Imprint Tech India Private Limited vs A Jawahar Palaniappan

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A.No.4740 of 2025 in
C.S.No.139 of 2012
`IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on 16.03.2026
Orders Pronounced on 01.06.2026
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
A.No.4740 of 2025 in
C.S.No.139 of 2012
M/s. Imprint Tech (India) Private Limited,
Represented by its Nominee,
Mr.P.Varadarajan, No.3,
Luz Avenue, Mylapore, Chennai-600 004.
.. Applicant/2nd Defendant
vs
1. Dr.A.Jawahar Palaniappan
Director, M/s.Kumudam Publications Private Limited,
13/19, Sathyanarayana Avenue,
Boat Club Road, Raja Annamalaipuram,
Chennai-600 028.
2.M/s.Kumudam Publications Private Limited,
Represented by its Chairman and Managing Director
Mr.P.Varadarajan,
306, Purasaiwalkam High Road, Chennai-600 010.
[Amended as per order dated 06.10.2025 in A.No.9616 of 2012 and order
dated 18.11.2025 in A.No.4740 of 2025]
3.M/s.Noble Broadcasting Corporation Private Limited,
Represented by its Chairman and Managing Director
Mr.P.Varadarajan,
306, Purasawalkam Main Road, Chennai-600 110.
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4.Smt.A.Kothai (Deceased)
Managing Director,
M/s.Kumudam Publications Private Limited,
13/19, Sathyanarayana Avenue,
Boat Club Road, Raja Annamalaipuram,
Chennai-600 028.
5.Mrs.A.L.Vijayalakshmi,
13/2, Vivekananda Road,
Yadavagiri, Mysore-570 020.
6.Mrs. M.Krishna Meyyammai
45/27, Luz Avenue,
Mylapore, Chennai-600 004. .. Respondents
[Respondents 5 & 6 brought on record as legal heirs of the deceased 4th
respondent Smt.A.Kothai as per order dated 06.10.2025 in A.No.4848 of
2024 and order dated 18.11.2025 in A.No.4740 of 2025]
PRAYER : Application is filed under Order XIV Rule 8 of the Original
Side Rules read With Order XIII-A Rule b(d) CPC as amended by
Commercial Courts Act, 2015 to pass a judgment summarily dismissing
the reliefs sought for by the plaintiff in paragraph 32(a) & (c) of the
plaint.
For Applicant : Mr. K.G.Raghavan, Senior Advocate
for M/s K.Gowtham Kumar,
N.S.Amogh Simha,
A.P.Balaji &
Harshini Ranganathan
For R1 : Mr.P.S.Raman, Senior Advocate
for Mr.T.K.Bhaskar
For R2 : M/s R.Amizhdhu and
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A.No.4740 of 2025 in
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S.Parimala Amizhdhu
For R3 : Mr.Adarsh Subramanian and
Mr.Anuraag Rajagopalan
For R5 & R6 : Mr. Dama Seshadri Naidu, Senior Advocate
for Mr.G.RM. Palaniappan and
Mr. Adithya Verma
ORDER
Background
Memorandum of Understanding dated 15.08.2010 (the MOU) was
entered into by and between the plaintiff, the deceased fourth defendant
(wherein the above parties were described collectively as the parties of
the first part), and the second and third defendants (wherein the latter
parties were described collectively as parties of the second part). Said
MOU pertained inter alia to the transfer of 33.40% shares of the parties
of the second part in Kumudam Publications Private Limited (KPPL) to
the parties of the first part.
2. Asserting that said MOU is a concluded contract between the
parties and that it is specifically enforceable, the suit was instituted by
Dr.A.Jawahar Palaniappan for multiple remedies, including specific
performance of the MOU by transfer of shares of defendants 2 to 5 to the
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A.No.4740 of 2025 in
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plaintiff at a fair value fixed by this Court. On account of the death of the
fourth defendant, Smt. A.Kothai, after the institution of the suit,
Mrs.A.L.Vijayalakshmi and Mrs.M.Krishna Meyyammal were impleaded
as the fifth and sixth defendants by order dated 06.10.2025 in A.No.4848
of 2024. The plaintiff relinquished some of the remedies prayed for
earlier in clauses (b) to (e) of the prayer paragraph of the plaint.
3. After said amendment, the reliefs claimed in the suit are as
under:
“a) For specific performance of the
Memorandum of Understanding dated 15.08.2010
entered into between the plaintiff, to transfer the shares
of the defendants 2 to 5 to the plaintiff consequent to
fixation of fair value by this Honorable Court thereby
directing the defendants 2 to 5 to perform their
reciprocal obligations.
(Prayers b), c), d) and e) are withdrawn as per
order dated 22.11.2016 and 03.03.2017 in Appln.
No.4914/2016)
f) Directing the defendants 2 and 3 to pay a sum
of Rs.1,00,000/- as compensation to the plaintiff for
loss of reputation caused to him.
g) For a mandatory injunction directing the
defendants 4 and 5 to forthwith remove the tower put
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A.No.4740 of 2025 in
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up by them for running a unit styled as Noble
Broadcasting Corporation put up on the suit schedule
property, as per the terms of MOU dated 15.08.2010.
h) For a permanent injunction restraining the
defendants 2 and 3 from in any manner spending the
monies of the first defendant company in connection
with litigation revolving round the disputes between the
Directors/Shareholders of the first defendant
company/from drawing salary or personal expenses.”
4. After written statements were filed by defendants 1 to 3, the
present application has been filed by the second defendant in the suit
under Order XIII-A of the Code of Civil Procedure, 1908 (the CPC), as
applicable to commercial disputes, to dismiss the suit as regards the
prayers for specific performance and shifting of the tower on the ground
that the plaintiff has no real prospect of succeeding.
Counsel and their contentions
5. Oral arguments on behalf of the applicant were advanced by
Mr.K.G.Raghavan, learned senior counsel, assisted by Mr.K.Gowtham
Kumar, learned counsel. Oral arguments on behalf of the first
respondent/plaintiff were advanced by Mr.P.S.Raman, learned senior
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counsel, assisted by Mr.T.K.Bhaskar, learned counsel. Oral arguments on
behalf of the fifth & sixth respondents/fifth & sixth defendants were
advanced by Mr.Dama Seshadri Naidu, learned senior counsel, assisted
by Mr.G.RM.Palaniappan, learned counsel. Written arguments were filed
by the applicant and the first respondent/plaintiff.
6. The first contention of Mr.K.G.Raghavan was that the MOU is
only an agreement to enter into an agreement and, therefore, no part of it
can be specifically enforced. Referring to the MOU, learned senior
counsel submitted that said document contains several clear indications
that it is merely an agreement to enter into an agreement. With regard to
consideration, he pointed out that clause (a) of the MOU records that
consideration is required to be arrived at in accordance with the terms set
out below in the same clause. With specific reference to the price to be
paid for the shares of the parties of the second part, he pointed out that
clause (a) specifies that it will be based on the fair value determined by
KPMG and Deloitte after taking note of the valuation of M/s Cushman
Wakefield and CB Richard Ellis with regard to the immovable properties
of KPPL and Loganatha Trading Private Limited (Loganatha Trading).
He emphasised that, significantly, clause (a) does not stop there and
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expressly records as follows: “and thereafter as mutually agreed to by
both the parties”.
7. Even with regard to Noble Broadcasting Corporation Private
Limited (Noble Broadcasting), he submitted that the parties of the first
part were required to acquire web portals, such as Kumudam.com,
Kumudam Matrimony.com and Kumudam web TV, from Noble
Broadcasting at a fair value to be determined by KPMG and Deloitte and
thereafter as mutually agreed to by both the parties and upon fulfillment
of all the obligations of the mutually agreed terms and conditions of the
final settlement agreement. Referring to clause (e) of the MOU in this
regard, he further submitted that it provides for the purchase of the shares
held by Mrs.A.Kothai in Noble Broadcasting by the parties of the second
part at a fair and mutually agreed value.
8. In effect, he contended that the MOU entirely hinges upon
parties mutually agreeing later on essential aspects, such as price, in
relation to actions contemplated in multiple clauses. In the absence of
such agreement, he contended that no binding obligations are created.
Reference was made to the requirement of mutual agreement in clauses
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A.No.4740 of 2025 in
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(a), (b), (c), (e), (g)(i), (m) and (o) thereof. Thus, he contended that the
MOU merely indicated a list of broad terms and conditions that were
required to be fulfilled so as to execute a final settlement agreement,
which, if executed, would have been binding and enforceable. Adverting
to the primary relief of specific performance, learned senior counsel
pointed out that the plaintiff is inviting the Court to fill in the gaps in the
MOU by even deciding the consideration payable for the share transfer.
According to learned senior counsel, this would amount to the Court
writing the contract for the parties, which is clearly impermissible.
9. In support of the above contention that an agreement to enter
into an agreement cannot be specifically enforced, the following
judgments were relied upon:
(i) Currimbhoy and Company, Limited v. L.A.Creet and others,
(1933) 37 LW 253 ;
(ii) H.G.Krishna Reddy and Co. v. M.M.Thimmiah and another,
1983 SCC OnLine Mad 16 , particularly paragraphs 9 to 17;
(iii) Jagdish Chander v. Ramesh Chander, (2007) 5 SCC 719 ,
particularly paragraph 8(iv);
(iv) Speech and Software Technologies (India) (P) Limited v. Neos
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Interactive Ltd., (2009) 1 SCC 475 , particularly paragraph 22 thereof;
(v) R.Radhakrishnan v. G. Ekambaram, 2011 SCC OnLine Mad
1753 , particularly paragraphs 44 to 50;
10. As support for the proposition that the Court cannot fill in the
gaps in an agreement, the following judgments were relied upon:
(i) P.Panneerselvan v. A.Baylis, 2006 SCC OnLine Mad 406 ,
particularly paragraph 41 thereof;
(ii) Rajasthan State Industrial Development & Investment
Corporation v. Diamond & Gem Development Corporation Ltd., (2013) 5
SCC 470 , particularly paragraph 23;
(iii) M.Gnanasambandam v. M.Raja Appar, 2009 SCC OnLine
Mad 465 , particularly paragraphs 29 to 31, 34 & 35;
11. In support of the contention that only the contents of the
document should be looked into to determine its nature, the following
judgments were relied upon:
(i) Shamjibhai v. Jagoo Hemchand and others, AIR 1952 Nag 220 ,
paragraphs 8 to 10, 13, 14, 18, 39 to 42 and 51;
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(ii) Azeem Infinite Dwelling (India) (P) Limited v. Patel
Engineering Limited, 2024 SCC OnLine Kar 10320 , paragraphs 11 & 12;
12. The second contention of learned senior counsel was that
Section 9 of the Sale of Goods Act, 1930 (the Sale of Goods Act) is
inapplicable. At the outset, Mr. Raghavan pointed out that the MOU
evidently relates to both movable and immovable properties and that,
consequently, the Sale of Goods Act, which deals only with movable
property, cannot be applied. In this connection, he referred to clauses (a)
& (g)(i) of the MOU to emphasise that the determination of sale
consideration for the purchase of shares of KPPL by the parties of the
first part under the MOU is intrinsically linked to the valuation of the
immovable properties of Loganatha Trading. He also pointed out that
clause (g)(i) of the MOU specifies that, after the demerger/division of the
lands of Loganatha Trading, parties of the first part shall hold 2/3rd and
parties of the second part 1/3rd. He also pointed out that the plaintiff has
not even impleaded Loganatha Trading as a party to the suit. Relying on
the judgment of the Supreme Court in Installment Supply Limited v. STO,
(1974) 4 SCC 739 , paragraph 6, Mr. Raghavan submitted that an
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agreement of sale is only an executory contract for sale, where there is no
transfer or conveyance. In such cases, he contended that the Supreme
Court held that relief would be limited to damages because title in the
goods had not passed.
13. Against this backdrop, by referring to Section 9, he contended
that the legislative intent in introducing Section 9 was to prevent the
seller from being left high and dry after the transfer of title in the goods
has taken place. Consequently, he contended that sub-section (2) thereof
provides for payment of a reasonable price by the buyer where price is
not fixed or determinable from the contract. By contrast, because there is
no transfer of title in an agreement to sell, he contended that price cannot
be fixed by the Court. Referring to Loftus v. Roberts, (1902) 18 TLR 532
and Joyce v. Swann, (1964) 144 ER (34) , learned senior counsel
contended that said judgments interpreted Section 8 of the English Sale of
Goods Act, which is in pari materia to Section 9 of the Sale of Goods
Act, and held that an action cannot be brought under the said provisions
unless price is fixed or the method of ascertaining price is agreed to in the
contract.
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14. As regards the judgment of the Supreme Court in M.S.
Madhusoodhanan v. Kerala Kaumudi (P) Limited, (2004) 9 SCC 204
(Madhusoodhanan), he contended that said judgment dealt with the
transfer of shares of two companies, namely, Kerala Kaumudi and
Kaumudi Investments Private Limited. As regards Kerala Kaumudi, the
transfer of shares in favour of M.S. Madhusoodhanan had taken place and
it was, consequently, an executed contract of sale. In those circumstances,
he submitted that the Supreme Court invoked Section 9 of the Sale of
Goods Act. He also pointed out that paragraph 27 of the judgment records
that the express intention of the parties was to effect an immediate
transfer of shares and agree upon the consideration later. He also pointed
out that paragraph 146 of the said judgment records that the Karar does
not call upon parties to determine the consideration. By contrast, he
contended that the MOU in this case expressly requires mutual agreement
between the parties in multiple clauses.
15. The third contention of Mr. Raghavan was that part
performance of the MOU is not permissible. After pointing out that the
MOU dealt with multiple actions, i.e. the transfer of shares of the
applicant and the third respondent in KPPL, the removal of the tower
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placed by Noble Broadcasting, the transfer of shares of Noble
Broadcasting, the division of the immovable property of Loganatha
Trading between the parties, etc., he submitted that the relief claimed in
the suit is limited to enforcing the obligation in the MOU for transfer of
shares of KPPL. In effect, he contended that the plaintiff has requested
for part performance of the MOU and not full performance of all
obligations thereunder. Unless the plaintiff satisfies the requirements of
sub-sections (2) to (4) of Section 12 of the Specific Relief Act, 1963 (the
Specific Relief Act, he contended that part performance cannot be
granted. Because the plaintiff has not even pleaded that the ingredients of
sub-sections (2) to (4) of Section 12 have been fulfilled, he submitted that
the plaintiff has no real prospect of success.
16. As regards the scope of Order XIII-A of the CPC, he submitted
that said provision was introduced with the object of enabling the
expeditious disposal of commercial disputes. Relying on the judgment of
the Supreme Court in Ambalal Sarabhai Enterprises Ltd. v.
K.S.Infraspace LLP, (2020) 15 SCC 585 , paragraphs 34 to 36, he
contended that the scope of Order XIII-A cannot be curtailed on
technicalities. Once the applicant has established that the plaintiff has no
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real prospect of succeeding on the claim, he contended that the onus is on
the plaintiff to show that there is some other compelling reason for the
matter to proceed to trial. Because the plaintiff has failed to establish that
there is any compelling reason justifying a trial, he submitted that the
application for summary judgment is liable to be allowed.
17. Responding to the above submissions, Mr. P.S. Raman, learned
senior counsel, opened his submissions by providing an outline of the key
facts and events leading to the filing of the suit. Starting with the
founding of the magazine 'Kumudam' by Mr. S.A.P. Annamalai Chettiar
(SAP) in 1947, he pointed out that KPPL was incorporated on 31.12.1971
by transferring the business run by the HUF of SAP to the limited
company. He pointed out that Mr. Parthasarathy, the father of the
applicant, was a close friend and associate. Until his demise in 1994, he
pointed out that SAP was the majority shareholder and managing director
of KPPL. After pointing out that Kumudam Printers Private Limited (KP)
was incorporated on 26.06.1972, he further submitted that the
applicant/second defendant became a director of KPPL on 03.07.1990.
He also submitted that SAP executed a Will on 25.08.1993 bequeathing
his properties, including his shares in the Kumudam Group of
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Companies, to the plaintiff. He next referred to the merger of KPPL and
KP, whereby shares in KP were allotted to the plaintiff and to the second
defendant.
18. He thereafter referred to the acts of mismanagement/breach of
fiduciary duties committed by the applicant/second defendant by abusing
his position as the managing director of KPPL. He also referred to the
criminal complaint and FIR lodged in that regard by the plaintiff. After
submitting that the second defendant also lodged complaints with the
Enforcement Directorate, the Reserve Bank of India and Department of
Information and Broadcasting as a counter blast, he pointed out that
parties agreed to resolve their disputes by executing the MOU pursuant to
mediation conducted by Mr. N. Ram. After said MOU was executed,
without notice to the plaintiff, he submitted that the second defendant
purportedly cancelled the shares issued to the plaintiff at a board meeting.
After the initiation of proceedings before the erstwhile Company Law
Board in that regard, he submitted that the present suit was filed.
19. Referring to the affidavit of Mr.N.Ram in relation to the
execution of the MOU, he pointed out that it is recorded therein that
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about 20 meetings were held in the presence of Mr. Ram and that the rival
parties were represented by not only the respective principal
representatives but also by their lawyers. He made specific reference to
the statements in the affidavit regarding the voluntary participation of
parties at meetings and to the free and fair discussions therein. Turning to
the object and purpose of the MOU, learned senior counsel contended
that the unequivocal intention was that the family of the applicant/second
defendant would exit KPPL and that the plaintiff's family would exit
Noble Broadcasting. Referring to several clauses of the MOU, Mr.
Raman contended that detailed provision was made for the fulfillment of
reciprocal obligations and that there is nothing ambiguous about these
clauses.
20. He next contended that parties took steps to implement the
MOU after it was signed. In this connection, specific reference was made
to the steps taken to appoint a statutory auditor on 11.02.2011 and to
remove the tower used by Noble Broadcasting. He also referred to letter
dated 11.02.2011 from the second defendant stating that parties had
entered into the MOU and had decided to appoint a statutory auditor each
pursuant thereto. He also contended in this regard that this cannot be
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construed as a privileged communication. Specifically referring to clause
(c) of the MOU, which provides for the removal of the tower put up by
the fourth and fifth defendants for running Noble Broadcasting, he
contended that the agreed position is that this obligation was fulfilled by
removing the tower. He also contended that steps were taken to fulfil
obligations under the MOU in 2011 and even in 2016, i.e. much beyond
the 60 day period mentioned in clause (q) thereof.
21. Mr. Raman then contended that the MOU is not in the nature of
a term sheet or heads of agreement where only certain obligations,
typically confidentiality and exclusivity, are legally binding. He also
pointed out that the MOU repeatedly uses imperative language such as
'shall' or 'will' in contrast to a term sheet or heads of agreement, which is
intended to enable the purchaser to carry out due diligence so as to
decide whether the proposed transaction should be entered into. By
contrast, he contended that both parties were fully aware of the business
and had, therefore, undertaken binding commitments in the MOU.
22. Relying on Section 9 of the Sale of Goods Act, Mr. Raman
contended that it applies not only to a sale but also to an agreement to
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sell. Referring to the express language of Section 4(1), he contended that
even on a plain and literal reading, it extends to an agreement to sell.
Relying on the judgment of the Supreme Court in Madhusoodhanan , he
contended that the principle laid down therein cannot be confined to a
sale as opposed to an agreement of sale. Consequently, he contended that
a reasonable price may be fixed by the Court in all cases where parties are
unable to agree on the price. Apart from Madhusoodhanan , he also relied
on the judgment of the Supreme Court in Kurapati Venkata Mallayya and
another v. Thondepu Ramaswami and Co. and Another, AIR (1964) SC
818 , particularly paragraph 14 thereof.
23. Dealing with the contention that the MOU deals with both
movable and immovable properties, he submitted that the MOU does not
provide for a separate consideration for the immovable property. Because
the MOU, in clause (g), provides for a 2:1 split of the lands owned by
Loganatha Trading, he contended that said obligation may be enforced by
recourse to the general principles relating to specific performance and
that recourse to Section 9 of the Sale of Goods Act is not necessary for
such purpose. He referred to the measures taken by the applicant to
protract the disposal of the suit and also pointed out that this application
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was filed after 12 years. He concluded by submitting that the plaintiff has
more than a reasonable prospect of success and that the application is
liable to be dismissed.
24. Mr. Dama Seshadri Naidu, learned senior counsel, commenced
his submissions by adverting to the clauses of the MOU in detail.
Towards this end, he provided a note with a break-up of each clause and
the obligations created thereunder. Illustratively, he pointed out that
clause (a) provides that the parties of the first part shall retain their
existing shareholding of 66.60% in KPPL and continue to publish
Kumudam and all sister magazines (except Kumudam Reporter and
Kumudam Snehidhi). He pointed out that said clause also prescribes that
the parties of the first part shall pay consideration to the parties of the
second part for the transfer of 33.40% shares in KPPL by demand draft
based on the fair value determined by KPMG, Deloitte, M/s Cushman
Wakefield and CB Richard Ellis. It also imposes an obligation on the
parties of the first part to act in good faith and not do any act affecting the
interest of the other party. As regards the parties of the second part, he
submitted that it specifies that they shall transfer their 33.40% shares in
KPPL to the parties of the first part or their nominees retaining only
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proportionate shares equivalent to the consideration retained by the
parties of the first part. He also submitted it imposes a reciprocal
obligation on the parties of the second part to act in good faith and not do
any act affecting the interest of the other party. In addition, he submitted
that it imposes a common obligation on both parties to mutually agree on
the price for shares after obtaining valuations from KPMG, Deloitte, M/s
Cushman Wakefield and CB Richard Ellis.
25. In a similar vein, he pointed out that the other clauses deal
with: the ownership of the Kumudam Reporter and Kumudam Snehidhi
[clause (b)]; tower removal and vacation of premises [clause (c)]; the
movable and immovable properties of KPPL [clause (d)]; the acquisition
of digital/online businesses [clause (e)]; the Mevaloorkuppam lands of
Loganatha Trading [clause (g)]; joint statutory audit [clause (h)], the
criminal case [ clause (i)]; and ancillary provisions [remaining clauses].
He also pointed out that several of the obligations specified in the above
clauses do not require any further agreement. When read as a whole, he
submitted that, therefore, the MOU is intended to be binding and
enforceable. He also submitted that price may be fixed by the Court, as
provided in Section 9 of the Sale of Goods Act.
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26. With this factual background, he referred to the law on
contracts. Relying on the commentary, Pollock & Mulla on the Indian
Contract Act, 1872, 16th Edition, he contended that mere reference to a
further agreement does not lead to the conclusion that the contract is
unenforceable and that it is a question of construction as to whether the
execution of a further contract is a condition or term of the bargain, or a
mere expression of the desire of the parties as to the manner in which the
transaction already agreed upon would go through. Referring to the
commentary McMeel on the Construction of Contracts, Third edition, he
pointed out that a court would prefer a construction which upholds the
validity of a transaction to one which renders it invalid or too uncertain or
ambiguous to enforce. He also relied upon the six principles formulated
by Lloyd L.J. as regards the non-specification of price in a MOU. He
distinguished consideration and payment of price by pointing out that a
promise to pay the price is the consideration and the payment is
performance of that promise and not its consideration. He also referred to
the commentary Corbin on Contracts, Formation of Contracts, Revised
Edition, with regard to vagueness and uncertainty.
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Discussion, analysis and conclusions
27. The principal question that arises for consideration in this
application is whether the suit is liable to be dismissed on summary basis.
The answer to this question turns on whether the applicant/second
defendant has established that the plaintiff has no real prospect of
succeeding. Apart from the ancillary remedies requested for, the primary
remedy claimed by the plaintiff is for specific performance of the MOU.
Hence, it boils down to whether the applicant has established that the
plaintiff has no real prospect of obtaining a decree for specific
performance. Rule 2 of Order XIII-A of the CPC enables a party to apply
for summary judgment at any time after summons were served on the
defendant provided that the Court has not framed issues in the suit. In this
case, the plaint was presented in or about February 2012, but issues have
not been framed as on date. Therefore, the applicant/second defendant
satisfies the preliminary requirement for filing an application for
summary judgment. The plaintiff contended that the application was filed
belatedly about 12 years after the institution of the suit. Ordinarily, this
would have been a relevant consideration. In the factual context of the
suit being declared as a commercial suit on 18.06.2024, however, I
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conclude that the application lodged in September 2025 cannot be
rejected on the ground of delay.
28. Rules 3, 6, and 7 deal with the grounds for summary judgment,
the orders that may be made by the Court and conditional orders,
respectively. Said rules are set out below:
“3. Grounds for summary judgment.—The Court
may give a summary judgment against a plaintiff or
defendant on a claim if it considers that––
(a) the plaintiff has no real prospect of
succeeding on the claim or the defendant has no real
prospect of successfully defending the claim, as the
case may be; and
(b) there is no other compelling reason why the
claim should not be disposed of before recording of
oral evidence.
.. ..
6. Orders that may be made by Court.—(1) On
an application made under this Order, the Court may
make such orders that it may deem fit in its discretion
including the following:—
(a) judgment on the claim;
(b) conditional order in accordance with Rule 7
mentioned hereunder;
(c) dismissing the application;
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(d) dismissing part of the claim and a judgment
on part of the claim that is not dismissed;
(e) striking out the pleadings (whether in whole
or in part); or
(f) further directions to proceed for case
management under Order XV-A.
(2) Where the Court makes any of the orders as
set forth in sub-rule (1) (a) to (f), the Court shall record
its reasons for making such order.
7. Conditional order.—(1) Where it appears to
the Court that it is possible that a claim or defence may
succeed but it is improbable that it shall do so, the
Court may make a conditional order as set forth in
Rule 6 (1) (b) above.
(2) Where the Court makes a conditional order, it
may:—
(a) make it subject to all or any of the following
conditions:—
(i) require a party to deposit a sum of money in
the Court;
(ii) require a party to take a specified step in
relation to the claim or defence, as the case may be;
(iii) require a party, as the case may be, to give
such security or provide such surety for restitution of
costs as the Court deems fit and proper;
(iv) impose such other conditions, including
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providing security for restitution of losses that any
party is likely to suffer during the pendency of the suit,
as the Court may deem fit in its discretion; and
(b) specify the consequences of the failure to
comply with the conditional order, including passing a
judgment against the party that have not complied with
the conditional order. ”
29. Order XIII-A was interpreted by this Court in Godaddy.com
LLC and another v. M/s.Puravankara Projects Limited, 2022 (91) PTC
440 (Mad) , wherein the relevant principles were formulated as under:
“17. The principles pertaining to the grant of
summary judgment, albeit non-exhaustive, as gleaned
from the above analysis and from precedents, are set
out below:
(i) The applicant should discharge the burden of
establishing that the counter party has no real prospect
of succeeding on the claim, including a part thereof, or
successfully defending the claim, or a part thereof, as
the case may be. The adjective 'real' is used to indicate
that such prospect is not 'illusory', 'theoretical or
statistical' or 'imaginary' or 'fanciful'.
(ii) Rule 6 of Order XIII-A confers wide latitude
on the court to pass a range of orders in an application
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for summary judgment either on the whole or part of
the claim. The types of order specified in Rule 6 are
illustrative and not exhaustive.
(iii) If the Court concludes that the counter party
could probably succeed, as regards the whole of the
claim, the application is liable to be dismissed. If the
court considers the success of the counter party
probable as regards a part of the claim, or, in respect of
some of the reliefs claimed, but not the remainder, the
application may be considered as regards the
remainder.
(iv) If the court concludes that it is really
possible but not probable that the counter party could
succeed, a conditional order may be passed. Although
Rule 7 of Order XIII-A uses the word 'possible', it does
not mean statistical or theoretical possibility but real
possibility.
(v) Once the applicant satisfies the requirement
of clause (a) of Rule 3 of Order XIII-A, it becomes
necessary for the court to consider whether there is any
other compelling reason to direct parties to record oral
evidence. Since the conjunction 'and' is used between
clauses 'a' and 'b' of Rule 3, the requirements should be
construed as cumulative.
(vi) The obligations imposed by Rules 4 and 5 on
the parties to plead their respective cases and produce
all material evidence in relation thereto does not shift
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the burden of proof. Instead, it is a procedural device to
enable the court to meaningfully consider whether the
whole or part of the suit claim may be disposed of
summarily.
(vii) The scope of Order XIII-A is wider than
Order XII, Rule 6 CPC, which is triggered only on the
basis of admissions. It is also far wider than Order VII
Rule 11 CPC because the court goes well beyond the
plaint and examines all the evidence placed before it.
However, such application is maintainable in the
limited window after summons' are served but before
issues are framed.
(viii) In the ultimate analysis, Order XIII-A
facilitates fulfilment of two salient but often
undervalued objectives of a fair and just dispute
resolution system, namely, expeditious disposal and
equitable and proportionate allocation of the limited
resources of the public court system. It represents a
paradigm shift from a blinkered trial-is-the-only-
method approach to the adjudication of civil suits to a
more balanced approach, which preserves the trial
process wherever appropriate and necessary.”
30. Recently, in fact after arguments were heard and judgment was
reserved in this case, the Supreme Court examined the scope of Order
XIII-A in Reliance Eminent Trading and Commercial Private Limited v.
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Delhi Development Authority, 2026 SCC OnLine Delhi 744 . After
drawing a parallel between Order XIII-A and the corresponding rules in
the Civil Procedure Rules, 1998 of the United Kingdom, the Supreme
Court formulated the following principles:
“59. Therefore, while considering an application
for summary judgment under Order XIII-A of the CPC,
the following non-exhaustive guidelines have to be
complied –
(i) That the procedural mandate under Order
XIII-A, CPC be strictly complied.
(ii) The Court should consider,
(a) Whether Plaintiff has no real prospect of
succeeding on the claim or issue; or
(b) Whether the defendant has no real prospect
of successfully defending the claim or issue; and
(iii) The Court should also consider whether
there is no other reason why the case or issue(s) should
be allowed to go to trial.
(iv) While ascertaining above, the Court does not
have to take everything on the face value, but it must
also not conduct a mini trial at the same time.
(v) That the Court has to differentiate between a
cause of action/defence respectively, which is real as
opposed to fanciful prospect.
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vi) That the Court ought to grasp the nettle,
when dealing with the summary judgment applications
to decide short points of law and interpretations.
(vii) The Court must take into account not only
the evidence before it but also the evidence that can
reasonably be expected to be led/available at the trial.
(viii) That the Court’s usage of power under
Order XIII-A, CPC is exceptional as it cuts short the
process of trial and ought to be exercised where oral
evidence and full trial is not required.
(ix) In order to ascertain the need for full trial
over summary judgment, the Court has to see whether,
in the interest of justice, it is more suited to conduct
trial to –
(a) Weigh the evidence,
(b) Evaluate the credibility of a deponent,
(c) Draw reasonable inferences from the
evidence.”
31. Keeping in mind the above principles, I turn to the evidence in
relation to the application for summary judgment. The fate of this
application largely revolves around close examination of the MOU. I set
out below the recital and clause (a) of the MOU:
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“The PARTIES OF THE FIRST PART and the
PARTIES OF THE SECOND PART have had numerous
meetings and have mutually agreed to the following
broad terms and conditions which will culminate in the
execution of the Final Settlement Agreement between
the PARTIES:-
(a) The PARTIES OF THE FIRST PART shall
retain their existing shareholding of about 66.60% in
Kumudam Publications Private Limited and continue
to publish ‘KUMUDAM’ and all its sister magazines
either with prefix or suffix ‘KUMUDAM’ except (1)
KUMUDAM REPORTER and (2) KUMUDAM
SNEHIDHI. Further, the PARTIES OF THE SECOND
PART shall transfer their about 33.40% shares in
KPPL, after retaining proportionate number of shares
equivalent to the consideration retained by the
PARTIES OF THE FIRST PART as stated in clause (c)
below, to the PARTIES OF THE FIRST PART or their
nominees on payment of such consideration as arrived
at in accordance with the terms set out below, by
Demand Draft drawn by the PARTIES OF THE FIRST
PART in favour of the PARTIES OF THE SECOND
PART and after the receipt of proportionate advance
amount from the PARTIES OF THE FIRST PART
deposited by the Distributors towards the two
magazines KUMUDAM REPORTER AND
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KUMUDAM SNEHIDHI with KPPL with necessary
prior consent from the respective Distributors and it is
mutually agreed that both the PARTIES will act in good
faith and shall not do any act which could affect the
interest of each other in this regard, and upon
fulfillment of all the obligations of the mutually agreed
terms and conditions of the Final Settlement
Agreement. The price to be paid for the aforementioned
shares by the PARTIES OF THE FIRST PART to the
PARTIES OF THE SECOND PART will be based on the
fair value determined by KPMG and Deloitte along
with the valuation of M/s. Cushman Wakefield and CB
Richard Ellis in regards to valuation of immovable
properties of KPPL and Loganatha Trading P Limited
and thereafter as mutually agreed to by both the
PARTIES.”
32. The recital reveals that the MOU was executed after numerous
meetings. It also records that parties have mutually agreed to the
following broad terms and conditions and that the same would culminate
in the execution of the final settlement agreement between the parties.
Clause (a) provides that the parties of the first part shall retain their
existing shareholding of about 66.60% in KPPL. It also provides that they
shall continue to publish Kumudam and all its sister magazines either
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with the prefix or suffix Kumudam except (1) Kumudam Reporter and (2)
Kumudam Snehidhi. It is noticeable that nothing further is required to be
done under the MOU in this regard. Effectively, the MOU recognises the
rights of the parties of the first part to retain their 66.60% shareholding in
KPPL and the rights to publish Kumudam and its sister magazines
excluding Kumudam Reporter and Kumudam Snehidhi.
33. Apart from the above, clause (a) records that the parties of the
second part shall transfer their 33.40% shares in KPPL (after retaining a
proportionate number of shares equivalent to the retained consideration)
on payment of such consideration as arrived at in accordance with the
terms set out below. The terms set out in clause (a) in this regard are as
under:
“ ....The price to be paid for the aforementioned
shares by the parties of the first part to the parties of
the second part will be based on the fair value
determined by KPMG and Deloitte along with the
valuation of M/s. Cushman Wakefield and CB Richard
Ellis in regards to valuation of immovable properties of
KPPL and Loganatha Trading P Limited and thereafter
as mutually agreed to by both the parties.”
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Thus, clause (a) recognizes the existing rights of the parties of the first
part and also imposes obligations on the parties of the first part and
second part subject to pre-conditions, such as valuation, and mutual
agreement.
34. Clause (c) of the MOU is as under:
“(c) Upon completion and execution of the Final
Settlement Agreement, the PARTIES OF THE SECOND
PART shall apply for shifting of the Tower and agree to
remove all equipments, including towers and other
assets belonging to them and vacate from the premises
of Kumudam Publications Private Limited situated at
306 (Old No.151), Purasawalkam High Road, Chennai
– 600 010 within a period of one year from the date of
execution of Final Settlement Agreement or 30 days of
obtaining the last of the Governmental approvals
required for the shifting of the tower, whichever is
earlier. The PARTIES OF THE FIRST PART undertake
that out of the total consideration set out in Clause (a)
above, an amount to be mutually agreed between the
Parties shall be withheld and placed in escrow. Such
amount shall be released to the PARTIES OF THE
SECOND PART only upon the tower being removed
and peaceful absolute vacant possession of the second
floor of the premises equivalent to 12,800 sq.ft. being
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delivered to the PARTIES OF THE FIRST PART. Both
the PARTIES agree for Mr. N. Ram, acting as the
Escrow Agent in the matter. PARTIES OF THE FIRST
PART shall on execution of the Final Settlement
Agreement deposit the aforesaid consideration amount
with the Escrow Agent in the form of Fixed Deposit in
the name of the Escrow Agent. THE PARTIES OF THE
SECOND PART shall likewise execute requisite share
transfer forms relating to the proportionate shares in
the name of the Escrow Agent and deposit the original
Share Certificates and transfer forms relating to such
Shares which shall be transferred and registered by the
PARTIES OF THE FIRST PART in the name of the
Escrow Agent. THE PARTIES OF THE SECOND PART
undertake full responsibilities, both civil and criminal,
and further agree to indemnify the PARTIES OF THE
FIRST PART and KPPL from any claim, liability, action
both civil and criminal, or any other proceedings or
action in any manner whatsoever occurring on account
of the tower and studio remaining in the premises from
the date of execution of Final Settlement Agreement up
to date of their removal. The PARTIES OF THE
SECOND PART shall continue to pay rent as agreed to
KPPL until and up to the date of removal of tower and
vacating of studio space. If the PARTIES OF THE
SECOND PART fails to remove the Tower and the
Studio at its own cost within the stipulated time, then
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the PARTIES OF THE FIRST PART shall give the
PARTIES OF THE SECOND PART a final notice not
exceeding 15 days to do the same, failing which, the
PARTIES OF THE FIRST PART shall be entitled to
remove the said Tower and the Studio without getting
permission of the PARTIES OF THE SECOND PART
and hand over the same to the PARTIES OF THE
SECOND PART and be entitled to recover such costs
for the removal from the PARTIES OF THE SECOND
PART.”
As is evident from the above, this clause imposes an obligation on the
parties of the second part to apply for shifting of the tower from the
premises of KPPL within a period of one year from the date of execution
of the final settlement agreement or within 30 days of obtaining the last
of the Government approvals required for the shifting of the tower,
whichever is earlier. It also provides that the parties of the first part would
withhold a mutually agreed portion of the total consideration specified in
clause (a) and place the same in escrow for release upon fulfilment of the
obligation to shift the tower and hand over peaceful absolute vacant
possession of the second floor of the premises equivalent to 12,800
square feet.
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35. Although the final settlement agreement was not executed
pursuant to MOU, the admitted position is that the tower was shifted. To
that extent, one of the obligations under the MOU stands fulfilled,
whether in terms of or independent of the obligation under clause (c).
Clause (g)(i) specifies as under:
“(g)(i) The lands at Mevaloorkuppam owned by
Loganatha Trading Private Limited will be demerged
or divided in such a manner that the PARTIES OF THE
FIRST PART shall hold 2/3rd and the PARTIES OF
THE SECOND PART and/or his nominees, shall hold
1/3rd. For this purpose, a valuation shall be carried
out by Cushman Wakefield and CB Richard Ellis, which
valuation may be taken up for mutual discussion
between the PARTIES to arrive at the fair value for
Loganatha Trading Private Limited. Both the PARTIES
agree that their legal counsel shall jointly recommend
to them the manner of separation of Loganatha Trading
Private Limited for the purpose of effectively giving
legal title, possession and ownership of the properties
situated at Mevaloorkuppam, viz., 2/3rd share to the
PARTIES OF THE FIRST PART and 1/3rd share to the
PARTIES OF THE SECOND PART based on which the
parties shall arrive at a mutual agreement on the
modality of such separation.”
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This clause, as is evident from the above, deals with the lands at
Mevaloorkuppam owned by Loganatha Trading. It envisages the
demerger or division of the land in such a manner that the parties of the
first part shall hold 2/3rd and the parties of the second part shall hold
1/3rd. For this purpose, valuation by M/s Cushman Wakefield and CB
Richard Ellis is agreed to. It also prescribes that parties shall arrive at a
rd
mutual agreement on the modality of separation of land as 2/3 share to
rd
the parties of the first part and 1/3 share to the parties of the second part
upon receipt of a joint recommendation by their counsel.
36. Because the clauses extracted above and several other clauses
expressly provide for either the mutual agreement of the parties and/or
the execution of a final settlement agreement, it was contended on behalf
of the applicant/second defendant that the MOU is no more than an
agreement to agree and cannot be specifically enforced. This contention
was countered by the plaintiff and the fifth and sixth defendants on the
ground that the non-execution of the final settlement agreement does not
per se defeat a claim for specific performance and that the failure to fix
the price can be overcome inter alia by reference to Section 9 of the Sale
of Goods Act. These aspects warrant close consideration.
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37. Section 9 of the Sale of Goods Act provides as under:
“9. Ascertainment of price.—(1) The price in a
contract of sale may be fixed by the contract or may be
left to be fixed in manner thereby agreed or may be
determined by the course of dealing between the
parties.
(2) Where the price is not determined in
accordance with the foregoing provisions, the buyer
shall pay the seller a reasonable price. What is a
reasonable price is a question of fact dependent on the
circumstances of each particular case.”
Before proceeding further, it should be recognized that the Sale of Goods
Act applies to goods as defined in Section 2(7) thereof. Section 2(7)
defines goods as every kind of movable property. Consequently, this
statute only applies to the sale of movable property.
38. Goods are defined in Section 2(7) of the Sale of Goods Act as
follows:
“(7) "goods" means every kind of movable
property other than actionable claims and money; and
includes stock and shares, growing crops, grass, and
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things attached to or forming part of the land which are
agreed to be severed before sale or under the contract
of sale;”
As can be seen from the definition, shares are expressly included. The
parties herein do not contest this position. As is evident from clause (a),
the MOU pertains to the transfer of the 33.40% shareholding of the
parties of the second part in KPPL to the parties of the first part. It also
envisages the transfer of shares of sister concerns, such as Noble
Broadcasting.
39. Contract of sale is dealt with in Section 4 of the Sale of Goods
Act, which reads as under:
“4. Sale and agreement to sell.—(1) A contract
of sale of goods is a contract whereby the seller
transfers or agrees to transfer the property in goods to
the buyer for a price. There may be a contract of sale
between one part-owner and another.
(2) A contract of sale may be absolute or
conditional.
(3) Where under a contract of sale the property
in the goods is transferred from the seller to the buyer,
the contract is called a sale, but where the transfer of
the property in the goods is to take place at a future
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time or subject to some condition thereafter to be
fulfilled, the contract is called an agreement to sell.
(4) An agreement to sell becomes a sale when the
time elapses or the conditions are fulfilled subject to
which the property in the goods is to be transferred.”
The text of Section 4 reveals that it applies to a contract whereby the
seller transfers or agrees to transfer the property in goods to the buyer for
a price. Thus, as contended by the plaintiff and defendants 5 and 6, the
expression contract of sale in Section 9 applies not only to a sale, but also
to an agreement of sale. Section 9(1) prescribes that the price may be
fixed by the contract or may be left to be fixed in a manner agreed upon
in the contract or may be determined by the course of dealing between the
parties. Sub-section (2) of Section 9 provides that where the price is not
determined in accordance with the foregoing provisions, the buyer shall
pay the seller a reasonable price. It also provides that the determination of
reasonable price is a question of fact.
40. In the case at hand, price has clearly not been fixed in the
contract. The contract, however, provides that the price is to be mutually
discussed and agreed to after the receipt of valuation reports from two
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Chartered Accountant firms (KPMG and Deloitte) and two realtors (M/s
Cushman Wakefield and C.B. Richard Ellis), with regard to the relevant
immovable properties. Significantly, the language of sub-section (2) does
not preclude payment of a reasonable price in a case where the manner of
fixation of price is fixed in a contract. Instead, it uses the expression
“where the price is not determined in accordance with the foregoing
provisions” thereby indicating that sub-section (2) may be pressed into
service in a case where price could not be determined in the manner
agreed to in the contract.
41. The pleadings and evidence reveal that, after the execution of
the MOU, valuations were not undertaken by the two specified Chartered
Accountants or by the two specified realtors. Mutual discussions also did
not take place thereafter. Going by the language of sub-section (2), it
cannot be said that the operation of sub-section (2) stands excluded in the
said facts and circumstances.
42. The applicant/second defendant also contended that the Sale of
Goods Act, including Section 9 thereof, is inapplicable because the MOU
deals not only with movable properties but also with immovable
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properties. On examining the MOU, it is clear that it also deals with the
immovable properties of KPPL and Loganatha Trading.
43. As is evident from clauses (c) and (g)(i) of the MOU,
interestingly, no separate consideration is prescribed in relation to the
handing over of possession or division of lands. Clause (c) provides for
the shifting of the tower and handing over of peaceful vacant possession
of the second floor of the premises thereafter to the parties of the first
part. Clause (g)(i) provides for a division of the land of Loganatha
Trading such that the parties of the first part hold 2/3rd and the parties of
rd
the second part hold 1/3 . Such division is required to be preceded by a
valuation by two realtors followed by mutual discussion between the
parties to arrive at a fair value for Loganatha Trading. It, however, does
not provide for any price to be paid in relation to such land either by the
parties of the first part or the parties of the second part. When clause (g)
(i) is read conjointly with clause (a), both of which are extracted above, it
is evident that the consideration/price for the 33.40% shares of the parties
of the second part in KPPL, which are required to be transferred to the
parties of the first part, is partly dependent on the valuation of the lands
of Loganatha Trading. Thus, the MOU does not appear to prescribe a
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A.No.4740 of 2025 in
C.S.No.139 of 2012
separate consideration for the immovable properties dealt with therein. In
these circumstances, without recording any definitive conclusions on the
applicability of Section 9 of the Sale of Goods Act, I am of the view that
its applicability cannot be foreclosed at this juncture.
44. As per principles formulated by the Supreme Court and by this
Court in relation to an application for summary judgment, while the Court
is required to examine the evidence placed on record by parties for
purposes of adjudicating the application, a mini-trial is not envisaged.
Apart from the clauses and obligations discussed above, parties had also
agreed to as under in clauses (h) to (j) of the MOU:
“(h) Each of the PARTIES agree to appoint a
Chartered Accountant as joint Statutory Auditors to
audit the books of accounts of Kumudam Publications
Private Limited and Loganatha Trading Private
Limited for the Y.E. 31.03.2010. The said Auditors shall
also do the audit for the period 1.4.2010 to 15.8.2010
which shall also form the basis for arriving at the
valuation of KPPL and Loganatha Trading P Limited.
(i) Pending execution of Final Settlement
Agreement, Dr. A. Jawahar Palaniappan agrees not to
precipitate the criminal case pending before the
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2026:MHC:1820
A.No.4740 of 2025 in
C.S.No.139 of 2012
Commissioner of Police and shall withdraw the
complaint at the time of execution of the Final
Settlement Agreement and transfer of shares. An
Affidavit to this effect shall be signed by Dr. A Jawahar
Palaniappan simultaneously on execution of this MOU
and shall be kept with Mr. N. Ram.
(j) All the PARTIES to this MOU undertake that
they shall not initiate any civil or criminal
case/complaints or proceedings against each other
during the pendency of this MOU or after signing of
Final Settlement Agreement and an Affidavit to this
effect will be executed by all the PARTIES to this MOU
and kept with Mr. N. Ram.”
45. As can be seen from the above extracts, in clause (h), parties
have agreed to appoint Chartered Accountants as joint statutory auditors
to audit the books of accounts of KPPL and Loganatha Trading for the
year ended 31.03.2010. Communication dated 11.02.2011 from KPPL to
the Regional Director, Department of Company Affairs is on record. In
the said communication, the Chairman and Managing Director of KPPL
stated as under:
“Please refer to the our dated 31.03.2010 along
with the application in the required form seeking
approval of the central government for appointment of
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2026:MHC:1820
A.No.4740 of 2025 in
C.S.No.139 of 2012
statutory auditors of the Company under section 224(3)
of the Companies Act, 1956. Without prejudice to the
contentions of both the Parties and recognising the fact
that both the Parties have already entered into an
MOU dated 15.08.2010 and pursuing the spirit and the
agreement as per the said MOU, both the Parties
decided to appoint a Statutory Auditor each to jointly
audit the accounts of the Company for the financial
year ended 31.03.2010. The shareholders of the
company therefore propose to appoint the statutory
auditors in an Extra-Ordinary General Meeting of the
company.
In view of the above it is requested the
application made to your office as cited above may
please be treated as withdrawn.”
It is noticeable that express reference was made to the MOU and to the
obligation to appoint a statutory auditor by each party thereunder to audit
the accounts of the company for the financial year ended 31.03.2010.
Although this communication contains the “without prejudice”
qualification, it has clearly been issued pursuant to and in terms of
obligations specified in the MOU. The communication was issued on
11.02.2011, which is about six months after the date of execution of the
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2026:MHC:1820
A.No.4740 of 2025 in
C.S.No.139 of 2012
MOU. Thus, it appears that parties recognized their obligations under the
MOU well beyond the 60 day limit specified in clause (q) thereof.
46. In clause (i), the first respondent/plaintiff agreed not to
precipitate the criminal case pending before the Commissioner of Police
pending execution of the final settlement agreement. In clause (j), all the
parties to the MOU have undertaken that they shall not initiate any civil
or criminal case/complaints or proceedings against each other during the
pendency of the MOU or after signing of the final settlement agreement.
These obligations are not contingent on any further mutual agreement or
on the execution of the final settlement agreement.
47. Another contention of the applicant warrants consideration
before recording final conclusions. Referring to the plaint and the relief
claimed therein, it was contended that the plaintiff is seeking part
performance of the MOU only in relation to the transfer of shares in
KPPL. It was contended further that part performance may be granted
only if the requirements of Section 12 of the Specific Relief Act are
satisfied, and that even necessary pleadings are absent.
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2026:MHC:1820
A.No.4740 of 2025 in
C.S.No.139 of 2012
48. On closely examining the plaint, I find that there is nothing
therein to indicate that part performance is requested. On the contrary, it
is stated as under in paragraph 28:
“28. It is humbly submitted that the parties have
negotiated all the terms and conditions and as a result
of the negotiation entered into the MOU which is a
concluded contract. The MOU between the parties is a
complete bargain and the intention of the parties is
clear. The terms of the final settlement agreement have
already been agreed to and acted upon and it is only
consequential. As could be seen from the terms and
conditions of the MOU dated 15.8.2010, it is clear that
the parties have accepted and incorporated the terms
of the bargain and essential terms of the contract have
been agreed upon. A perusal of the terms of the said
MOU will clearly show that the same is concluded
contract. The intention of the parties can be gathered
from the language of the MOU. It contains the
complete bargain and the terms of the MOU are
binding and the execution of the final settlement
agreement is only a formality or a consequential act. “

49. Much emphasis was placed on prayer (a) to buttress the above
contention. Prayer (a) is “for specific performance of the Memorandum
of Understanding dated 15.8.2010 entered into between the plaintiff, to
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2026:MHC:1820
A.No.4740 of 2025 in
C.S.No.139 of 2012
transfer the shares of the defendants 2 to 5 to the plaintiff consequent to
fixation of fair value by this Hon’ble Court thereby directing the
Defendants 2 to 5 to perform their reciprocal obligation”. When viewed
in the overall context of the plaint and other remedies, such as the
removal of the tower, I conclude that specific performance of the MOU as
a whole and not part performance has been requested.
50. Taking a holistic view of the MOU and the provisions of the
Sale of Goods Act, particularly Section 9 thereof, I am unable to conclude
that the plaintiff does not have a real prospect of succeeding in the action
for specific performance. In other words, it cannot be said that the
primary relief of specific performance is a fanciful or illusory claim. On a
spectrum running from impossibility to certainty of success, the
legislative guidance in Rule 7 of Order XIII-A is to make a conditional
order if the success of the counter party is possible but improbable.
Effectively, even the possibility (albeit real and not illusory or statistical)
of success is sufficient to defeat an application for summary dismissal of
an action. For reasons aforesaid, the applicant has failed to establish that
the plaintiff’s success is not possible. In addition, the record discloses that
the MOU was executed after extensive discussions at meetings mediated
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2026:MHC:1820
A.No.4740 of 2025 in
C.S.No.139 of 2012
by Mr. N.Ram. He has affirmed an affidavit in this regard. In the written
statement, the applicant has pleaded duress/coercion and set up a case of
absence of free consent in the execution of the MOU. Oral evidence
would, therefore, throw further light on the MOU. Hence, applying the
principles formulated by the Supreme Court and this Court, this
application is liable to be and is hereby dismissed without any order as to
costs. All parties are, however, directed to take necessary measures to
facilitate expeditious adjudication of the suit.
01.06.2026
Index : Yes / No
Internet : Yes / No
Neutral Citation: Yes / No
kj
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2026:MHC:1820
A.No.4740 of 2025 in
C.S.No.139 of 2012
SENTHILKUMAR RAMAMOORTHY,J.
Kj
Pre-delivery order in
A.No.4740 of 2025 in
C.S.No.139 of 2012
01.06.2026
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