Madras High Court
This Is An Application Filed By The vs V.Ramiah And Another For The ... on 29 March, 2010
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.03.2010 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH OA.210 of 2010 And OA.211 of 2010 ORDER :
O.A. Nos.210 and 211 of 2010 V.PERIYA KARUPPIAH,J., O.A. No.210 of 2010 :
This is an application filed by the applicant seeking for an order of interim injunction restraining the respondent, their men or agents, from licensing, dealing with or parting over possession in any manner whatsoever of the schedule mentioned property pending disposal of the arbitration proceedings.
O.A. No.211 of 2010 :
2. This is an application filed by the applicant seeking for an order of interim injunction restraining the respondent, their men or agents, from carrying out any alterations or interior works in the schedule mentioned property pending disposal of the arbitration proceedings.
3.The case of the applicant put forth in both applications are briefly stated as follows:-
3(1) The respondent is in the process of developing the property known as Express Avenue, at No.2, Club House Road, Chennai 600 002 and was evincing interest in including proposed licencees in the Food Court to be set up as a part of the development. Upon coming to know about the expression of interest by the respondent, the applicant herein sent their profile to the respondent, under the applicants e-mail dated 16.12.2008.
3(2) It is a high quality vegetarian food and catering restaurant ever since the year 1948 and is one of the most reputed and popular vegetarian food restaurants in the city of Chennai, having five branches, as on date. Apart from the above, the applicant also has a Kiosk at Central Railway Station, Chennai, and in the Tata Consultancy Service Building at Siruseri. The applicant has also been figured in many articles written in National Newspapers and also has been covered by a number of Television Channels, including NDTV and CNBC.
3(3) In response to the e-mail dated 16.12.2008 sent by the applicant, the respondent herein sent a e-mail on 20.06.2009, agreeing to offer Kiosk No.4 in the Food Court as well as a space for setting up a fine dining restaurant in the Food Court. The details of the terms and conditions for the said offer were also mentioned in the e-mail. This was followed by another e-mail dated 22.06.2009 from the respondent, changing Kiosk No.4 to Kiosk No.7, while retaining the space for the Find Dining Restaurant situate in the Mezzanine Floor between the third and fourth floors. Both these e-mails were accompanied with the lay-out of the Food Court.
3(4) The respondent sent another e-mail dated 25.06.2009, restricting the allotment only to Kiosk No.7 and informing the applicant that the space for the Fine Dining Restaurant will be allotted later. As per the terms and conditions contained in this e-mail dated 25.06.2009, the licence period in favour of the applicant was to be for two terms of three years each, with escalation of 15% at the end of the first three year term. The lock-in-period prescribed was 24 months and the applicant was obliged to pay an interest-free security deposit equivalent to 10 months licence fee. licence Fee itself was fixed at Rs.75/- per sq.ft. of the super built up area or 10% of the net sale value, whichever was higher. That apart, the applicant was also required to pay the common area maintenance charges and other utility charges, as mentioned in the e-mail. The agreed date for handing over of the Kiosk to the applicant was set for August 2009.
3(5) This was followed by another e-mail dated 29.06.2009 from the respondent, where under the applicant was informed that the allotment of Kiosk No.7 stood confirmed and the request was made to the applicant to send to the respondent, the menu, they were planning to serve in the Kiosk. The respondent also sent another e-mail on 29.06.2009, attaching the MOU to be entered into between the parties, for perusal by the applicant. This was followed by yet another e-mail dated 01.07.2009 from the respondent, requesting certain other details from the applicant, viz. partnership deed, TIN number, Sales Tax number, Proof of Address etc. 3(6) They immediately furnished all the documents and information, as required by the respondent and thereafter a Memorandum of Understanding was entered into between the applicant and the respondent, on 03.07.2009. As per the terms of this MOU, Kiosk No.7 in the third floor of the Food Court at Express Avenue, having a plinth area of 207 sq.ft. and a super built-up area of approximately 1345.50 sq.ft. including the common area, was allotted to the applicant on a licence basis. The said licence was to be for a period of 72 months i.e. initial period of 36 months with an option of a further 36 months. The applicant was required to pay a security deposit equivalent to 10 months licence fee. The licence fee for the first three years was stipulated as Rs.75/- per sq.ft. of the super built up area per month, amounting to R.1,00,913/- as a minimum guarantee or 10% of the net sale value, whichever is higher. The licence fee for the next three years was fixed at Rs.86.25 per sq.ft. of super built up area, per month, amounting to Rs.1,16,050/- as a minimum guarantee or a 10% of the net sale value, whichever is higher. The applicant was also liable to pay common area maintenance charges calculated at Rs.15/- per sq.ft. of the super built up area and also a charge known as Food Court Charges on actual basis. The MOU stipulated that the respondent will handover the Kiosk to the applicant for a period of 60 days, free of charge, to enable the applicant to carry out the necessary interior works. As per the terms of this MOU, the applicant made initial payment of Rs.5,04,565/- towards part of the security deposit amount, as demanded by the respondent, vide cheque bearing No.415359 dated 03.07.2009 drawn on Canara Bank. This cheque was also encashed by the respondent.
3(7) The MOU dated 03.07.2009 was entered into between the parties only after detailed negotiations and only after both the parties were fully satisfied about their respective rights and obligations. The entering into of a licence agreement in furtherance to the MOU, was only a formality and was not intended to contain anything contrary to the MOU. The applicant states that this MOU dated 03.07.2009 was a concluded contract between the parties, crystallizing all the rights and obligations between the parties and the licence agreement was only meant to be complementary to the MOU and not an independent agreement.
3(8) The MOU dated 03.07.2009, the respondent sent an e-mail to the applicant on 10.07.2009, attaching the plan and lay-out of the Food Court, specifying the Kiosk allotted to the applicant. Thereafter, in addition to allotting Kiosk No.7 to the applicant, the respondent sent an e-mail to the applicant on 30.07.2009, also proposing to handover space for setting up of a Fine Dining Restaurant admeasuring about 1,460 sq.ft. in the mezzanine floor between the third and the fourth floors of the Food Court. Terms and conditions for the said allotment were also contained in the e-mail. Thereafter, respondent sent another e-mail to the applicant on 12.10.2009, inviting the applicant to an Open House Meeting in the Express Avenue building on 25.10.2009, between 4.00 and 5.00 P.M, to enable the applicant to meet the entire team of the respondent, including all the persons involved in Projects, Marketing, Leasing and Operations etc. It was also informed by the respondent in this e-mail that the applicant should visit the Kiosk as well as the Fine Dining space and discuss the fit-out plan with the respondents team, to coincide with the opening of the building in February 2010. The applicant also confirmed their participation for the said meeting and attended the meeting.
3(9) The respondent sent e-mail to the applicant on 19.10.2009, offering both Kiosk No.6 and Kiosk No.7 which is third floor of the Food Court, along with the Find Dining Space. As per the terms contained in this e-mail, the respondent proposed a minimum guarantee of 15% of the revenue or Rs.3,74,752.95, whichever was higher. In effect, the respondent sought to increase the minimum guarantee from 10% as contained in the MOU, to 15%. The applicant states that the deponent herein immediately requested for an one-to-one meeting with Mr.Kim Culley of the respondent, who is the person in-charge of the entire project. After negotiations took place, the respondent sent another e-mail to the applicant on 02.11.2009, reiterating the increase in minimum guarantee from 10% to 15%. Under this e-mail, the respondent once again offered Kiosk No.6 and Kiosk No.7 along with Fine Dining Space. In reply to the above, the applicant sent an e-mail dated 02.11.2009 to the respondent, requesting for adherence to the 10% minimum guarantee as stipulated in the MOU dated 03.07.2009. However, the respondent sent an e-mail on 10.11.2009, insisting upon the minimum guarantee of 15%.
3(10) The respondent sent his final offer dated 23.11.2009 to the applicant offering Kiosk Nos.6 and 7 as well as the mezzanine floor for the Fine Dining Restaurant, stipulating a minimum guarantee of Rs.3,06,616.05 per month or 15% revenue share of the net sales value, whichever was higher. Left with no other option, the applicant sent e-mail dated 24.11.2009 to the respondent, agreeing for the minimum guarantee of Rs.3,06,616.05 per month or 15% revenue share of the net sales value, whichever was higher. This was followed by another e-mail dated 24.11.2009 from the respondent to the applicant, informing the applicant that the MOU already signed between the parties on 03.07.2009 will be retained as it is. But a separate Leave and licence Agreement will be sent to the applicant by the end of the week. The respondent also requested the applicant to handover the applicants fit-out drawings to enable the respondent to approve the same. This e-mail would leave no doubt in the minds of either parties that the MOU dated 03.07.2009 was final and binding, with only three changes viz. one being the minimum guarantee of 15%, as against the 10% specified in MOU; the second being the confirmation of allotment of Kiosk No.6 as well as space for Find Dining Restaurant in the mezzanine floor between the third and fourth floors, as against only Kiosk No.7 stipulated in the MOU and the third being increase in monthly licence fee.
3(11) They sent an e-mail dated 24.11.2009 to the respondent, requesting the respondent to first provide detailed floor plan for the Kiosks allotted as well as for the Fine Dining Space, to enable the applicant to consult their Architect and prepare the fit-out drawings. It would be pertinent to point out that unless the detailed floor plans showing the exact location of the Kiosks and Fine Dining Space allotted to the applicant, was handed over by the respondent to the applicant, it would be impossible for the applicant to prepare the fit-out drawing at its end. However, in spite of repeated requests and reminders by the applicant in this regard, the respondent never forwarded the detailed floor plan showing the exact location of the Kiosks and the Fine Dining Space, as mentioned in their e-mail dated 23.11.2009. Likewise, the respondent also never forwarded the draft of the legal licence agreement to be executed between the parties, in pursuance to the MOU dated 03.07.2009 and the e-mail of the respondent dated 23.11.2009.
3(12) The applicant states that the respondent once again went back on their assurance as well as their own e-mail dated 23.11.2009 and Mr.Kim Culley of the respondent orally informed the deponent herein that only Kiosk No.7 will be handed over to the applicant and that Kiosk No.6 as well as the Fine Dining Restaurant Space will not be given to the applicant. The various requests and pleas made by the deponent herein to the said Mr.Kim Culley, to stick to the e-mail dated 23.11.2009, did not find favour with them. Left with no other option, the applicant sent an e-mail dated 09.01.2010 to the respondent, agreeing to take only Kiosk NO.7, as per the MOU dated 03.07.2009. When the applicant was expecting a favourable response from the respondent, it was shocked and surprised to receive an e-mail dated 11.01.2010 from the respondent, under which the applicant was informed that Kiosk No.7 was also not available and agreeing to offer Kiosk No.14. Immediately thereafter, the deponent herein personally contacted Mr.Kim Culley of the respondent, who orally informed the deponent herein that there was confusion at the respondents end and what was allotted to the applicant was only Kiosk No.7. This was followed by an e-mail dated 11.01.2010 from the applicant to the respondent, protesting about the respondents conduct in going back on their promise. In reply thereof, the respondent sent an e-mail dated 11.01.2010 to the applicant, confirming allotment of Kiosk No.7 and regretting for the confusion and inconvenience. This was followed by yet another e-mail on 11.01.2010 itself to the applicant, informing the applicant that the said Mr.Kin Culley has specific confirmation from Mrs.Singhania of the respondent, that the applicant will be given Kiosk No.7 as well as the Fine Dining Restaurant in the mezzanine floor. However, the respondent did not mention anything about Kiosk No.6.
3(13) They sent an e-mail dated 12.01.2010 to the respondent, once again informing the respondent that what was allotted to the applicant as per the respondents e-mail dated 23.11.2009 was both Kiosk No.6 and 7 as well as Fine Dining Restaurant Space. The applicant once again requested the respondent for the floor plan, to enable the applicant to prepare its fit-out drawings. Since the drawings were not forthcoming, the applicant sent reminders under its e-mail dated 19.01.2010 and 21.01.2010. In reply to the same, the applicant received an e-mail dated 21.01.2010 from Mr.Kim Culley of the respondent, informing the applicant that he has asked his co-ordinating department to send the required drawings to the applicant. Thereafter, the required floor-plan drawings were sent by the respondent to the applicant, as an attachment, under the respondents e-mail dated 22.01.2010. By a further e-mail dated 22.01.2010, the respondent also sent the Leave and licence Agreement and the Facilities and Utilities Agreement and Common Area Maintenance Agreement to the applicant, as attachments.
3(14) The Leave and licence Agreement and other connected Agreement for Kiosk Nos.6 and 7 as well as for the Fine Dining Restaurant in the mezzanine floor, the applicant was shocked and surprised to receive an e-mail dated 30.01.2010 from the respondent, informing the applicant that Kiosk No.6 will not be available as the same has already been offered to another client. Shocked by this revelation, the applicant herein sent an e-mail dated 01.02.2010 to the respondent, requesting for a personal appointment with Mr.Kim Culley, in order to discuss the matter and sort out the confusion created by the respondent. In reply to the about, the respondent sent an e-mail to the applicant on 01.02.2010, confirming a meeting on 03.02.2010 at 4.00 P.M, to close all issues. The deponent personally went to the office of Mr.Kim Culley on 03.02.2010 at 4.00 P.M. But however, the meeting stood postponed to 04.02.2010.
3(15) On 04.02.2010, the deponent herein met Mr.Kim Culley of the respondent personally and at this point in time, the said Mr.Kim Culley profusely apologized for all the confusion and requested that the applicant make payments of the security deposit, as stipulated in the MOU dated 03.07.2009 and e-mail dated 23.11.2009. Pursuant thereto, the applicant states that under the covering letter dated 04.02.2010, the applicant enclosed a cheque bearing No.719438 dated 04.02.2010 for Rs.23,12,210/- drawn on Canara Bank, Teynampet Branch towards the balance advance payable, since the applicant had already paid a sum of Rs.5.04,565/- to the respondent on 03.07.2009 itself.
3(16) A confirmation from the respondent regarding the date of signing the Leave and licence and other Agreements, the applicant was taken aback to receive a letter dated 08.02.2010, blaming the applicant for not signing and delivering the Leave and licence Agreement, Utilities and Facilities Agreement and Common Area Maintenance Agreement along with the balance security deposit, despite repeated reminders allegedly made by the respondent. There was also a reference made to an e-mail dated 08.02.2010 allegedly sent by the respondent to the applicant, receipt of which the applicant denies. Under this letter, the respondent expressed its inability to accept the cheque for a sum of Rs.23,12,210/- issued by the applicant. It is stated as though the said cheque was returned along with the letter but the applicant has not received the said cheque from the respondent. It is mentioned in this letter that after discussions and mutual consent, the allotment of space in favour of the applicant will be mutually decided and only thereafter, the respondent will receive the cheque issued by the applicant.
3(17) The above conduct of the respondent in seeking to go back on the MOU dated 03.07.2009 and their e-mails dated 23.11.2009, 24.11.2009 and 11.01.2010, is totally arbitrary and is against the concluded contract between the parties and amounts to not only a breach of contract but also tantamount to a fraud being perpetrated by the respondent upon the applicant. The respondent has repeatedly reassured the applicant that their allotment of Kiosk Nos.6 and 7 as well as the Fine Dining Area Space in the mezzanine floor between the third and fourth floors in the Food Court at Express Avenue, stood confirmed of the Leave and licence Agreement, Facilities and Utilities Agreement and the Common Area Maintenance Agreement. In fact, all the essential terms necessary for establishing a concluded contract between the parties, find a place in the MOU dated 03.07.2009, including the monthly payments to be made, escalation, minimum guarantees etc. This stood confirmed under the respondents e-mail dated 23.11.2009, where there was a minor change on three aspects as already pointed out hereinabove and also the e-mail dated 24.11.2009 from the respondent, categorically stating that a fresh MOU need not be signed between the parties. This was again reiterated in the respondents e-mail dated 11.01.2010. Thus, going by all the above, the parties hereto have indeed entered into a concluded contract, which cannot be resiled form by the respondent.
3(18) The respondent had already accepted an advance payment of Rs.5,04,565/- from the applicant even as early as on 03.07.2009, towards part payment of the security deposit and the applicant has also sent a cheque for Rs.23,12,210/- to the respondent on 04.02.2010, towards balance security deposit payable. The applicant states that only pursuant to the MOU dated 03.07.2009 and after having been assured by the respondent that the allotment in favour of the applicant is confirmed, the applicant has gone ahead to finalise purchase of new kitchen equipment with M/s.Micro Engineering Industries and has also paid an advance to them. That apart, the applicant has appointed M/s.RSP Associates, Commercial Kitchen Designer and Consultant, for making out the kitchen equipment drawings and service point drawings. In addition to the above, the applicant has also appointed new staff for commencing catering in the Kiosks as well as the Fine Dining Restaurant and has also kept 5 employees on stand-by for the said purpose. But the applicant has materially altered its position by not only paying a portion of the security deposit to the respondent on 03.07.2009 but also by incurring expenditure at his end to ready itself for commencing restaurant and catering activities in the Kiosks and Fine Dining Restaurant Space allotted to it by the respondent. Hence, the applicant is left with no other option, but to file the present applications under section 9 of the Arbitration and Conciliation Act, 1996. Prima facie case and balance of convenience lie entirely in favour of the applicant in granting the interim reliefs, as prayed for. Unless the interim reliefs as prayed for is not granted, the applicant will be put to grave prejudice and irreparable hardship, for the reason that the respondents may some other party in possession of the Kiosks and the Fine Dining Area allotted to the applicant or deal with the said property in a manner which will be in violation of the MOU dated 03.07.2009 and the e-mail as referred to hereinabove.
3(19) For all the reasons aforementioned, the applicant prays the following reliefs:-
a)To pass an order of ad-interim injunction restraining the respondent, their men, servants, agents, employees, or any person(s) claiming under or through them from licensing, dealing with or parting with possession in any manner whatsoever of the schedule mentioned property, pending disposal of arbitrary proceedings;
b)To pass an order of ad-interim injunction restraining the respondent, their men, servants, agents, employees, or any person(s) claiming under or through them from carrying on any alterations, or interior works in the schedule mentioned property, pending disposal of the arbitrary proceedings.
4.The brief facts of the case of the respondent as stated in the counter affidavit would be as follows:-
4(1) The schedule mentioned property is not vacant as on date and has been given on licence in favour of third party namely M/s.Southern Cusine under a leave and licence agreement dated 03.02.2010, for the purpose of running a vegetarian restaurant in Kiosk No.7 in the food court and restaurant No.6 at Mezanine floor, and are put in possession as early as 04.02.2010. They have also paid the entire security deposit amount and has taken possession and are carrying on the fit out work for the post one month. They have also issued a letter dated 26.02.2010 stating that they will be completing the fit out in the first week of April 2010 and will be ready for operation at the time when there is an inaugural function of the mail.
4(2) The applicant had not derived any right or interest even as a licence under the Memorandum of Agreement entered in to on 03.07.2009.Under the MOU, Koisk No.7 on the food court, 3rd floor of Express Avenue for the brand Ratna Cafe having a plinth area of 207 sq.ft. and super built up area of 1345.5 sq.ft. was given. But it was specifically stated that the area is tentative and subject to change. Further under clause 28 it has been stated that this MOU creates no interest in the proposed user vis-`-vis the proposed licenced area. Under clause 27, it has been specifically stated that in case this MOU does not culminate into a leave and licence agreement the liability of the owner is limited only to the refund of the security deposit without any interest, and the owner shall not be liable in any other manner. If at all the proposed user namely the applicant has got any grievance under the MOU, the same has to be resolved by arbitration.
4(3) The MOU also specifically states and denotes the parties as owner and proposed user and not as a licensor and licencee which itself would got to prove that there is no concluded contract and no legal relationship between the applicant and the respondent and no right flows to the applicant herein. After entering into MOU the understanding has not reached any finality since after 03.07.2009, the date of MOU, there was continuous changes in respect of the area as well as the measurement of the space to be allotted and taken over by the applicant herein. There were number of discussions by way of offer and counter offer taking place by E-Mail as well as person regarding some area. Since there were competition for the area to be occupied in the prestigious forth coming complex by many industrialist and businessmen, negotiations were going on with other persons also. One, Southern Cusine offered to take a larger area for a competitive rent, and since the applicant declined at the first instance to take mezzanine floor along with Kiosk No.7, and were not sure of the area they required in the Express Avenue, and the respondent also accepted the said offer and finalised by entering into a leave and licence agreement on 03.02.2010.
4(4) The applicant who were offered larger area and who did not come forward with a definite stand and were dragging on, even after receiving the agreement as early as 22.01.2010 did not come forward to sign the documents and conclude the contract and take possession of the property. Since the respondent is anxious to open the Express Avenue at the earliest point of time latest by April 2010, was unable to wait for the applicant (who was delaying the process) preferred to give to a person who offered to take immediate possession. On 11.01.2010 at 4.43 A.M. the respondent by e-mail informed the applicant that Kiosk No.7 is not available, the applicant on the very same day at 7.14 A.M. replied stating that they are willing, provided the respondent agrees for their terms and conditions. On 11.01.2010 at 4 P.M. when the applicant met the concerned person in the respondent office, he declined to finalise alternate place measuring same area on the ground that we cannot have two persons in the same place for the same business, and further said that M/s. Sangeetha should not supply the same food items which they offer and only one vegetarian restaurant should be accommodated in the mail. The applicant again met on 03.02.2010 reacted badly and did not accept the offer for an allotment of alternate area. But on the next day namely on 04.02.2010 the applicant without signing the agreement had simply sent the balance amount towards the security deposit and the same was received on 08.02.2010 by the respondent, which was returned by the respondent stating that the same will be received after conclusion of the contract for the definite area.
4(5) It was indicated to the applicant that kiosk No.7 is not available and was offered another place namely kiosk No.14 for which the applicant did not give any definite reply.
4(6) They have decided to stick to their original plan of kiosk No.7 as per MOU. The MOU since has been varied and changed from time and again due to the act of the applicant stands terminated automatically. Further the amount paid by was of Security deposit at the time of signing MOU also has been returned on 03.03.2010. As on date there is no legal relationship (muchless the owner and proposed user) exists between the applicant and the respondent.
4(7) The respondent does not admit the contention made in paragraph 5 of the affidavit. The contentions made therein was only an offer between the parties and there was no concluded contract signed between the parties.
4(8) During the course of negotiation since the respondent wanted the details of the applicant and the details of the menu which they are going to serve, the applicant was called upon to furnish the particulars and that does not confer any right or interest over the schedule mentioned property.
4(9) The MOU was entered into on 03.07.2009 as a owner and proposed user and no relationship as that of licensor and licencee was created. In the MOU itself it was specifically stated that the area and other details are only tentative and subject to changes. It was also specifically stated that it does not confer any lease hold right or licence over the property, in favour of the applicant.
4(10) The respondent denies that entering into licence agreement in furtherance to MOU is only a formality and on 03.07.2009 itself by MOU there was a concluded contract between the parties. The MOU does not confer any right, it was only recording of understanding between the parties and only the leave and licence agreement when signed concludes the contract and their right flows to both the parties. There is no enforceable right under MOU.
4(11) No leave and licence agreement was forwarded to the applicant, on the other hand the applicant had received all the necessary documents and since they were not satisfied with the place and the other terms, and the contract was concluded it was not signed by them. Further the documents filed in the court would itself go to prove that they were furnished with the draft licence deed.
4(12) In fact on 04.02.2010, when the applicant had discussion with the respondent representative, he was very angry and walked away in the middle of the meeting. In fact Mr.Kim Culley retruned the amount towards the part of the security deposit and the applicant refused to receive the same informing that he will meet us in the court of law. Immediately on the very next day that is on 04.02.2010 without signing any agreement, the applicant sent the cheque for the balance amount towards security deposit under the registered post which was received by us 08.02.2010. The respondent did not accept the cheque and had returned the same.
4(13) On 11.01.2010 there was a e-mail sent to the applicant stating that Koisk No.7 is not available. It was also mentioned in the letter sent along with the cheque referred above, that the allotment of space in favour of the applicant will be mutually decided and thereafter the respondent will receive the cheque from the applicant.
4(14) There was no concensus ad-idem-between the parties and till the end no finality was reached between the parties. There was no concluded contract between the parties. It is denied that the respondent had repeatedly assured allotment of Koisk No.6 and 7 as well as find dining area. The E-mail sent by the applicant informed that he had decided to strict to kiosk No.7 and now with a false case he has approached this Honble Court claiming Koisk No.6 and 7 as well as find dining area in the Magazine floor forgetting for the moment that there no agreement in respect of the same.
4(15) The applicant has no cause of action, no legally enforceable right. The MOU itself provided as to what should happen, the applicant can at the worst seek for return of the deposit. The applicant under the guise of filing the application under section 9 of Arbitration Act seeks some decree for specific performance, while in fact he has no legally enforceable right. He has no interest in the property mentioned in the schedule and cannot claim any interest also. M/s. Southern Cusine, the third party is in possession and is also making alteration and interior works. The applicant has no case much less prima facie case. The balance of convenience is in favour of the respondent. The alleged prejudice and alleged irreparable hardship are imaginary and without any basis. The applicant has not even sought for any arbitration before filing this application. This application is not bonafide. The allegation that the respondent has changed his position and placed some orders and appointed new staff are denied and are for the purpose of this application. When MOU itself makes clear that no right flown in favour of the applicant and everything was only an offer and counter offer, the allegation that the applicant has changed the position is only an allegation made for the purpose of the case. Hence, the applicants are liable to be dismissed.
5.Heard Mr.R.Parthasarathy, the learned counsel for the applicant and Mr.T.V.Ramanujun, learned Senior counsel for M/s.V.J.Latha, for the respondent.
6.The learned counsel for the applicant would submit in his argument that the applicant a high quality vegetarian food court and carrying restaurant, business from the year 1948, with 5 branches in the city, had entered into a Memorandum of Understanding with the respondent on 03.07.2009, for conducting a food court at 'Express Avenue Building' constructed for housing, various shops to constitute a mega mall. The applicant had desired to enter into agreement and sent an e-mail dated 16.12.2008 to the respondent to which the respondent responded by sending an offer on 20.06.2009. According to the offer kiosk No.4 (enclosure) in the food court as well as, space for set up a fine dining restaurant in the food court. The said concurrence towards kiosk No.4 was changed to kiosk No.7 by virtue of the e-mail of the respondent dated 25.06.2009 and on the said understanding, the Memorandum of Understanding has been entered into between the parties for the kiosk No.7, which is located in 3rd floor of the 'Express avenue building'. According to the understanding, the period was fixed to 72 months, initially for the period of 36 months and with an option of extending a further 36 months. The applicant had also paid a security deposit of 10 months licence fee for the first three years at Rs.75/sq.ft. along with other charges and accordingly, a sum of Rs.5,04,565/- was paid in toto towards part of the security deposit, as per the Memorandum of Understanding and as demanded by the respondent dated 03.07.2009, through a cheque bearing No.415359 dated 03.07.2009 and the same was encashed by the respondent. He would further submit that the said entering of Memorandum of Understanding was subsequently varied through various correspondences through e-mail as set out in the typed-set of the application and finally on 23.11.2009, the respondent sent an e-mail, as produced in page 48, had offered a space for fine food restaurant in the mezzanine floor with kiosk No.6 and No.7 (3rd floor of the food court) of a plinth area of 1747.1sq.ft with super built area of 6813.69 sq.ft for a monthly licence fee with a minimum guarantee of Rs.3,06,616.05 or 15% revenue share of the net sales value, whichever is higher. The said e-mail was accepted by the applicant on 24.11.2009 through its e-mail which is produced in page 50 of the typed set and on that basis, a contract has been created which has to be culminated by executing other necessary formalities and the respondent had also asked the applicant to prepare leave and licence agreement on 24.11.2009 itself and therefore, the respondent is under the obligation to allot fine food restaurant in mezzanine floor and kiosk No.6 and 7 (3rd floor of the food court) as per the conditions mentioned in the e-mail dated 23.11.2009.
7.He would also draw the attention of the Court that the terms of Memorandum of Understanding dated 03.07.2009, coupled with the agreement reached in between the parties through e-mail, would make the subsequent inception of agreement as a mere formality as a concluded contract was created already in between the parties. He would refer to the last clause of the Memorandum of Understanding found in page 27 of the typed set that the parties would enter a formal leave and licence agreement by including the terms and conditions of the Memorandum of Understanding. He would also submit in his argument that the subsequent alterations of the terms of the agreement reached in between the parties will not in any way affect the agreement reached in between the parties. He would further submit in his arguments that the information given by the respondent on 08.01.2010, regarding its inability of giving fine dining restaurant, the alteration was also accepted by the applicant and he asked for original plan of kiosk No.7 as per MOU and it was not even accepted by the respondent in his e-mail dated 11.01.2010. He would also submit that the confusion over the agreement reached in between the parties has been admitted by the respondent in its e-mail dated 11.01.2010, which occurs at page 56 of the typed set, and the respondent had also accepted to talk and finalize in respect of the kiosk No.7 and the mezzanine floor with the applicant. The respondent is also barred from refusing to further the agreement as the said agreement was confirmed by the owner of the respondent Mrs.Singhania, which can be evidenced by an e-mail occurs at page 57. He would further submit that the offer of the respondent dated 23.11.2009 which was accepted by the applicant on 24.11.2009 was further confirmed subsequently by the parties through their e-mail occurs at page 56 and 58 and the entering of leave and licence agreement and other allied agreements are, only formalities to which the applicant is always ready to execute the said agreements.
8.He would further argued that on the contrary, the respondent instead of signing leave and licence agreement and other agreements for kiosk Nos.6 and 7 as well as for the fine dining restaurant in the mezzanine floor, sent an e-mail confirming kiosk No.6 alone and had mentioned that kiosk No.7 was allotted to some other client. The offer of Rs.23,12,210/- sent by the applicant through canara bank cheque dated 04.02.2010 towards the lease and licence agreement was returned along with a letter, but the cheque was not found with the said letter. He would further submit that the respondent had thus breached the agreement entered into between the parties and he is liable to execute the formal agreement of leave and licence and the common area maintenance agreement and facility and utility agreement and to put the applicant as the holder to the kiosk No. 6 and 7 and the fine food restaurant in the mezzanine floor in the said 'Express avenue building'. Instead he is attempting to enter into a contract with some other persons and thereby attempting to defeat the rights of the applicant. Therefore, the said dispute has to be referred to arbitration as per clause 30 of the Memorandum of Understanding, till then the respondent has to be prevented from altering the structure of the said property or to enter with any other person any leave and licence agreement for the purpose of having food court in the said building.
9.He would cite a judgment of this Court reported in 1998 II CTC 689 in between MultiChannel (India) Ltd represented by its Director v.Kavitalaya productions Private Ltd., for the principle that when once the contract was concluded earlier, nothing more to be added except a formal execution of a document and the non-execution of a formal agreement will not take away the right conferred under the negative covenant. He would also cite a judgment of Honble Apex Court reported in 2000 (I) SCC 586 in between Lata Construction and others v.Dr.Rameshchandra Ram Nicklalshah and another for the principle that in a case of novation when the two contracts are in consistent, the subsequent contract cannot be said to be in substitution of earlier contract. Again he had relied upon a decision of Bombay High Court reported in 2007 (4) CTC 257 (FB) in between Jyotsna K valia v. T.S.Parekh & Co. for the proposition that a written contract need not always be necessary to enforce the terms and conditions agreed in between the parties.
10.The learned counsel for the applicant would further submit in his argument that for preservation of any property which is the subject matter of dispute in the arbitration the Court can even resort to restoration of the property for the purpose of upholding justice under Section 9 of the Arbitration and Conciliation Act. He would rely upon a judgment of this Court reported in 2010 (1) CTC 300 in between ECC Leasing Co. Ltd., v.Paramount Airways Pvt. Ltd. He would further submit in his argument that the agreement reached in between the parties in respect of Kiosk No.6 & 7 and the fine restaurant area in the mezzanine floor has been concluded and in that event, the respondent is under obligation to honour the agreement and therefore, the respondent has to be injuncted as prayed for in the applications from in any way licensing, dealing with or parting with possession with any other person except the applicant and from carrying out any alteration or interior work in the schedule mentioned property pending arbitration proceedings for preservation of the subject matter of the dispute in between the parties.
11.Mr.T.V.Ramanujun, the learned Senior counsel while arguing for the respondent, would submit in his argument that the correspondence through e-mail, the Memorandum of Understanding are no doubt true, entered in between the parties and the said correspondences or the Memorandum of Understanding would not create any tangible right in favour of the applicant for seeking any injunction as prayed for by the applicant for the purpose of preserving the subject matter of the dispute. He would further submit in his argument that the Memorandum of Understanding entered into between the parties on 03.07.2009 was only an agreement to enter into an agreement and the said subject matter of the Memorandum of Understanding was not concluded in between the parties and the alleged conclusion of the contract on the basis of the e-mail sent by the respondent on 23.11.2009 which was said to have been accepted by the applicant, would not culminate into any contract since it was subsequently varied by various offers and counter offers which would be evident from the series of exchange of e-mails. He would further submit in his argument that the applicant himself sought for the allotment of kiosk No.7 alone, as per the Memorandum of Understanding, even after the e-mails sent in between the parties regarding kiosk No.6 & 7 and the fine food restaurant in the mezzanine floor and therefore, the said subsequent alteration would go a long way to show that there was no concluding contract reached in between the parties. He would also insist in his argument that the status of the parties had been clearly mentioned in the Memorandum of Understanding itself and the Memorandum of Understanding would go to show in various clauses referred the applicant as a proposed user only, the refund for forfeiture clause mentioned in 27 would go to show that there should be a leave and licence agreement to be culminated in between the parties and if not, the owner of the building shall refund the security deposit either wholly or in part and the owner may decide and the discretion is left to the owner for dealing with the property. He would draw the attention of the Court that since no leave and licence agreement had been culminated in between the parties, the security deposit of Rs.5,04,565/- was returned to the applicant and he has also received the same and therefore, there is no concluded contract in between the parties. He would also stress in his argument that the exit provision in clause 33 of the Memorandum of Understanding would also go a long way to show that the Memorandum of Understanding is not a full-fledged agreement. He would also submit in his argument that the Memorandum of Understanding and the subsequent exchange of e-mails, according the lease entered into lease and licence agreement have been culminated in respect of any valid agreement in consensus of mind in between the parties and it has to be written in between the parties by way of leave and licence agreement, common area maintenance agreement and facilities and utilities agreement and unless and otherwise all these agreements are entered into between the parties no contract could be enforced, as if any oral contract has been created in between parties governing all provisions mentioned in those written agreements. He would also bring it to the notice of the Court that the said complex was built by the respondent for the purpose of licensing so many enclosures, namely kiosks to various parties with a right to access to common area and the utilization of various facilities provided individually and commonly and the mere acceptance to go for allotment of certain enclosures namely kiosk to the applicant will not materialise to a full fledged grant of licence or agreement. The nature of the agreement would go to show that it cannot be entered orally or by impliedly through the action of parties but it should be clearly entered into between the parties by writing various terms and conditions of the contract in between the parties and therefore, Memorandum of Understanding dated 03.07.2009 and other e-mails exchanged in between the parties would go to show only an agreement to enter into an agreement. The said agreement entered into between the parties cannot be enforced as if it is completed contract. The applicant has no prima facie case to ask for the subject matter of the dispute to be preserved by the way of injunction against the true owner. He would also submit that the applicant could, at best, claim damages and that would also only the return of the advance of Rs.5,04,565/- which was also returned by the respondent to the applicant, promptly. Moreover, he would submit in his argument that the unilateral act of the applicant in sending a sum of Rs.23,12,210/- through Canara Bank cheque has not been accepted and it was immediately returned by the respondent along with a covering letter and since it was not enclosed along with the letter due to the clerical mistake, it was again sent subsequently and it also reached the applicant. He would again submit that there is no money belonging to the applicant, available with the respondent and there was no valid and enforceable contract entered in between the applicant and the respondent and therefore, the applicant cannot seek any injunction against the respondent.
12.Moreover, he would submit in his argument that the respondent is at his liberty to enter into leave and licence agreement with the 3rd parties, as the applicant had not approached the respondent with certainty of accepting the proposal of the respondent and executed the leave and licence agreement, common area maintenance agreement and utilities and facilities agreement on the basis of the proposal of the respondent. Since the applicant had not come with true intention of entering into any agreement to the terms and conditions imposed, by the respondent, the respondent had no intention to enter into an agreement of leave and licence regarding the kiosks in the said 'Express avenue building. The respondent had already entered into a contract with one M/s.Southern Cusines and the said concern had taken possession of the said property mentioned in the schedule and he had also made alterations for his needs.
13. The learned senior counsel would also bring into the notice of this Court a judgment reported in 2010 (1) LW 951 in between Cholamandalam DBS Finance Ltd. V.Sudeesh Kumar for the proposition that the principles based on which an order under Section 9 is passed are not very much different from the principles based on which interim injunction under Order 39 Rule (1) CPC is granted. He would also submit that there is no prima facie case for the applicant to seek for an injunction against the respondent, since there was no concluded contract in between them and no irreparable injury would be caused to the applicant in the event of not granting an interim injunction in his favour, since he was already returned the advance as per the Memorandum of Understanding. The learned senior counsel would also bring into the notice of this Court, a judgment of this Court reported in 2009 (II) CTC 97 in between Jain Housing & Constructions Ltd represented by it Managing Director vs. V.Ramiah and another for the proposition that the Memorandum of Understanding is not a concluded agreement when some reservations are made regarding the execution of a detailed agreement as stipulated. He would further submit in his argument that if for any reason, this Court is granting the relief of injunction to the applicant, necessarily the real owner of the property namely the respondent would be put into jeopardy in enjoying his right over the property and it would cause an irreparable loss to him. He would further insist in his argument that the respondent had also entered into a leave and licence agreement with the 3rd party as aforesaid and the right of the 3rd party would also be prejudiced and the respondent would be put to further damages, if any order is passed in favour of the applicant, on the basis of the inconclused Memorandum of Understanding. Therefore, he would submit in his argument that the balance of convenience is also in favour of the respondent and in favour of not granting the interim injunction as sought for.
14.I have given anxious thoughts to the arguments advanced on either side. The admitted facts arising from the dispute in between the parties would be that the applicant and the respondent had executed a Memorandum of Understanding on 03.07.2009, in respect of the Kiosk No.7 in the 3rd floor of 'Express Avenue Building' belonging to the respondent to enter into a leave and licence agreement for the conduct of a food court by the applicant, on the terms and conditions mentioned them to be entered in between the parties by a separate leave and licence agreement. The said understandings in between the parties have gone to radical changes in between them through the e-mails sent in between parties. The stand of the applicant would be that the Memorandum of Understanding would be valid in between the parties and as such it created a contract in between the parties and the terms and conditions of the Memorandum of Understanding should be followed in the subsequent agreement to be entered into between the parties in future. For that, the last clause of the Memorandum of Understanding was relied upon by the applicant, which would run as follows:-
The parties will enter into a formal leave and licence agreement including the above terms and conditions. The owners advocates shall prepare the leave and licence agreement.
15.However, it has been controverted by the respondent that the Memorandum of Understanding is not a concluded contract in view of various reference made in the MOU itself that the applicant was only a proposed user. The clause 27 in MOU was relied upon by the respondent that there should be a leave and licence agreement be executed in between the parties and if not, the security deposit paid by the applicant should be returned without any interest. Clause 27 of Memorandum of Understanding, has been strongly relied upon by the respondent and it was argued that the Memorandum of Understanding is nothing but an agreement entered into between the parties to enter into an agreement and therefore, it is not a contract, enforceable in law.
Clause 27 of MOU would be as follows:-
"27.Refund and Forfeitures: If, for any reason whatsoever, this Memorandum of Understanding does not culminate into a Leave and License Agreement the liability of the Owner is limited only to the refund of the Security Deposit without any interest. The Owner shall not be liable in any other manner. However, if the license fails to materialize owing to any default on the part of the Proposed User then the Owner shall refund the Security Deposit either wholly or in part as the Owner may decide, and shall deal with the Proposed Licensed Area in its discretion."
16. Now the correspondence in between the parties through various e-mails are to be dealt with. It is no doubt true that kiosk No.7 was originally agreed to have given to the applicant through licence by the respondent, but subsequently it has been changed to kiosks No.6 and 7 along with fine food restaurant in the mezzanine floor in between 3rd and 4th floor. It was offered by the respondent on 23.11.2009 for the said course and it was promptly accepted by the applicant on the next day i.e. 24.11.2009. It has been argued by the applicant that the said acceptance would create a contract in between the parties and therefore, the respondent should allot kiosk No.6 & 7 and the fine food court in the mezzanine floor to the applicant and to enter into a leave and licence agreement and other formalities. Whether it would create a contract is to be dealt with in view of the subsequent activities of the parties. As per the original Memorandum of Understanding, it is a clear understanding in between the parties that subsequent execution of leave and licence agreement, common area maintenance agreement and facilities and utilities agreement in between the parties are necessary for the purpose of entering into a contract of lease and licence. The terms and conditions for payment of licence fee, common area maintenance fee and the facilities and utilities fee were mentioned in the Memorandum of Understanding and they were varied by virtue of subsequent alterations in the exchange of correspondence through e-mails between the parties. Therefore, the Memorandum of Understanding as originally entered into between the parties is now found altered. Whether such alteration was conclusive in between parties has to be considered with the subsequent action of the parties. The applicant had even after accepting the offer of the respondent on 24.11.2009 had further asked for the kiosk No.7 alone though his e-mail occurs at page 53 of the typed set dated 09.01.2010. The said e-mail would show that the applicant has now decided to strict original plan of kiosk No.7 signed by both of them. The said change of altitude and the kiosk was refused by the respondent through his e-mail dated 11.01.2010 which occurs at page 56 of in the typed set. The parties have agreed to go for a discussion for the purpose of entering into a final decision. This subsequent activities of both parties would not only show the confusion emanated from the side of the respondent but also on the side of the applicant.
17.In the aforesaid circumstances, the subsequent alterations through proposals and counter proposals have modified the understandings of parties reached through e-mail dated 23.11.2009 and 24.11.2009 and therefore they cannot be deemed as a concluded contract so as to vary with the terms of the earlier agreement through Memorandum of Understanding. The said Memorandum of Understanding reached in between both parties has also been varied with various proposals and counter proposals in between the parties. Therefore, the Memorandum of Understanding and the subsequent exchange of e-mails have not shown any contract has been concluded in between the parties for the purpose of conducting a food court either in kiosk No.7 alone or in kiosk No.6 & 7 and fine food restaurant in the mezzanine floor of the said building.
18. The judgment of this Court relied on the learned counsel for the applicant, reported in 1998 (II) CTC 689 in between MultiChannel (India) Ltd. represented by its Director v.Kavitalaya Productions Pvt. Ltd. would lay the following principle:-
Therefore, this not a case where the terms are settled completely, area of operation defined under the Letter of Intent or the cash flow quantified, all these things are yet to be worked out. The subsequent agreement is not a formal document in this context. Several mutual duties and obligations are to be settled. In such an event, it cannot be said that it is a concluded contract. Only when the contract was concluded earlier, nothing more to be added except formal execution of a document negative covenant has to be enforced and non-execution of a formal agreement will not take away the right conferred under the negative covenant. Laying stress on the cited judgment, it was argued on the side of the applicant that the last clause of the Memorandum of Understanding dated 03.07.2009 would be sufficient since a formal agreement in future has alone to be entered into between the parties.
19. As far as this case is concerned, the said agreement reached in between the parties in respect of Kiosk No.7 was varied in between the parties to kiosk No.6 & 7 and fine food court in the mezzanine floor and thereafter to kiosk No.7 and further to Kiosk No.14. Therefore, the subject matter of the Memorandum of Understanding has been completely varied from time to time and therefore, the parties have not rested upon the very subject matter for the formal agreement to be executed in future which is not merely a formal. The scope of entering into future agreement as mentioned in the Memorandum of Understanding in clauses 27 and 28 of the Memorandum of Understanding would show that there should be culmination of full fledged leave and licence agreement to be entered in between parties for the purpose of creating rights and stipulating liabilities in order to bind both the parties. It is also mentioned that the occupation of the said premises of either Kiosk No.7 or kiosk No.6 & 7 and the fine food restaurant in the mezzanine floor should have been done only after the execution of leave and licence agreement, common area maintenance agreement, facilities and utilities agreement. In the back drop of the present case when we go through the judgment relied on by the applicant, it has also been mentioned as follows:-
The question whether the contract was rescinded or varied with the consent of both the parties, treated as incomplete or inconclusive, depends upon the intention of the parties and the special circumstances of each particular case. It is not proper or permissible to look at one particular point and say that there was a concluded contract. For proper appreciation of the existence or rescission of the contract, as a matter of fact, of the intactness of the negative covenant in the agreement and its binding nature, the conduct and correspondence as a whole has to be looked into. In the circumstances of this case, we can see that the terms and conditions stipulated in the Memorandum of Understanding were already varied in between the parties. Therefore, the principle relied upon the applicant cannot be applied in this case.
20. The parties to MOU can rely upon only on the terms of MOU, if any enforceable alteration have been concluded in between parties. According to Clause 28 of MOU no interest will flow to proposed user as a licence through the said MOU. It runs as follows:-
"28. Bare License : This MOU creates no interest in the Proposed User vis-a-vis the Proposed License Area. The Agreement, when executed, shall be a bare license to the User to use the License Area and shall not create any lease, tenancy or other rights in favour of the User over the Licensee Area. The Proposed User shall alone be the licensee of the License Area on the License Commencement Date. The Owner shall not execute the Agreement in favour of any third party suggested/nominated by the Proposed User."
The said agreements which have been entered into between the parties are nothing but agreement to enter into further agreements.
21.Similarly, the judgment of Bombay High Court reported in 2007 (4) CTC 257 between Jyotsna K.Valia v. T.S. Parekh & Co. as relied upon by applicant would run as follows:-
A written contract or a contract in writing need not always be a contract signed by both the parties and may may consist of exchange of correspondence of a letter or letters written by one and assented to by the promisor without signature or even of a memorandum or printed document not signed by either party. As far as the present case is concerned, the intention of the parties would go to show that there should be a written agreement for leave and licence agreement and common area maintenance agreement, facilities and utilities agreement should have been entered into between the parties. Therefore, the concept of written contract or contracts need not be always a contract to be enforced is not applicable in the facts and circumstances of the present case, where in this case the various terms and conditions of licence, and the terms with regard to common area maintenance and facilities have to be agreed and entered into between parties. Moreover, the parties have not concluded definitely about the subject matter of the agreement. Therefore, the said judgment is also not in favour of the applicant.
22.In the judgment of this Court reported in 2009 (II) CTC 97 in between Jain Housing and Construction Ltd. Represented by its Managing Director v.Ramaiah and another it has been held as follows:-
In view of the rival contentions, we have to see as to whether the applicant is prima facie entitled for interim orders. It is a known position of law that for granting interim relief under Section 9 of the Arbitration Act, the applicant has to satisfy the similar ingredients for grant of interim orders under Order 39, Rules 1 and 2 of C.P.C. The right of the applicant if any, flows from the Memorandum of Understanding dated 14.07.2006 and we have already recorded the reasons that the Memorandum of Understanding is not a concluded agreement as Clause Nos.11 to 13 would state about the execution of a detailed agreement or such other document between the first respondent and the applicant. No doubt, the first respondent has realised three Pay Orders amounting to Rs.115.00 lakhs and the offer made by him to be refund the said sum along with additional charges of Rs.20.00 lakhs was rejected by the applicants. In the absence of the detailed agreement or such other agreements between the first respondent and the applicant, no rights accrued in favour of the applicant for the development of the property except to the extent that he is entitled to a sum of Rs.115.00 lakhs with interest. As far as this case is concerned, the parties had admittedly entered into a Memorandum of Understanding on 03.07.2009 but did not pursue the said understanding by entering into various alterations and variations regarding the subject matter and the terms and conditions of the Memorandum of Understanding and they have not concluded definitely regarding the subject matter of the agreement to be entered into between them. It has also been found that the Memorandum of Understanding is not having any definite terms and conditions to enter into a formal agreement. The facts regarding Memorandum of Understanding as discussed in the said judgment by this Court are similar to the present Memorandum of Understanding in this case, and therefore, the said principle is applicable to this case.
23. It was also brought to the notice of this Court a judgment reported in 2010 (1) CTC 300 and argued by the applicant that the powers given under order 39 Rule 1 and 2 of CPC would even extend to the restoration of possession and therefore, in this case, in the event that the Memorandum of Understanding be treated as a contract reached in between the parties possession of the property could be restored to its original position till the arbitration proceedings are over.
24. For that, we have to see whether there is any prima facie case in favour of the applicant, and if found in favour of the applicant, whether any irreparable loss would occur to the the respondent in the event of granting the relief in favour of the applicant. In my earlier discussion, I have found that the parties, namely the applicant and the respondent have confused, themselves in arriving to the subject matter for entering into a leave and licence agreement and other agreements and the subject matter namely kiosk No.7 in the Memorandum of Understanding was given up by the applicant. I have also concluded that the said Memorandum of Understanding was nothing but an agreement entered into between the parties for entering an agreement in future. Such an agreement entered for entering a future agreement cannot be termed as a valid contract, enforceable by any of the parties. When the said agreement entered into between the parties by way of the Memorandum of Understanding and through subsequent e-mails exchanged in between the parties are not conclusive, either in respect of the subject matter or in respect of the licence fee, common area maintenance fee and facility and utilities fee. Such an agreement, even it is considered to have been entered into between parties cannot be enforced subsequently before the Court of law or before an Arbitrator. The only dispute, which could be seen, as emanated in between the parties is refund of security deposit paid by the applicant. Even in clause 27 of the said Memorandum of Understanding, it has to be repaid. However, the said security deposit was said to have been paid by the respondent to the applicant, similarly, the proposed licence fee sent through a cheque for a sum of Rs.23,12,210/- by the applicant has been returned by the respondent and it was also not disputed. Therefore, I cannot satisfy myself that there was a valid contract entered into between the parties so as to enforce the same against the respondent. Therefore, there is no prima facie case established by the applicant for granting an injunction against the respondent in order to preserve the subject matter of the arbitration. If for any reason, interim injunction is granted in favour of the applicant against the respondent, it would certainly affect the right of the respondent to enter freely with the 3rd parties regarding his properties. Even if the applicant is prejudiced by the breach of terms and conditions of the Memorandum of Understanding that could be solved by way of damages, which could be ascertained. On the other hand, if any injunction is granted against the respondent as prayed for by the applicant, the damages likely to have caused to the respondent cannot be measured and it would be amounting to prevention of the real owner from enjoying his rights. Therefore, I could also see the balance of convenience is only in favour of the respondent and not in favour of the applicant. In case of any damages caused to the applicant, he can get the relief in the arbitration and for that the interim protection is not the injunction as sought for by the applicant. Viewed from any angle, I could see that the applicant is not entitled for any reliefs as sought for in both the applications.
For the aforesaid reasons, both the applications filed by the applicant seeking injunction against the respondent are dismissed with costs.
.03.2010 Index : Yes / No Internet : Yes / No ssn V.PERIYA KARUPPIAH,J., ssn Pre delivery Order in O.A. Nos.210 and 211 of 2010 .03.2010