SOBHAG NARAIN MATHUR Vs. PRAGYA AGRAWAL

JUDGEMENT

(1.) BY this application under Order 7 Rule 11 CPC, the applicant/defendant has sought rejection of the suit on the ground that no cause of action had been disclosed by the plaintiff for specific performance of the alleged contract. The contract relied upon by the plaintiff was merely a contract for entering into a further agreement and the Court could not compel the parties to enter into an agreement to sell.

(2.) BEFORE dealing with further averments made by the applicant, it would be fruitful to reproduce the contract which is the basis of this suit. The contract as disclosed by on 'bayana' receipt executed by the defendant, reads as under:

(3.) THUS , the question which arises and to be answered is - whether the above 'bayana' receipt is a concluded contract of sale or not. The Counsel for the plaintiff submitted that the 'bayana' receipt shows that the parties had concluded a contract for sale of the property. The parties were ad idem on the identification of properties which were to be sold to the plaintiff. They had also agreed to the sale consideration of Rs. 6,20,00,000/- as is clear from the agreement. Parties also agreed that this consideration was to be paid by the plaintiff to the defendant on or before 15th February, 2007. It was also agreed that tea vendor, tyre puncture repair vendor and scooter repair mechanic, squatting in front of the plots would be removed by the defendant. The only unconcluded part of the contract was the details of payment of consideration that is how the consideration would be paid between 14th December, 2006 and 15th February, 2007 by the plaintiff. On 14th December, 2006 plaintiff was to pay 10% of the total sale consideration after adjusting Rs. 20 lac already paid. Thus, the only details to be given were in respect of remaining 90% payment and merely because the parties had not put down as to how the payment of this 90% amount would be spread between 14th December, 2006 and 15th February, 2007 do not make the contract an unconcluded contract. It is submitted that in any case the defendant was to receive the entire payment of Rs. 6, 20,00,000/- by 15th February, 2007 and was liable to execute the sale deed on receiving the entire payment by that day. It is submitted that absence of all other details like, who will obtain income tax clearance, who will pay unearned profits, who will pay for stamp papers etc. were not material to the agreement and absence of these details does not make the contract unenforceable under the Specific Relief Act. There is always an implied covenant to do all things necessary by the seller and purchaser, wherever the liability lies to give effect to the agreement. For this he relied on Motillal & Ors. v. Nanhelal & Ors. AIR 1930 PC 287 AIR, Rojasara Dahyabhai v. Jani Narottamdas AIR 1986 SC 1912 and Nirmala Anand v. Advent Corporation Pvt. Ltd. & Ors. 2002 (5) SSC 481. He also submitted that absence of covenant regarding unearned increase is agreement to enter into a future formal contract, does not make the existing contract invalid.