ANANT RAJ INDUSTRIES LTD Vs. SANJAY KAUSHISH

JUDGEMENT

(1.) THE Appellant who had filed a Suit for specific performance assails the order dated 6. 2. 2006 whereby the learned Single Judge had, after considering the facts and the law in great detail, dismissed the Plaintiff/appellant's application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC for short ). The Plaintiff had, in that application, prayed that the Defendants be restrained from selling, transferring or disposing of or parting with possession or creating any third party interest, whatsoever, in respect of the title, character and possession of agricultural land ad measuring 25 bigha, 9 biswas situated in the revenue estate of village Samalika, Tehsil Vasant Vihar, New Delhi.

(2.) ACCORDING to the averments made in the Plaint, the parties had orally arrived at an agreement for sale of the said property on all essentials. A draft Agreement was prepared and even initialed by one of the Defendants. It is contended that although the price was agreed upon, it was not so mentioned in the Draft Agreement itself. It is on this basis that the Plaintiff/defendant seeks specific performance of this Agreement. We have perused this document which contains hand-written figures which, according to the Defendants, have been written unauthorisedly by the Plaintiff. The further contention is that a sum of Rupees 20,00,000/- was paid by the Plaintiff to the Defendants, but this assertion has been vehemently and unambiguously denied by the Defendants. So far as the initials on the Draft Agreement are concerned, the Defendants state that this was so done in order that the Draft agreement may not be changed. However, the sale consideration, as well as the mode of payment, had not been agreed upon and was under negotiation. On this short ground alone, it is contended that an actionable agreement or a concluded contract had obviously not been reached. Hence, the suit for specific performance was not maintainable.

(3.) WE have heard learned counsel for the Defendants as a Caveat had been filed. He has reiterated the arguments successfully raised before the learned Single judge. He has additionally taken us through previous plaints filed by the plaintiff in which the alleged sequence of facts is poignantly identical. It is submitted on behalf of the Defendants that the modus operandi of the Plaintiff is to initiate negotiations, orchestrate a breach in respect of immovable property in issue, to be followed by a suit for specific performance at an absurdly low price with the hope of blackmailing the Defendants to surrender. Reliance has been placed on a Judgment delivered by one of us (Vikramajit Sen, J.) reported as Pellikan Estates pvt. Ltd. vs- Kamal Pal Singh, 2004 VI AD Delhi 185 in which also the conclusion was that no prima facie case had been disclosed as to the evolution of a binding contract for the sale of the property. It has not been controverted that Pellikan is a sister concern of the Plaintiff. In Pellikan some of the pleadings had been reproduced which have startling similarity to the case set-out in the dispute before us. We think it advantageous to reproduce the following passage from the decision pending in Brij Mohan -vs-Sugra Begum, (1990) 4 SCC 147 in order to clarify that while action for specific performance can be predicated on an oral agreement, a heavy burden lies on the Plaintiff to prove that complete agreement had already been reached. Their Lordships enunciated the law in these terms:- "we have given our careful consideration to the arguments advanced by learned counsel for the parties and have thoroughly perused the record. We agree with the contention of the learned counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement. "