HARYANA CONTAINERS LIMITED THRU CHAULA MAHENDRAPRASAD SHASTRI Vs. K S INFRASPACE LLP THRU KETAN BHAILAL SHAH

JUDGEMENT

(1.) The present group of appeals under Order 43 Rule 1 read with Section 104 of the Code of Civil Procedure is arising out of the common order dated 18.2.2019 passed by the learned 5th Additional Senior Civil Judge, Vadodara in Special Civil Suit No. 322 of 2018. Since common questions of law and facts are involved in the present appeals, by treating Appeal From Order No.72 of 2019 as a lead matter, all three appeals were heard together and are being decided by the present common judgment and order.

(2.) The facts reflecting from Appeal From Order No.72 of 2019 are that K.S.Infraspace LLP through its partner Ketan Bhailal Shah had instituted a suit being Special Civil Suit No.322 of 2018 in the Court of learned Principal Civil Judge at Vadodara for seeking declaration and specific performance against the defendant i.e. Haryana Containers Ltd. on the premise that, the plaintiff is a limited liability partnership firm involved in the business of real estate and engaged in the property development since last number of years in the city of Vadodara. The defendant is a limited company registered under the provisions of the Companies Act, which is a wholly owned subsidiary of Ambalal Sarabhai Enterprise Limited and is claiming to be in possession of various parcels of land as shown in the map enclosed with the draft memorandums of understanding dated 29.3.2018 and 30.3.2018 admeasuring 1260 sq.mtrs. and 5442 sq.mtrs of City Survey Nos.921 of Village Subhanpura. The defendant i.e. Haryana Containers Limited was desirous of selling the above parcels of land with right, title and interest in the name of the company (wholly owned subsidiary) as stated above, in all 6702 sq.mtrs. for their personal need as well as for funds needed for business and to meet with various financial commitments. In the year 2012, the defendant had negotiated and struck the deal with the plaintiff for selling said parcels of land as a result of this, series of meetings, telephonic conversations and exchange of emails took place between Mr. Kartikeya Sarabhai & Director of the defendant company, Chavla Shastri and Nimish Vasa, Escrow Agent, on the side, and the plaintiff's partner, Mr. Ketan Shah which ultimately resulted into the deal. The total consideration was also fixed, as stated in the plaint, which is roughly estated to Rs.31,81,73,076/-. According to the plaintiff, the contracts between the plaintiff and the defendant stood concluded, terms were finalised after series of negotiations and the final memorandum of understanding and the agreement to sell exchanged vide emails dated 29.3.2018 and 30.3.2018 and according to the plaintiff, even after acceptance of the final draft and after conclusion of the transaction, vide email dated 30.3.2018, the contract came into existence and the payment was also made by token amount of Rs.2.16 crores for the whole suit property on 10.1.2018. It is the case of the plaintiff that throughout, the plaintiff was ready and willing to perform his part of the contract, however, despite such readiness, the defendant turned around from the said concluded contract and to the utter shock of the plaintiff, the defendant backed out from the deal by way of sending email on 31.1.2018 at about 5.24 p.m. and returned the amount of Rs.2.16 crores through RTGS. It has come to the knowledge that after such conduct having been shown and though the plaintiff has fully managed the entire amount of consideration to be paid, it was apprehended that to defeat such concluded contract, the defendant is likely to back out and has entered into a registered agreement to sell with defendant No.2 i.e. Neptune Infraspace Pvt. Ltd of Special Civil Suit No. 323 of 2018, as a result of this, the present plaintiff had to file this suit for the purpose of seeking specific performance of memorandum of understanding/agreement to sell/contract with respect to the land in question. This suit filed by the present plaintiff numbered as Special Civil Suit No. 323 of 2018 appears to have been presented in the month of October, 2018.

(3.) Similar is the position with respect to Appeal from Order No.73 of 2019 which is arising out of the very same order dated 18.2.2019 in which Special Civil Suit No. 323 of 2018 is filed against two defendants namely, Ambalal Sarabhai Enterprise Ltd. and Neptune Infraspace Pvt. Ltd. So far as this Appeal From Order is concerned, it is filed by Ambalal Sarabhai Enterprise Ltd., original defendant No.1 of Special Civil Suit No. 323 of 2018 in which the facts are almost similar, but parcel of land is different. In this suit being Special Civil Suit No. 323 of 2018, the plaintiff i.e. K.S.Infraspace LLP has entered into transaction with the defendant No.1, which is a Public Limited Company holding the ownership and possession of various pieces of land mentioned in memorandum of understanding dated 29.3.2018 and 30.3.2018 respectively. Such lands are: