Rajeswar K. v. Vijaya Raghavan C G — 1996 DIGILAW 164 (KER)

JUDGMENT 1. Defendants 1 and 2 in O. S. No. 1138 of 1994, on the file of the Principal Sub Court, Thiruvananthapuram have preferred this revision against the judgment dated 13th September 1995 in C.M.A. No. 84 of 1995 of the District Court, Thiruvananthapuram which arose from the order dated 25th July 1995 passed by the learned Sub Judge in IA. No. 5046 of 1994 of the said suit. By the impugned judgment, the petitioners have been restrained from selling the plaint schedule property to anyone except respondent No. 1, who is the plaintiff in the suit. 2. The first respondent as plaintiff filed the suit for a decree of permanent injunction restraining the revision petitioners/defendants from alienating, transferring or creating any charge or otherwise in respect of B schedule property to any person other than the plaintiff in violation of the terms of the agreement. It is stated by him that the property belongs to the first defendant Sri K. Rajeswar (first petitioner herein) and the second petitioner is his power of attorney holder. They intended to sell away the property. Out of the total extent of 26 cents, 19 cents of land described in B schedule of the plaint was proposed to be sold to the plaintiff (first respondent herein) for a consideration of Rs. 16 lakhs and the other portion of 7 cents of land, more particularly described in C schedule of the plaint was proposed to be sold to the daughter of the third defendant for a consideration of Rs. 5 lakhs. Accordingly, the second defendant entered into an agreement with him for sale of the land. 3. It is alleged that being instructed by defendants 2 and 3 the plaintiff deposited a sum of Rs. 50,000 in the account of the first petitioner in S.B. A/c No C. 2186, State Bank of India, Indira Nagar Branch, Bangalore on 6th January 1994 and subsequently paid a sum of Rs. two lakhs as part payment towards the consideration of the sale. He was given the photostat copies of the title deeds by the defendants to facilitate the execution of the sale deed as agreed to. The plaintiff was ready and willing to pay the balance sale price and to have the sale deed executed. But, later he understood that defendants 1 and 2 are reluctant to execute the sale deed as agreed upon. The plaintiff was ready and willing to pay the balance sale price and to have the sale deed executed. But, later he understood that defendants 1 and 2 are reluctant to execute the sale deed as agreed upon. Moreover, they are trying to alienate the property to strangers in violation of the terms of the agreement. The plaintiff is entitled to get the sale deed executed on payment of the balance consideration to defendants 1 and 2. 4. The plaintiff filed I.A. No. 5046 of 1994 in the suit for an order of temporary injunction restraining defendants 1 and 2 from executing any sale deed in favour of anybody else except the plaintiff. Learned Sub Judge rejected the prayer. On appeal, the learned District Judge set aside the order of the Sub Judge and issued the order of injunction as prayed for. 5. The second defendant, who is the power of attorney holder of the first defendant, and the third defendant, who is respondent No. 2 herein, have filed separate counter affidavits. The second defendant denied to have entered into any agreement with the plaintiff for sale of the property. The second defendant has also denied the receipt of rupees two lakhs and fifty thousand as stated by the plaintiff. The third defendant (Respondent No. 2 herein) states that he took a loan of Rs. 50,000 from the plaintiff and got it deposited in the account of the first defendant (Petitioner No. 1) towards the part payment of the price of the land which his son inlaw intended to purchase. He repaid this amount with interest to the plaintiff later. It is further stated that the first and the second defendant had requested the third defendant to find out persons who would be willing to purchase the property. The third defendant informed them that the plaintiff is willing to purchase it. Hence, he introduced him to the second defendant saying that he was willing to purchase 19 cents and that the remaining 7 cents would be purchased by his son inlaw. The plaintiff wanted to verify the documents of title in respect of the land. Hence he was given the photostat copies of the documents of title and the power of attorney executed in favour of the second defendant. The plaintiff wanted to verify the documents of title in respect of the land. Hence he was given the photostat copies of the documents of title and the power of attorney executed in favour of the second defendant. Neither was there any written commitment nor any oral agreement was entered into between the plaintiff and the defendants petitioners for sale of the property to him. 6. The learned Sub Judge held that the documents that were produced in the court, at this stage, do not lead to any inference that there was any oral agreement between the plaintiff and defendants 1 and 2. According to him, the plaintiff failed to show that there is a prima facie case. That apart, he held that balance of convenience would not weigh in favour of the plaintiff and no irreparable loss would be caused to him if temporary injunction, as prayed for, is not granted. He, therefore, declined to pass an order of injunction. The learned District Judge, however, held that the deposit made in the account of the first defendant on 6th January 1994 coupled with the conduct of the defendants in supplying the copies of the title deeds etc., to the plaintiff in pursuance of a letter dated 17th March 1.994 (Ext. A-5) written by the third defendant to the 2nd defendant would show that there was an oral agreement between the second defendant and the plaintiff for sale of 19 cents of plaint schedule land. Hence, according to him, a prima facie case has been made out. The plaintiff would suffer irreparable loss, if injunction as prayed for is not granted. He also found that the balance of convenience lies in favour of the plaintiff. He, therefore, granted the injunction. 7. The learned counsel for the petitioners contended that the suit is based on an allegation that there was an oral agreement between the parties for sale of the land and in pursuance thereof the plaintiff paid a part of the consideration, but no case is made out in the plaint that the plaintiff is entitled to get the relief of specific performance of contract. There is no material on record to show that any such agreement was entered into. A mere proposal without anything more does not amount to an agreement. There is no material on record to show that any such agreement was entered into. A mere proposal without anything more does not amount to an agreement. It is also contended that when the plaintiff can obtain equally efficacious remedy, no injunction as prayed for could be granted. 8. Learned counsel for the first respondent has contended that the suit has been filed under S.37 of the Specific Relief Act. Injunction has been sought for to prevent the breach of an obligation existing in favour of the plaintiff. Under S.40 and 54 of the Transfer of Property Act, plaintiff is entitled to get an order of injunction as prayed for to prevent the breach of obligation arising out of the contract for sale of the property. He has further contended that the plaintiff has shown that an oral agreement was entered into in pursuance of which there was part payment of consideration and as such a prima facie case has been established. 9. The main point for consideration is whether a prima facie case has been established by the plaintiff to claim the benefit of an obligation in his favour on the basis of an alleged oral agreement, and that he alone has the right to claim for the specific performance of that contract. Admittedly no written agreement was executed by the parties. 10. S.37 of the Specific Relief Act states about the duration of the temporary injunction in a suit and that perpetual injunction can only be granted by the decree made after hearing upon the merits of the suit. S.38 of the Act which deals with cases in which perpetual injunction may be granted as well as S.40 and 54 of the Transfer of Property Act which deal with the enforcement of the benefit of an obligation arising out of a contract for the sale of the immovable property, postulate the existence of an agreement between the parties for sale of immovable property. Of course there is no requirement of law that such an agreement or contract should only be in writing. However, it is incumbent on the part of the plaintiff to show that there was consensus ad idem the parties for a concluded oral agreement and that vital and fundamental terms for sale of immovable property were concluded between the parties orally. 11. However, it is incumbent on the part of the plaintiff to show that there was consensus ad idem the parties for a concluded oral agreement and that vital and fundamental terms for sale of immovable property were concluded between the parties orally. 11. In Ouseph Varghese v. Joseph Aley and others 1969 (II) S.C.W.R. 347, the Supreme Court observed that before a court can tyrant a decree for a specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence. Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence. In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant, specifically to perform the agreement pleaded by him but the defendant has not done so. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. If a suit is filed with a claim for specific performance of a contract, the plaintiff is required to state the date on which the agreement was entered into as envisaged in forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. 12. The averments in the plaint do not disclose as to the date on which such an agreement was entered into between the parties. Not a scrap of paper has been produced in evidence of payment of rupees two lakhs. In the normal course, it is not expected that one would part with a huge sum of rupees two lakhs without obtaining any receipt from the recipient. But, there is no such receipt. On the basis of the documents, namely the deposit vouchers dated 6th January 1994 (Ext. A-4) and the letter dated 17th March 1994 (Ext. A-5), the court cannot reach a conclusion that vital and fundamental terms for sale of immovable property were settled between the parties and that there was consensus between them for concluded oral agreement. 13. While the plaintiff assents that the amount of Rs. A-4) and the letter dated 17th March 1994 (Ext. A-5), the court cannot reach a conclusion that vital and fundamental terms for sale of immovable property were settled between the parties and that there was consensus between them for concluded oral agreement. 13. While the plaintiff assents that the amount of Rs. 50,000 was deposited as part payment of the consideration, the defendants refute it by stating that it was deposited on behalf of the son inlaw of the third defendant. Except the affidavits of the parties, there is no evidence to ascertain the veracity of their statements. In the absence of any evidence regarding the date of the alleged agreement, no inference can be drawn that the deposit was made subsequent to the agreement. On a perusal of Ext. A-5 letter, it appears that it is an intimation by the third defendant to the second defendant that the plaintiff is willing to purchase the laud after verification of the original gift deed under which the first defendant acquired the title to the property. The second para of the letter makes it clear that payment of money shall be made only after hearing from the second defendant, which implies that until the second defendant approves the proposal no consideration money shall be paid. This letter cannot, therefore, be construed as a letter of acceptance of the proposal. No agreement between the second defendant and the plaintiff is spelt out from it. If at all there was any agreement prior to it, it would not have been mentioned that the plaintiff should be shown the original gift deed for his satisfaction about the title of the first defendant and that payment would be arranged only after hearing from the second defendant. Since by 17th March 1994 there was no agreement between the parties, deposit of Rs. 50,000 in the account of the first defendant cannot be construed as one made towards the part payment of the consideration. There is no material on record to show that the photostat copies of the title deed and power of attorney were given to the plaintiff after entering into the agreement. In my opinion, the learned Sub Judge has correctly appreciated the documentary evidence on record. Learned District Judge reached the conclusion merely on surmises and conjectures. There is no material on record to show that the photostat copies of the title deed and power of attorney were given to the plaintiff after entering into the agreement. In my opinion, the learned Sub Judge has correctly appreciated the documentary evidence on record. Learned District Judge reached the conclusion merely on surmises and conjectures. Hence, I find that there is no concluded contract between the parties for sale of the plaint schedule property. Since no obligation arises out of any contract, of provisions of S.40 and 54 of the Transfer of Property Act are not applicable to the facts of this case. 14. Section 38 occurring in Chap.8 of the Specific Relief Act, 1963 reads as follows: "38. (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (f) where the injunction is necessary to prevent a multiplicity of judicial proceedings." Chapter II of the Specific Relief Act deals with specific performance of contract. Thus perpetual injunction can be granted to prevent the breach of an obligation when such obligation arises from a contract. No temporary injunction can be granted in this case when ultimately no perpetual injunction can be granted. S.41, which occurs in Chap.8 of the Specific Relief Act, lays down inter alia that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. 15. No temporary injunction can be granted in this case when ultimately no perpetual injunction can be granted. S.41, which occurs in Chap.8 of the Specific Relief Act, lays down inter alia that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. 15. In a case of this nature, where facts are similar, Punjab and Haryana High Court in Satish Bahadur v. Hans Raj AIR 1980 Punjab and Haryana 351 observed as follows: "The plaintiff filed suit for permanent injunction to the effect that the defendant owner of the suit land be restrained from alienating the land to other defendants or to any one except the plaintiff because the defendant had entered into an agreement to sell the land to the plaintiff which was required to be registered at a future date. After the date when the sale deed was required to be registered, the defendant filed an application stating that, the suit for permanent injunction has become infructuous in view of S.41(h) as the plaintiff has become entitled to file a suit for specific performance of the contract- Held, that, since the plaintiff was entitled to another equally efficacious relief to file a suit for specific performance of contract the suit for permanent injunction could not proceed because an injunction could not be granted when equally efficacious relief could be obtained by any other usual mode of proceedings." 16. I agree with the view of the Punjab and Haryana High Court. I find that the above proposition of law is squarely applicable to this case. I, therefore, find that the plaintiff has failed to show that there is a prima facie case. Hence the impugned order cannot be sustained. 17. For the reasons stated above, I set aside the Judgment dated 13th September 1995 in C. M. A. No. 84 of 1995. The revision is allowed. No costs.