Rashmi Wd/O Balraj Ramaswamy vs. Alpa Developers

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

O. O. C. J.

NOTICE OF MOTION NO.4734 OF 2007 IN SUIT NO.3415 OF 2007

Rashmi Wd/o.Balraj Ramaswamy & Anr. ...Plaintiffs. Vs. M/s.Alpa Developers & Associates & Anr. ...Defendants. .... Mr. Atul Damle i/b. Mr.Vijay Mishra for the Plaintiffs.

Mr. D.B. Shukla for the Defendants.

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CORAM :DR.D.Y.CHANDRACHUD, J. December 17, 2007.

P.C.:

The suit is for accounts of a partnership in which the deceased husband of the First Plaintiff was a partner with the Second Defendant. An MOU was entered into on 11 th July 2005 under which the Second Defendant agreed to pay an amount of Rs.10 lakhs within a period of one year to the First Plaintiff and a further amount of Rs.5 lakhs towards a shop upon the expiry of one year from the commencement of the project in relation thereto. There has been a default on the part of the Second Defendant.

The partnership firm was carrying on the work of

development of a Slum Rehabilitation Scheme on a plot of land bearing CTS No.172 and 172(1 to 64) at Ghatkopar (West). Counsel appearing on behalf of the Plaintiffs has, at the present stage, sought an ad-interim injunction in terms of prayer clause (c ) restraining the Second Defendant from disposing of or creating any third party interests in respect of the aforesaid plot of land. The Second Defendant has completely denied the existence of the partnership in a letter dated 27 th April 2007 and has stated that in so far as the plot of land is concerned, a Development Agreement has been entered into with a Society formed of the slum dwellers.

At the hearing of the application for ad-interim relief, Counsel appearing on behalf of the Defendants has stated that in order to secure the claim of the Plaintiffs in the MOU dated 11 th July 2005 (Exh.A), the Second Defendant shall deposit an amount of Rs.15 lakhs with the Prothonotary & Senior Master in accordance with the following time schedule: (i) An amount of Rs. 2.5 lakhs shall be deposited on or before 7 th January 2008; (ii) An amount of Rs. 1.5 lakhs shall be deposited on or before 7 th February 2008; (iii) An

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amount of Rs.2 lakhs shall be deposited on or before 7 th March 2008; and (iv) The balance of Rs.9 lakhs shall be deposited on or before 15 th April 2008. The aforesaid statement is accepted. It has also been stated on behalf of the Second Defendant that until the aforesaid amounts are deposited with the Prothonotary & Senior Master, the Second Defendant shall not create any third party rights in respect of the free sale component, in order to secure the claim of the Plaintiffs. The aforesaid amounts shall upon deposit, be invested in a Fixed Deposit of a Nationalised Bank to be renewed periodically pending the hearing and final disposal of the Notice of Motion.

Counsel appearing on behalf of the Second Defendant has drawn the attention of the Court to the contents of clause 4 of the MOU which refers to the fact that the deceased had contracted another marriage during his life time and the First Plaintiff agreed that it would be her obligation to obtain the consent of the spouse from the other marriage. In that view of the matter, at the present point of time, it would not be appropriate and proper to permit to withdrawal of the amount.

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Counsel appearing on behalf of the Plaintiffs states that he would take out necessary proceedings for impleading the wife from the earlier marriage of the deceased and other necessary parties.

The Notice of Motion is accordingly made returnable in due course.

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