Shivanand Vassudev Salgaocar vs Dattaraj Vassudev Salgaoncar

G.S. Patel, J.

A. Summary 1. What ought to have been an amicable family separation has most unfortunately degenerated into this bitter dispute in the law courts. The Plaintiffs claim that there is a binding agreement capable of specific performance. The Defendants say this is impossible: any separation must be ''surgical'', every last, minute detail provided for and agreed on, and it is only then that any binding agreement capable of being specifically enforced can be said to arise.

There is a very considerable volume of material before me, and some of the arguments and submissions on this were intricately constructed. I heard learned Senior Counsel for the parties at great length. I have studied this material as best I was able and considered with care, and, I must add, a great deal of anxiety the repercussions of the submissions on either side. There were aspects of it I found egregious; enough to consider at one stage an award of punitive costs. On reflection, and on re-visiting the matter several times, I do not think this would be fair given the nature of the disputes. For this reason, while I have finally found for the Plaintiffs, I have not awarded costs though statements of costs were given to me at my request, and these are considerable by any measure. In the final analysis, this is not just a matter of a statutory provision or one constrained only by precedent for matters such as these tilt one way or the other on their own facts. It is also a matter of what does or does not constitute an equitable remedy, the circumstances in which relief can or should be granted, and what the frame of that relief ought to be.

The Plaintiffs claim specific performance of what is described as a Family Arrangement. This is not a single document. It is an aggregation of seven separate documents: (1) a Memorandum of Understanding dated 4th October 2009 between the 1st Plaintiff and the 1st Defendant, each said to be representing their separate ''groups'', and which I will outline in greater detail shortly; (2) the Plaintiffs'' proposal dated 26th October 2009 for segregation of the family businesses, together with a revised proposal of 23rd November 2009; (3) a letter dated 11th December 2009 from the 1st Defendant to the 1st Plaintiff setting out some amendments to the Memorandum of Understanding; (4) a letter of election of the same date also from the 1st Defendant to the 1st Plaintiff, said to be an acceptance of the Plaintiffs'' proposal for segregation of the businesses; (5) closed sealed bids for two residential properties of the two groups and the declaration or announcement of the 1st Defendant as the purchaser of one of these after the bids were opened; (6) the Defendants'' proposal for division and segregation of certain real estate properties; and (7) an election letter dated 11th December 2009 from the 1st Plaintiff to the 1st Defendant accepting the Defendants'' immovable property division proposal. The contemplated division or separation is one that is said to relate to family businesses, assets and properties, including interlocking shareholding.

Till the time of the Family Arrangement, the two branches of the family were united. They shared a common ancestral seat, and though each may have use of separate parts of it, there are common areas as well. By all accounts, there has been, till now, no history of inimical relations between the two groups. The action is opposed by the 1st Defendant on the ground that, firstly, there is no concluded or binding agreement capable of specific performance; secondly, that parties were only at the stage of negotiations; thirdly, that the arrangement is contrary to public policy being tax evasive; and fourth, that there was an offer made that was never accepted in respect of one section of the properties. Defendants Nos. 2 to 8 have also opposed it on the ground that they are not bound by the Family Arrangement not being specifically made parties to it, and, as far as Defendants Nos. 2 to 4 are concerned, that the arrangement imposes an unconscionable tax burden on them. I have considered all these submissions and the considerable material before me, and have been unable to find substance in the defence. I have granted the injunctions sought, with some modifications.

B. FACTUAL

Vassudev M. Salgaocar, the father of the 1st Plaintiff and the 1st Defendant, was an industrial magnate of some renown. In his lifetime, he established a very substantial industrial and business empire, chiefly in mining in Goa, and shipping, travel, hospitality and real estate. By the time he died in 1984, he had amassed a considerable fortune. Most of his businesses were managed or controlled through the 9th Defendant to this suit, V.M. Salgaocar & Brother Pvt. Ltd. Shortly after Vassudev Salgaocar''s demise, his eldest son, Anil Salgaocar, separated his interests and businesses, leaving the remaining enterprises to be managed and looked after by his second and third sons, the 1st Plaintiff and the 1st Defendant.

Defendants Nos. 9 to 29 are all private limited companies equally held and controlled by the 1st Plaintiff and the 1st Defendant. Defendant No. 30 is a partnership firm. Its partners are Plaintiffs Nos. 1 to 4 and Defendants Nos. 1 to 4. Defendant No. 31 is a joint venture, half of the shareholding of which is held by Defendant No. 9. Throughout the proceedings, and in this judgment, Defendants Nos. 9 to 31 are referred to as "the VMSB Group". The 2nd Plaintiff is the wife of the 1st Plaintiff, and Plaintiffs Nos. 3 and 4 are their children. Plaintiffs Nos. 5 to 7 are private limited holding companies or investment companies. Plaintiff No. 8 is a limited liability partnership. The 1st Plaintiff ("Shivanand") controls Plaintiffs Nos. 5 to 8: they act on his directions. Plaintiffs Nos. 5 to 8 hold equity on behalf of Shivanand in the VMSB Group. Defendant No. 2 ("Dipti") is the wife of the 1st Defendant ("Dattaraj"). Defendants Nos. 3 and 4 are their children. Defendants Nos. 5 to 8 are holding or investment companies controlled by Dattaraj and which are said to act at his direction. They hold equity in the VMSB group on Dattaraj''s behalf. Dattaraj himself personally holds 80% of the equity of Defendants Nos. 5, 6 and 7 and 50% of the equity in Defendant No. 8. This is a factor that materially affects one of the submissions taken in opposition to this Notice of Motion.

There are thus two families and three groups. Shivanand''s family is Plaintiffs Nos. 1 to 4; and "the Shivanand Group" includes them and the companies they control, Plaintiffs Nos. 5 to 8. Dattaraj''s family is Defendants Nos. 1 to 4, and "the Dattaraj Group" includes them and the companies they own and control, Defendants Nos. 5 to 8. The third group, the VMSB Group, is Defendants Nos. 9 to 31, and it and every entity in it, is in the joint control and management of Shivanand and Dattaraj. Both Shivanand and Dattaraj are CEOs of the hotel businesses of the VMSB Group. All final decisions are said to be taken by them jointly. Each represents the interests of his own group, and each is said to control the various companies and entities in his own group.

The suit and the Notice of Motion are resisted by the Dattaraj Group and the VMSB group principally contending that except for Dattaraj himself (i.e., personally), none of the other persons or entities in his group were ever aware of this Family Arrangement. The charge here is led by Dipti. The second ground of attack is that the Family Arrangement is intrinsically tax evasive and hence against public policy. The final defence is that all else being assumed, the Family Arrangement has worked itself out and nothing remains to be done. I will consider each of these in some detail presently, but I must state straightaway that I have found no merit in any of these defences. They seem to me singularly odious, given the manner in which matters unfolded, and nothing but a brazen attempt by the Dattaraj Group to sequester to itself properties and assets that it could not otherwise have got but for the Family Arrangement.

In 1999, the Shivanand and Dattaraj Groups began considering a division and segregation of the Vassudev Salgaocar conglomerate of businesses, a distribution of the immovable properties in Vassudev Salgaocar''s estate ("VMS Estate") and a division of two residential properties named "Hira Vihar" and "Baina House" (together, "the Residential Properties"). This could not have been easy, and it certainly took some time: the parties were guided by one N.V. Iyer, the Managing Partner of M/s. C.C. Choksi, a firm affiliated with the reputed international tax consultancy and accountancy firm of Deloitte, Haskins & Sells ("Deloitte"). After Iyer, this consultation continued with Dileep Choksi ("Choksi"), a family tax consultant, and his associates at Deloitte. During the course of this advisory work, Deloitte''s staff visited the offices of the Shivanand and Dattaraj Group in Goa and was given access to various documents and records.

In April 2008, the Plaintiffs say, Choksi suggested four alternatives for division. These were discussed. On 12th July 2008, Dattaraj offered to prepare a proposal. Broadly, the idea was that the family businesses would be divided in two. Shivanand would have the option of choosing either lot. There is some mileage sought to be drawn by the Plaintiffs about who was present at this meeting; I will return to this later, to the extent I find it necessary. In any case, Dattaraj did work on the proposal, assisted by his various consultants and advisors. Again, the process took some time, and it was not till February 2009 that Dattaraj''s proposal took final shape. On 2nd February 2009, Dattaraj sent Shivanand a draft Memorandum of Understanding. This had a proposal for division of the family businesses. Though in draft, it contained detailed provisions for implementation. Shivanand did not accept this, finding it one-sided. What is, however, of some consequence, that this draft emanating from Dattaraj -a copy is Exhibit "D" to the plaint-clearly showed him acting not just for himself but for his group and contemplated Shivanand acting for his group in return.

Two months later, on 2nd April 2009 there was a meeting in Mumbai at the Taj Mahal Hotel & Towers Chambers. Shivanand and Dattaraj were both present, as were their very many advisors and consultants. Again, much is sought to be made in the plaint of the fact that among those advising Dattaraj were a solicitor and an accountant who work closely with the Reliance and Ambani industrial group: Dipti is Mukesh and Anil Ambani''s sister. I state this here not because I attach any special importance to it, but because the Plaintiffs do; how much, if at all, this has any bearing on what followed is a matter that I will turn to later, and to the extent I think necessary. This meeting of 2nd April 2009 was evidently not determinative in any way: several meetings followed, till mid-September 2009. During these discussions, it seems to have been agreed that Shivanand would now prepare a proposal for division of the family business, giving Dattaraj the first choice of two lots, and Dattaraj would focus on a division of the VMS Estate, giving Shivanand the first choice of two lots.

These meetings, discussions and negotiations finally resulted in a Memorandum of Understanding ("MoU") dated 4th October 2009. This is the first of the several documents that comprise the Family Arrangement that is the subject matter of this suit. It seems clear that Defendants Nos. 9 to 30 were very much part of this, for appropriate resolutions dated 29th September 2009 were passed by the boards or partners of these entities. Shivanand and Dattaraj were even appointed as Additional Directors to the boards of those companies on which they did not till then serve so that these resolutions could be passed. These resolutions accord consent to the proposed allocations of responsibilities for the business of each entity. The proposed restructuring is referenced. The minutes of the meetings for Defendants Nos. 9 to 29 were signed by either Shivanand or Dattaraj, and they each certified the respective copies of those minutes. The minutes of the meeting of the 30th Defendant firm''s partners were signed by both Shivanand and Dattaraj, for themselves and as Constituted Attorneys for their wives and children. Shivanand had the companies in his group pass formal resolutions in terms similar to those passed by the other companies.

Shivanand and Dattaraj executed this MoU. A copy is Exhibit "H" to the plaint. It provides for the division of the family businesses, the VMS Estate and the two Residential Properties. It details the various steps and actions to be taken by each group in implementation. Annexed to it is a draft Power of Attorney for the proposed demerger and a draft Agreement for Sale of the Hira Vihar property. Both drafts are initialled by Shivanand and Dattaraj. The MoU specifically says that both Shivanand and Dattaraj have signed it for themselves and on behalf of those persons and entities listed in Schedules 1 and 2 to it; and that both Shivanand and Dattaraj jointly represent the parties in Schedule 3. This array covers all the parties and entities: Schedule 1 is Plaintiffs Nos. 2 to 8; Schedule 2 lists Defendants Nos. 2 to 8; and Schedule 3 lists Defendants Nos. 9 to 31 plus for public trusts which, too, passed resolutions, but whose assets are, and quite rightly, not the subject matter of this dispute. It is in this context that the Plaintiffs say that in signing the MoU Shivanand and Dattaraj acted not only for themselves individually but also for their families and entities in their groups. Defendants Nos. 9 to 31, the VMSB Group, are said in the MoU to be in the joint control and management of the two brothers. The MoU intended the restructuring of the VMSB Group and its segregation in two between Shivanand and Dattaraj.

This MoU, fundamental to the Plaintiffs'' case, seems to contain a carefully thought out scheme. It begins with the broadest view of the nature of the family enterprises and then proceeds to the functional elements and details of the separation. The entirety of the family businesses was divided in two: first, the iron ore mining business ("the Mining Business"); and, second, the hospitality, hotels and real estate business, with all liquid assets ("the Hotel Business"). Two ''baskets'' of assets were to be created by Shivanand and his team for his Group. Dattaraj was to be given the choice of selecting either. Provisions were made for payment, use of logo, licensing and assignment of trade marks, and so forth. The effective date for separation of the VMSB Group was 1st April 2009. Shivanand was to submit his proposal for the segregation of the Mining Business basket and the Hotel Business basket (everything else) by 20th October 2009, with a 15-day grace period. That proposal could contain provisions for payment of any valuation differential as well. It was to specify the method and manner of the segregation. Within 15 days of submission, Dattaraj was to submit any queries for clarification or further particulars, but without changing the structure of the proposal. These queries were to be answered in 15 days. All modifications proposed were to be discussed and finalized in a timely manner and, in any case, within 45 days of receiving Shivanand''s proposal, Dattaraj was to choose one of the two baskets. That choice was to be binding. Importantly for the present purposes, Cl. 33.2 provided for the sharing equally of all tax liabilities in relation to this business segregation and asset transfer.

The MoU also dealt with the VMS Estate. Dattaraj was to prepare a proposal for its division, and for all the real estate in it, again making two baskets. This did not include Baina House as that was one of the two Residential Properties, for which there was a separate provision in the MoU. Dattaraj was to submit his VMS Estate division proposal to Shivanand simultaneously with the latter''s submission of the family business division. Similar provisions were made regarding Shivanand seeking clarifications, finalization and an election by Shivanand.

Of the two Residential Properties, Hira Vihar and Baina House, the latter, though part of the VMS Estate was excluded from the VMS Estate division arrangements. Baina House in Mormugoa was the earlier residence of the Salgaocar Family, and was apparently not habitable, being in state of disrepair. Hira Vihar, on the other hand, was the residence of both families, the family seat. By all accounts, this is a splendid estate of about six acres or so on the Airport Road at Chicalim with a stately mansion set in verdant and landscaped grounds and of evident heritage and aesthetic value. The entire property is owned by Shivanand, Dattaraj and Green Hills Developers and Builders Pvt. Ltd. ("Green Hills"), a company equally held by the two brothers who are its only shareholders. Under the MoU, along with the division and separation proposals for the family businesses and the VMS Estates, the Shivanand and Dattaraj Groups were to deposit with Choksi their respective ''net offers'' in sealed envelopes for the outright purchase by each of the other''s undivided share, right, title and interest in these two Residential Properties. These bids were to be opened when the elections or choices for the two sets of baskets were made. The higher offer for Hira Vihar was to be accepted, and the losing bidder for that property was to get Baina House for no additional consideration. The successful bidder would pay the other the amounts agreed and share transfers and sale documents for Hira Vihar were to be executed, as was a Deed of Release or relinquishment.

Quite evidently, a segregation such as this required necessary applications to be made under the Companies Act to effectuate the demerger and division.

The two contesting groups met on 26th October 2009. Their respective advisors were in attendance. Shivanand submitted his proposal for division of the family businesses. There is on record his covering letter of 26th October 2009. This proposal divided in two lots the Mining Business and the Hotel Business. Sealed bids with net offers for the two Residential Properties were given to Choksi. Dattaraj submitted his proposal for the division of the VMS Estate, excluding Baina House. The two proposals were signed by Shivanand and Dattaraj respectively in two counterparts, each retaining one.

Shivanand and Dattaraj also both signed a letter appointing Choksi as an Escrow Agent under the MoU. He was to hold the documents and the amounts mentioned in the appointment letter. The documents were all initialled by both brothers and included instructions, a form of the proposed power of attorney, a proposed agreement for sale of Hira Vihar and a pro-forma bid for the two Residential Properties. Choksi accepted the appointment.

The procedure contemplated in the MoU began. Dattaraj and his group sought clarifications on Shivanand''s proposal. The two sides met several times. Some amendments and revisions were discussed and agreed. A revised proposal of 23rd November 2009 was prepared. There then followed a meeting on 11th December 2009 in Mumbai. Shivanand and Dattaraj were present, as were their respective advisors. Dattaraj submitted a letter dated 11th December 2009 setting out agreed amendment to the MoU. Shivanand accepted these. He also delivered the revised proposal dated 23rd November 2009 under cover of his letter dated 11th December 2009 to Dattaraj, who accepted it. Both brothers signed the revised proposal in two counterparts.

Dattaraj now chose the Hotel Business basket. He did so by what the Plaintiffs calls a letter of election, one that is also dated 11th December 2009. This was signed by Dattaraj and given to Shivanand, who acknowledged receipt.

The sealed bids for the two Residential Properties were opened in Choksi''s presence. Dattaraj''s offer was the higher. In terms of the provisions of the MoU, Dattaraj gave Choksi a cheque for 25% of the net offer. Shivanand signed an Agreement for Sale and share transfer forms for the transfer of his holding in Green Hills. These were also given to Choksi. All these were to be held in escrow by Choksi.

As regards the VMS Estate, Shivanand chose Basket ''A'' of the two lots proposed by the Dattaraj Group. He submitted a letter of election, also of 11th December 2009, to Dattaraj.

These then are the ingredients of the what the Plaintiffs describe as a concluded agreement capable of specific performance, i.e.,

(a) The MoU of 4th October 2009;

(b) The Shivanand Group''s family businesses separation proposal dated 26th October 2009 read with the revised proposal of 23rd November 2009;

(c) Dattaraj''s letter dated 11th December 2009 setting out agreed amendments to the MoU;

(d) Dattaraj''s letter of election of 11th December 2009 to Shivanand accepting the Shivanand Group''s family businesses segregation proposal and electing to take the Hotel Business;

(e) The opening of the rival sealed bids for the two Residential Properties and the declaration of Dattaraj as the higher and therefore successful bidder for Hira Vihar;

(f) The Dattaraj Group''s proposal for division and segregation of the VMS Estate (excluding Baina House) in two lots, Basket ''A'' and Basket ''B'';

(g) Shivanand''s election letter dated 11th December 2009 to Dattaraj accepting Basket ''A'' of the proposed VMS Estate division proposal.

Now this is the Plaintiffs'' version of what happened between the time of the MoU and 11th December 2009. The 1st Defendant has a somewhat different story to tell, one that I will consider in some detail shortly.

To continue with the Plaintiffs'' narrative: On 17th December 2009, the Shivanand Group sent a draft scheme of demerger under Sections 391-394 of the Companies Act, 1956 to the Dattaraj Group. This involved the 9th Defendant, the lead company, VM Salgaocar Brothers Pvt. Ltd., which was to be the demerged company, and the 20th Defendant, V.M. Salgaocar Corporation Pvt. Ltd., to be the resultant company. The demerged undertaking, identified in the annexures to the draft, was to be moved from the 9th Defendant and merged into the 20th Defendant. The Mining Business would remain with the 9th Defendant. The Shivanand Group was to infuse Rs. 385 crores into the Hotel Business, including the resultant company, Defendant No. 20. Shivanand claims to have arranged for these funds, and says that although this came at considerable expense, his Group was ready and willing to perform its obligations and to make payment of this amount of Rs. 385 crores. On 12th January 2010, Shivanand emailed Dattaraj asking for a meeting and saying he now had the funds ready.

It is at this point that matters began to unravel. In January 2010, the Plaintiffs say, the Dattaraj Group began raising issues about tax implications. They said they needed opinions on tax issues from Senior Counsel and tax experts. This, the Shivanand Group says, was surprising since the Dattaraj Group had always had as part of its advisory entourage at least one experienced Chartered Accountant also known to be an expert on taxation law. There was no response to the draft demerger scheme. Requests for meetings were either delayed or ignored. Dattaraj consented to an extension of time for making payment under the MoU, inter alia by several letters between 2nd March 2010 and end April or early May 2010. In parallel, a number of other issues seem to have been raised including the transfer over of household and administrative staff and employees. There were also some meetings and discussions but none of these resulted in any further agreed modification or agreement.

Undeniably, several other actions were taken in the meantime, none of which were, but for the Family Arrangement, either necessary or even perhaps possible. These included an increase in the share capital of the 20th Defendant, an amendment of its articles, and its change of name from Sterling Granites Pvt. Ltd. to its present name; the purchase by the 9th Defendant of the five equity shares held by Shivanand and Dattaraj in the 20th Defendant, thus making the 20th Defendant a wholly-owned subsidiary of the 9th Defendant (itself contemplated by the 23rd November 2009 proposal), and an extension of time by the 9th Defendant''s Board of Directors for holding its Annual General Meeting and extending its financial year to 18 months. As part of its financial obligations, the Shivanand Group, through one of its investment companies, made a trade loan to the 9th Defendant of Rs. 50 crores, interest-free. This was part of the Rs. 350 crores to be paid out by the Shivanand Group. This amount was ultimately returned on 4th March 2011; but it is the payment at that time, on 31st May 2010, that is material.

Equally important are the steps taken toward effecting the separation of the Hotel Business and the Mining Business. The 20th Defendant was to be "the Hotel Co" under the revised proposal of 23rd November 2009. The Dattaraj Group was to subscribe to 50 lakh equity shares of Rs. 10/- each in the 20th Defendant as the proposed resultant company on demerger. The 20th Defendant''s share capital had already been increased to Rs. 5 crores. The Dattaraj Group did not have the funds to make this equity subscription. The Shivanand Group, through one of its investment companies, Great Lake Finance & Leasing Pvt. Ltd., advanced this amount of Rs. 5 crores to one of the Dattaraj Group''s investment companies, Nangaon. Real Estate Pvt. Ltd., which then advanced this entire amount to the 20th Defendant toward the required equity subscription. Of necessity, the amount was an advance, since the demerger scheme was still to be finalised. On 1st June 2010, Dattaraj and Dipti lent Rs. 2.5 crores each to Nangaon Real Estate Pvt. Ltd., which in turn repaid Great Lake Financing & Leasing Pvt. Ltd., thus closing the loop. Later, the 20th Defendant returned the advance to Nangaon Real Estate Pvt. Ltd., and that company in turn returned the amounts advanced to it by Dattaraj and Dipti. Again, it is not so much the final result but the fact that the parties did act on an understanding consistent with the Family Arrangement that is of consequence.

On 26th June 2010, one of the Dattaraj Group''s legal advisors reverted to Shivanand with a revised draft scheme of demerger. Also forwarded were a draft escrow instruction letter that Shivanand rejected outright, terming it illegal; a draft letter proposed from Dattaraj to Shivanand for proposed amendments to the MoU; and a draft amendment to the draft Segregation of Family Business Updated Agreed Implementation Plan of 29th May 2010. Shivanand''s consultant responded by email on 30th June 2010 with a revised draft of the demerger scheme and a revised escrow note or letter. Further drafts and emails were exchanged till September 2010.

On 8th October 2010, Shivanand emailed Dattaraj protesting at the continued delay and attempts at reopening issues previously settled. In this email, Shivanand said that if the draft scheme was not filed and the documentation completed by 25th October 2010, he would invoke the dispute resolution provisions of the MoU. Dattaraj replied on 22nd October 2010. He now claimed that what was envisaged under the MoU could not be implemented ''inspite of best efforts'', and that this had rendered the MoU otiose (in his words, ''unimplementable''), and that the MoU was now ''frustrated''. He claimed that there were now serious differences on the ''details, methodology and mechanics of implementation of the MoU which could not be resolved even after prolonged negotiations''. This is, even now, the heart of the Defendants'' case. But what is curious about this communication is its almost complete lack of specificity: at no point in it does Dattaraj say precisely what these problems were or why the MoU could not be implemented.

Further meetings were held, but without result. On 27th April 2011, Dattaraj emailed Shivanand saying that the MoU was not capable of implementation. Now, for the first time, he said that the proposal was ''tax evasive''; that the ''process'' contemplated by the MoU was complete and that the MoU had worked itself out. In other words, according to Dattaraj, the MoU was merely intended to be exploratory and nothing more.

Shivanand responded on 3rd May 2011, protesting at this turnaround and maintaining that there was a binding and concluded Family Arrangement. All that remained was the matter of implementation in a tax efficient manner, and, in any case, the MoU itself contemplated both sides sharing any tax burden, one to which Shivanand reaffirmed his commitment. Dattaraj replied, maintaining his stand, and matters were therefore now at an impasse.

Clause 28 of the MoU contains a dispute resolution clause. It requires all disputes to be resolved by exclusive reference to N.V. Iyer, and, failing him, to Mr. Y.H. Malegam, former partner of M/s. S.B. Billimoria & Co. Mr. Malegam is a professional financial, tax and accounting consultant of very high standing. On 1st June 2011, the Shivanand Group invoked arbitration. The Dattaraj Group replied on 9th July 2011. By consent, Mr. Malegam was appointed arbitrator. The Plaintiffs filed a Statement of Claim before him on 14th March 2012. Dattaraj filed a Written Statement on 14th May 2012. He did not, in this, dispute his description in the cause title of the claim as representing the Dattaraj Group, and, specifically, his wife Dipti and their two children or the entities in their control. Pleadings were completed with a Rejoinder and a Sur-Rejoinder being filed. Preliminary meetings were held between November 2011 and November 2012. Between 1st February 2013 and 25th February 2013 draft issues were exchanged. A meeting was scheduled on 26th February 2013 for settling issues and further directions.

It is at this point that Dattaraj''s wife, Dipti, so far very much in the background, enters the frame. The evening before the arbitration meeting, i.e., late on 25th February 2013, Dipti sent two applications to the Plaintiffs'' Advocates. These were sent through entirely new advocates acting for Defendants Nos. 2 to 8. Both were under Section 16 of the Arbitration & Conciliation Act, 1996. One was on behalf of the present Defendants Nos. 2 to 4, i.e., Dipti herself and her two children with Dattaraj, and the second was on behalf of Defendants Nos. 2 to 8. In these, Dipti raised a preliminary issue of jurisdiction. She said that she, her children and the Dattaraj Group investment companies (Defendants Nos. 5 to 8) were not parties to the Family Arrangement and, consequently, not parties to the arbitration agreement in it either; that Dattaraj never had the authority to represent them or to commit on their behalf; that, in any case, Defendants Nos. 5 to 8 were companies and absent any specific authority, which did not exist, Dattaraj could not bind those companies to any such agreement, understanding or arrangement; and that except for Dattaraj, none of the others (Defendants Nos. 2 to 8, Dipti, her children and the group companies) were at any point aware that the Shivanand and Dattaraj were entering into any such agreement.

Shivanand replied to these applications on 6th April 2013, and Dipti then filed an application on 7th May 2013 to strike out some statements in the Plaintiffs'' reply.

In the meantime, the Plaintiffs'' Advocates corresponded with the (new) Advocates for Defendants Nos. 2 to 8 in March and April 2013. Inspection was demanded, given and taken. This showed, inter alia, Board Resolutions from Defendants Nos. 5 to 8 all supposedly authorising Dipti to file the applications. All of these were of a year or so earlier (between 31 March 2012 and 7 April 2012), just after the arbitration began and before Dattaraj filed his Written Statement dated 14th May 2012. That inspection all threw up two more ''authorisation'' letters from Dattaraj and Dipti''s children, Defendants Nos. 3 and 4, supposedly siding with Dipti and therefore, or at least by necessary implication, saying that their father, Dattaraj, did not enjoy their trust and confidence.

By all accounts, the arbitration proceedings appear to have been abandoned. This suit and the Notice of Motion were filed on 15th July 2013. Comprehensive affidavits were filed and the Notice of Motion was finally taken up for hearing.

C. SUBMISSIONS AND FINDINGS

I. Plaintiffs

I heard Mr. Chagla, Dr. Tulzapurkar, Mr. Bharucha and Mr. Viraag Tulzapurkar, learned Senior Counsel for the Plaintiffs, Defendant No. 1, Defendants Nos. 2 to 4 and Defendants Nos. 5 respectively to 8 at great length over several days. Dr. Tulzapurkar referred to a compilation of documents in addition to the several affidavits already on record. There was some controversy about some of the documents in this compilation; I have addressed this while considering the rival submissions.

Mr. Chagla''s submissions, briefly, were that there is, as pleaded in the plaint, a binding and concluded agreement such as is capable of specific performance. It was solemnly assented to by Dattaraj acting for himself and for his entire Group. At no point did any person from his group say otherwise, and it is impossible to believe, as is now contended, that his wife, their children and the companies that are wont to act at his direction, were utterly oblivious of what he was saying and doing. Dattaraj has not acted in a furtive manner; he has sought advice, and sought it widely, roping in tax experts, Chartered Accountants and lawyers of some eminence. The MoU was acted on. Proposals were prepared. Baskets were identified for the Hotel Business and the Mining Business. Dattaraj made his election. He submitted his proposal for division of the VMS Estate, and Shivanand made his election. Dattaraj''s bid for Hira Vihar was the higher of the two, and was accepted in a most transparent manner.

The attempt to now renege on the agreement comes not from Dattaraj directly, but from Dipti, his wife. Her claims to innocence of all these matters are ex-facie unworthy of any credence. Mr. Chagla is at some pains to emphasise the fact that among Dattaraj''s advisors were two, a senior solicitor and a reputed accountant and tax consultant, both closely associated with the Mukesh and Anil Ambani, Dipti''s brothers. Though the Ambani brothers separated, and the consulting solicitor and the accountant were aligned one with each brother, they nonetheless came together to advise Dattaraj. This could only mean that they were also safeguarding the interests of Dipti and the two children. This was no mere coincidence: there were even meetings at Reliance''s offices.

To say that the ''scheme'' was not agreed on is wholly incorrect. What remained was a formality, a matter of procedure in how most efficiently to effect the corporate separation of the two businesses. That could not and did not affect the binding nature of the agreement and the Family Arrangement.

The entire argument about the demerger being tax evasive is a smokescreen, says Mr. Chagla. This comes very late in the day, and without any particulars. The MoU itself provides for the equal sharing of all tax burdens; there is simply no attempt to ''evade'' tax, and it can hardly be argued that proposing a scheme in the most transparent manner, while providing for tax efficiency, is tantamount to ''evasion''. Curiously, it is only Dipti who complains of it. The children, who are both adults, make no such grievance on their own.

Dipti herself is shown to have acted in furtherance of the Family Arrangement. She lent Rs. 2.5 crores to Nangaon Real Estate Pvt. Ltd. for the mandated equity subscription in the hotel company (Defendant No. 20). She is a lady of considerable means and an advanced education, employed with the VMSB since 1985 and the CEO of the hotel division, for which she draws a handsome monthly remuneration. She holds equity in the Dattaraj Group''s investment companies (Defendants Nos. 5 to 8), and is a director on those companies.

Specifically, the Dattaraj Group has garnered to itself to valuable immovable properties following the MoU and the Family Arrangement. It is developing a property at Chicalim, Goa, one that is part of the VMS Estate, but comes to the Dattaraj Group only on account of the VMS Estate division proposed, the election made by Shivanand, and its acceptance by Dattaraj. All this development is without intimation to the Shivanand Group. Similarly, the Dattaraj Group has renovated a guest house that belongs to Defendant No. 25 and converted its user from residential to commercial. Similarly, renovations are being undertaken to the Hira Vihar family seat by the Dattaraj Group unilaterally, on the basis that it now owns it entirely, a matter that is directly the subject of the Family Arrangement.

Clause 5 4 of the MoU says that neither side would be entitled to any dividend or share of profit from any of the entities in the VMSB group from 1st April 2008 till the segregation was completed. Now before the MoU, the 9th Defendant regularly paid out dividends from about 2005 onward. Similarly, the 30th Defendant partnership firm also distributed profits to its partners after 2005. On account of clause 5.4 of the MoU, both the 9th Defendant and the 30th Defendant stopped distributing dividend and profits after 2008. For the preceding three years, the average percentage of dividend declared and distributed by the 9th Defendant was about 36% of the company''s Profit After Tax. Carrying this forward, and applying it to the succeeding years, Defendants Nos. 5 to 8 would have received dividends in the aggregate of over Rs. 145 crores. On a similar computation, Defendants Nos. 2, 3 and 4 would have received about Rs. 134 crores as profit sharing from the 30th Defendant partnership firm. None of these Defendants ever objected to the non-distribution of dividend or profit, a result of, and only of, the provisions of the MoU.

As to the binding nature of the concluded agreement or Family Arrangement, Mr. Chagla submits that subsequent negotiations, first commenced on new points after a contract complete in itself has been signed, are not part of the negotiations going on at the time when it was signed. What remained was a mere modality or facilitation of the concluded Family Arrangement. It is one thing to say that a contract must not be inchoate. It is quite another to contend that every minute detail must be anticipated, expressed and provided for. Legal arrangements, required in the normal course and best left to legal advisers to settle, are such subsequent matters that cannot and do not affect an already concluded agreement. This is the view expressed by the Court of Appeals in Perry v. Suffields Ltd., [1916] 2 Ch 187 where the argument that the Court should go into subsequent matters inter-partes and hold that they somehow ''throw a light back'' on a previously concluded contract so as to make these subsequent matters a part of pre-contract negotiations sufficient to say that there was in fact no concluded contract was expressly repelled. This view was approved by a five-judge Bench of the Federal Court in AIR 1949 211 (Federal Court) The Perry v. Suffields view is also commented on in Chitty on Contracts, and this commentary has been approved by our Supreme Court in paragraphs 50 and 51 of Bharat Sanchar Nigam Ltd. and Another Vs. BPL Mobile Cellular Ltd. and Others, Once a contract is arrived at, it binds the parties. Any subsequent modification or alteration would have to be by express agreement or by necessary implication.

The question of whether or not the other Defendants are bound by the Family Arrangement is not, Mr. Chagla submits, res integra in view of the Supreme Court''s decision in Chloro Controls (I) P. Ltd. Vs. Severn Trent Water Purification Inc. and Others, Even a non-signatory can be subjected to arbitration without his or its consent, in exceptional circumstances. Though that was a case under Section 45 of the Arbitration & Conciliation Act, 1996, the facts of the present case leave no manner of doubt, Mr. Chagla submits, that Dattaraj was authorised to and did in fact represent his entire Group. Their consent was implicit, and it is further made explicit by their own subsequent conduct. Where a series of agreements constitute a composite transaction, and where all ancillary agreements are relatable to the principal or ''mother'' agreement, and where the performance of one agreement depends on the other, it is possible to invoke the principle of ''composite performance'' to bind even those who are not formally parties to the principal agreement.

When it comes to family agreements or arrangements in particular, a court must try and arrive at an understanding of how that agreement was structured and conceived. In K.K. Modi Vs. K.N. Modi and Others, the Supreme Court said that family settlements cannot be viewed in the same manner as ordinary commercial transactions. Internal mechanisms for effectuating the settlement are not to be lightly disturbed.

Mr. Chagla also relies heavily on the observations of the Supreme Court in Hari Shankar Singhania and Others Vs. Gaur Hari Singhania and Others, in particular these:

Family arrangement/family settlement

Another fact that assumes importance at this stage is that, a family settlement is treated differently from any other formal commercial settlement as such settlement in the eye of the law ensures peace and goodwill among the family members. Such family settlements generally meet with approval of the courts. Such settlements are governed by a special equity principle where the terms are fair and bona fide, taking into account the well-being of a family.

[Ed.: Para 43 corrected vide Official Corrigendum No. F.3/Ed. B.J./37/2006 dated 11-5-2006.] The concept of "family arrangement or settlement" and the present one in hand, in our opinion, should be treated differently. Technicalities of limitation, etc. should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. Also it can be seen from decided cases of this Court that, any such arrangement would be upheld if family settlements were entered into to allay disputes existing or apprehended and even any dispute or difference apart, if it was entered into bona fide to maintain peace or to bring about harmony in the family. Even a semblance of a claim or some other ground, as say affection, may suffice as observed by this Court in Ram Charan Das Vs. Girjanandini Devi and Others, .

In (1911) L.R. 38 I.A. 87 (Privy Council) : (1911) L.R. 38 I.A. 87 (Privy Council) the Privy Council examined that it is the duty of the courts to uphold and give full effect to a family arrangement.

In Sahu Madho Das and Others Vs. Mukand Ram and Another, (Vivian Bose, Jagannadhadas and B.P. Sinha, JJ.) placing reliance on Clifton v. Cockburn [ (1834) 3 My & K 76: (1824-34) All ER Rep 181 : 40 ER 30] and Williams v. Williams [(1867) LR 2 Ch App 294] this Court held that a family arrangement can, as a matter of law, be implied from a long course of dealings between the parties. It was held that: (SCR p. 43)

"[S]o strongly do the courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement...."

The real question in this case as framed by the Court was whether the appellant-plaintiff assented to the family arrangement. The Court examined that "the family arrangement was one composite whole in which the several dispositions formed parts of the same transaction".

In Ram Charan Das Vs. Girjanandini Devi and Others, this Court observed as follows: (SCR pp. 850 G-851 B)

"Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family.... The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another."

...

Further, in Krishna Beharilal Vs. Gulabchand and Others, this Court reiterated the approach of the courts to lean strongly in favour of family arrangements to bring about harmony in a family and do justice to its various members and avoid in anticipation future disputes which might ruin them all. This approach was again re-emphasised in S. Shanmugam Pillai and Others Vs. K. Shanmugam Pillai and Others, where it was declared that this Court will be reluctant to disturb a family arrangement.

The valuable treatise Kerr on Fraud at p. 364 explains the position of law:

"The principles which apply to the case of ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend."

In Kale and Others Vs. Deputy Director of Consolidation and Others, (V.R. Krishna Iyer, R.S. Sarkaria and S. Murtaza Fazal Ali, JJ.) this Court examined the effect and value of family arrangements entered into between the parties with a view to resolving disputes for all. This Court observed that: (SCC pp. 125-26, para 9).

"By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made.... The object of the arrangement is to protect the family from long drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour.... The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement.... The law in England on this point is almost the same."

(Emphasis supplied)

Halsbury''s Laws of England, Vol. 17, 3rd Edn. at pp. 215-16.

In K.K. Modi Vs. K.N. Modi and Others, (Sujata Manohar and D.P. Wadhwa, JJ.) it was held that the true intent and purport of the arbitration agreement must be examined (para 21). Further, the Court examined that: (SCC pp. 594-95, para 52)

"[A] family settlement which settles disputes within the family should not be lightly interfered with especially when the settlement has been already acted upon by some members of the family. In the present case, from 1989 to 1995 the memorandum of understanding has been substantially acted upon and hence the parties must be held to the settlement which is in the interest of the family and which avoids disputes between the members of the family. Such settlements have to be viewed a little differently from ordinary contracts and their internal mechanism for working out the settlement should not be lightly disturbed."

(Emphasis supplied)

Therefore, in our opinion, technical considerations should give way to peace and harmony in the enforcement of family arrangements or settlements.

Everything, Mr. Chagla says, points to both sides having accepted and acted on the Family Arrangement. How else, he asks, could Dattaraj have started development on the plot at Chicalim, renovations at Hira Vihar and the conversion of the guest house to commercial use except in implementation of the Family Arrangement? What other explanation can there possibly be for the routing of Rs. 5 crores by Dattaraj and Dipti through one of their investment companies into the 20th Defendant, the proposed resultant hotel company on demerger?

II. Defendant No. 1

The response from the 1st Defendant is, first, that there is no concluded agreement capable of specific performance at all, whatever label the Plaintiffs may choose to attach to it. The reason is that any such agreement or Family Arrangement, to lend itself to enforceability, had to be one that was not inchoate. To achieve that, it had to be an agreement of, as Dr. Tulzapurkar repeatedly puts it, ''surgical separation''. I understand that this to mean that every such agreement must, not only as a matter of fact but also as a legal requirement, provide for the smallest and most minute detail. Every bolt and every rivet must be in its specified agreed place. Dattaraj has, throughout these proceedings, been steadfast in his stand that there is no such concluded, binding agreement, and never was. What was intended, Dr. Tulzapurkar says, was a ''total'' segregation, with nothing to be left to be decided. This was of the essence. Correctly read, the MoU does not achieve this; and, especially when one reads it with the various proposals and counter-proposals, it is apparent that there was no concluded contract.

Dattaraj did sign the MoU. He did make an election. But this is insufficient, according to Dr. Tulzapurkar. It is yet inchoate. There are additional counter-proposals that the Plaintiffs have not disclosed. As I noted earlier, the 1st Defendant has a different version of the facts before the meeting of 11th December 2009 where the elections that I have mentioned earlier were made.

At this stage, Dr. Tulzapurkar invited attention to a four-volume compilation of documents, one that was said to have been put together for convenience. There was later an astonishing controversy about whether this compilation ought to have been presented in the manner that it was, and whether it was at all permissible for the Defendants to introduce through this compilation-of-convenience documents on record, but that, as we shall see, is a matter of little moment in the overall assessment.

According to Dr. Tulzapurkar, on 28th May 2010 there was yet another proposal from Shivanand, one that he calls Proposal 4, and still another a few days later on 30th May 2010, Proposal 5. These two proposals make all the difference and themselves indicate that there was no concluded contract. To put it in sequence: Proposal 1 was dated 26th October 2009, and came from Shivanand. This was amended on 18th November 2009, and this was Proposal 2. This was further amended on 23rd November 2009 by Shivanand, and became Proposal 3. There then followed the meeting of 11th December 2009 at which, or so Dattaraj says, Shivanand accepted the unamended proposal of 26th October 2009. But what followed in the next few months clearly establishes that there was no concluded agreement and that parties were still at the stage of negotiations. On 28th February 2010, Shivanand emailed Dattaraj saying that he had ready the funds he was required to pay under the MoU and resultant on the 11th December 2009. But Shivanand also protested at the repeated attempts by Dattaraj''s lawyers to effect changes that were unacceptable to him. Dr. Tulzapurkar reads this email, and in particular the words "I am happy to execute a further revised draft to record our agreement that the payment date is deferred to March 15, 2010 in terms of the document attached" to mean that there were still negotiations and no concluded agreement. I cannot agree. That sentence must be read in context. The email, read as a whole, makes it clear beyond a shadow of doubt that Shivanand insisted on the performance of the MoU, the proposals and the elections as put together on 11th December 2009. Any extension of time was an indulgence at Dattaraj''s request. If there was any doubt about this, it is, I think put to rest by Dattaraj''s several letters (Exhibits "R-1" to "R-6" to the plaint) extending time for payment while simultaneously saying "all other terms and conditions of the above Memorandum of Understanding remain unaltered and will continue to apply."

On 28th May 2010 and 30th May 2010, one of Shivanand''s advisors forwarded what Dr. Tulzapurkar calls Proposal 4 and Proposal 5 to Dattaraj''s advisors. Till as late as this, or even for a few months later, revised drafts were being exchanged. The scheme of arrangement, Dr. Tulzapurkar says, was never agreed since the segregation contemplated was much more than a mere basket-selection selection or election; that was only the first step, and it resulted in no concluded contract. How that ''surgical separation'' was to be done was also to be agreed. If, according to the Plaintiffs, there was a concluded contract with Proposal 3, then there was no occasion for Proposal 4 and Proposal 5. All the modalities too needed to be decided, and a scheme of amalgamation had to be agreed on. Proposal 4 and Proposal 5 do not reflect minor changes. They have wide financial impacts. Indeed, these two proposals are a continuation of a modification to Proposal 3 itself, one that was sent on by Shivanand to Dattaraj on 25th November 2009. Proposal 5 contains items not to be found in Proposal 3: a company is migrated from one basket to the other, for instance. In itself Proposal 3 was not complete. It required values to be agreed mutually before the date of election, which was never done.

Now as regards the VMS Estate, Dr. Tulzapurkar claims that there was a fresh proposal from Dattaraj sent to Shivanand on 8th December 2009 captioned "PROPOSAL IN RESPECT OF VMS ESTATE (Amended as mutually agreed by Shri SVS and Shri Dattaraj)". This introduced an entirely new item no. 6 regarding the remaining assets and liabilities of the VMS Estate, a provision not to be found in the first proposal for the VMS Estate. The two proposals are materially different and since Dattaraj had made the second proposal, the first had lapsed; yet the plaint proceeds on the footing that it was the first proposal that was accepted, i.e., by Shivanand accepting an offer that was no longer on the table. There could, it is submitted, in such circumstances be no question of a concluded contract.

Mr. Chagla protests with uncharacteristic agitation at this. This document of 8th December 2009 is, he says, smuggled in for the first time in this multi-volume compilation, the ''convenience'' of which is not far to seek. I believe there is good cause for Mr. Chagla''s indignation. I have not found this document anywhere in the affidavits, though a very large number have been filed. Dattaraj filed a detailed Affidavit in Reply. This so-called revised proposal is not referred to it once in that Affidavit in Reply. It is not annexed. What is now put into the compilation is some unsigned document, one that ought never to have been introduced, and certainly not without leave of the court. Even more telling, as Mr. Chagla says, is the fact that all other such documents were mutually initialled; all but this one.

Leaving aside all this Sturm and Drang about the introduction of this so-called revised proposal, what is material are two things: what Dattaraj did on 11th December 2009, a few days after this so-called revised proposal; and how he has in his Affidavit in Reply dealt with the Plaintiffs'' averments regarding the VMS Estate proposal. Had Dattaraj''s argument now advanced been correct, at the meeting on 11th December 2009 he would surely have said, when Shivanand made reference to Dattaraj''s first proposal regarding the VMS Estate and accepted that proposal. It is reasonable to suppose he would then have pointed out that this first proposal had lapsed, and that Shivanand should indicate his acceptance of this second, revised proposal. Dattaraj did nothing of the kind. He allowed Shivanand to accept the first proposal; and it was not till the introduction of this volume that he ever disputed that acceptance. On this, it seems to me fair to say that the second proposal was either never sent or, assuming it was, that it was Dattaraj who gave it up by not demanding its acceptance. If a proposal has ''lapsed'', it is the second, not the first. Dattaraj cannot possibly have it both ways: to present the first proposal, allow it to be accepted, have parties proceed on that basis and then turn around and say that "indeed, that was not the last proposal I sent you; what I sent you was something else entirely; and it is your fault if you accepted the wrong proposal."

Given the vigour with which this is canvassed, one might expect Dattaraj to have come out firing on all cylinders in his Affidavit in Reply; to say, in no uncertain terms, that this second proposal held the field, and that the first proposal could not have been accepted; and, more importantly, to say that Dattaraj himself had, in contemporaneous correspondence, said as much. What we have instead is a deafening silence, one that is, for that very reason, eloquent beyond any words. There is not a single reference to this second proposal in the Affidavit in Reply. There is not a single email, letter or note about it anywhere. At no point does Dattaraj say that his first proposal for the VMS Estate had ''lapsed''. The plaint proceeds on Shivanand''s acceptance of Dattaraj''s first proposal; and, in his Affidavit in Reply, so does Dattaraj. If his case now propounded was true, there would, in fact, be no MoU to speak of, and there would then have been no question of Dattaraj extending time for payment of the amounts under the MoU while assuring that all other terms and conditions would continue to bind.

Dr. Tulzapurkar''s response that this second proposal is a piece of evidence to which he is not required to plead, citing Order VI Rule 2, is merely disingenuous. This is not a matter as simple as that. This is fundamental to the 1st Defendant''s case and it is not unreasonable to expect a reference to it in the affidavits (which, if one wants to be technical, are not ''pleadings'' strictly speaking). A defence is sought to be constructed on this document, and it is no answer at all to say that it matters not if it was not referenced anywhere to dislodge the Plaintiffs'' claim or even in support of the 1st Defendant''s case. Dattaraj runs himself on his own sword: his Affidavit in Reply contains much in the nature of arguments and submission that falls entirely outside Order VI, Rule 2. It simply cannot be that those procedural rules apply to the elision of crucial material, but not to the inclusion of matter that is in no sense a ''pleading''. Whether or not this document of 8th December 2009 was ever sent and in what form will await trial. At a prima facie stage, on this state of the record and the pleadings, it is impossible to accept Dattaraj''s contention that his first proposal for the VMS Estate had lapsed and that his second proposal had never been accepted, thus rendering the entire Family Arrangement inchoate.

I am unable to accept Dr. Tulzapurkar''s submission, based on the Division Bench decision of this court in Haji Mahomed Haji Jiva v. E. Spinner & Co. 1900 2 Bom. L. R. 691, 696 that there was no unqualified and absolute acceptance, and that the stage of negotiation had not passed. There is nothing to indicate that on 11th December 2009, Dattaraj''s acceptance was qualified or came with a condition attached. For this reason, too, the reliance on Dhulipudi Namayya Vs. The Union of India, in inapposite. Indeed, the proposition in this judgment seems to me to be against Dr. Tulzapurkar: it follows the Federal Court decision in Surajmull Sagarmull and says in terms that merely because a new and collateral term is annexed to an absolute acceptance does not render the contract inchoate. The submission that the acceptance did not relate to the terms of the offer is, as I have noted, without substance. I am also unable to agree with the submission that the decision of a learned single Judge of the Gujarat High Court in G.S.R.T.C., Ahmedabad Vs. B. Arunchandra and Co. and Others, can be said to have laid down any principle of universal application, or one that can be imported to the case at hand. Paragraphs 49, 50 and 52 of that decision clearly show that it was decided narrowly on the facts of that case.

Dr. Tulzapurkar then relies on the decision of the Supreme Court in Mayawanti Vs. Kaushalya Devi, The submission is that there must be a valid and binding contract in respect of which between the parties there is a consensus ad idem. Stipulations and terms must not be uncertain, for where they are, there is no such consensus and no such contract. The acceptance must be absolute. What is to be seen, however, is whether these principles apply to the case at hand, the suggestion being that since parties were unclear on the modalities of the demerger, there was no concluded agreement at all. Before considering this submission, I must note the further authority cited by Dr. Tulzapurkar to the same effect, viz., the Division Bench decision of the Calcutta High Court in 60 CWN 423

To proceed now to a consideration of the question, the objection that there is no concluded agreement is generally taken in one or the other of two forms. It is said that there was only a conditional agreement and since the condition has not been fulfilled. the agreement never matured into a binding contract of which specific performance could be had. Or it is said that there was only a partial agreement, covering only some of the terms of the contract and since the remaining terms still remained to be agreed to, there was no completed contract which could be enforced. Mallick, J., appears to have regarded the present case as falling under the second category. He held that the offer of the Appellants had not been made on the basis of the conditions of sale, because they had not then been even seen, and since the Appellants had subsequently been proposing modifications of the conditions, it was clear that the parties had not passed the stage of negotiation. "Many points", observed the learned Judge, "have yet to be hammered out before the agreement is finalised"....

Whether or not there was a concluded contract depends upon the true construction of what the parties said or did or wrote at the time when the contract is said to have been concluded. If it appears that all the material terms were agreed to at the time or were capable of being ascertained without further agreement between the parties, a concluded contract must be held to have resulted. But if it appears that only some of the terms were agreed to, while other material terms remained still to be negotiated, no completed contract can be found. So also where it appears that although terms and conditions relating to all material matters were broadly referred to by the parties, the exact form of all or some of them had still to be negotiated and agreed to, it is not possible to find any precise contractual intention and it must be held that the contract had not been concluded. Again, if it appears that the agreement was only a conditional one, the acceptance being subject to certain conditions specified at the time or to be specified, and it is found that those conditions have not been fulfilled, no concluded contract can be said to have come into existence. On the other hand, if it appears that there was a mutual assent which, as to its nature, was unqualified and, as to its extent, covered all the terms under negotiation which included all material terms, then it must be held that there was a concluded contract and in such a case subsequent negotiations will not detract from its binding character. If, however, the subsequent negotiations show that the original negotiations did not cover certain material terms or that although such terms were mentioned, no agreement as to them was reached, then again it must be held that there was no complete and concluded contract. In all cases where one party seeks to hold another to a contract which the party charged says is not a binding or concluded contract, the enquiry must be as to whether a final agreement was reached or the parties were still in negotiation. So long as the parties are in negotiation, either party may retract, but once there is a final agreement, the contract cannot be avoided except by the consent of both parties.

(Emphasis supplied)

It is unclear what precisely is being suggested on behalf of Dattaraj. It cannot be that his acceptance of the contract was conditional, because it clearly was not, and his subsequent conduct so shows. That leaves the question of whether the ''modalities'' of demerger were a condition and whether by refusing to accept a particular scheme or suggest a viable alternative, Dattaraj could be allowed to scuttle the entire Family Arrangement. The decisions cited seem to me not to lend themselves to any such formulation. For, it would this that would then be against public policy, allowing every defendant in every such action to simply refuse to commit to one or other of alternative choices laid before him and, on that basis, to contend that there was no concluded agreement. That surely cannot be what the law contemplates. There was nothing conditional about Dattaraj''s acceptance. Indeed, he acted on it. He sent out money to purchasing shares in the 20th Defendant, an action contemplated under the MoU. He started work on immovable properties as if they were his own, and these would come to him only on an unconditional acceptance of the Family Arrangement and in no other circumstances. In Subodh Chandra Bala, the Calcutta High Court found that it was the appellants themselves who said, while insisting on the contract, that they did not accept the terms of sale. That is not the case here.

Dr. Tulzapurkar''s reliance on Ganesh Shet Vs. Dr. C.S.G.K. Setty and Others, is, I believe, somewhat misdirected. There can of course be no quarrel with the propositions of law in that decision of the Supreme Court, but I fail to see how they have any application to the case at hand. This is not a situation where the two sides put up rival contracts, or where the material shows that there was a contract but not the one the Plaintiffs seek to enforce. This is a case where the Defendants deny that there was any contract at all, and that there was no contract for one reason and one reason alone: uncertainty.

There is a telling passage in Spry on Equitable Remedies 1 on this aspect of the law:

"It should be noted that the operation of the doctrine of estoppel is here two-fold. In the first place, a distinct rule has evolved that a person negotiating with another person for entry into a contract is bound by the reasonable construction of his statements and acts; and any inconsistent intention on his part must be ignored unless it is proper to treat the other party as having known of that intention.... In the second place, the ordinary doctrines of estoppel apply where although no contract has come into existence the conduct of a party has been such that he is estopped from denying the existence of a valid and enforceable contract.

Indefiniteness or uncertainty in the terms of an agreement is relevant in more than one way. In the first place, it has been noted that there are instances where although an agreement is not so uncertain that, on grounds that will next be discussed, it must be held to be invalid in law, the difficulties encountered in understanding what must be done by the parties or in determining whether there will have been sufficient performance of its terms are such as to induce a court of equity to refuse specific enforcement, in view both of the possible burden that might otherwise be caused to the court and of the hardship that might otherwise be caused to the defendant. In the second place, however, the terms of the alleged contract may be so uncertain that there is no valid contract at law. If a particular term is expressed in a manner that is so uncertain or ill-defined that, despite the existence of any implied terms that may be found, a court called on to construe it is unable to determine what is the content of the obligations that it sets out, so that it can be known whether or not it has been performed, then that terms is held to be bad for uncertainty. Whether the remaining part of the contract is valid depends on whether or not, as a matter of construction, the obligation to perform that remaining part has been intended by the parties to be conditional on the validity of, or on the performance of, the uncertain term that is in question. But it must be noted that uncertainty in this sense differs from mere ambiguity: for every terms may be in some respects ambiguous. If there is ambiguity, in the sense that it is not clear whether a particular matters falls within the denotation of the term that is in question, that ambiguity is resolved according to the ordinary rules of interpretation, whereas invalidating uncertainty exists if, despite an attempt to determine the meaning of the terms in question by the aid of the ordinary rules of construction, that term is so indefinite that its meaning is not able to be fully ascertained. Sometimes it is found that a term that would otherwise be too uncertain may be construed as having a sufficiently definite meaning by reference to a particular course of dealing between the parties, or by reference to a general course of dealing in a particular trade, or in some other such manner. Often, indeed, the concept of reasonableness is able to be availed of, because in the absence of contrary indications it may be concluded that obligations as to time or as to place or even, in some cases, as to price and other such matters, should be construed and defined by reference to what is reasonable according to all the circumstances within the consideration of the parties."

(Emphasis supplied)

Now what precisely is the ''uncertainty'' invoked by Dattaraj? He points to three alternatives for demerger. Which of these should he select? he asks. If he and his brother are not agreed on one of these, as indeed they seem not to be, how can there be said to be a contract? It is true that the three alternatives (Proposal 3, Proposal 4 and Proposal 5) presented all have variations. But Proposal 3 was the one Dattaraj accepted on 11th December 2009. The other two may be little more than attempts at accommodating his concerns. It is not possible, I think, to say that merely because the other two exists, the first does not, and neither therefore does the Family Arrangement. The other two may have been proposed to ameliorate some difficulties or allay some concerns. In principle, they are all one: they each propose and advance the cause of separation of the Hotel Business from the Mining Business. Mr. Chagla''s submission that no law requires every nuance and all minutiae to be ''agreed'' before there can be said to be a concluded contract. Such detailing is often the stuff that engages lawyers. It does not preclude or occlude a binding contract between the parties. There is no difficulty in understanding what was to be done and by whom. There remained the question of how best this was done, given that there were and are a variety of methods of realizing the same objective. In dealing with these situations, I believe the powerful words of the Supreme Court in Singhania are ones that I must use as my lodestar: every nerve ought to be strained to uphold and implement a Family Arrangement, and not allow it to be derailed. Metaphors and analogies in opposition are no real answer, and, overused, often risk being overblown. "A surgical separation" is what was demanded, says Dr. Tulzapurkar, and says repeatedly. Would that mean that while the surgeons and physicians and anaesthetists and nurses argue among themselves on the quality and brand of, say, post-surgery sutures, the parties should continue to lie forever like two patients etherized upon a table? Though these are, so to speak, and with no disrespect intended, ''tedious arguments of insidious intent'' they do not tend to any overwhelming question, let alone this: ''what is it?'' I think the answer to that is clear from the terms of the documents and the manner in which the parties conducted themselves: this is a binding and concluded Family Arrangement, one capable of specific enforcement.

Dr. Tulzapurkar''s then says that the entire Family Arrangement as conceived is ''tax evasive''. In his Affidavit in Reply, Dattaraj says it is "void as being opposed to public policy". Paragraph 15 of the Affidavit in Reply lists the various steps to be taken for the demerger, and Dattaraj then says that a brief to counsel was prepared. Whether or not it was ever sent and if so what advice if any was received are matters yet unclear. The submission, at least as I understand it, is that there are likely to be penal consequences to the adoption of a particular method of demerger; and till this is decided, there can be no agreement at all. This is truly a remarkable argument when set in context. The MoU itself provides, as I have noted, for the equal sharing of tax, wherever it falls and whenever it falls. It is entirely possible that a choice of a particular scheme of demerger attracts a lower incidence of marginal tax. That does not make it ''tax evasive'' per se. Tax evasion is the adoption of a fraudulent device or stratagem to escape the incidence of a tax that is otherwise properly payable. Tax planning and tax efficiency are very different things, and they are entirely legitimate. No law requires every person to strive to pay the maximum possible tax when there are available, lawful and legitimate alternatives. Every one of these schemes of demerger required the sanction of a court. To apply for such a sanction was an obligation. It could not be argued that no such sanction could be sought because one of the alternative methods might result in a lower incidence of tax. Tax planning is not the same as tax avoidance. Tax planning may be legitimate provided it is within the framework of law. Colourable devices cannot be part of tax planning. A tax payer is enabled to arrange his affairs so as to reduce the liability of tax. 2 Now apart from saying that it is ''against public policy'' and amounts to ''tax evasion'', Dattaraj says nothing. We are not told why or how this is so. Some interpretations in tax law are presented in the Affidavit in Reply but these seem to me to be at best arguments that might be taken by the revenue, and perhaps not at all depending on how the demerger was structured and presented. To say as he does that the steps involved were only with an intent to ''evade tax liability'' that would otherwise have arisen is as far from reality as it is possible to get. There is no evidence of any such intention, and there is certainly no explanation as to why Dattaraj cottoned on to this, something that was fundamental, only a year and a half down the road when he had with him persons who are, by all accounts, adepts in matters of taxation, accounting and finance. "Tax evasion" used in this context seems to be little more than a shibboleth. It is not so much a question of tax avoidance as contract avoidance.

A comparative chart of the three proposals was presented by Dr. Tulzapurkar. Although this was supposed to show the differences between the three proposals, I have dealt with here, after the arguments on the alleged tax evasive nature of the agreement, because the comments on the subsequent proposals are broadly directed to this end. Although the attempt was to show that the three proposals differ, what emerges is that Proposal 4 and Proposal 5 took into account the Finance Act, 2010, as indeed they ought. There are also comments on the consequences of the subsequent proposals but, interestingly, the chart itself provides anticipated, legitimate solutions, including the share of any additional tax burden and the deployment of escrow mechanisms. In and of itself, this chart does not establish that there was no concluded contract. All that it shows is that there were modalities to be resolved, and parties had before them a range of options. In his Affidavit in Reply, Dattaraj does not say that the scheme has been frustrated by a subsequent change in law that renders it impossible or incapable. The allegations in paragraphs 15 and 16 of his Affidavit all relate to the fundamental structure of the demerger. The details of the structure could not have occurred to Dattaraj for the first time in May 2011, a year and a half after the 11th December 2009 meeting. These had been discussed for several months, even years, earlier, and Dattaraj and his advisors had studied them thoroughly. There is no case pleaded of mistake. When he made his election in December 2009, Dattaraj could not possibly have been unaware of the contours of the demerger; yet ''tax evasion'' was not a reason he gave then, nor did he decline to execute either the MoU or make his election. Even after the two proposals of 28th and 30th May 2010, the underlying commitment to the segregation remained, and it was not rendered impossible on account only of these proposals. There is also the matter of the inconsistency in Dattaraj''s conduct: in making the election, in acting in furtherance of the MoU in different ways and then, without any offer of restitution, merely alleging that the demerger was contrary to public policy. The conduct of the parties is often a guide to an understanding of how parties viewed the bargain they made, and this case is no exception.

I am unable to comprehend what it is that Dattaraj means when he says the demerger is ''contrary to public policy'' and ''tax evasive''. Paragraphs 15 and 16 of his Affidavit in Reply contain what is little more than a rectitudinarian disquisition on taxation and corporate law. This is entirely untied to any binding decision of any court or, indeed, any source at all. It seems to be altogether too convenient that Dattaraj should have had this epiphany this late in the day, discovering within himself such a vein of fiscal and corporate piety. It is also impossible to divorce this attempt at scuttling the Family Arrangement from the subsequent effort to the same end made through his wife. At no point does Dattaraj reconcile the patent contradictions in his own conduct.

It is not possible to conclude from these arguments that there was no concluded or binding agreement or that it was illegal as being against public policy, at least as regards Dattaraj.

III. Defendants Nos. 2 to 4

This leaves the question of Defendants Nos. 2 to 8, viz., Dipti, her two children and the Dattaraj Group companies. Mr. Bharucha''s submission for Defendants Nos. 2 to 4 is that there is nothing to indicate that Dattaraj was acting for all these persons and entities. I do not believe this to be correct. I have already discussed Dipti''s role in the matter, and how she entered the fray only at the eleventh hour. Throughout persons who would not, but for her, been advising Dattaraj were involved. Her own brothers'' senior consultants came together to advise and guide. She herself is in a position of some authority vis-a-vis the investment companies and entities, and she herself contributed Rs. 2.5 crores towards the equity subscription of the resultant hotel company, the 20th Defendant. Even given the parties'' financial pre-eminence, this is amount is not trivial. There is material, too, to show that Defendants Nos. 5 to 8 are entirely under the dominion of Dattaraj and Dipti; they act at their command, and the two can will the companies to do as they direct. Chloro Controls sufficiently covers such a situation. Mr. Bharucha''s reliance on the decision of a Division Bench of the Punjab High Court in L. Shiv Dayal Kapoor and Others Vs. Union of India (UOI) and Another, invoking the doctrine of privity is, in the facts of this case, is entirely misplaced. It seems to me most unlikely that any of Defendants Nos. 2 to 8 could possibly have been innocent of what Dattaraj was doing in their name. The proposal was first floated in 1999. It came to fruition ten years later in December 2009. In that time, innumerable meetings were held. Drafts and emails were exchanged. Discussions took place. Consultants were engaged and they contributed as well. Even more telling is the silence of these Defendants till the very last minute. Even when Dattaraj filed his Written Statement in the arbitration before Mr. Malegam, not one of these Defendants raised their hands or their heads. All of this happens only at the last minute, and it happens only all of a sudden through Dipti, somnolent all this time, who now finds herself not only beset by doubt but brimming with a maternal instinct till then in hibernation. Dipti filed an Affidavit in Reply dated 15th October 2013. In this, she claims to be supportive of Dattaraj, but unconcerned with all material affairs, though connected with the hotel division (she describes herself as an employee). In paragraph 8 of this Affidavit, she claims to be alarmed that she and her children will suffer a loss of ''inheritance'' of Rs. 300 crores, ''which is the potential tax liability''. Interestingly, she does not say that the scheme is tax evasive. She also does not address the issue that, on the segregation, her family would gain sole title to properties well in excess of this amount of Rs. 300 crores, or the fact that this tax liability was agreed to be shared equally. She also does not explain why she paid out Rs. 2.5 crores toward the equity subscription in the 20th Defendant. From this, there is only one conclusion to be drawn, unpleasant though it is: that it is Dattaraj who has put up Defendants Nos. 2 to 8. I must note that in paragraphs 36, 60 and 61 the Plaintiffs have set out in copious detail the manner in which Dattaraj and Dipti have acted in furtherance of the MoU. There is no traverse of this in Dipti''s Affidavit in Reply.

IV. Defendants Nos. 5 to 8

Mr. Viraag Tulzapurkar, learned Senior Counsel for Defendants Nos. 5 to 8, also urged the point of lack of privity. These, he says, are private limited companies, substantially held by Dattaraj and Dipti. Yet they are separate legal entities, and their informed consent was necessary. No express authority was given to Dattaraj, and there was no board resolution (in contrast to the manner in which Shivanand''s investment companies acted). At no point did Defendants Nos. 5 to 8 hold out any assurances to the Shivanand Group, and no representation could be attributed to them. Dattaraj has no ostensible or implied authority and these Defendants did nothing to induce the Shivanand Group to believe that he did. He relies on the decision of the Supreme Court in Indowind Energy Ltd. v. Wescare (India) Ltd. & Anr.16 in support of these submissions. Mr. Chagla is, I believe, correct in pointing out that Indowind arose under Section 11 of the Arbitration & Conciliation Act, 1996, and in any case, was not concerned with the segregation of a family business with such complex interlocking as this. Indowind is distinguishable on account of the observations in 16 (2010) 5 SCC 306 paragraph 20, where the Supreme Court says that questions of validity of contract and breach are possible in a specific performance suit or an action in damages, but not in a matter under Section 11. On facts, he says, there is no denying that Dattaraj holds 80% of the equity in three of the four companies and 50% in the other. Between themselves, Dattaraj''s family are the only shareholders and fully own all four companies. The arguments demand such a level of naivete, he submits, and I think correctly, that they need only to be stated to be rejected; most especially in view of Chloro Controls.

In paragraphs 61(b) and 77 of the plaint, the Plaintiffs say that the Dattaraj Group is carrying on development work on Plot E4 at Village Chicalim, Goa. This is part of the VMS Estate. The development work is said to have started after the Family Arrangement: the property comes to the Dattaraj Group only on the separation of the VMSB Group. Both Shivanand and Dattaraj are the executors of the VMS Estate. Between February and June 2010, Dattaraj applied for and obtained building permission and started developing a ground and two floor industrial or office building on the plot. This he could not have done except in furtherance of the Family Arrangement. In his Affidavit in Reply, Dattaraj admits this work but say it is for self occupation and not commercial, and that he is doing it entirely at his risk and cost. As far as I can make out, this defence is on the basis that Dattaraj has some sort of co-ownership rights in respect of this property. But if that is so, it lands him in yet another logical quagmire: if Dattaraj does not accept that there was a binding and concluded Family Arrangement, then the whole of this property (and indeed, the whole of the family business, the VMS Estate and so forth) are all still in co-ownership and Dattaraj has no right to deal with any of it to the exclusion of Shivanand; yet he admits this is what he is doing.

Defendant No. 25, Rockmetal Engineers Pvt. Ltd., is a VMSB Group entity. It owns a property in Panjim. This is a business guest house and has ever been used as such. Defendant No. 25 is part of the non-Mining Basket, i.e., the Hotel Business, and will go to the Dattaraj Group. After the Family Arrangement, Dattaraj seems to have altered the user of this guest house. Structural alterations have been made. It is being converted into commercial office building. All this has been done without notice to the Plaintiffs, though the costs are being paid by Defendant No. 9. Again, this is an action in furtherance of the Family Arrangement. Dattaraj answers this in paragraph 80(iv) of his Affidavit in Reply. He claims that there was a prior proposal for repairs to this building. He does not however seem to deny that its user is being changed or that this has been done without notice to the Plaintiffs. Indeed, his traverse on this is most unsatisfactory.

D. CONCLUSIONS AND ORDER

Was there a binding and concluded Family Arrangement as pleaded, one capable of specific performance? I believe the answer must be yes, for several reasons. The documents and events of 11th December 2009 all show so. The subsequent conduct of the parties also indicates that this is so. Were Defendants Nos. 2 to 8 bound by this Family Arrangement? Again, for the reasons I have discussed, I believe the answer must be in the affirmative. There is yet another way to envision this. What is the consequence of denying the Plaintiffs relief? I imagine this much is clear: the affairs of the Shivanand Group are now entirely known to the Dattaraj Group. The latter seems to have appropriated to itself certain properties. The only reasons given for opposing specific performance are, as I have discussed, untenable and even specious. That there was no concluded agreement is not a defence capable of acceptance. The tax evasion argument is one of desperation. As to the defence by Defendants Nos. 2 to 8, perhaps the less said the better; this is nothing but subterfuge and mendacity.

Viewed thus, I believe the conclusion is irresistible that the Plaintiffs have made out a more than sufficient prima facie case, and have demonstrated too, that the balance of convenience is in their favour. It is self-evident that if reliefs as sought are not granted, immeasurable and irredeemable loss will be occasioned to them. The injunctions they seek, with some modifications, must be granted.

In the result, the Notice of Motion is made absolute in terms of prayers (a), (b), (d) subject to the addition of the words "and Defendant No. 1 as the case may be" at the end of that prayer; and (e), (f) and (g), all excluding the words "that unless and until the Defendant Group is willing to accept the binding nature of the said Agreement and is willing to implement the said Agreement as a whole". For convenience, the reliefs as granted are set out below.

(a) That pending the hearing and final disposal of the present suit, the Defendant Group be restrained by an order of temporary injunction of this Hon''ble Court from in any manner dealing with the shares held by the Defendants Nos. 1 to 8 in Defendants Nos. 9 to 31 and the shares held by Defendants Nos. 1 to 4 in Defendants Nos. 5 to 8;

(b) That pending the hearing and final disposal of the present suit, the Defendant Group be restrained by an order of temporary injunction of this Hon''ble Court from in any manner, directly or indirectly, selling, alienating, transferring, encumbering, altering the status, disposing and/or creating third party rights in respect of their right, title and interest in the companies, businesses, properties and other entities which form the subject matter of the Agreement arrived between the parties including but not limited to (i) the undivided interest of Defendant Nos. 1 to 4 in the family properties and the VMS Estate and (ii) the properties/assets owned by the Defendants Nos. 1 to 8 which are to come to share of the Plaintiffs under the terms of the said Agreement;

(d) That pending the hearing and final disposal of the present suit, the Defendant Group be restrained by an order of temporary injunction of this Hon''ble Court from operating or giving any instructions for payment from the bank account and funds of Defendant No. 9 to 30 for any personal and other payments other than those in the usual course of business of Defendants Nos. 9 to 30 unless and until the same are approved by the Plaintiff No. 1 and the Defendant No. 1 as the case may be;

(e) That pending the hearing and final disposal of the present suit, the Defendant Group be restrained by an order of temporary injunction of this Hon''ble Court from:

i. Continuing with the development activities on the said Plot No. E4 at Village Chicalim, Goa;

ii. Applying for any further or other permissions including a Completion Certificate or an Occupation Certificate for the said construction being carried out on the said Plot No. E4, Village Chicalim, Goa;

iii. Creating any third party rights in the said development or in any manner using or enjoying the said Commercial Development on the said Plot E4, Village Chicalim, Goa;

iv. Applying for or carrying out any development on any of the plots of the VMS Estate which are to go to the share of the Defendant Group and which are set out in Basket ''B'' to the Proposal annexed as Exhibit "J" to the Plaint;

(f) That pending the hearing and final disposal of the present suit, the Defendants Nos. 1 to 8 be restrained by an order of temporary injunction of this Hon''ble Court from in any manner using or occupying the said structure of Defendant No. 25 (as described in 78(i) of the plaint) as office premises;

(g) That pending the hearing and final disposal of the present suit, the Defendants Nos. 1 to 8 be restrained by an order of temporary injunction of this Hon''ble Court from carrying out any renovations/modifications/alterations to the common areas of Hira Vihar (save and except emergency repairs) without the written consent of the Plaintiffs.

Notice of Motion disposed of in these terms. At the request of the learned Advocates for the Defendants, the operation of this order is stayed for a period of eight weeks from today.