Judgment : KALIDAS MUKHERJEE, J. (1) By consent of parties the appeal and the application are taken up together. This appall is directed against the order No. 8 dated 13.8.2008 passed by learned Civil Judge, 1st Court, (Senior Division) at Alipore in T.S. No. 40 of 2008 rejecting thereby the petition for temporary injunction. A separate application being CAN No. 7923 of 2008 has been filed praying for stay of operation of impugned order and issuance of an order of injunction restraining the respondent/defendant from dealing with the property and/or disposing of the suit property to any third party till the disposal of the suit pending before the learned Court below. (2) 2. (a) The plaintiff instituted the suit for specific performance of the agreement dated December 15, 2006 as varied upon and mentioned in paragraphs 9 to 12 of the plaint. The case of the plaintiff/appellant, in short, is that the defendants are the owners of the property prescribed in Schedule A1. The defendant No. 1 is the owner to the extent of undivided 85% and the defendant No. 2 is the owner of undivided 15%. There was an agreement between the parties to develop the suit premises on the following terms and conditions :- i) 50% of the aforesaid sanctioned area would be the owners allocation and remaining areas would be developers area. ii) There will be an interest free refundable security deposit of Rupees three crore. iii) Rs. 11 lac will be paid at the time of execution of the agreement. iv) Rs.150 lac shall be paid upon the settlement of dispute with Mr. Sahaya. v) Balance on or before the sanction of the building plan. 2. (b) The aforesaid terms and conditions were recorded in the agreement dated December 15, 2006. In terms of the said agreement, the plaintiff duly paid Rs. 11,00,0007-to the defendants, who accepted such payment as earnest money and/or part consideration towards the development of the suit premises. On December 18, 2006, the defendant No. 1 sent the necessary documents pertaining to the suit premises to the plaintiff. By a letter dated August 23,2007 the defendant informed the plaintiff about certain alleged non-compliance, which was allegedly required to be complied with by the plaintiff. The plaintiff by letter dated September 20, 2007 denied all such allegations. On December 18, 2006, the defendant No. 1 sent the necessary documents pertaining to the suit premises to the plaintiff. By a letter dated August 23,2007 the defendant informed the plaintiff about certain alleged non-compliance, which was allegedly required to be complied with by the plaintiff. The plaintiff by letter dated September 20, 2007 denied all such allegations. To resolve the dispute and difference between the plaintiff and the defendants several meetings were held on November 21, 2007, February 2, 2007, February 23, 2008 and March 18, 2008. In the meeting dated November 21, 2007 it was agreed upon between the parties that in lieu on 50% sanctioned area allotted to the defendants as provided in the agreement dated December 15, 2006 the plaintiff would pay Rs. 7 Crore as total consideration to the defendants and it would be the responsibility of the plaintiff to make the suit premises free from all encumbrances at their own cost and the plaintiff will obtain No Objection Certificate from Urban Land Ceiling Development and the suit property will be sold "on as is where is and whatever there is basis". It was further agreed upon that the payment of Rs. 11,00,0007- made by the plaintiff to the defendants at the time of agreement dated December 15, 2006 shall be considered as part consideration money by the plaintiff to the defendant against the sale of the suit premises. (3) The aforesaid variation of the original agreement dated December 15, 2006 was agreed upon by the parties on good faith and, as such, no further documentation was required. In the aforesaid meetings it has further been decided that the defendant No. 1 will transfer the company, who is the owner to the extent of 85% of the undivided share of the suit premises whereas the defendant No. 2 will sell its 15% undivided share to the plaintiff. It was further stipulated that the sale and purchase shall be completed before August 15, 2008. The factum of outright sale was confirmed by the defendants by their fax dated December 28, 2007. The plaintiff is ready and willing to complete the deal on or before August 15, 2008 as agreed upon by paying the balance consideration money of Rs. 6.89 crores and the plaintiff is capable to pay the same at any point of time. The factum of outright sale was confirmed by the defendants by their fax dated December 28, 2007. The plaintiff is ready and willing to complete the deal on or before August 15, 2008 as agreed upon by paying the balance consideration money of Rs. 6.89 crores and the plaintiff is capable to pay the same at any point of time. On June 9, 2008 the plaintiff was surprised to know that the defendants were attempting to dispose of the suit premises to some third party. The defendants are enjoying the part consideration money since December 15, 2006. The agreement dated December 15, 2006 and the subsequent oral agreement as averred in paragraphs 9 to 12 of the plaint are subsisting and in force and binding upon the parties. (4) The learned Court below upon hearing the parties dismissed the petition for temporary injunction holding that there was no concluded contract between the parties. It has further been held that the plaintiff failed to establish a prima facie case by showing the existence of an agreement for sale which could be specifically enforced. The learned Judge of the Court below further held that from annexure B it could be said that at best there was some pre-agreement correspondence amongst the parties. (5) Mr. Sen appearing on behalf of the plaintiff/appellant submits that the plaintiff/appellant is to show that a triable issue has been raised in support of the application for injunction and in the circumstances of the case, the status quo as on the date of the filing of the suit should be maintained. Mr. Sen in this regard has referred to and relied on the decision reported in AIR 1914 Cal 362 [Israil and others v. Samset Rahman and others]. It is submitted that the defendants disclosed that they were the owners of the property and wanted to sell the shares as averred in the plaint. Mr. Sen in this connection has relied on the letter dated December 28, 2007 in proof of the alleged oral agreement for transfer of shares so as to constitute a concluded contract between the parties. Mr. Sen has referred to the letter dated January 8, 2008 (annexure C) and the letter dated January 12, 2008 (annexure D) and submits that these letters will show that the plaintiff was working out with the deed, otherwise these letters would not have been issued. Mr. Mr. Sen has referred to the letter dated January 8, 2008 (annexure C) and the letter dated January 12, 2008 (annexure D) and submits that these letters will show that the plaintiff was working out with the deed, otherwise these letters would not have been issued. Mr. Sen contends that the correspondences between the parties clearly show that there was concluded contract between the parties for sale of the shares of the defendant company as averred in the plaint. Mr. Sen contends that in furtherance of the written agreement dated December 15, 2006 there was part payment of the consideration money to the tune of Rs. 11 lakhs. Mr. Sen contends that the learned Judge of the Court below while considering the prima facie case prejudged the matter in issue involved in the suit. Mr. Sen submits that the decisions referred to and relied on by Mr. Mitra are distinguishable and the ratio laid down in those decisions are not applicable in the facts and circumstances of the instant case. Mr. Sen contends that if the property ischanged and transferred to others the plaintiff/appellant will suffer irreparable loss. Mr. Sen thus contends that the status quo in respect of the suit premises as on the date of the filing of the suit should be maintained by the parties and the learned Judge of the Court below was not justified in passing the impugned order vacating thereby the ad interim injunction. (6) 6. (a) Mr. Mitra, the learned Senior Counsel appearing on behalf of the respondents submits that the alleged agreement dated December 15, 2006 was for developing the suit premises after transfer ofthe land in question. It is contended that development agreement is not enforceable in view of the latest position of law and that is why the plaintiff has. averred in paragraphs 9 to 12 about the alleged variation of trie original agreement and instituted the suit for Specific Performance of Contract on the basis of the alleged oral agreement dated November 21, 2007. Mr. Mitra submits that in a -suit for Specific Performance of Contract on the basis of oral agreement nd order of injunction can be passed. In this connection, Mr. Mitra has referred to and cited the decision reported in (1969)2 SCC 539 [Ouseph Varghesev. Joseph Aley and others]. 6. (b) Mr. Mr. Mitra submits that in a -suit for Specific Performance of Contract on the basis of oral agreement nd order of injunction can be passed. In this connection, Mr. Mitra has referred to and cited the decision reported in (1969)2 SCC 539 [Ouseph Varghesev. Joseph Aley and others]. 6. (b) Mr. Mitra submits that the original alleged agreement dated December 15, 2006 was for transfer of land, but, in the alleged varied oral agreement the plaintiff has pleaded about the alleged transfer of undivided shares of the Company to the extent of 85% by defendant No. 1 and to the extent of 15% by defendant No. 2. In this connection, Mr. Mitra submits that for the transfer of shares of the company the other shareholders ought to have been impleadedin the suit and in their absence the suit cannot lie. Mr. Mitra contends that the transaction as referred to by the plaintiff do not indicate the existence of concluded contract between the parties and the alleged oral agreement, being a go-by to the earlier alleged written agreement dated December 12, 2006 is not specifically enforceable in law and, therefore, no order of injunction can be passed. 6. (c) Mr. Mitra submits that the learned Judge of the Court below passed the impugned order upon consideration of the materials on record and there is no ground to interfere with the impugned order passed by the learned Court below. It is contended that the correspondences between the parties might be for the outright sale, but, it did not mature into a concluded contract for sale between the parties. 6. (d) Mr. Mitra submits that in the plaint it has been averred that as per the alleged meeting dated November 21, 2007 the plaintiff was to take the responsibility for obtaining the no objection certificate from Urban Land Ceiling Department, but, the letter dated December 28, 2007 shows that the document regarding no objection certificate from Urban Land Ceiling Department was allegedly supplied to the plaintiff by the defendants which is in sharp contrast with the pleadings made in the plaint. By referring to the provisions contained in Section 16 of the Specific Relief Act, Mr. Mitra contends that there is no averment as to the requirements regarding readiness and willingness to perform the plaintiffs part of contract and, in this connection, Mr. By referring to the provisions contained in Section 16 of the Specific Relief Act, Mr. Mitra contends that there is no averment as to the requirements regarding readiness and willingness to perform the plaintiffs part of contract and, in this connection, Mr. Mitra has referred to the decisions reported in (1969)2 SCC 539 [Ouseph Varghese v. Joseph Aley and Others] And (2006) 1 SCC 540 [Tansmjssion Corpn, of A. P. Ltd. v. Lanco Kondapalli Power (P) Ltd.], Mr. Mitra submits that the essential requirements as mentioned in form Nos. 47 and 48, schedule 1 of the Code of Civil Procedure have not been complied with. Mr. Mitra has referred to and relied on the decision reported in (1997)2 Cal HN 215 [Coastal Roadways Ltd. and Anr. v. State of West Bengal and Ors.]. Mr. Mitra contends that there is not a single scrap of paper showing that the defendant agreed to sell the shares as averred in paragraphs 9 to 12 of the plaint in deviation of the earlier agreement dated December 15, 2007. (7) Needless to say that the agreement for sale is the basis of a suit for Specific Performance of Contract. Here, in the instant case, there was a written agreement between the parties dated December 15, 2006 for the joint venture for development of the suit premises and in furtherance thereof there was part payment of the consideration money to the tune of Rs. 11,00,000/-received by the defendant from the plaintiff. It is the further case of the plaintiff/appellant that subsequently in the meeting I held between the parties on November 21, 2007 it was agreed upon by and between the parties that instead of the development of the suit property, the defendants will transfer shares of the company to the extent of 85% by the defendant No. 1 and 15% by defendant No. 2 in favour of the plaintiff/appellant. It has also been averred in the plaint that the parties acted on good faith and, as such, there was no necessity for execution of written agreement to that effect. It is the further plaint case that subsequently the defendant deviated from such oral agreement for transfer of share of the defendant company and tried to sell the suit property to third party. It is the further plaint case that subsequently the defendant deviated from such oral agreement for transfer of share of the defendant company and tried to sell the suit property to third party. At the initial stage of the suit the learned Judge of the Court below granted ad interim injunction and upon hearing both sides the petition for temporaryihjunction was rejected and the ad interim order granted earlier was vacated. In this appeal an interim order was passed on September 11, 2008 restraining the defendants from disposing of the suit property to any third party. (8) It is not in dispute that initially there was a written agreement between the parties on December 15, 2006 and in furtherance thereof the part payment of the consideration money to the tune of Rs. 11,00,0007-was made by the plaintiff to the defendant. But, the point for consideration is whether the subsequent oral agreement for the transfer of shares of the defendant company, as deviated from the original agreement of joint venture for the development of the suit premises, is sufficient to establish a concluded contract between the parties which is specifically enforceable under the law. (9) The claim for Specific Performance of Contract, as it now stands, is based on the oral agreement dated November 21,2007. The subsequent oral agreement is a deviation from the original agreement dated December 15, 2006. So far as the nature and extent of the two agreements are concerned, it appears prima /ac/ethat the latter is a sharp departure from the former one. The earlier relates to the joint venture for the development of the suit premises and the subsequent oral agreement relates to the transfer of the shares of the defendant company. Thus, it prima facie shows that the earlier agreement has been abandoned or by necessary implication, stood rescinded. The earlier written agreement, therefore, is in no way enforceable. The subsequent oral agreement cannot in any way be construed to be the continuation or modification of the earlier one. The "deviation" as averred in paragraphs 9 to 12 of the plaint is so sharp a departure that the subsequent oral agreement cannot, prima facie, have any link with the earlier agreement. (10) Now the question necessarily crops up whether the alleged oral agreement at present can be considered to be a sufficient ground, prima facie, for the issuance of the order for temporary injunction. (10) Now the question necessarily crops up whether the alleged oral agreement at present can be considered to be a sufficient ground, prima facie, for the issuance of the order for temporary injunction. It is well settled that while examining the case of oral agreement, the Court should exercise due care and caution, It is the contention of Mr. Sen that the letters dated December 28, 2007 and January 12, 2008 are sufficient to establish the existence of oral agreement as averred in the plaint. In paragraph 9 of the plaint it has been averred that as per the oral agreement dated November 21, 2007 the plaintiff was to obtain the no objection certificate from the Urban Land Ceiling Department. But the letter dated December 28, 2007 shows that the copy of the permission obtained from the Urban Land Ceiling Department was sent by the defendant to the plaintiff which is contrary to the averment made in the plaint. (11) Another important aspect is that all the shareholders have not been impleaded in the suit and in the absence of other shareholders there is hardly any scope to hold, prima facie, the existence of the oral agreement for transfer of shares so as to constitute a concluded contract between the parties. (12) Upon perusal of the series of correspondences between the parties and having regard to the submission of the learned Counsel for the parties, we are of the considered view that the correspondences between the parties as referred to by Mr. Sen can at best indicate that there might have been negotiations between the parties for the alleged transfer of shares of the defendant company, but, the mental preparedness so as to constitute consensus thereto, was lacking and, as such, it did not mature into a concluded contract between the parties. (13) The learned Judge of the Court below considered all the materials and aspects of the matter and held that there was no prima facie case in favour of the plaintiff. The appeal being against a discretionary order and when such discretion has been properly exercised, we find no ground to interfere with the order impugned. (14) There is, therefore, no scope to grant any order of injunction in the facts of the instant case. In the result, the appeal fails. In view of the dismissal of the appeal, the application stands rejected. (14) There is, therefore, no scope to grant any order of injunction in the facts of the instant case. In the result, the appeal fails. In view of the dismissal of the appeal, the application stands rejected. The interim order passed in this appeal stands vacated. (15) There will be no order as to costs. (16) Urgent Xerox certified copy, if applied for, be handed over to the parties as early as possible.