JUDGMENT - R.K. BATTA, J.:---A suit for specific performance, injunction, receiver and consequential reliefs was filed by the respondent No. 1 against the present appellants, respondent No. 2 and Flavia Correia Gomes Clemente, who is said to have died prior to the filing of the suit. In this suit, respondent No. 1 sought injunction to restrain the present appellants, respondents No. 2 and the said deceased Flavia Correia Gomes Clemente, from in any way creating any third party interest or in any way transferring the suit property or conveying the suit property or parting with possession of the suit property in any way, or encumbering or dealing with, or creating any charge over the suit property. The Civil Judge vide impugned order dated 29th May, 1998, granted the said application and restrained the appellants, respondent No. 2 and the said deceased Flavia Correia Gomes Clemente, from creating any third party interest or from encumbering or creating any charge of whatsoever nature in the suit property. This order is the subject-matter of appeal. 2.The main controversy centres around the question as to whether there was a concluded contract between the parties and whether in the circumstances of the case the trial Court was justified in passing the impugned order. 3.Learned Senior Counsel, Shri Usgaokar, took me through the record and urged before me that the entire transaction according to the respondent No. 1 had taken place only with the defendant No. 1/appellant No. 1 and, as such, no specific performance of such transaction could be claimed against the other defendants and specially when defendant No. 3 Flavia Correia Gomes Clemente had already expired in the year 1988, much prior to the filing of the suit and even after filing the suit her heirs were not brought on record. It was next urged that the entire correspondence on record does not reveal that there was a concluded contract and the theory of oral contract on telephone cannot, prima facie, be accepted or believed. It was next urged that the entire correspondence on record does not reveal that there was a concluded contract and the theory of oral contract on telephone cannot, prima facie, be accepted or believed. It was pointed out that even though respondent No. 1 claims that there was concluded contract which had been finalized in the year 1988, yet no steps whatsoever were taken by respondent No. 1 till the filing of the suit in the year 1994; that in the year 1993 all the co-owners of the suit property had entered into an agreement with defendant No. 5, who had in pursuance of the said agreement developed and put up construction which had reached the stage of ground floor plus two storeys, which was completed and the work of third floor was in progress after which fourth floor ceiling slab had to be put up; that the respondent No. 1 did not seek any restraint whatsoever on the construction as a result of which the appellant have changed their positions due to which there is no equity in favour of respondent No. 1 for the grant of the impugned order. It was further pointed out that the respondent No. 1 has not paid a single pie to the owners, namely the appellants No. 1 and 2; no details of the alleged huge expenditure incurred by respondent No. 1 had been given and that the Civil Judge on the basis of mis-statement of certain facts, has granted the impugned order. I shall advert to the mis-statement of facts pointed out by learned Senior Counsel for the appellants at a little later stage, while discussing the matter of merits. 4.Relying upon (Aziz Khan others v. Bhola Nath Srivastava others)1, A.I.R. 1945 All. 21, it was urged that the suit is not maintainable since it was filed against deceased respondent No. 3 and even after filing the suit her legal representatives were not brought on record. In respect of maintainability of the suit, the present appellants had filed Civil Revision Application No. 76/97. Vide Order dt. 12th September, 1997, passed by this Court it was held that the objection taken to the maintainability was premature and the same was required to be decided on framing preliminary issue in accordance with law. In respect of maintainability of the suit, the present appellants had filed Civil Revision Application No. 76/97. Vide Order dt. 12th September, 1997, passed by this Court it was held that the objection taken to the maintainability was premature and the same was required to be decided on framing preliminary issue in accordance with law. 5.Learned advocate Shri Talaulikar, appearing on behalf of respondent No. 1 has urged before me that there is no dispute to the stage of construction as revealed in the record and that no relief regarding stoppage of construction was ever sought by respondent No. 1. According to him, the correspondence on record and especially letter dated 17th August, 1987, is sufficient to hold that there is a concluded contract between the parties and the appellants are bound to specifically perform the contract. In support of his submissions reliance has been placed on (Jawahar Lal Barman v. The Union of India)2, A.I.R. 1962 S.C. 378 (Kollipara Sriramulu (dead) by his legal representative v. T. Aswatha Narayana (dead) by his legal representative others)3, A.I.R. 1968 S.C. 1028 and (Dr. Jiwan Lal others v. Brij Mohan Mehra another)4, A.I.R. 1973 S.C. 559. 6.I shall first take up the contention of learned Senior Counsel for the appellants that there are mis-statement of facts by the trial Judge. The trial Judge proceeded on the ground that it is admitted position that the defendant No. 4, is agent of defendants No. 1 to 3. In para 3 of the written statement it was categorically stated by defendant No. 1 that defendant No. 4 is neither broker nor agent of defendant No. 1 and that defendant No. 1 had never authorized defendant No. 4 to act either as agent or broker for the defendant No. 1 in any manner. The trial Judge also proceeded on the assumption that defendant No. 1 had assured that the suit property would be conveyed to the respondent No. 1 by executing a Sale Deed but no such assurance is coming forth from any material on record. The trial Judge also went on assumption that defendant No. 5 entered into Agreement For Sale of suit property inspite of knowing that there was an Agreement For Sale between the plaintiff and the defendant No. 3 and carried out construction in the suit property. The trial Judge also went on assumption that defendant No. 5 entered into Agreement For Sale of suit property inspite of knowing that there was an Agreement For Sale between the plaintiff and the defendant No. 3 and carried out construction in the suit property. It has already been pointed out by learned Senior Counsel for the appellants that defendant No. 3 had expired much prior to the filing of the suit. The trial Court further proceeded on the assumption that respondent No. 1 must have incurred huge expenditure without even bothering to know whether any details of such expenditure had been given by respondent No. 1. The trial Judge had also mis-stated in the impugned order that there was nothing from the side of the defendants to show that after entering into an agreement with defendants No. 1 to 3 they have raised the construction of three floors in the suit property. I have already referred to para 3 of the written statement of the defendant No. 5, where the construction raised has been referred to. It is rather surprising that the trial Judge who had in para 3 of the impugned order stated that the case of defendant is that there was no concluded contract between the plaintiff and the defendants, yet in para 5 of the impugned order at page 7, went on the assumption that the admitted position is that there is a concluded contract between the plaintiff and defendants No. 1 and 2. All these mis-statement of facts, by itself, would be sufficient to set aside the impugned order passed by the trial Judge on the basis of the said mis-statement of facts. However, even on merits, respondent No. 1/plaintiff had absolutely no case for grant of relief sought by it. There is considerable merit in the contention of learned Senior Counsel for the appellants that prima facie there was no concluded contract between the parties which can be illustrated with reference to the correspondence between the parties. Letter dated 16th February, 1987 (at page 81 of the record) is written by the defendant No. 4 to appellant No. 1 seeking details of the property to be sold. Letter dated 16th February, 1987 (at page 81 of the record) is written by the defendant No. 4 to appellant No. 1 seeking details of the property to be sold. In letter dated 3rd March, 1987 (at page 83 of the record), the appellant No. 1 informed defendant No. 4 the details and specifically informed defendant No. 4 that the owners are currently negotiating with other parties interested in purchasing the property in question and in case the client of defendant No. 4 was interested he should expeditiously proceed in the matter. Letter dated 12th April, 1987 (at page 87 of the record) written by the appellant No. 1 to defendant No. 4 confirms certain details mentioned therein, where again specifically it was informed that the owners are negotiating with other parties interested in purchasing the property in question, though no commitment in writing or verbal has been made with them. Letter dated 25th April, 1987 (at page 88 of the record) written by the appellant No. 1 to defendant No. 4 once again confirms details relating to the property including sale price, etc. In this letter it was specifically stated that the above price offered will expire on 30th June, 1987. This letter further states that all the above points referred to in the letter are for discussion and do not confer any right whatsoever, until relevant legal documents mutually agreed are property signed, sealed and delivered. Letter dated 27th May, 1987, (at page 92 of the record) written by the appellant No. 1 to the defendant No. 4 states that in order to progress in the matter defendant No. 4 should obtain a letter from M/s. Rizvi Builders under their letterhead confirming acceptance and re-stating in full points No. 1 to 9 in his letter dated 25th April, 1987 and on receipt of the same appellant No. 1 shall be able to contact his brother in States and then assure him that the offer is firm. Neither the defendant No. 4 nor defendant No. 5 confirmed the acceptance of terms referred to in the letter dated 25th April, 1987 and the price offer given in the said letter had already expired on 30th June, 1987. It was only on August 17, 1987 the proprietor of M/s. Rizvi Builders wrote a letter to appellant No. 1 mentioning the terms. It was only on August 17, 1987 the proprietor of M/s. Rizvi Builders wrote a letter to appellant No. 1 mentioning the terms. According to learned Senior Counsel for the appellants, this letter dated 17th August, 1987, is a counter offer and cannot be even treated as acceptance of offer dated 25th April, 1987 of the appellant No. 1. In the letter dated 17th August, 1987, the proprietor of M/s. Rizvi Builders had stated that if the F.A.R. is two then the price payable shall be two crores, as against the offer of Rs. 2,73,68,000/- in case of F.A.R. being 2.5. In this letter the proprietor of M/s. Rizvi Builders had asked the appellant No. 1 to come to India immediately to finalize the other terms of the agreement and conclude the formalities of execution of document. The correspondence on record, therefore, does not make out a case of concluded contract, prima facie, as urged by the respondent No. 1 on the basis of which the suit was filed. The plaintiff/respondent No. 1 has, in this behalf, relied upon some telephonic conversation between the defendants No. 1 and defendant No. 4 and has stated that in the circumstances the contract was concluded by oral agreement. It is rather difficult at this stage to believe or accept that there was any such oral agreement between the parties, since there was elaborate correspondence between the parties and even in the letter dated 17th August, 1987, there was absolutely no reference to any oral agreement or telephonic conversation which has been sought to be introduced in the plaint, prima facie, as a result of afterthought. The trial Judge's conclusion that there was a concluded contract is absolutely perverse. 7.Learned advocate for the respondents had placed reliance on a number of rulings of the Apex Court in support of his submission that the concluded contract need not necessarily be in writing, but it can be on the basis of oral agreement as well. The Apex Court in Kollipara Sriramulu v. T. Aswatha Narayana (supra) does lay down that a contract based on oral agreement to be reduced into writing in future is binding on the parties and the fact that the parties refer to preparation of an agreement by which the terms agreed upon are to be put in a more formal shape does not prevent the existence of a binding contract. However, the Apex Court has pointed out that there are cases where the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed and the entire question would depend upon the intention of the parties in the special circumstances of each particular case. The fact of a subsequent agreement being prepared may be evidence that the previous negotiations did not amount to a concluded contract, but the mere fact that persons wish to have a formal agreement drawn up does not establish the proposition that they cannot be bound by previous agreement. In this case before the Apex Court, the evidence adduced on behalf of the respondent No. 1 did not show that drawing up of written agreement was a pre-requisite to the coming in to effect of the oral agreement. This ruling far from helping the case of the respondent No. 1/plaintiff, in fact goes against him. I have already referred to the correspondence between the parties in detail wherein the appellant No. 1 had expressly informed the defendant No. 4 that the appellants were negotiating with other parties as well and defendant No. 4 should take expeditious steps in the matter. The price offer given was to expire on 30th June, 1987 and it was made clear that all the points referred to in letter dated 25th April, 1987, were for discussion and did not confer any right whatsoever until the relevant legal documents mutually agreed were properly signed, sealed and delivered. The appellant No. 1 even sought confirmation of acceptance from respondent No. 1 through respondent No. 2, so that he could contact his brother and assure him that the offer was firm. The offer was conditional and was not accepted by the respondent No. 1 before 30th June, 1987. Letter dated 17th August, 1987, is prima facie a counter offer and not acceptance of offer of appellant No. 1 given by letter dated 25th April, 1987. The said letter itself speaks of finalising the terms of agreement as well as completing the formalities of execution of documents. It has been laid down by the Apex Court in Jawahar Lal Barman v. The Union of India (supra) upon which reliance was placed by learned advocate for the respondent No. 1 that acceptance of offer must be absolute and unconditional. It has been laid down by the Apex Court in Jawahar Lal Barman v. The Union of India (supra) upon which reliance was placed by learned advocate for the respondent No. 1 that acceptance of offer must be absolute and unconditional. There is no absolute or unconditional acceptance of offer by the appellant No. 1 in the case before me. The third ruling upon which reliance is placed has no application. 8.In the facts and circumstances, I hold that prima facie, there has been no concluded contract between the parties. The theory of oral agreement and telephonic conversation which did not even find place in the letter dated 17th August, 1987, of respondent No. 1 appears to be nothing but an after-thought for the purpose of filing the suit in order to seek restraint on parting with flats which had come up in due course. It is also important to note that from 1987 till 1994 respondent Nos. 1 and 2 did not take any steps whatsoever in connection with the transaction which, according to them was a concluded contract. In the meantime in the year 1993, the appellants had entrusted the suit property to defendant No. 1 for development. No restraint was sought by the respondent No. 1 on development or construction and the construction had reached the stage of third floor when the impugned order in question was passed. Naturally, huge expenditure has to be incurred on such construction. On the contrary, even though the plaintiff had stated that he had incurred huge expenditure in getting R.B.I. licenses, payment to the professionals, expenses for trips abroad undertaken by the defendant No. 4 and payment of earnest amount to defendant No. 2, who was labelled by the plaintiff as agent of defendants No. 1 to 3, which was specifically denied by the defendant No. 1 in para 3 of the written statement. It is also important to note that the expenses of R.B.I. licenses were to be incurred by defendant No. 1 and in fact, defendant No. 1 has stated that the said expenses were incurred by him. The plaintiff did not pay a single pie to defendant No. 1 and defendant No. 2 and sought to seek restraint of transfer of interest in the suit property, which obviously included the building which had come up in due course. The plaintiff did not pay a single pie to defendant No. 1 and defendant No. 2 and sought to seek restraint of transfer of interest in the suit property, which obviously included the building which had come up in due course. The plaintiff had neither prima facie case nor it was shown that he will suffer irreparable loss, nor that the balance of convenience was in his favour. On the contrary, all these points were in favour of the present appellants. 9.For the aforesaid reasons the impugned order being totally perverse is liable to be set aside and the same is hereby set aside. The Appeal is accordingly allowed and the application of the plaintiff dated 18th April, 1994, is dismissed with costs. Appeal allowed. *****