Padma Khastgir, J.
1. The present application has been taken out by Jagadish Prosad Poddar for an injunction restraining the defendants from transferring, dealing with or disposing of or parting with the possession of 474 shares of Reliance Construction Private Limited and for an order appointing a Receiver over the said shares and also for an injunction restraining the defendant No. 1 from exercising any voting right in respect of those 474 shares.
2. The facts shortly are, Peter Robinson, one of the Directors of defendant No. 2, Reliance Construction Private Limited entered into an agreement on 9th March, 1977 with the plaintiff whereby he agreed to sell to the plaintiff 474 shares at a price of Rs. 300/- each on, inter alia, the following terms and conditions (i) that the said sale would be subject to the approval of the Reserve Bank of India; (ii) completion of the said sale would take place at a time and to be agreed not later than 60 days following the receipt of such approval; (iii) at the time of the completion a meeting would be held by the Board of Directors whereby Peter Robinson as Director would be recorded as retired and the petitioner would be admitted as a Director of respondent No. 2. The said agreement, according to the plaintiff, was entered into partly at Bombay and partly in Calcutta. In the plaint itself the plaintiff has pleaded that the said agreement was arrived at by exchange of letters from Bombay and Calcutta. The plaintiff offered by his letter fromCalcutta which was sent to Peter Robinson at Bombay and Peter Robinson has sent his reply from Bombay which was accepted by the plaintiff in Calcutta. The plaintiff's case is that the agreement was partly arrived at in Bombay whereas the case of defendants Nos. 1 and 2 is that such contract was concluded in Bombay. In para 2 of the plaint the plaintiff himself has pleaded that the said contract was a contract by correspondence which passed from the plaintiff's place of business at Calcutta within the aforesaid jurisdiction to the defendants' place of business at Bombay; as such the contract was partly entered into in Calcutta and partly in Bombay. In para 3 the plaintiff has pleaded that the time in this particular case was not the essence of the contract but in any event the time for completion was extended till 60 days after 11th of May, 1978. According to the plaintiff by letter dated 21st of January, 1978 the respondent No. 2 forwarded the letter of the Reserve Bank of India dated 7th of October, 1977 and requested the petitioner to expedite the purchase of the shares from respondent No. 1 in view of the conditions imposed by the Reserve Bank of India in its letter dated 7th of October, 1977. By the said letter dated 7th of Oct., 1977 Reserve Bank of India granted permission to the Respondent No. 2 to carry on business in India for one year on condition that the non-resident interest of respondent No. 2 should be reduced to below 40% within a period of one year from 20th of July, 1977. According to the petitioner, prior to the receipt of letter dated 21st of January, 1978 the petitioner had no knowledge whatsoever o any correspondence that passed between the respondent company and the Reserve Bank of India or of the alleged permission granted by Reserve Bank of India on 7th Oct., 1978. Reserve Bank of India ultimately granted permission to the company for sale of those shares. In the meantime on the llth of May, 1978 one Mr. Sultoon and one Mr. Sethna according to the petitioner, the purported holders of power of attorney on behalf of Peter Robinson, purported to cancel the said contract with immediate effect on the ground that Reserve Bank of India's approval was obtained by a letter dated 7th of Oct., 1977 and in spite of thatfact the petitioner has failed and/or neglected to complete the said sale within sixty days thereof. According to the petitioner prior to 11th of May, 1978 the respondent No. 2 did not inform the petitioner regarding the said grant of approval by the Reserve Bank of India with an ulterior motive. According to the petitioner he is ready and willing to perform the said contract and he had been ready and willing to perform the said contract. The positioner has not accepted the said purported cancellation and repeatedly requested the respondents to conclude the said deal who have failed and/or neglected to transfer the said shares in spite of repeated demands made by the petitioner as such the plaintiff has filed this suit for specific performance and also in the alternative for damages.
3. The case of the respondent is that first of all this Court has no jurisdiction inasmuch as, according to the petitioner's own pleadings he sent the letter containing an offer to Peter Robinson in Bombay which was received by Peter Robinson in Bombay and the respondent No. 1 has accepted the said offer by posting a letter at Bombay which was received by the plaintiff in Calcutta: as such the contract was concluded at Bombay and not at Calcutta as wrongly alleged by the plaintiff. Furthermore it is the respondent's case that Jagadish Prosad Poddar went to Bombay where he met Peter Robinson and also other Directors of the Company and they had a meeting there whereby it was agreed that those shares would be purchased by Jagadish Prosad Poddar and sold by Peter Robinson; as such the entire transaction was concluded in Bombay and no part of the plaintiff's cause of action arises within the jurisdiction of this court; as such this court has no jurisdiction to entertain and/or try and decide this and to grant any interim relief. Secondly the respondents have contended that apart from writing a letter on 1st of March, 1977 which was received by Peter Robinson at White House, 91, Walkeshwar Road, Bombay the plaintiff has not taken any steps whatsoever to show his readiness and willingness to perform the said contract. In fact, according to the respondents,by several telephonic conversations the plaintiff was informed about the due accord of sanction or permission by the Reserve Bank of India in respect of the said deal; for that purpose the respondent craved reference to various trunk call bills. The petitioner admitted to have entered into such telephonic conversation with the respondent but feigned ignorance about the contents of the said conversation. This is first deal and transaction of the plaintiff with the respondents and the plaintiff's case is that he has entered into the said telephonic conversation with the respondents in respect of this particular deal. It is amazing that although he admits that he has entered into these telephonic conversations but it is strange that he failed to enquire or it is equally strange that the respondent did not let the plaintiff know about the permission granted by the Reserve Bank of India in spite of the fact that the company was writing to the Reserve Bank of India that it is willing to transfer the shares to the plaintiff. Moreover the respondents have relied on various correspondences in which they have let the plaintiff know about the said sanction granted by the Reserve Bank of India and they have reminded the plaintiff again and again to conclude the said deal as Reserve Bank of India has given one year time to carry on the said business within which period they will have to reduce the share holding of non-resident to 40%; as such the respondent No. 1 as also the company was eager to have this deal concluded before the time prescribed. The plaintiff's counsel submitted before me that the plaintiff has not received those letters as those letters were not sent by Registered post with acknowledgment due. The time to reduce the said non-resident interest was given for one year from 20th of July, 1977. By a letter dated 7th of Oct., 1977 Reserve Bank of India duly accorded the sanction for sale of the equity shares held by Peter Robinson in favour of Jagadish Prosad Poddar an Indian National at Rs. 250 per share. By a letter dated 24th of Oct., 1977 M P. Sethna wrote to Jagadish Prosad Poddar thereby enclosing the letter dated 7th of Oct., 1977 received from the Reserve Bank of India. The company also sent a telegram to the plaintiff intimating that Peter Robinsonwould be waiting for the plaintiff in London till the end of October. The Controller of Reserve Bank of India wrote on the 10th of Nov., 1977 to the respondent company requesting them to submit particulars of snares of the company after having it certified by auditors and after having those shares transferred from the non-resident to a resident. By a letter dated 31st of January, 1978 Mr. Wadia again requested Mr. Poddar to expedite the purchase of shares as the Comapny was allowed to continue its activity for a period of one year commencing from 19th of July, 1977 by the Reserve Bank of India failing which may lead the company into unnecessary correspondence and trouble. This letter was sent by Registered Post with acknowledgment due which was received for and on behalf of Mr. Jagadish Prosad Poddar which is evidenced from the acknowledgment receipt card produced at the time of the hearing. In the meantime Reserve Bank of India again gave a reminder to the company by its letter dated 21st of Jan., 1978. Mr. Wadia again wrote to Mr. Poddar on 6th of Feb., 1978 enclosing copies of the letters received from the Reserve Bank of India and their respective replies. On the 10th of Nov., 1977 the Reserve Bank of India again wrote a letter to the Company reminding it to submit the particulars of share holding of the company after the shares are transferred and after it is duly certified by Auditors. By a letter dated 21st of Jan, 1978 the Controller, Reserve Bank of India again reminded the company to submit particulars as asked for earlier. By a letter dated 6th of Feb., 1978 Mr. Wadia wrote on behalf of the company to the Controller, Reserve Bank of India, stating that the shares have not been transferred so far from Peter Robinson to Jagadish Prosad Poddar and contended that they would furnish the requisite particulars immediately after the said shares are transferred and after having it duly audited by auditors. The company further wrote that the company has no desire to reduce the share capital by any other method as the shares are going to be transferred from Peter Robinson to to Jagadish Prosad Poddar which would bring down the share held within the limits of 40%. By a letter dated 6th of April, 1978, the Controller again re-minded the company to furnish particulars of the share held in the company after the shares are transferred which should be duly certified by the Auditors. In the letter dated 7th of April, 1978 written by the company to the Controller. Reserve Bank of India, the company brought to the notice of Reserve Bank of India that the company has been consistently in touch with Peter Robinson and Jagdish Prasad Poddar and have been sending copies of the relevant correspondence that have passed between the company and the Controller, Reserve Bank of India, for their information and necessary action but the company regretted that in spite of the said reminders the transfer documents have not been duly executed by the parties; as such the matter has remained in abeyance and also assured that instruction of Reserve Bank of India would be immediately carried out by the Company. By a letter dated 7th of April, 1978 Mr. Wadia enclosed a copy of the letter of the Reserve Bank of India to Mr. Peter Robinson and Mr. Poddar for necessary information and necessary action which was sent by Registered post with acknowledgment due and which has been received for and on behalf of Jagadish Prosad Poddar and the original acknowledgment receipt card has been produced at the time of hearing. Thereafter on the 11th of May 1978 by registered post the company sent a letter through Mr. Sultoon to the effect that the agreement entered into between Peter Robinson and Jagadish Prosad Poddar regarding purchase and sale of 474 equity shares of Reliance Construction Private Limited stood cancelled with immediate effect as the transaction could not be completed within sixty days even after receipt of the approval of Reserve Bank of India. The said letter also mentions that Mr. Poddar was aware that such approval was given by Reserve Bank of India on 7th of October 1977. This letter was sent by Registered post with acknowledgment due and has been received for and on behalf of Jagadish ProsadPoddar. The company also wrote a letter on 11th of May, 1978 to Reserve Bank of India stating that the agreement has been cancelled by Mr. Peter Robinson through his constituted attorney.
4. From the series of correspondence that passed by and between the parties it would appear that save and except writing a letter containing an offer for purchase of the said shares Mr. Jagadish Prosad Poddar neither chose to reply any of the letters received by him nor he on his own accord wrote any letter to the Company enquiring about the said proposed transaction with the object of concluding the sale deal. He maintained a stoic silence and did not even choose to reply to the letters sent to him by registered post with acknowledgment due. It is amazing that even after the receipt of the letter dated 11th of May, 1978 whereby agreement entered into by Mr. Peter Robinson with Mr. Jagadish Prosad Poddar has been purported to be cancelled by the constituted Attorney, it has not been challenged and/or replied to by Mr. Poddar. In spite of the said letter he did not expedite the transaction nor did he conclude the deal. Instead he waited till July, 1978 to file the present suit for specific performance and then applied for injunction restraining the Company and Peter Robinson in any way dealing with or disposing of the said shares. There is no iota of evidence that since the entering into of the agreement with Mr. Peter Robinson the plaintiff was ready and willing to carry out his part of the agreement or to conclude the deal. In spite of receiving several letters and in spite of having several telephonic conversation the plaintiff chose not to remind the company regarding the said sale or himself took any initiative to conclude the said deal.
5. Mr. S. B. Mukherjee appearing on behalf of respondents, submitted that leave under clause 12 has been wrongfully obtained as this court has no jurisdiction to entertain and to try the suit and grant interim relief. But his client having chosen not to take out any application for revocation of leave, as such I am not called upon to decide whether this court has jurisdiction to try the suit to revoke the leave at the moment. I am not satisfied, however, after going through various correspondence and the affidavits filed on behalf of the parties as to readiness and willingness of the plaintiff.
6. Although Mr. Nag, appearing on behalf of the plaintiff, has argued thatas limitation Act allows his client three years time to file the suit for specific performance and for necessary relief, as such delay on the part of his client is not fatal for his client in getting a decree as also interim reliefs, granting of an injunction as also an order for appointing a receiver is an equitable relief, unless and until the Court is satisfied that the plaintiff was bona fide in his intentions and diligent and the plaintiff was ready and willing to perform his part of the agreement as also to conclude the deal and the plaintiff is still ready and willing to do the same, the Court will not grant interim relief in his favour specially in view of the fact that in spite of repeated reminders and the letter of termination the plaintiff has taken it lying down and has chosen not to reply to series of letters but file the suit two long months after the said letter of termination and obtained an interim order from His Lordship Mr. Justice T. K. Basu. Mr. Nag also argued on the point of balance of convenience and submitted that if there is an order of injunction the company would not be prejudiced at all and nor the company would come to a grinding halt if the company is restrained from dealing with or disposing of the said 474 shares of the said company. The plaintiff cannot remain idle and choose to come at any time it pleases him simply because the law of limitation grants him three years time. While granting such reliefs, delay coupled with other facts of this case, including the conduct of the plaintiff become relevant. The plaintiff chose not to reply to the letter of termination. The Reserve Bank of India granted permission to the Company to do its business for a period of one year from July, 1977 to July, 1978. In spite of repeated reminders Mr. Jagadish Prosad Poddar did not complete the sale nor did Jagadish Prosad Poddar reply to the letters written by the company although the correspondence that passed between Reserve Bank of India and the respondents were enclosed with the letters written to Jagadish Prosad Poddar. The company had no choice but to comply with the directions of the Reserve Bank of India; as such after allowing sufficient time to the plaintiff to conclude the deal the respondents have chosen to cancel the agreement.Moreover there is a serious challenge regarding the jurisdiction of this court. In view of the pleadings as pleaded in the plaint itself it is subject to dispute whether this court has any jurisdiction to entertain this suit or not.
7. Originally it was agreed by and between the parties under the agreement itself that the transaction should be completed within sixty days from the date of sanction accorded by the Reserve Bank of India. From the correspondence that passed by and between the parties it would appear that such sanction was given by the Reserve Bank of India on 7th of October, 1977. The parties failed to complete the deal within sixty days from that date. It is the plaintiff's own pleading that in any event the time to conclude the said transaction was extended by sixty days from 11th of May, 1978; even then the plaintiff has chosen not to conclude the deal within the period as pleaded by him. Mere delay may not be a ground for refusing a decree for specific performance but here from the facts and circumstances it would appear that save and except writing a letter to Mr. Peter Robinson offering to purchase the said shares the plaintiff did not take any steps whatsoever nor did he express his intention to carry out the deal or conclude the said transaction. It is only when the said agreement was cancelled the plaintiff woke up from his slumber and decided to file the suit and obtained an order of injunction by suppression of material facts. As such I am inclined not to pass any order in favour of- the plaintiff at this stage.
8. There will, however, be a stay of operation of the order for ten days. Mr. Hazra waives service of writ of summons. By consent of the parties time to file the written statement is extended by three weeks from date. Cross order for discovery within a fortnight thereafter. Inspection forthwith thereafter. Suit to appear in the Appropriate Prospective List two months hence.
9. Liberty to appeal.