Ravinder Singh & Another vs Manoj Kumar Pruthi And Anr
2009 Latest Caselaw 1961 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+               CS(OS)1894/2008 & IA.No.10992/2008(of
the plaintiff u/O 39 Rules 1 & 2 CPC)

%                                       Date of decision: 11 May, 2009

RAVINDER SINGH & ANOTHER                                  .......          Plaintiffs
                      Through:        Mr.A.S. Chandhiok, Sr Advocate with
                                      Mr Jasmeet Singh, Mr Saurabh Tiwari and
                                      Mr Sameer Kulshreshtha, Advocates.


                                        Versus

NARESH KUKREJA                                               ....... Defendant
                      Through:        Mr Sandeep Sethi, Sr Advocate for the
                                      defendant No.1.


                                AND

CS(OS) 46/2009 & IA.No.342/2009(of the plaintiff u/O 39
Rules 1 & 2 CPC) IA.No. 2424/2009(of the defendant No.1
u/O 39 Rule 4 CPC) and IA.No. 4240/2009(of the
defendant No.1 u/S 151 CPC)


RAVINDER SINGH & ANOTHER                                 ...... Plaintiffs
                       Through:       Mr.A.S. Chandhiok, Sr Advocate with Mr
                                      Jasmeet Singh, Mr Saurabh Tiwari and Mr
                                      Sameer Kulshreshtha, Advocates.



                                       Versus

MANOJ KUMAR PRUTHI AND ANR ..... Defendants
                      Through:        Mr Sandeep Sethi, Sr Advocate for the
                                      defendant No.1.
                                      Mr. Amit S Chadha, Sr Advocate with Mr Kunal
                                      Sinha, Advocate for the defendant No.2.


CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     Whether reporters of Local papers may
       be allowed to see the judgment?   Not necessary

2.     To be referred to the reporter or not?            Not necessary

3.     Whether the judgment should be reported
       in the Digest? Not necessary

CS(OS) 1894/08 & CS(OS) 46/09                                         Page 1 of 17
 RAJIV SAHAI ENDLAW, J.

1. The applications for interim relief in both suits are for

consideration. The plaintiffs in both suits are the same. The sole

defendant in the first suit (CS(OS) No.1894/2008) is the defendant

No.2 in the second suit (CS(OS) No.46/2009).

2. The first suit has been filed for specific performance of an oral

agreement to sell of 15th September, 2005 of shop No.6-A Khan

Market, New Delhi. It is inter alia the case of the plaintiffs that Shri

M.R. Kukreja, father of the sole defendant in the first suit (hereafter

called owner) was the owner of the said shop; on his demise on 9th

December, 1986 the shop devolved on his wife Smt Sheela Devi; on

demise of Smt Sheela Devi on 5th May, 1991 the owner inherited the

said shop on the basis of her Will; that the owner applied for probate

of the said Will which was granted vide order dated 10th May, 2005;

that the owner approached the plaintiffs to sell the said shop and

after detailed negotiations an oral agreement of sale and purchase of

the said shop was reached on 15th September, 2005, for a total

consideration of Rs 1 crore; that it was agreed that the owner would

get the shop converted from lease hold to free hold and obtain the

necessary permission from the L&DO; that the plaintiffs at the time

of oral agreement to sell paid the sum of Rs 4 lacs by cheque issued

on behalf of the plaintiff No.2 by his daughter Ms Gurbani Kaur and

a sum of Rs 6 lacs in cash to the owner; that the owner, however,

kept delaying the matter and on plaintiffs' inquiry handed over to the

plaintiffs correspondence exchanged with the L&DO from which it

seemed that the owner was unable to get the shop mutated in his

name in the L&DO. The plaintiffs further claim that they issued a

legal notice dated 8th May, 2008 calling upon the owner to execute

the sale deed and thereafter on 9th September, 2008 filed the suit for

specific performance.

3. Though the first suit was accompanied with an application for

ex parte interim relief but no ex parte interim relief was granted to

the plaintiffs and notice of the suit and of the application was issued

to the owner for 10th November, 2008. The owner though reported

to be served did not appear before the court on 10th November, 2008

and the suit was adjourned to 31st March, 2009 for framing of issues

and for arguments on the application. Even then no interim relief

was granted to the plaintiffs.

4. The plaintiffs instituted the second suit on 9th January, 2009. It

was stated in the plaint therein that the owner had intentionally

failed to appear before the court on 10th November, 2008 and had

inspite of the pendency of the suit for specific performance entered

into and registered an agreement to sell on 3rd December, 2008 with

the defendant No.1 in the second suit (hereafter called subsequent

purchaser) for a total sale consideration of Rs 75 lacs; that the

plaintiffs had come to know of the said agreement to sell on 24th

December, 2008. The plaintiffs thus sued for declaration that the

agreement to sell dated 3rd December, 2008 executed by the owner

in favour of the subsequent purchaser was null and void and for

restraining the subsequent purchaser who had in pursuance to the

registered agreement to sell dated 3rd December, 2008 (supra) been

put into possession of the shop from alienating, encumbering or

parting with possession thereof. In the second suit vide ex parte

order dated 13th January, 2009 the defendants therein were directed

to maintain status quo qua suit property. The said order continues

till date.

5. The owner has denied any agreement to sell with the plaintiff.

Though the receipt of cheque for Rs 4 lacs is admitted but it is

pleaded that it was for sale of certain jewellery and other antique

items to Ms Gurbani Kaur who had admittedly issued the cheque.

The receipt of Rs 6 lacs in cash is denied. It is further his case that

the shop had been let out by his father Shri M.R. Kukreja to one Shri

Balwant Rai Pruthi in the year 1973 at a rent of Rs 425/- per month.

6. The subsequent purchaser has pleaded that, he is the son of

the aforesaid Shri Balwant Rai Pruthi. He falsifies the case of

plaintiff of an oral agreement to sell and pleads himself to be a

purchaser under an agreement of a date prior to the date of

agreement alleged by the plaintiff in the following manner:-

(i) That the shop was originally owned by Sh. M. R. Kukreja

who died bequeathing the shop to his wife Smt. Sheela

Devi.

(ii) Smt. Sheela Devi died on 5th May, 1991 leaving a son

Suresh Kukreja and another son namely the owner

herein, besides another son and daughter.

(iii) Sh. Suresh Kukreja s/o Sheela Devi in September, 1991

filed a petition in the court of the District Judge Delhi for

probate of a registered Will dated 20th July, 1990 of Smt.

Sheela Devi, whereunder the said shop was bequeathed

to said Sh. Suresh Kukreja.

(iv) the owner filed objections to the said probate petition,

claiming a Will dated 21st March, 1991 of Smt. Sheela

Devi in his favour and whereunder inter-alia the shop had

been bequeathed to him.

(v) The aforesaid probate proceedings remained pending,

when on 6th March, 2000, the owner withdraw his

objections and gave no objection to the probate sought

by his brother Suresh Kukreja. The said action of the

owner is attributed to an agreement also dated 6th

March, 2000 between the owner and Suresh Kukreja to

equally divide the shop between themselves.

(vi) Sh. Suresh Kukreja vide agreement to sell dated 11th

October, 2000 agreed to sell the shop to Balwant Rai

Pruthi for Rs.37,50,000/- and received advance of Rs.2

lac by pay order, with the balance payable after grant of

probate and receipt of other clearances.

(vii) However, Suresh Kukreja died on 2nd May, 2001. The

owner on 7th August, 2001 filed application in probate

proceedings to the effect that on demise of Suresh

Kukreja the proceedings stood abated; that he had

earlier withdrawn his objections because of agreement

aforesaid with Suresh Kukreja but the widow of Suresh

Kukreja was wriggling out of the agreement and thus he

was filing fresh objections on the basis of latter Will

dated 21st March, 1991 of Smt. Sheela Devi in his favour.

(viii) The owner also filed a separate case for probate of Will

dated 21st March, 1991 of Smt. Sheela Devi.

(ix) The legal representatives of Suresh Kukreja in July, 2004

withdrew the proceedings for probate of Will dated 20th

July, 1990 of Smt. Sheela Devi and admitted correctness

of Will dated 21st March, 1991 set up by the owner.

(x) Vide judgment dated 10th May, 2005 probate was granted

of Will dated 21st March, 1991 whereunder shop was

bequeathed to the owner. Documents have been filed in

support of all the above.

(xi) The father of subsequent purchaser, seing in aforesaid

on attempt to defeat the agreement dated 11th October,

2000 of sale of shop to him, instituted in this court a suit

for specific performance being CS(OS) No.1320/2006

and which is stated to be still pending. Vide order dated

19th June, 2006 in this suit the owner was restrained from

selling, alienating or transferring the shop.

(xii) The owner himself had entered into a registered

agreement to sell dated 19th July, 2004/25th February,

2005 w.r.t. the said shop with Chawlas but the same was

repurchased by the owner on 3rd December, 2008.

(xiii) The father of subsequent purchaser having died, the

agreement dated 3rd December, 2008 was ultimately

executed by owner in favour of subsequent purchaser.

(xiv) The subsequent purchaser pleads the owner to be in

collusion with the plaintiff.

7. In the aforesaid background, the applications for interim relief

in the two suits are for consideration. The defendant No.1 has also

applied for permission to let out the property. It was stated on 30th

March, 2009 that the shop was proposed to be let out at a minimum

rent of Rs. 3 lacs per month. Since the counsel for the plaintiff had

on that date sought adjournment it was directed that the plaintiff

should file an undertaking to, in the event of the application being

ultimately allowed, compensate the defendant No.1 with rent at Rs 3

lac per month w.e.f. 30th March, 2009 and till the date of the said

application being disposed of. The said undertaking has not been

filed as yet.

8. The senior counsel for the plaintiffs has at the outset given two

proposals. It is stated that the plaintiffs are ready to pay to the

subsequent purchaser Rs 75 lacs, for which consideration he claims

to have agreed to purchase the shop, subject to being put into

possession of the shop. Alternatively it was stated that the plaintiffs

are willing to take the shop on rent at Rs.3 lac per month which they

will continue to pay to the subsequent purchaser and subject to

further orders in this suit.

9. Neither of the aforesaid proposals of the plaintiffs is

acceptable to the senior counsels for the defendants. It is contended

that the plaintiffs have no case whatsoever and thus the question of

the plaintiffs being entitled to any interim relief does not arise. It is

pointed out that though the plaintiffs have in their complaint to the

Economic Offences Wing of the Delhi Police stated that a receipt had

been executed by the owner of the sum of Rs 10 lacs and the said

receipt was kept with a property broker but neither in the notice

preceding the suit nor in the pleadings in the court any reference

thereto is made. It was argued that the same proved that the

plaintiffs are fabricating the case. The mala fides of the plaintiffs are

also sought to be established by referring to the wrong address of

the defendant No.2 given in the plaint in the first suit so as to avoid

his service and of the wrong report of service having been placed on

the file of the first suit to give an impression on 10th November, 2008

that the owner had been served and on the basis of which

impression, ex parte relief which had not been granted in the first

suit, was obtained in the second suit. It is further contended by the

senior counsel for the subsequent purchaser that the second suit is

misconceived inasmuch as the remedy, if any, of the plaintiffs

against the subsequent purchaser under Section 19 of the Specific

Relief Act is to seek specific performance against him and not to

seek declaration with respect to the documents executed in favour of

the subsequent purchaser. Reliance was also placed of the order

dated 2nd December, 2004 in CS(OS) 82/1997 titled Sardar

Gurbachan Singh Vs Sardar Avtar Singh and the order dated 3rd

January, 2007 in FAO(OS) 293/2004 titled Sardar Avtar Singh Vs

Sardar Gurbachan Singh and arising therefrom, on the aspect of

interim orders in cases of specific performance of oral agreement to

sell. It is contended that the pleadings do not show any agreement

having been arrived at even orally of all the essential ingredients of

an agreement to sell and thus the agreement to sell is unenforceable.

The senior counsel for the owner has taken me through the service

report etc to demonstrate the mischief played by the plaintiffs. It is

also argued that the jewellery, for the sale of which the cheque for

Rs 4 lacs was received from the daughter of the plaintiff No.2 is

disclosed in the letters of administration obtained by the owner. It is

further pointed out that though the plaintiffs had in their complaint

to the Economic Offences Wing referred to earlier agreement to sell

of the owner with the Chawlas but the same was suppressed from

this court.

10. The senior counsel for the plaintiffs in rejoinder relied upon:

(a) Joginder Singh Bedi Vs Sardar Singh Narang AIR 1984 Delhi

319 on the position of a purchaser pendente lite;

(b) Guruswamy Nadar Vs P. Lakshmi Ammal J.T. 2008 (6) SC

555 on the principle of lis pendens and Section 52 of the Transfer of

Property Act;

(c) Maharwal Khewaji Trust Vs Baldev Dass (2004) 8 SCC 488

on the desirability of the court not permitting the nature of the

property to be changed during the pendency of the proceedings;

(d) Bharti Televentures Ltd Vs Bell South International Asia

Pacific Incorporated 88(2000) DLT 87 on oral agreement to sell

being common and as legally efficacious as written contracts;

(e) Sanjay Gupta Vs Smt Kala Wati 2000 IV AD (Delhi) 257

holding that Section 19 (b) of the Specific Relief Act does not protect

a transferee pending litigation.

11. The senior counsel for the owner in sur rejoinder referred to

Ranjeet Combine Vs B.N. Khanna 86(2000) DLT 687 laying down

the principles for grant of interim orders.

12. The aforesaid would thus show that it is not controverted that

the shop should be let out. The question is whether it should be let

out to the plaintiffs even if the plaintiffs are willing to pay the rent

which the subsequent purchaser claims the property can fetch. The

fear of the subsequent purchaser in this regard cannot be said to be

misplaced. The subsequent purchaser is in lis with the plaintiffs as

to the title to the shop. Putting the plaintiffs in possession thereof

even if as a tenant and subject to further orders of the court, would

certainly affect the equities and possibility of the mischief on the

part of the plaintiffs cannot be ruled out. Thus even though the

plaintiffs are willing to pay the same rent, the plaintiffs would be

entitled to be so inducted as a tenant in the property only if found to

be having a prima facie good case.

13. I find the plaintiffs to have failed on this account. There does

not appear to be any explanation whatsoever as to why, if there was

an agreement to sell in favour of the plaintiffs, the same was not

documented, as is the norm. Even where the parties do not enter

into formal agreement, a receipt of advance, mentioning the total

price agreed and time for completion of sale is generally executed.

It is not the case of the plaintiffs that the owner enjoyed any position

of trust qua the plaintiffs. Ordinarily one would expect a person who

is entering into an agreement to purchase the property and who is

parting with consideration not only in cheque but also in cash to at

least take an acknowledgement or receipt of the same. In the

absence thereof, there is nothing for this court to even prima facie

frame an opinion that there was any such agreement and if so what

was the said agreement. We have only the plaintiffs' word to the

effect that the sale consideration agreed was of Rs 1 crores. Merely

because the cheque payment of Rs 4 lacs is admitted and/or merely

because the property was ultimately sold by the owner to a sitting

tenant having protection from eviction under the Delhi Rent Control

Act, would also not help the plaintiffs.

14. No relationship between the two plaintiffs has been disclosed.

Ordinarily one would expect the plaintiffs if intending to jointly

acquire the property to equally share the advance/earnest money

paid. The cheque issued is of neither of the plaintiffs but of the

daughter of the plaintiff No.2. Undoubtedly, the owner has also not

filed any document to show any sale of jewellery and antique of Rs 4

lacs having been affected to the said daughter of the plaintiff.

However, a prima facie view has to be taken of the transaction

alleged by the plaintiffs and which is the subject matter of the suit

and not of the transaction of the sale of jewellery. All that can be

said at this stage is that the possibility of transaction alleged by the

owner against which Rs 4 lacs was received cannot be ruled out and

it cannot be said to be so improbable so as to lead the court to

believe the case of the plaintiffs.

15. The senior counsel for the plaintiffs has in rejoinder also not

furnished any explanation whatsoever qua the money receipt

referred to in the complaint to the Economic Offences Wing. No

replications to the written statements have also been filed inspite of

opportunity.

16. Yet another relevant factor is that the shop was admittedly in

the possession of the subsequent purchaser/his father as a tenant.

The senior counsel for the defendants during the course of hearing

submitted that the market price of the shop today is of Rs 4-5 crores.

The senior counsel for the plaintiffs stated that the shop was agreed

to be sold to the plaintiffs for Rs 1 crore only since the same was

tenanted and the constructive possession thereof was to be delivered

to the plaintiffs as it is. However, what is significant is that the

plaintiffs did not plead the said fact in the plaint and only in response

to the arguments it has been argued that the price was with the

sitting tenant. Not only so, the plaintiffs for considerable time after

alleged oral agreement did not take any step whatsoever. Though

the senior counsel for the plaintiffs argued that the mutation and

freehold conversion was taking time and the owner had furnished

photocopies of the correspondence with the L&DO to the plaintiffs

and the owner have not offered any explanation as to how the

plaintiffs came into possession thereof but in my view, mere

possession by the plaintiffs of the copies of the correspondence of

the owner with the L&DO does not lend any credence to their claim.

Normally the purchaser of immovable property does not wait for a

period of over two and a half years for completion of transaction.

Similarly a seller of immovable property is generally not known to

enter into such a protracted agreement. The trend of price of

property in Delhi and specially in the Khan Market has in the recent

past been upwards only and it is highly improbable that the owner of

the property merely on receipt of 10% of the sale price would freeze

the price of his property. In the normal course, the owner would

have given power of attorney to the purchaser for the purposes of

mutation and freehold conversion and against execution of

registered agreement to sell, execution/registration whereof is not

dependent on mutation or freehold conversion,

received the entire sale consideration.

17. Not only do I find the claim of the plaintiffs to be improbable,

from the history of the shop disclosed by the subsequent purchaser

and borne out from the documents filed, it appears highly

improbable that the owner would have entered into an agreement or

an oral agreement to sell of the shop. The property had already been

agreed to be sold to the father of the subsequent purchaser as far

back as in 2000, though by the brother of the defendant No.2 who at

that time with the consent of the owner was exercising rights as

owner of the shop. It is not as if the father of the subsequent

purchaser had given up his rights. He pursued the agreement by

filing the suit for specific performance. The owner himself had also

agreed to sell half the shop to the Chawlas. I find it difficult to

believe at this stage that the owner in these circumstances would

have entered into an agreement to sell whereunder also he was not

to receive the entire sale consideration immediately from the

plaintiffs.

18. The plaintiffs also could not have agreed to purchase without

any investigation. A prudent purchaser would have enquired from

the tenant in possession. Such enquiries would have revealed the

agreement to sell to tenant. Enquiries at Sub-Registrar of

Assurances would have revealed the registered agreement to sell

with Chawlas. The plaintiffs have not mentioned any of the said facts.

Such conduct of plaintiffs is also found repugnant to the plea of the

plaintiffs of oral agreement.

19. The possibility of specific performance being granted to the

plaintiffs' even if plaintiffs succeed in establishing an oral agreement

is even otherwise remote, in the circumstances. Though the

registered agreement to sell in favour of subsequent purchaser is of

a date subsequent to the date of oral agreement pleaded by the

plaintiffs but the agreement in favour of subsequent purchaser has

its roots in the agreement of 11th October, 2000 which is much prior

to the agreement claimed by plaintiffs. Under Section 48 of the

Transfer of Property Act, latter rights are subject to rights previously

created, where different rights at different times are created and

where all such rights cannot coexist.

20. The counsel for subsequent purchaser has after conclusion of

hearing filed photocopies of following judgments:

(i) Mayawati Vs. Kaushlaya Devi (1990) 3 SCC 1 on

existence of valid, certain, enforceable agreement being

a precondition of grant of relief of specific performance.

(ii) Sheel Gehlot Vs. Sonu Kochar 2006 (IX) AD (Delhi)

169 on oral agreement.

(iii) M/s Aggarwal Hotels P Ltd. Vs. M/s Focus

Properties Pvt. Ltd. 63 (1996) DLT 52 on uncertain,

vague and indefinite agreement.

(iv) Sanjeev Narang Vs. Prism Buildcon Pvt. Ltd. 154

(2008) DLT 508 DB on an agreement to sell on signatures

are disputed and non production of receipt of alleged

cash payment.

(v) M/s Pelikan Estates Pvt. Ltd. Vs. Sh. Kamal Pal

Singh 113 (2004) DLT 290 on oral agreement.

(vi) Holy Health & Educational Society (Regd.) Vs. DDA

80 (1999) DLT 207 on concealment.

However, in light of above, no further discussion on these is

called for.

21. The plaintiffs having not cleared the test of prima facie are not

entitled to the interim relief. The plaintiffs are thus also not found

entitled to preference in the matter of being put into possession of

the shop as the tenant. The subsequent purchaser who has paid Rs

75 lacs for the shop in comparison to the plaintiffs who claim to have

paid Rs 10 lacs only is for this reason also found to have the balance

of convenience in his favour. In any case the plaintiffs cannot be

prejudiced by letting of the shop.

22. The next question which arises is whether the defendants

should be restrained from further alienating the shop and/or

encumbering the same. The plaintiffs having not found to have a

prima facie case, the question of restraining the defendants so also

does not arise.

23. However, that is not the end of the matter. In this case even if

there is no injunction, the principle of lis pendens enshrined in

Section 52 of the Transfer of Property Act applies. Even without any

injunction it is virtually impossible for the defendant in a suit for

specific performance to freely deal with the property. No buyer of

immovable property wants to pay good market price for the property

under litigation or with potential of litigation. I have in K.L. Sethi

Vs S. Kishan Singh in IA.No.5824/2009 in CS(OS)1185/2008

decided on 1st May, 2009 given detailed reasons of a need for this

court to in such cases ensure that the plaintiffs in such suits, in the

event of ultimately being found unsuccessful in their claim,

compensate the defendants for the losses suffered by the defendants

owing to the mere pendency of the suit. As discussed in the said

judgment, there is a need to obtain an undertaking from the

plaintiffs to pay damages to the defendants upon being unsuccessful

in the suit. The defendants cannot be compelled to litigate for

claiming damages from the plaintiffs, after the termination of the

proceedings. Obtaining an undertaking from the plaintiffs is

meaningless unless it is specific. The question which thus arises is

as to what should be the measure of damages with which the

plaintiffs in this case should compensate the subsequent purchaser

in the event of their case being found false. The subsequent

purchaser even if desirous of selling the property at the market price

today of Rs 4-5 crores would be unable to fetch the same for the

reason of pendency of the suit. However, since the subsequent

purchaser has been permitted to let out the property I feel that three

years rent or the price at which the plaintiff claims to have an

agreement to sell should furnish a good estimate of the damages

with which the plaintiffs should compensate the defendants. Thus

while dismissing the applications of the plaintiffs for interim relief

and allowing the applications of the defendants for vacation of the ex

parte order and for permitting them to let out the property, I also

direct the plaintiffs to file the undertaking in terms of the order

dated 30th March, 2009 as well as undertaking to this court, to jointly

and severally pay to the subsequent purchaser a sum of Rs 1 crore,

in the event of plaintiffs claim being found to be false and within 45

days of the dismissal of the suit and subject to any order of the

appellate court. The undertaking be filed within two weeks hereof.

24. With the consent of the counsel for the parties the two suits

are consolidated for the purposes of trial and common issues as

under are framed in the two suits with the second suit being the lead

suit and the nomenclature of the parties hereunder being as in the

second suit.

1. Whether the defendant No.2 had on 15th September, 2005

orally agreed to sell the shop to the plaintiffs and if so on what

terms? OPP

2. Whether the plaintiffs had paid advance sale consideration of

Rs 10 lacs to the defendant No.2?OPP

3. Whether the plaintiffs have been ready and willing to perform

their part of the agreement to sell?OPP

4. Whether the defendant no.2 had received the cheque for Rs 4

lacs as consideration for sale of jewellery/antiques to the daughter of

the plaintiff No.2? OPD2

5. Whether the discretion in the grant of relief of specific

performance is to be exercised in favour of the plaintiffs ? OPPr

6. To what relief, if any, are the plaintiffs entitled to against the

defendants? OPP

7. Whether the plaintiffs are entitled to the relief of declaration

with respect to the agreement to sell and other documents executed

by the defendant No.2 in favour of the defendant No.1, as null and

void? OPP

8. Relief.

No other issue arises. The parties to file their list of witnesses

within two weeks. The plaintiffs to file their affidavits by way of

examination in chief within six weeks. Evidence be recorded by the

Joint Registrar. Party shall be entitled to summon official witnesses

before the Joint Registrar.

List before the Joint Registrar on 10th August, 2009 for fixing

the dates for cross examination of the witnesses of the plaintiffs.

RAJIV SAHAI ENDLAW (JUDGE) May 11 , 2009 M