Research › Search › Judgment

Delhi High Court · body

2004 DIGILAW 653 (DEL)

PELIKAN ESTATES PVT. LTD. v. KAMAL PAL SINGH

2004-08-20

VIKRAMAJIT SEN

body2004
VIKRAMAJIT SEN, J. ( 1 ) A CHALLAN HAS BEEN FILED SHOWING THAT A SUM OF RS. 8,72,565/- HAS BEEN DEPOSITED IN THE TREASURY. COUNSEL FOR THE PETITIONER UNDERTAKES THAT COURT FEES SHALL BE AFFIXED ON THE PLAINT WITHIN SEVEN DAYS. ( 2 ) THE APPLICATION STANDS DISPOSED OF IN THESE TERMS. IA NO. 5341/2004 ( 3 ) THIS ACTION FOR SPECIFIC PERFORMANCE RELATES TO PROPERTY BEARING MUNICIPAL NO. 18, HAILEY ROAD, NEW DELHI. THE PLAINTIFF ASSERTS THAT AFTER NEGOTIATIONS BETWEEN THE PARTIES, AN ORAL AGREEMENT HAD BEEN ARRIVED AT BETWEEN THEM ON 28. 7. 2004. THESE AVERMENTS ARE TO BE FOUND IN PARAGRAPH 5 OF THE PLAINT WHICH READ AS FOLLOWS: "that AFTER NEGOTIATIONS BETWEEN THE PARTIES AN ORAL AGREEMENT WAS ARRIVED AT BETWEEN THE PARTIES ON 28. 7. 2004 BY THE DEFENDANTS THROUGH DEFENDANT NO. 3 WHEREBY ALL THE DEFENDANTS AGREED TO SELL THE LEASEHOLD BUILT UP PROPERTY ADMEASURING 1872 SQ YARDS AT 18, HAILEY ROAD, NEW DELHI, TO THE PLAINTIFF FOR A TOTAL CONSIDERATION OF RS. 8. 25 CRORES TO BE PAID IN THE FOLLOWING MANNER:- i) RS. 1. 65 CRORES TO BE PAID BY THREE PAY ORDERS OF RS. 55 LAKHS EACH DRAWN IN FAVOUR OF DEFENDANTS 1,2 AND 3 ON OR BEFORE 12. 8. 2004. (II) BALANCE RS. 6. 60 CRORES TO BE PAID WITHIN 90 DAYS FROM 12. 8. 2004 AGAINST DELIVERY OF VACANT POSSESSION OF THE SAID PROPERTY AND EXECUTION OF SALE DEED WHICH IS TO BE EXECUTED AFTER RECEIVING PERMISSION FROM Landdo. IN ADDITION TO THE AFORESAID CONSIDERATION, THE PLAINTIFF IS ALSO LIABLE TO PAY ALL THE CHARGES FOR TRANSFER AND CONVERSION CHARGES AND STAMP DUTY REQUIRED FOR EXECUTION OF THE SALE DEED. " ( 4 ) THE PLAINTIFF FURTHER ASSEVERATES THAT THE PAYMENT OF THE ALLEGED EARNEST MONEY OF RS. 1. 65 CRORES WAS DEFERRED TO 12th AUGUST, 2004 ON THE REQUEST OF DEFENDANT NO. 3 THAT THAT THIS DATE WAS AUSPICIOUS FOR THE TRANSACTION. THE PLAINTIFF HAS FILED PHOTOCOPIES OF THREE PAY ORDERS IN FAVOUR OF EACH OF THE DEFENDANTS FOR A SUM OF RS. 55 LAKHS DATED 9. 8. 2004 AND DRAWN ON THE CANARA BANK, CONNAUGHT CIRCUS, NEW DELHI BRANCH AGGREGATING TO THE SUM OF RS. 1. 65 CRORES. THE PLAINTIFF HAS ALSO PLACED ON RECORD THE DRAFTS OF A PROPOSED AGREEMENT TO SELL WHICH IS STATED BY IT TO CONTAIN THE HANDWRITING OF DEFENDANT NO. 3. 55 LAKHS DATED 9. 8. 2004 AND DRAWN ON THE CANARA BANK, CONNAUGHT CIRCUS, NEW DELHI BRANCH AGGREGATING TO THE SUM OF RS. 1. 65 CRORES. THE PLAINTIFF HAS ALSO PLACED ON RECORD THE DRAFTS OF A PROPOSED AGREEMENT TO SELL WHICH IS STATED BY IT TO CONTAIN THE HANDWRITING OF DEFENDANT NO. 3. OTHER DOCUMENTS PURPORTING TO HAVE BEEN EDITED BY THE SAID DEFENDANT AND HIS WIFE HAVE ALSO BEEN PLACED ON RECORD IN ORDER TO SHOW THAT THERE WERE ACTIVE NEGOTIATIONS BETWEEN THE PARTIES. IT IS FURTHER ASSEVERATED THAT IN A TELEPHONIC CONVERSATION BETWEEN THE PLAINTIFF AND DEFENDANT NO. 3, THE LATTER INFORMED THE PLAINTIFF ON 12. 8. 2004 THAT THE DEFENDANTS HAD DECIDED NOT TO SELL THE PROPERTY TO THE PLAINTIFF. THIS RESULTED IN A LEGAL NOTICE BEING ISSUED TO THE DEFENDANTS WHICH HAD THE CONSEQUENCE OF THE LODGING OF CAVEAT NO. 1240/2004 BY THE DEFENDANTS. ( 5 ) THE DEFENDANTS CASE IS THAT DEFENDANT NO. 3 HAS TO UNDERGO DIALYSIS EVERY SECOND DAY AND HIS HEALTH PRECLUDE HIM FROM PARTICIPATING IN THE ACTIVE NEGOTIATIONS DEPICTED BY THE PLAINTIFF. MRS. NALINI SINGH WIFE OF DEFENDANT NO. 3 IS PRESENT IN COURT. SHE DENIES THAT THE AGREEMENT TO SELL CONTAINS THE HANDWRITING OF EITHER HER HUSBAND OR HERSELF OR OF ANY OTHER PERSON KNOWN TO THEM. HER ANSWER IS THE SAME IN RESPECT OF OTHER DOCUMENTS WHICH THE PLAINTIFF ASSERTS CONTAIN HANDWRITING OF DEFENDANT NO. 3. LEARNED COUNSEL FOR THE DEFENDANT STATES THAT HE HAS RECEIVED CATEGORICAL INSTRUCTIONS FROM DEFENDANT NO. 3 AND HIS WIFE THAT NO PARLEYS TOOK PLACE BETWEEN THE PLAINTIFF AND ANY OF THE DEFENDANTS. HE ASSERTS THAT THE PROPERTY HAS BEEN ON THE MARKET FOR SOME TIME AND THE DOCUMENTS WHICH ARE CLAIMED TO HAVE BEEN DELIVERED BY THE DEFENDANT TO THE PLAINTIFF MUST HAVE BEEN PROCURED BY THE LATTER FROM SOME OTHER SOURCE. ( 6 ) THE CENTRAL QUESTION TO BE INVESTIGATED IS WHETHER AN ORAL AGREEMENT HAD BEEN ARRIVED AT BETWEEN THE PARTIES I. E. WHETHER THE ALLEGED NEGOTIATIONS HAD REMAINED INCHOATE OR HAD FRUCTIFIED INTO CONSENSUS AD IDEM ON ALL THE INGREDIENTS NECESSARY FOR THE FORMATION OF A CONTRACT. ( 6 ) THE CENTRAL QUESTION TO BE INVESTIGATED IS WHETHER AN ORAL AGREEMENT HAD BEEN ARRIVED AT BETWEEN THE PARTIES I. E. WHETHER THE ALLEGED NEGOTIATIONS HAD REMAINED INCHOATE OR HAD FRUCTIFIED INTO CONSENSUS AD IDEM ON ALL THE INGREDIENTS NECESSARY FOR THE FORMATION OF A CONTRACT. LEARNED COUNSEL FOR THE PLAINTIFF HAS STRONGLY RELIED ON THE DECISION OF THE HON ble SUPREME COURT IN KOLLIPARA SRIRAMULU (DEAD) BY HIS LEGAL REPRESENTATIVES (IN BOTH THE APPEALS) VERSUS T. ASWATHA NARAYANA (DEAD) BY HIS LEGAL REPRESENTATIVES AND OTHERS, AIR 1968 SUPREME COURT 1028 TO THE FOLLOWING PASSAGE THEREOF WHICH READ THUS: "we PROCEED TO CONSIDER THE NEXT QUESTION RAISED IN THESE APPEALS NAMELY WHETHER THE ORAL AGREEMENT WAS INEFFECTIVE BECAUSE THE PARTIES CONTEMPLATED THE EXECUTION OF A FORMAL DOCUMENT OR BECAUSE THE MODE OF PAYMENT OF THE PURCHASE MONEY WAS NOT ACTUALLY AGREED UPON. IT WAS SUBMITTED ON BEHALF OF THE APPELLANT THAT THERE WAS NO CONTRACT BECAUSE THE SALE WAS CONDITIONAL UPON A REGULAR AGREEMENT BEING EXECUTED AND NO SUCH AGREEMENT WAS EXECUTED. WE DO NOT ACCEPT THIS ARGUMENT AS CORRECT. IT IS WELL ESTABLISHED THAT A MERE REFERENCE TO A FUTURE FORMAL CONTRACT WILL NOT PREVENT A BINDING BARGAIN BETWEEN THE PARTIES. THE FACT THAT THE PARTIES REFER TO THE 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. THERE ARE, HOWEVER, 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. THE QUESTION DEPENDS UPON THE INTENTION OF THE PARTIES AND THE SPECIAL CIRCUMSTANCES OF EACH PARTICULAR CASE. AS OBSERVED BY THE LORD CHANCELLOR (LORD CRANWORTH) IN RIDGWAY V. WHARTON, (1857) 6 HLC 238 AT P. 263, THE FACT OF A SUBSEQUENT AGREEMENT BEING PREPARED MAY BE EVIDENCE THAT THE PREVIOUS NEGOTIATION, DID NOT AMOUNT TO A CONCLUDED AGREEMENT, 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 A PREVIOUS AGREEMENT. IN VON HATZFELDT-WILDENBURG V. ALEXMDER, (1912) 1 CH 284 AT P. 288 IT WAS STATED BY PARKER J. AS FOLLOWS: "it APPEARS TO BE WELL SETTLED BY THE AUTHORITIES THAT IF THE DOCUMENTS OR LETTERS RELIED ON AS CONSTITUTING A CONTRACT CONTEMPLATE THE EXECUTION OF A FURTHER CONTRACT BETWEEN THE PARTIES, IT IS A QUESTION OF CONSTRUCTION WHETHER THE EXECUTION OF THE FURTHER CONTRACT IS A CONDITION OR TERM OF THE BARGAIN OR WHETHER IT IS A MERE EXPRESSION OF THE DESIRE OF THE PARTIES AS TO THE MANNER IN WHICH THE TRANSACTIONALREADY AGREED TO WILL IN FACT GO THROUGH. IN THE FORMER CASE THERE IS NO ENFORCEABLE CONTRACT EITHER BECAUSE THE CONDITION IS UNFULFILLED OR BECAUSE THE LAW DOES NOT RECOGNISE A CONTRACT TO ENTER INTO A CONTRACT. IN THE LATTER CASE THERE IS A BINDING CONTRACT AND THE REFERENCE TO THE MORE FORMAL DOCUMENT MAY BE IGNORED. " in OTHER WORDS, THERE MAY BE A CASE WHERE THE SIGNING OF A FURTHER FORMAL AGREEMENT IS MADE A CONDITION OR TERM OF THE BARGAIN, AND IF THE FORMAL AGREEMENT IS NOT APPROVED AND SIGNED THERE IS NO CONCLUDED CONTRACT. IN ROSSITER V. MILLER, (1878) 3 AC 1124 LORD CAIRNS SAID: "if YOU FIND NOT AN UNQUALIFIED ACCEPTANCE SUBJECT TO THE CONDITION THAT AN AGREEMENT IS TO BE PREPARED AND AGREED UPON BETWEEN THE PARTIES, AND UNTIL THAT CONDITION IS FULFILLED NO CONTRACT IS TO ARISE THEN YOU CANNOT FIND A CONCLUDED CONTRACT. " in CURRIMBHOY AND CO. LTD. V. CREET, 60 IND APP 297 = (AIR 1933 PC 29) THE JUDICIAL COMMITTEE EXPRESSED THE VIEW THAT THE PRINCIPLE OF THE ENGLISH LAW WHICH IS SUMMARISED IN THE JUDGMENT OF PARKER, J. IN (1912) 1 CH 284 WAS APPLICABLE IN INDIA. THE QUESTION IN THE PRESENT APPEALS IS WHETHER THE EXECUTION OF A FORMAL AGREEMENT WAS INTENDED TO BE A CONDITION OF THE BARGAIN DATED JULY 6, 1952 OR WHETHER IT WAS A MERE EXPRESSION OF THE DESIRE OF THE PARTIES FOR A FORMAL AGREEMENT WHICH CAN BE IGNORED. THE EVIDENCE ADDUCED ON BEHALF OF RESPONDENT NO. 1 DOES NOT SHOW THAT THE DRAWING UP OF A WRITTEN AGREEMENT WAS A PRE-REQUISITE TO THE COMING INTO EFFECT OF THE ORAL AGREEMENT. THE EVIDENCE ADDUCED ON BEHALF OF RESPONDENT NO. 1 DOES NOT SHOW THAT THE DRAWING UP OF A WRITTEN AGREEMENT WAS A PRE-REQUISITE TO THE COMING INTO EFFECT OF THE ORAL AGREEMENT. IT IS THEREFORE NOT POSSIBLE TO ACCEPT THE CONTENTION OF THE APPELLANT THAT THE ORAL AGREEMENT WAS INEFFECTIVE IN LAW BECAUSE THERE IS NO EXECUTION OF ANY FORMAL WRITTEN DOCUMENT. AS REGARDS THE OTHER POINT, IT IS TRUE THAT THERE IS NO SPECIFIC AGREEMENT WITH REGARD TO THE MODE OF PAYMENT BUT, THIS DOES NOT NECESSARILY MAKE THE AGREEMENT INEFFECTIVE. THE MERE OMISSION TO SETTLE THE MODE OF PAYMENT DOES NOT AFFECT THE COMPLETENESS OF THE CONTRACT BECAUSE THE VITAL TERMS OF THE CONTRACT LIKE THE PRICE AND AREA OF THE LAND AND THE TIME FOR COMPLETION OF THE SALE WERE ALL FIXED. WE ACCORDINGLY HOLD THAT MR. GOKHALE IS UNABLE TO MAKE GOOD HIS ARGUMENT ON THIS ASPECT OF THE CASE. " ( 7 ) IT MUST IMMEDIATELY BE UNDERSCORED THAT THIS JUDGMENT PROCEEDS ON THE PREMISE THAT AN ORAL AGREEMENT HAD TAKEN PLACE. SECONDLY IT PERTAINS TO THE SALE OF SHARES AND NOT TO IMMOVABLE PROPERTY. IT IS TRUE THAT IT IS NOT MANDATORY THAT A WRITTEN AGREEMENT TO SELL MUST BE EXECUTED SO FAR AS THE IMMOVABLE PROPERTY IS CONCERNED; THE ESSENTIAL REQUIREMENTS ARE THAT FOR THE SALE OF IMMOVABLE PROPERTY OF A VALUE IN EXCESS OF RS. 100/-, IT MUST BE EFFECTED THROUGH DULY STAMPED AND A REGISTERED DOCUMENT/instrument. SINCE THAT EVENT HAS NOT YET OCCURRED, IT IS NOT LEGALLY IMPERMISSIBLE TO ARRIVE AT AN ORAL AGREEMENT WHICH CAN BE ENFORCED IN LAW. NEVERTHELESS, I WOULD VENTURE TO STATE THAT WHERE IMMOVABLE PROPERTY IS IN QUESTION I WOULD ALWAYS BE RELUCTANT IF NOT LOATHE TO ACCEPT THE EVOLUTION OF A TRANSACTION WHICH IS NOT EVIDENCED IN WRITING. ( 8 ) LEARNED COUNSEL FOR THE DEFENDANT, ON THE OTHER HAND, HAS DRAWN MY ATTENTION TO TWO DECISIONS OF THIS COURT VIZ. IN VINOD SALUJA and ANR. VERSUS SMT. SITA RANI, 61 (1996) DELHI LAW TIMES 790 AND M/s. AGGARWAL HOTELS (P) LTD. VERSUS M/s. FOCUS PROPERTIES (P) LTD. , 63 (1996) DELHI LAW TIMES 52 AUTHORED BY THE SAME LEARNED JUDGE. IN VINOD SALUJA and ANR. VERSUS SMT. SITA RANI, 61 (1996) DELHI LAW TIMES 790 AND M/s. AGGARWAL HOTELS (P) LTD. VERSUS M/s. FOCUS PROPERTIES (P) LTD. , 63 (1996) DELHI LAW TIMES 52 AUTHORED BY THE SAME LEARNED JUDGE. IN THOSE CASES A TEMPORARY INJUNCTION HAD BEEN DECLINED, FIRSTLY, ON THE GROUNDS OF INADEQUACY OR PALTRINESS OF THE TOKEN MONEY AND THEREAFTER BECAUSE OF THE FAILURE TO STATE THE SALE CONSIDERATION AND A DOUBT IN THE DOCUMENT AS TO THE PERSON IN WHOSE FAVOUR THE SHARES WERE TO BE TRANSFERRED. A FORTIORI, WHERE EMERGENCE OF AN ORAL AGREEMENT IS BEING SET-UP THERE MUST BE NO POSSIBILITY OF DOUBT ON ANY ESSENTIAL CONCOMITANTS OF THE CONTRACT. RELIANCE HAS STRONGLY BEEN PLACED ON THE DECISION OF THIS COURT IN JIWAN DASS RAWAL VERSUS NARAIN DASS AND OTHER, AIR 1981 DELHI 291 WHEREIN THE FOLLOWING OPINION HAS BEEN RECORDED. "adverting, THEREFORE, TO THE MERITS OF THE CONTROVERSY, IT MAY AT THE OUTSET BE TAKEN NOTE THAT UNLIKE THE LAW IN ENGLAND WHERE AN AGREEMENT OF SALE CREATES AN EQUITABLE ESTATE IN THE PURCHASER, THE LAW IN INDIA DOES NOT RECOGNISE ANY SUCH ESTATE. SECTION 54 OF THE TRANSFER OF PROPERTY ACT IN SPECIFIC TERMS PROVIDES THAT A CONTRACT FOR SALE DOES NOT, OF ITSELF, CREATE ANY INTEREST IN OR CHARGE ON SUCH PROPERTY. SUCH CONTRACT IS MERELY A DOCUMENT CREATING A RIGHT TO OBTAIN ANOTHER DOCUMENT IN THE FORM OF SALE DEED TO BE REGISTERED IN ACCORDANCE WITH LAW. IN OTHER WORDS, A CONTRACT FOR SALE IS A RIGHT CREATED IN PERSONAM AND NOT IN ESTATE. NO PRIVITY IN ESTATE CAN BE DEDUCED THEREFROM WHICH CAN BIND THE ESTATE, AS IS THE POSITION IN CASES OF MORTGAGE, CHARGE OF LEASE. OF COURSE, SUCH PERSONAL RIGHT CREATED AGAINST THE VENDOR TO OBTAIN SPECIFIC PERFORMANCE CAN ULTIMATELY BIND ANY SUBSEQUENT TRANSFEREE WHO OBTAINS TRANSFER OF THE PROPERTY WITH NOTICE OF THE AGREEMENT OF SALE. (SEE IN THIS RESPECT AIR 1967 SC 744 , RAM BARAN PRASAD V. RAM MOHIT HAZRA. TILL, THEREFORE, A DECREE FOR SPECIFIC PERFORMANCE IS OBTAINED, THE VENDOR OR A PURCHASER FROM HIM IS ENTITLED TO FULL ENJOYMENT OF THE PROPERTY. IN FACT, EVEN IF A DECREE FOR SPECIFIC PERFORMANCE OF CONTRACT IS OBTAINED, AND NO SALE-DEED IS ACTUALLY EXECUTED, IT CANNOT BE SAID THAT ANY INTEREST IN THE PROPERTY HAS PASSED. TILL, THEREFORE, A DECREE FOR SPECIFIC PERFORMANCE IS OBTAINED, THE VENDOR OR A PURCHASER FROM HIM IS ENTITLED TO FULL ENJOYMENT OF THE PROPERTY. IN FACT, EVEN IF A DECREE FOR SPECIFIC PERFORMANCE OF CONTRACT IS OBTAINED, AND NO SALE-DEED IS ACTUALLY EXECUTED, IT CANNOT BE SAID THAT ANY INTEREST IN THE PROPERTY HAS PASSED. (SEE IN THIS RESPECT AIR 1956 CAL 147 , GOVINDA CHANDRA GHOSE V. PROVABATI GHOSE, AND AIR 1957 ANDH PRA 960, S. RAMALINGAM PILLAI V. G. R. JAGADAMMAL ). " ( 9 ) THE COURT MUST BE MINDFUL OF THE FACT THAT THE STATEMENTS MADE IN THE PLAINT ARE NORMALLY BE TAKEN AT FACE- VALUE, SINCE IT IS LEFT TO THE TRIAL TO ESTABLISH THE VERACITY OF THE RIVAL STANDS ARTICULATED IN THE PLEADINGS. HOWEVER, WHEN IT COMES TO THE GRANT OF AN AD INTERIM INJUNCTION THE COURT HAS TO KEEP THREE FACTORS IN MIND, NAMELY, PRIMA FACIE CASE, BALANCE OF CONVENIENCE AND IRREPARABLE LOSS AND INJURY. SO FAR AS IRREPARABLE LOSS AND INJURY IS CONCERNED, THE PROVISIONS OF THE SPECIFIC RELIEF ACT ITSELF ADUMBRATE THAT WHERE IMMOVABLE PROPERTIES IN QUESTION, IT MUST BE PRESUMED THAT DAMAGES WILL NOT BE ADEQUATE RECOMPENSE. WITH REGARD TO THE BALANCE OF CONVENIENCE NORMALLY THE COURT WOULD PREFER THE MAINTENANCE OF STATUS QUO DURING THE PENDENCY OF THE SUIT. THIS IS A PRINCIPLE OF SOME ANTIQUITY WHEN THE ASSUMPTION OR REALITY WAS THAT SUITS AND OTHER LEGAL PROCEEDINGS WOULD BE DECIDED EXPEDITIOUSLY AND CERTAINLY SOONER THAN A DECADE. THE NEED FOR MAINTENANCE OF STATUS QUO HAS THEREFORE BEEN SOMEWHAT UNDERMINED AND DILUTED. ( 10 ) THE CONUNDRUM, THEREFORE, REMAINS WHETHER A PRIMA FACIE CASE HAS BEEN DISCLOSED. ON THE ONE SIDE I AM FACED WITH THE RESOLUTE DENIAL OF THE DEFENDANTS OF ANY DEALINGS WHATSOEVER WITH THE PLAINTIFFS. LEARNED COUNSEL FOR THE DEFENDANT HAS VERY STRENUOUSLY CONTENDED THAT IF INJUNCTIONS ARE GRANTED IN THE PRESENT CIRCUMSTANCES, NAMELY, IN THE ABSENCE OF A WRITTEN AGREEMENT TO SELL, ITS RAMIFICATIONS WOULD BE THAT EITHER ALL PROSPECTIVE PURCHASERS WOULD BECOME VULNERABLE TO BLACKMAIL AND BECOME EXPOSED TOPRESSURE BY PERSONS WITH WHOM THEY HAVE HAD NO CONTACT OR WITH WHOM THEY HAVE NOT ENTERED INTO ANY LEGAL CONTRACT. LEARNED COUNSEL FOR THE DEFENDANT ALSO STATES ON INSTRUCTIONS THAT AN AGREEMENT TO SELL HAS BEEN ENTERED INTO BY THE DEFENDANTS WITH PARAS NATH DEVELOPERS LTD. LEARNED COUNSEL FOR THE DEFENDANT ALSO STATES ON INSTRUCTIONS THAT AN AGREEMENT TO SELL HAS BEEN ENTERED INTO BY THE DEFENDANTS WITH PARAS NATH DEVELOPERS LTD. AND AS A SEQUEL TO THIS TRANSACTION THE POSSESSION OF THE PROPERTY HAS BEEN HANDED OVER AS A TENANT TO SHRI PRADEEP JAIN, ONE OF THE DIRECTORS OF THE SAID COMPANY. ON THE OTHER HAND, AS HAS ALREADY BEEN MENTIONED ABOVE, THERE IS A CATEGORICAL STATEMENT IN THE PLAINT THAT AN ORAL AGREEMENT HAD BEEN ARRIVED AT BETWEEN THE PARTIES ON 28. 7. 2004. ( 11 ) IN THESE VERY DIFFICULT CIRCUMSTANCES, I WOULD PREFER TO ADOPT THE APPROACH TAKEN IN JIWAN DASS (SUPRA ). THE COURT MUST HAVE BEFORE IT AN AGREEMENT TO SELL WHICH IN PRESENT CASE APART FROM THE PLEADINGS OF THE PLAINTIFF IS CONSPICUOUSLY ABSENT. APART FROM SURROUNDINGS CIRCUMSTANCES SUCH AS THE PREPARATION OF DRAFTS OF THE AGREEMENT TO SELL AND PAY ORDERS, THERE IS LITTLE ELSE. I, THEREFORE, FIND THAT AT THIS STAGE NO PRIMA FACIE CASE EXISTS AS TO THE EVOLUTION OF A BINDING CONTRACT FOR THE SALE OF THE PROPERTY. AT THE HIGHEST, NEGOTIATIONS WERE GOING ON BETWEEN THE PARTIES, WHICH THE DEFENDANTS VEERED AWAY FROM BEFORE REACHING THE CONCLUSION EXPECTED BY THE PLAINTIFF. ( 12 ) IN ANY EVENT OF THE PLAINTIFFS SUCCEEDS IN THE PRESENT SUIT AND OBTAINS A DECREE FOR SPECIFIC PERFORMANCE, IT WOULD ULTIMATELY BIND ANY SUBSEQUENT TRANSFEREE WHO OBTAINS TRANSFER OF THE PROPERTY WITH NOTICE OF THE AGREEMENT. IN THE PRESENT CASE A SALE DEED IS YET TO BE EXECUTED AND, THEREFORE, SINCE THE DEFENDANT HAS STATED THAT AN AGREEMENT HAS BEEN ARRIVED AT BETWEEN THE DEFENDANTS AND PARAS NATH DEVELOPERS LTD. WHO ARE PRESENTLY IN POSSESSION, THE PLAINTIFFS HAVE ADEQUATE PROTECTION. THE BALANCE OF CONVENIENCE DICTATES THE REJECTION OF GRANTING THE INJUNCTION PRAYED FOR. ( 13 ) I HAD BEEN CONSIDERABLY SWAYED BY THE STATEMENT OF LEARNED COUNSEL FOR THE PLAINTIFF AS TO THE WILLINGNESS OF THE PLAINTIFF TO DEPOSIT THE ENTIRE SALE CONSIDERATION I. E. RS. 8. 25 CRORES IN THIS COURT. HOWEVER, KEEPING IN PERSPECTIVE THE PRONOUNCEMENTS OF THE HON ble SUPREME COURT IN BRIJ MOHAN AND OTHERS VERSUS SUGRA BEGUM AND OTHER, (1990) 4 SUPREME COURT CASES 147 AND THAT IT IS ALSO MY OPINION THAT THE PREPONDERANCE OF LIKELIHOOD IS NOT IN FAVOUR OF THE PARTIES HAVING ARRIVED AT AN AGREEMENT, THIS CONTENTION LOSES ITS EFFECT. HOWEVER, KEEPING IN PERSPECTIVE THE PRONOUNCEMENTS OF THE HON ble SUPREME COURT IN BRIJ MOHAN AND OTHERS VERSUS SUGRA BEGUM AND OTHER, (1990) 4 SUPREME COURT CASES 147 AND THAT IT IS ALSO MY OPINION THAT THE PREPONDERANCE OF LIKELIHOOD IS NOT IN FAVOUR OF THE PARTIES HAVING ARRIVED AT AN AGREEMENT, THIS CONTENTION LOSES ITS EFFECT. THE HON ble SUPREME COURT HAD OPINED THAT: "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 ACT 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. " ( 14 ) IN THESE CIRCUMSTANCES, SINCE THE MATTER HAS BEEN HEARD AT LENGTH, I REJECT AND DISMISS THE APPLICATION FOR AD INTERIM INJUNCTION. CS (OS) NO. 904/2004 ( 15 ) LEARNED COUNSEL FOR THE PLAINTIFF MAKES AN ORAL PRAYER FOR THE IMPLEADMENT OF PARAS NATH DEVELOPERS LTD. AND OF SHRI PRADEEP JAIN, ONE OF ITS DIRECTORS AND THE ALLEGED TENANT IN THE PREMISES. ORDERED ACCORDINGLY. ( 16 ) AMENDED MEMO OF PARTIES BE FILED WITHIN ONE DAY AND SUMMONS/notice BE ISSUED TO THE NEWLY ADDED PARTIES FORTHWITH. I ALSO FIND SUBSTANCE IN THE ARGUMENTS OF LEARNED COUNSEL FOR THE PLAINTIFF THAT THE DEFENDANTS SHOULD BE DIRECTED TO FILE THE AGREEMENT TO SELL AND LEASE DEED MENTIONED ABOVE IN THE REGISTRY OF THIS COURT WITHIN 24 HOURS. I ALSO FIND SUBSTANCE IN THE ARGUMENTS OF LEARNED COUNSEL FOR THE PLAINTIFF THAT THE DEFENDANTS SHOULD BE DIRECTED TO FILE THE AGREEMENT TO SELL AND LEASE DEED MENTIONED ABOVE IN THE REGISTRY OF THIS COURT WITHIN 24 HOURS. ADVANCE COPY BE FURNISHED TO COUNSEL FOR THE PLAINTIFF. ORDERED ACCORDINGLY. ( 17 ) WRITTEN STATEMENT BE FILED WITHIN FOUR WEEKS. REPLICATION BE FILED WITHIN TWO WEEKS THEREAFTER. ( 18 ) LIST BEFORE JOINT REGISTRAR ON 15. 12. 2004. --- *** --- .