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25 January 2011

Without Prejudice Draft

MEMORANDUM OF UNDERSTANDING

THIS MEMORANDUM OF UNDERSTANDING (“MOU”) is made and entered into at


Mumbai on this [•] day of [•] 2011:

BETWEEN

MR. MORGAN MIRANDA, of Mumbai, Indian Inhabitant, residing at Magdaline Villa, 3rd
Floor, Silva Pakadi, Versova Village, Mumbai 400 061, hereinafter referred to as the
“Owner” (which expression shall unless it be repugnant to the context or meaning thereof be
deemed to mean and include his heirs, executors and administrators) of the ONE PART;

AND

NAHA PROPERTIES PRIVATE LIMITED, a company registered under the provisions of


the Companies Act, 1956 and having its registered office at Dharam Jyot, Bungalow No. 2,
New Kantawadi Road, Bandra, Mumbai 400 050, hereinafter referred to as the “Purchaser”
(which expression shall unless it be repugnant to the context or meaning thereof be deemed to
mean and include its successors and assigns) of the OTHER PART.
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The Owner and the Purchaser are collectively referred to as “Parties” and individually as
“Party”.

WHEREAS:

A. The Owner has represented to the Purchasers that the Owners along with certain
family members are the absolute owners of and are well and sufficiently entitled to
an undivided 1/5th share, right, title and interest in all that said piece of land,
hereditaments and premises bearing Survey No. 29, Hissa No. 1A, C.T.S. No. 1124
of Versova Division, Taluka Andheri, Bombay Suburban District containing by
admeasurement 9,185 sq. mtrs. or thereabout as per the property card and 1 care 4
gunthas and 6 ¼ annas (i.e. 5.376 square yards equivalent t0 4494.33 sq. mtrs.) as
per the Record of Rights, which plot is more particularly described in the First
Schedule hereunder written and delineated in red on the plan annexed hereto and
marked as ANNEXURE A (hereinafter referred to as the “Land Parcel” and the
1/5th undivided share of the Owner and his family members in the Land Parcel shall
be referred to as “Property”)

B. The Owner has represented to the Purchasers that, out of the Property, the Owner is
well and sufficiently entitled to an undivided 1/5th share, right, title and interest
(“Owner’s Property”).

C. The Owner is also in possession of certain other portions of the Property


(hereinafter collectively referred to as the “Balance Property”).

D. The Property and the Balance Property has various tenants/ occupants (“Tenants/
Occupants”) in possession whose details including the area occupied by them are
listed and annexed hereto and marked ANNEXURE B.

E. On 18 March 1994, the Owner along with Magdaline Sanjoan alias John Miranda,
Stanley Miranda, Michael Miranda, Blaze Miranda and Concepta Miranda entered
into an agreement with the Purchaser wherein the Owner along with his family
members agreed to sell all their undivided 1/5th share, right, title and interest in the
Property to the Purchaser for a lumpsum amount (“Sale Agreement”).

F. On [●] 1994, Ms. Magdaline Miranda, for good and valuable consideration,
granted an irrevocable general power of attorney in favour of Mr. Hasmukh Rawal
and Mr Nadir Gilani to deal with the Property (“GPOA”)

G. Thereafter, in 2010, the Owner filed a suit in City Civil Court of Bombay at
Dindoshi against, inter alia, the Purchaser, being S. C. Suit No. 2558 of 2010, inter
alia, praying for:

(i) declaring the Sale Agreement entered into between the Purchaser and the
Owner and his family members for the Property to be illegal and bad in
law;

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(ii) declaration that the Purchaser has no right, title and interest in the Property;
and

(iii) pending the hearing and final disposal of the suit, to restrain the Purchaser
from encroaching the Property.

H. The Parties hereto have now come to an understanding amongst each other wherein
the Owner has agreed to settle the dispute under the suit referred to in Recital F
above and confirm the sale of and convey to the Purchaser his right, title and
interest in the Owner’s Property as well as deliver possession of the Balance
Property to the Purchaser, free and clear of all encumbrances whatsoever for
certain consideration and subject to the terms and conditions and contained herein.

I. The Parties have now expressed their desire to record the understanding arrived at
between them, in writing and enter into this MOU which the Parties agree shall
form part of the consent terms to be filed in settlement of the suit referred to in
Recital F.

NOW IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS


FOLLOWS:

1. The Owner hereby irrevocable agrees and undertakes to transfer and convey to the
Owner, all the rights, title and interest in the Owner’s Property, free of any
encumbrances and rights of others, on or before [●].

2. The Owner hereby irrevocable agrees and undertakes to deliver possession of the
Balance Property to the Purchaser free and clear of all encumbrances and rights of
other, on or before [●].

3. The aggregate consideration (“Consideration”) payable by the Purchaser to the Owner


for the transfer and conveyance of the Owner’s Property as specified in Clause 1 above
and for the delivery of the possession of the Balance Property as specified in Clause 2,
above shall be an amount of Rs. [●]. The Consideration shall be payable by the
Purchaser to the Owner in the following manner:

(a) Rs.[●] upon execution of this MOU, the payment and receipt whereof
the Owner admits and acknowledges;

(b) Such amounts as are required from time to time by the Owner in order
to ensure that the Tenants/ Occupants vacate the Property, payable to the
Owner in portions upon the occurrence of the following:

(i) the Owner and any tenant/ occupant arriving at an agreement to


vacate the Property;

(ii) the Owner providing the Purchaser with evidence of the


agreement being arrived at between the Owner and the Tenant/

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Occupant and evidence of the amount being paid by the Owner to the
Tenant/ Occupant; and

(iii) vacant and peaceful possession of the relevant area occupied by


the Tenant/ Occupant being handed over and evidence of the same
being provided by the Owner to the Purchaser.

(c) If any portion of the Consideration is remaining after the Purchaser


has made the payments specified in Clause 2 (a) and (b) above, such remaining
portion of the Consideration shall be paid by the Purchaser to the Owner
simultaneously with the execution of a conveyance deed in respect of the
Owner’s Property in favour of the Owner and transfer of possession of the
Balance Property to the Owner free of any encumbrances and rights of others.

4. It is agreed that it shall be the sole responsibility of the Owner to obtain vacant and
peaceful possession of the Owner’s Property and the Balance Property from all
Occupants/Tenants within a period of [●] from the date hereof.

5. The Owner agrees that, in the event the Owner is unable to fulfill his obligations under
Clause 1 and/ or 2 above, in addition to all other rights and remedies that the Purchaser
may have under this MoU or applicable law, at the sole discretion of the Purchaser and
without affecting the rights and interest of the Purchaser in the Owner’s Property and
the Balance Property, the Purchaser shall be entitled to demand and receive from the
Owner all amounts that have been paid by the Purchaser to the Owner pursuant to this
Agreement along with interest at the rate of 2% per month on such amounts from the
date of payment thereof by the Purchaser to the Owner till the date of return by the
Owner to the Purchaser.

6. The Owner shall, immediately upon execution of this MOU, sign and execute an
irrevocable general power of attorney in favour of the Purchaser and Mr. Hasmukh
Rawal containing all powers and authority to deal with the Owner’s Property as the
constituted attorney of the Owner acting for and on behalf of the Owner, including in
respect of dealing with local and statutory authorities for the purpose of getting
sanctions, NOCs and approvals and to do all such acts, deeds and things as may be
required in relation to the Owner’s Property.

7. The Owner hereby represents, warrants and confirms to the Purchaser as follows:

a) The Owner is absolutely seized and possessed of and entitled to the Owner’s
Property as the Owner thereof and has the full power, absolute authority, right,
title and interest to transfer the Owner’s Property and there is no impediment,
restraint or injunction preventing the Owner from being able to do so.

b) The Owner is possessed of the Balance Property and has the full power,
absolute authority, right, title and interest to transfer the possession of the
Balance Property and there is no impediment, restraint or injunction preventing
the Owner from being able to do so.

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c) The Owner has not created any sale, gift, mortgage, charge, lien, lease or any
other adverse right or any other encumbrance whatsoever or howsoever in
respect of the Owner’s Property or the Balance Property and the Owner’s
Property and the Balance Property are not subject to any claim or demand,
encumbrance, attachment or any process issued by any Court or other authority.

d) The Owner has not received any notice for acquisition or requisition of the
Owner’s Property or the Balance Property and no notice from any Government,
Municipal Corporation or any other public body or authority or any notice
under any law including the Land Acquisition Act, the Town Planning Act, the
Municipal Corporation Act, the Urban Land Ceiling Act or any other statute
has been received or served upon the Owner n respect of the Owner’s Property
or the Balance Property or any part thereof which restricts or may restrict the
development of the Owner’s Property or the Balance Property and the said
Owner’s Property and the Balance Property is not under any lis pendens.

e) Subject to what is stated herein, the Owner’s Property or the Balance Property
or any part thereof is not the subject matter of any litigation or proceeding and
the same is not attached or sold or sought to be sold in whole or in part in any
court or other civil or revenue or other proceeding and not subject to any
attachment by the process of the courts or in the possession or custody by any
receiver, judicial or revenue court or any officer thereof.

f) There is no subsisting agreement or arrangement for sale or otherwise for the


Owner’s Property or the Balance Property or any part thereof with anyone,
executed by the Owner.

g) There are no pending liabilities with regard to the Owner’s Property or the
Balance Property including any government dues. In the event any amounts are
still found to be due and payable prior to the date of execution of these
presents, the same shall be paid by the Owner.

h) The Owner has duly tendered / paid all rents, rates, taxes, dues, cess and
assessments payable in respect of the Owner’s Property up to the date of this
MOU as per the bills received and agrees to pay the property taxes and cess till
the date of conveyance of the Owner’s Property in favour of the Purchaser.

i) The Owner’s Property and the Balance Property is not the subject matter of any
decree or order or attachment before or after judgment of any court of law
and/or any authority or authorities including under the provisions of the Income
Tax Act, 1961.

j) There is no set-back in respect of the Owner’s Property or the Balance


Property.

k) The Sale Agreement and the GPOA are valid, subsisting and binding on the
Parties thereto.

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l) For fulfilling the obligations under Clause 1 and/ or 2 above, other than the
Consideration, no other payment or consideration shall be due and payable to
the Owner or any other person/ entity.

8. The Owner hereby agrees with the Purchaser to ensure that the title of the Owner to the
Owner’s Property is not affected or prejudiced in any manner whatsoever after
execution of this MOU and that the Owner shall not create any charge, mortgage, lien
or any other encumbrance whatsoever on the Owner’s Property or the Balance
Property and the Owner further agree to do all acts, deeds, matters and things as may
be found necessary and expedient to ensure that the Owner continues to have clear and
marketable title free from encumbrances to the Owner’s Property at all times during
the term of this MOU and till the date of conveyance of the Owner’s Property in
favour of the Purchaser.

9. This MOU shall be valid for a period of [●] from the date hereof, which period may be
extended in writing solely by the Purchaser.

10. This MOU may also be terminated at any time prior to execution of an agreement for
sale or conveyance by mutual consent of both Parties in writing and upon such terms
and conditions as agreed to between them.

11. The Parties agree that S.C. Suit No. 2558 of 2010 filed by the Owner against the
Purchaser and others in City Civil Court of Bombay at Dindoshi shall, within a period
of 7 days from the execution of this MoU be withdrawn by the Owner by filing
consent terms of which this MOU shall form a part.

12. The Owner hereby withdraws all the allegations, insinuations and statements made
against the Purchaser in the pleadings and proceedings in the S.C. Suit No. 2558 of
2010 filed by the Owner against the Purchaser and others in City Civil Court of
Bombay at Dindoshi.

13. The Owner shall be entitled to assign this MOU or the rights and obligations hereunder
without the written consent of the Purchaser. However, the Purchaser shall be entitled
to assign this MOU and its rights and obligations hereunder without the consent or
approval of the Owner.

14. The Owner shall indemnify and keep indemnified the Purchaser from and against any
liability on account of the Owner’s dealings with the tenants/ occupants of the Property
and any other liabilities of direct and/or indirect taxes as well as on account of any
breach, default, non-compliance, non-observance and/or non-performance of any of
the terms, conditions, covenants, stipulations or provisions hereof.

15. Any dispute, difference, controversy or claim between the Owner and the Purchaser
arising out of or relating to this MOU or the breach, termination or validity thereof
(“Dispute”) shall, upon the written request of either party be referred to arbitration in
Mumbai in accordance with the Arbitration and Conciliation Act, 1996 before a sole
arbitrator. All the arbitration proceedings shall be conducted in the English language
and the arbitral award shall be substantiated in writing. The Parties shall submit to the
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exclusive jurisdiction of competent courts in Mumbai for interim measures of
protection or interlocutory orders in respect of all matters and/ or claims and/ or
disputes relating to or arising out of this MOU.

IN WITNESS WHEREOF the parties have put their respective hands the day and year first
hereinabove written.

THE FIRST SCHEDULE ABOVE REFERRED TO


Description of said Property

ALL THAT piece and parcel of land or ground situate lying and being at Village Versova,
Taluka Andheri, in the Registration District of Mumbai Suburban District admeasuring about
5376 sq. yards i.e. 4494 sq. mtrs. or thereabouts bearing Survey No. 29, Hissa No. 1A, C.T.S.
No. 1124 and bounded as follows:
On or towards East By Manek and Moti buildings (Sarla Coop. Hsg. Society Ltd)
On or towards West By 44 feet D.P. road
On or towards North By Municipal Corporation Staff Colony
On or towards South By Agakhan Complex

SIGNED AND DELIVERED )


By the withinnamed OWNER )
MORGAN MIRANDA )
in the presence of …………………… )

1.

SIGNED, SIGNED AND DELIVERED )


By the withinnamed PURCHASER )
NAHA PROPERTIES PRIVATE LIMITED )
by the hands of its authorised signatory )
__________________________ )
in the presence of …………………… )

1.

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ANNEXURE A
Property Plan

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ANNEXURE B
List of Tenants/Occupants