R. C. PURI v. JAGDIP KAUR — 1996 DIGILAW 123 (DEL)

K. RAMAMOORTHY ( 1 ) IA. 11238/95 is filed for injunction by the plaintiff seeking to restrain the defendant from alienating the property and in any manner creating third party interest in the suit property pending the disposal of the suit. First plaintiff R. C. Puri is the Managing Director of the second plaintiff R. C. Puri Developers (P) Ltd. According to the plaintiff, the property belonged to the husband of the defendant S. Parshottam Singh. He had executed a Will on 24. 11. 86 which was duly registered. He bequeathed the property in favour of the defendant. There is no dispute about the execution and registration of the Will. The property was properly mutated in the name of the defendant in the revenue records on 9. 3. 95. ( 2 ) ON 2. 5. 95 the defendant agreed to sell the property to plaintiff No. 1 and defendant knew that plaintiff No. 1 was acting for and on behalf of the second plaintiff. The transaction is evidenced by a receipt- cum-agreement dated 2. 5. 95. A sum of Rs. 5,01,000. 00 was paid to the defendant; Rs. 4,50,000. 00 by way of cash and Rs. 51,000. 00 by way of cheque. Pursuant to the arrangement the plaintiffs spending Rs. 1,73,620. 00 - got the conversion of the leasehold rights of the plot of land into freehold by which the defendant became entitled to deal with the property as absolute owner. That was on May 18, 1995. The plaintiffs executed requisite forms and handed over those to the defendants for signatures to enable her to obtain necessary permission for effecting sale. The defendant did not respond. The plaintiffs received the notice dated 21. 9. 95 issued by the defendant through her advocate cancelling the agreement and for threatening to forfeit the payment of Rs. 5,01,000. 00 paid by the plaintiffs to the defendant. The plaintiffs issued a telegram on 27. 10. 95 calling upon the defendant to fulfill her part of the agreement. It is asserted by the plaintiffs that in view of the rise of the value of the property the defendant s intention has become dishonest and the defendant is attempting to negotiate the suit property afresh with unwary customers for a higher consideration and is attempting to resile from the agreement to sell. It is asserted by the plaintiffs that in view of the rise of the value of the property the defendant s intention has become dishonest and the defendant is attempting to negotiate the suit property afresh with unwary customers for a higher consideration and is attempting to resile from the agreement to sell. It is stated in paragraph 12 of the plaint that in addition to the relief of specific performance the plaintiffs are entitled to recover damages and in case this Court holds that relief for specific performance cannot be granted, a decree for recovery of damages to the extent of Rs. one crore should be awarded. On these averments, the plaintiff has prayed for decree for specific performance and also, inter alia, in the alternative decree for recovery of Rs. one crore. ( 3 ) THE defendant has filed reply to the petition for injunction stating that there was no agreement between the parties; that receipt was only evidencing token payment taken by the defendant and parties had clearly understood that there should be a complete agreement incorporating the bargain between the parties; that in June 95 first plaintiff Mr. Suri, while on his visit to United States, contacted Mr. Madanjeet Oberoi son of the defendant, who lives in Atlanta and the first plaintiff and her son had discussions. It would appear that the first plaintiff had made some proposals to defendant s son and he had given a fitting reply that the proposals made by the first plaintiff cannot be accepted because they were not in accordance with law of this country. The plaintiff had sent draft agreements to the son of the defendant; that the defendant had received a copy of the draft agreement to sell dated 24. 7. 95 sent by the first plaintiff to the defendant s son on 24. 7. 95. The proposals were contradictory. The plaintiff had sent draft agreements to the son of the defendant; that the defendant had received a copy of the draft agreement to sell dated 24. 7. 95 sent by the first plaintiff to the defendant s son on 24. 7. 95. The proposals were contradictory. In page 3 A of the reply, the defendant made her position very clear by putting her case in the following terms :- "it may also be pertinent to point out that the initial representation/ understanding by plaintiff No. 1 was that he as a purchaser would pay 100% of the capital gains tax and arrange all clearances and the transaction was to be completed within a time bond programme, but plaintiff No. 1 rescinded the same and proposed for himself to be a confirming party to whom a sum of Rs. 35. 00 lakhs is to be paid and the purchase is to be by some third party. It is understood that plaintiff No. 1 sent a further communication to the son of the defendant in Atlanta by Fax on 30th July, 95 concerning his fresh proposal. Copies of the Fax draft agreement to sell and the said communication of 30th July, 95 are appended hereto and it is submitted that the same would belie the case set up by the plaintiffs. It may also be pertinent to mention that the son of the defendant had sent a communication dt. Sept. 27, 1995 to plaintiff No. 1 in response to the draft agreement and the aforesaid communication explaining the position and pointing out that the proposals/suggestions of plaintiff No. 1 were not acceptable. A copy of the letter dt. 27. 9. 95 is annexed. The plaintiff No. 1 has not produced on record the draft of the agreement to sell and the correspondence exchanged by him with the son of the defendant with whom the proposed agreement was discussed by plaintiff No. 1 and it seems that it has been done so deliberately and with a view to misrepresent, mislead and suppress from this Hon ble Court the true facts and circumstances which would falsify the case set up by the plaintiff No. 1 in the plaint. It would be patent from the said documents that no agreement was ever reached and signed as required by law. It would be patent from the said documents that no agreement was ever reached and signed as required by law. "she further stated that it was contrary to the original representation made by the first plaintiff. He had started making suggestions for having four different agreements to sell with different parties with apparent consideration of Rs. 8 lakhs each aggregating to about Rs. 32. 00 lakhs with a view to avoiding compliance of law. The defendant naturally was not agreeable to the proposals. Therefore, there was no concluded contract between the parties. The alleged reply dated 25. 10. 95, which is purported to have been posted on 28. 10. 95, was not received by the defendant till the reply was filed on 10. 11. 95. ( 4 ) THE plaintiff has not been able to prove concluded contract between the parties. Relying upon the judgment of this Court 1990 (4) Delhi Lawyer 119 it is contended on behalf of the plaintiff that the agreement represents concluded contract and, therefore, the plaintiff is entitled to maintain the suit for specific performance. The plaintiffs have completely suppressed the first plaintiffs visits to United States, making four agreements to sell mentioning Rs. 8. 00 lakhs in each ofthe agreements and the fact that the matter was only at the stage of negotiations and parties had not reached to any firm understanding. In other words, the plaintiffs have failed to prove consensus ad-idem evidenced by a document showing concluded contract between the parties. ( 5 ) THE learned counsel for the plaintiffs submitted that inspite of the order of ad-interim injunction prohibiting the defendant parting with the possession of the property, she had let out the property to a foreign Embassy. The learned counsel for the defendant submitted that defendant had entered Caveat and this Court passed an order only restraining the defendant from selling the property and while transcribing what was dictated a mistake had crept in and there was no such order by this Court. The learned counsel for the defendant had completely misunderstood what happened on that date when ad-interim order was passed but that is not a matter of any moment now. I need not deal any more on that. In my view, the plaintiffs have not made out any case for the grant of injunction, much less the prima facie case. Therefore, the petition for injunction stands dismissed. I need not deal any more on that. In my view, the plaintiffs have not made out any case for the grant of injunction, much less the prima facie case. Therefore, the petition for injunction stands dismissed. ( 6 ) THE defendant has filed the petition praying for the following reliefs :- "it is, therefore, most respectfully prayed that this Hon ble Court may be pleased to direct and order that the order of 6th November, 1995 be corrected and/or rectified and/or modified so as to read that there shall be an injunction restraining sale until further orders, such other and further orders as may be deemed necessary and proper in the circumstances be made. " ( 7 ) IN view of what I have stated above, the petition stands dismissed. ( 8 ) THIS application has been filed by the plaintiffs for appointment of the local commissioner to ascertain about the possession of the plaintiffs. ( 9 ) IT is wholly unnecessary. Dismissed. ( 10 ) IA. 1123 8/95 filed by plaintiff for injunction is dismissed. IA. 12050/95 filed by the defendant is dismissed. IA. 12033/95 filed by the plaintiff is dismissed. There shall be no order as to costs. S. No. 2547/95 Post the matter for further proceedings on 16th of July 1996.