liabilities under a contract with which the LLP was never concerned and to which it was not party; that could never be the “business” normal or otherwise, of the LLP. Any principle of agency would bind the partnership only to the limited extent of the commitment being part of the partnership’s ordinary and usual course of business. It could not and would not extend to any extraneous or more adventurous commitment. Mr. Chinoy correctly points out that there is in fact no allotment made at any stage at all. Consequently, there are no property-specific rights created in the Chembur project. This is indeed true. It is unclear from this Supplementary Agreement whether it relates to the 2nd Defendant’s (Deserve Exim’s) defined or even definable rights in the Chembur project; whether those rights existed; or whether this only required Deserve Exim to somehow persuade its Wadhwa Group partner to make available to Deserve Exim a chunk of saleable area, which it could then make available to Deserve Builders. If the Supplemental Agreement is this fluid and uncertain in its import, it is difficult to see how any kind of interim relief for specific property could ever be granted. I notice that nowhere in the Supplementary Agreement is the LLP itself sought to be joined in any capacity whatsoever although the Chembur property is admittedly an asset of LLP and not a divisible asset of its individual partners. 18. As far as Deserve Builders is concerned, as Mr. Khandeparkar points out, it had no control whatsoever over the Chembur property in the first place. 19. Ms Jeejeebhoy for the 2nd Defendant, Deserve Builders, made some additional, distinct points. The first of these was that this Supplementary Agreement is not even registered. 18. As far as Deserve Builders is concerned, as Mr. Khandeparkar points out, it had no control whatsoever over the Chembur property in the first place. 19. Ms Jeejeebhoy for the 2nd Defendant, Deserve Builders, made some additional, distinct points. The first of these was that this Supplementary Agreement is not even registered. Apart from any issue of enforceability, this is an important indicator, she submits, and I think quite correctly, of the intention of the parties that they were never intended the Supplementary Agreement to create any rights in the Chembur property at all. Had that been the intention, the Supplementary Agreement would have been registered. Clause 6 at page 85, quoted above, also does not support the Plaintiff’s version. Ms Jeejeebhoy points out that this clause gives the 1st Defendant Deserve Builders of either making payment or, alternatively, “causing” an allotment to be made within a defined period, or making an alternative allotment of constructed area of 22500 sq.ft within three months etc. All this is then sought to be monetised in Clause 16. Not only does this clause provide for a fluctuating amount in terms of money but Clauses 3, 4 and 6 also make it clear that the actual area that was “to be caused to be allotted” was not fixed and would vary depending on a number of different factors, including time. Indeed, this is the reason why the Supplementary Agreement speaks of an area of 22500 sq. ft. but the relief sought in the Motion is in relation to 48,482 sq.ft. 20. If this is the kind of uncertainty that is generated at this stage, I do not see how it is possible to say that a sufficient prima facie case is been made to support the grant of the injunction sought. 21. Ms Jeejeebhoy also points out that Clause 7 provides for further compensation at 33% per annum and this itself shows that the entire consideration was actually to be monetized. The quantification in the Supplementary Agreement gave the Plaintiffs an option. They seem to have elected for a money claim and she demonstrates this from a reading of paragraph 3(XV) at pages 21 and 22 of the Plaint where with specific reference to the Supplementary Agreement, the Plaintiff has computed the “compensation to which it is entitled”. The quantification in the Supplementary Agreement gave the Plaintiffs an option. They seem to have elected for a money claim and she demonstrates this from a reading of paragraph 3(XV) at pages 21 and 22 of the Plaint where with specific reference to the Supplementary Agreement, the Plaintiff has computed the “compensation to which it is entitled”. I believe Ms Jeejeebhoy is completely correct in all these submissions and I must commend her for the compact precision with which she placed her case. 22. Given these circumstances, I do not think it is possible to say that the Plaintiff has made out any sort of prima facie case for the grant of interim relief. The Notice of Motion is dismissed. In the facts and circumstances of the case, there will be no order as to costs.