JUDGMENT : Soumen Sen, J. The suit filed by the original plaintiff for recovery of possession and the suit filed by the original defendant for specific performance of an oral agreement are taken up together and disposed of by this common judgment and order. The learned Counsels for the parties have consented of the hearing of both the suits together since there is no disagreement amongst the parties that the decree in one suit would non-suit the plaintiff in the other suit. These two suits (namely, Suit No.451/1989 and C.S. No.348/1991) are taken up analogously for consideration in view of the fact that in the event Smt. Kanta Devi Bhutoria & Ors. are able to establish their claim in C.S. No.348 of 1991 for specific performance of an oral agreement to sell third floor flat, the plaintiffs, namely, Smt. Gopa Sinha & Ors. in Suit No.451 of 1989 would not be entitled to recovery of possession in respect of the self-same flat which according to the said plaintiffs (Smt. Kanta Devi Bhutoria & Ors.) are in wrongful and illegal occupation. For convenience and brevity Suit No.451 of 1989 is referred to as the first suit and C.S.348 of 1991 is referred to as second suit. The first suit was filed by the original plaintiff for recovery of the 3rd floor flat at Premises No.11, Hungerford Street, Kolkata, from the original defendant no.1 and his associates who according to the plaintiffs were engaged as contractors to construct 3 additional floors on the said premises in terms of an oral agreement between the parties in December 1985 but wrongfully and forcefully occupied the said flat following disputes over execution of the work. In course of construction, it is alleged that there were some discussions between the parties for sale of the 3rd floor flat on completion of construction but negotiation did not mature into any agreement. The defendants said in defence that they occupied the said flat in terms of an oral agreement on terms different from those referred to in the plaint of the first suit. One Sukdeb Sinha, the original plaintiff, was owner of a two storeyed building at 11, Hungerford Street, Kolkata. On or about November 25, 1983, Kolkata Municipal Corporation sanctioned plan for three additional floors of which 2nd and 3rd floors were meant for commercial purposes and 4th floor was meant for residential use. One Sukdeb Sinha, the original plaintiff, was owner of a two storeyed building at 11, Hungerford Street, Kolkata. On or about November 25, 1983, Kolkata Municipal Corporation sanctioned plan for three additional floors of which 2nd and 3rd floors were meant for commercial purposes and 4th floor was meant for residential use. In December 1985, Arun Kumar Bhutoria, the original defendant No.1, approached the plaintiff representing himself as a renowned builder with a proposal to undertake the work of construction of the proposed building. He also suggested that he would after the revised sanction of plan would change the user of the 2nd and 3rd floors from commercial purpose to residential purpose, which he suggested was more profitable. The plaintiff relying upon the said representation and believing it to be true, entered into an oral agreement in January 1986 with the defendant no.1, permitting him to construct the said building on condition that he would be reimbursed from the sale proceeds of 2nd and 3rd floors when construction would be completed; as regards 4th floor, it was agreed that the plaintiff would pay the actual costs from his own resources. It was also agreed that construction would commence from February, 1986 and would be completed by August 23, 1986. The time schedule for various phases of construction were set out in a Memorandum dated July 4, 1986. The said defendant commenced the work of construction soon after the said verbal agreement but by July 1986 stopped the work midway without completing the same for no apparent reason. Following further negotiations, the defendant resumed work in November, 1987 with a promise to complete soon as recorded in the Memorandum dated July 4, 1986. However, apart from structure i.e. column, beam, roof, no further progress was made. The said defendant stopped work once again and left the entire site in complete disarray. Building materials, scaffolding etc. were strewed all over the place evincing intention to repudiate the contract. The plaintiff accepted such repudiation by calling the defendant by his letter dated July 6, 1988 asking the defendant to return the original plan. Consequently, the said agreement stood determined. The plaintiff at his own cost and initiation completed the 4th floor and moved in. were strewed all over the place evincing intention to repudiate the contract. The plaintiff accepted such repudiation by calling the defendant by his letter dated July 6, 1988 asking the defendant to return the original plan. Consequently, the said agreement stood determined. The plaintiff at his own cost and initiation completed the 4th floor and moved in. At this stage, in or about November, 1988, Arun Bhutoria, approached the plaintiff with a proposal to buy portion of 3rd floor (not more than 5000 sq.ft.) at the rate of Rs.650/- per sq.ft. The plaintiff expressed his willingness to consider such proposal provided the same was set out in a formal draft agreement along with offer to pay earnest money. Pending such formalities, a request by Bhutoria to proceed afresh with the construction of 3rd floor in the meantime was turned down by the plaintiff. On or about December 13, 1988, said Arun Bhutoria informed the plaintiff that a draft agreement has been prepared and upon approval by the plaintiff, final agreement would be executed on December 16, 1988 along with payment of earnest money. The said proposal was made in the morning but in the evening, Arun Bhutoria along with his brother, the defendant no.3, forcefully occupied the 3rd floor and proceeded to complete the construction of the 3rd floor with scores of workmen. Such illegal activities continued till December 31, 1988 when the plaintiff, finding no other alternative, filed an application under Section 144 of the Code of Criminal Procedure and obtained a “stop work” order. In the meantime, the validity of sanction plan expired on November 25, 1988. Incidentally, on December 27, 1988, Municipal Corporation also after inspection of the site, served a notice on the plaintiff under Section 401 asking the plaintiff to stop all works of construction. Since then the said defendant along with his brother, the defendant no.3, have been wrongfully and illegally continuing to occupy the said 3rd floor by dumping all building materials and equipments such as wooden frames, broken marble slabs, bamboos, cements, PVC pipes, electrical cables etc. In the aforesaid circumstances, plaintiff filed the instant suit against Arun Bhutoria and others claiming for recovery of the said 3rd floor along with mesne profit for wrongful occupation. The original plaintiff had died sometime in April, 2000 and his wife and daughters have been substituted since then. In the aforesaid circumstances, plaintiff filed the instant suit against Arun Bhutoria and others claiming for recovery of the said 3rd floor along with mesne profit for wrongful occupation. The original plaintiff had died sometime in April, 2000 and his wife and daughters have been substituted since then. The written statement in C.S.348 of 1991 substantially forms the basis of the defence of the case made in the plaint in Suit No.451 of 1989. The summary of the facts stated in the written statement and the plaint in the two suits are mentioned hereinafter. Sukdeb Sinha, a legal practitioner and having considerable practice, had entered into an agreement with Arun Kumar Bhutoria, sometimes in January, 1986, for the purpose of development of a two-storeyed structure at premises no.11, Hungerford Street (renamed Picasso Bithi), Calcutta (hereinafter referred to as the “said premises). When the agreement was entered into, Sukdeb Sinha (in short Sinha) had an existing building plan duly sanctioned by Calcutta Municipal Corporation (now Kolkata Municipal Corporation), for construction of three upper storeys on the said premises. Sinha was not residing at the said premises in January, 1986 and the same was fully tenanted. Bhutoria was required to construct a lift cage and install lift at the said premises and costs of construction for the same was to be borne by Bhutoria. Bhutoria was required to carry out extensive repairs in respect of the existing structures, so as to make the same appropriate to carry out construction of the second, third and fourth floors on the said premises. It was agreed between the parties in January, 1986, that Bhutoria would renovate the ground and the first floors of the said premises by carrying out external plastering work and repair work. Bhutoria would also change the existing pipelines and carry out other plumbing work at the ground and first floors of the said premises at his own costs. Bhutoria would thereafter construct the second floor, which would include super-structure, outside brick work, lintel, window projections and other brickwork and outside plastering and brick-work, and would also provide water inlet and outlet of the said floor, install PVC pipes in the ceiling, and provide other connected works such as plumbing work, water connection from overhead tank, construct lift cage and provide lift, stairs, etc. For construction of the second floor, which would comprise of 7000 sq. ft. For construction of the second floor, which would comprise of 7000 sq. ft. it was agreed that Sinha would pay Bhutoria @ Rs.350/- per sq. ft., which works out to be Rs.24,50,000/-. Sinha would have exclusive right to dispose of the said second floor. Bhutoria would carry out and complete construction of the fourth floor as per the desire of Sinha, and upon completion of construction, possession of the fourth floor, which would include constructed area of 4000 sq.ft., would be made over to Sinha by Bhutoria, and would be utilized for Sinha’s residence. Sinha would pay Bhutoria actual costs of construction for 4000 sq. ft. It was agreed that Bhutoria, apart from renovating the ground floor in the manner as indicated above, would also construct common passage, stairs, lifts, machine room, water tank, and provide other essential services and facilities required for the said premises. Sinha would convey the third floor comprising of 7000 sq. ft. to Bhutoria for and at an agreed consideration @ Rs.150/- per sq. ft. along with two garages and two servants quarters. The costs of construction would be borne by Bhutoria and the third floor shall be constructed according to Bhutoria’s choice. The intent of the parties to effectuate transfer of the third floor along with two garages and two servants quarters in favour of Bhutoria was the only inducement for Bhutoria to enter into an agreement of this nature, where Bhutoria is not entitled to any consideration apart from the 7000 sq. ft. of second floor and 4000 sq.ft. on the fourth floor, which is also on actual basis. The other terms of the general agreement provide that in the event Sinha proposes to dispose of the fourth floor, a right to buy the same should be offered to Bhutoria first. Bhutoria, pursuant to the agreement as aforesaid, had taken up the development project. Bhutoria had carried out the following works on the ground and the first floor:- i. Bhutoria had thoroughly repaired the ground and first floors, which were in a dilapidated condition, which required plastering, changing pipelines and plumbing at Bhutoria’s cost, ii. Bhutoria had done entire plastering work of the walls of the ground and first floors at his own cost and expenses, iii. Bhutoria had shifted the overhead tank in order to accommodate the construction at his own cost and expenses, iv. Bhutoria had done entire plastering work of the walls of the ground and first floors at his own cost and expenses, iii. Bhutoria had shifted the overhead tank in order to accommodate the construction at his own cost and expenses, iv. Bhutoria had changed all the existing pipelines and had replaced the old pipelines with new G.I. C.I. Pipes at his own cost and expenses, v. Bhutoria had also constructed the lift cage and installed the lift in the said premises. Bhutoria had also constructed the super-structure of the second floor, provided water connection from overhead tank, constructed stairs and lift cage, common area to access stairs, made available concealed PVC pipes on the ceiling, connected the second floor with drainage and sewage connection as also water inlet and outlet, carried out brick-work, constructed outer walls and had done plastering, including construction of lintel and chhajja. After construction of the super-structure on the third floor, the fourth floor was constructed. Finishing work on the fourth floor was done as per the wishes and desires of Sinha. Makrana marble was laid at the cost of expense of Bhutoria. The height of the ceiling of a portion of the fourth floor was raised by three feet in deviation of the sanction building plan as per the directives of Sinha, in order to accommodate his chandelier. The other finishing materials supplied by Sinha, inter alia including paintings, were set up at the costs and expense of Bhutoria. The terrace around the fourth floor was completed as per the wishes and desire of Sinha. Water tank, lift machine room, etc. were installed at the costs and expense of Bhutoria. Bhutoria also made an advance payment of Rs.1,48,000/- to OTIS, a lift company for the purpose of providing lift facilities at the said premises. Disputes arose at a point of time when Sinha had already obtained possession of the fourth floor and Bhutoria was carrying out completion work in his flat on the third floor, possession whereof, as per the agreement, had been made over to Bhutoria at such stage. It is at such stage that Sinha complained of Bhutoria having trespassed unto the third floor of the said premises and carrying on illegal construction work thereat. Based on such a complaint, an application under Section 144(2) of the Code of Criminal Procedure was moved by Sinha. It is at such stage that Sinha complained of Bhutoria having trespassed unto the third floor of the said premises and carrying on illegal construction work thereat. Based on such a complaint, an application under Section 144(2) of the Code of Criminal Procedure was moved by Sinha. Although ordinarily the power under Section 144(2) of the Code of Criminal Procedure is exercised to ensure that no breach of peace takes place, yet, in the present case, Sinha armed himself with prohibitory orders of injunction restraining Bhutoria from executing any further work in respect of the third floor of the said premises. Sinha, however, did not stop there, nor did a major deviation in the form of extension of the height of the fourth floor deter him from making a complaint with the Municipal authorities alleging illegal construction on the third floor of the said premises. The defendants in short has stated that the defendants in terms of the said agreement made over vacant possession of two existing garages at the ground to the original plaintiff and also gave the original plaintiff possession of the open space and compound on the southern side of the building and of the covered space on the ground floor of the said premises. In pursuance of the said agreement, in early February, 1986, the original plaintiff started construction work on the said premises. Such construction was made by the companies with which the original plaintiff was and still is associated with the knowledge consent and approval of the defendant. The original defendant thoroughly repaired the existing ground floor and the first floor in the said premises, which were in a very dilapidated condition. The original defendant completely changed the outside plastering of both the said floors, completely changed the C.I. and G.I. pipes including underground connection of the same and did other necessary plumbing work and incurred expenses of a substantial amount to the knowledge of the defendant. The original defendant constructed the 2nd, 3rd and 4th floors of the building on the said premises. As regards the 2nd floor the original defendant No.1 constructed the super structure i.e. pillars, columns and roof slab casting as also did the outside brick work and plastering including lintel and window projection with the P.V.C. connected pipes in the ceiling and the plumbing work and other connected services. As regards the 2nd floor the original defendant No.1 constructed the super structure i.e. pillars, columns and roof slab casting as also did the outside brick work and plastering including lintel and window projection with the P.V.C. connected pipes in the ceiling and the plumbing work and other connected services. The original defendant did not fit doors and windows, nor did the flooring, or construct internal walls nor did the original defendant fit bathroom fittings, as the said work was not included in the agreement. After completion of the work done by the original defendant the plaintiff sold the 2nd floor to one Sampa Bose and one Bani Rani Bose, by two registered conveyances dated 31st August, 1988. Possession of the said floor was given to the purchasers. The original plaintiff in Affidavit affirmed on 12th January, 1990 filed in other proceeding had acknowledged the liability of executing and registering the conveyance in respect of third floor of the said premises and thereby acknowledged the jural relationship between the parties. The construction of the 4th floor was duly completed by the original defendant. The work done included marble flooring, construction of partition brick walls, plastering, painting, fitting of doors and windows, toilet fittings etc. At the instance of the plaintiff, the height of the ceiling of the 4th floor was increased by 1½ meters over and above the specifications mentioned in the sanctioned plan. This was done to enable the plaintiff to hang valuable chandeliers, which he proposed to bring from his ancestral home. Vacant possession of the 4th floor of the said premises was made over the original plaintiff to the defendant in or about June, 1988. As regards the 3rd floor, the same at all material times was and still is in the possession of the original defendant under the said agreement as the defendant is entitled to retain the 3rd floor for his own use. The major part of the construction of the 3rd floor is complete, and only finishing work remains to be done. The work on the 3rd floor apart from the construction of super structure which had been done earlier, was undertaken by the original defendant only after giving possession of the 4th floor to the plaintiff in June, 1988. The major part of the construction of the 3rd floor is complete, and only finishing work remains to be done. The work on the 3rd floor apart from the construction of super structure which had been done earlier, was undertaken by the original defendant only after giving possession of the 4th floor to the plaintiff in June, 1988. Thus, the original defendant between February, 1986 and June, 1988, in terms of the said agreement, carried out thorough repair of the existing ground and 1st floor and completed construction of the 2nd, 34d and 4th floor of the building. The original defendant has performed his obligation under the said agreement and has and still is ready and will to do all that is required to be done by him under the said agreement. The original defendant at all material time has performed and has also been ready and willing to perform the terms of the said agreement which are to be performed by the original defendant. The original defendant on the aforesaid basis claimed specific performance of the terms and conditions of the said agreement and/or obligations to be performed by the original defendant in the matter, inter alia, for executing a Conveyance in favour of the original plaintiff in respect of 7000 sq. ft. on the 3rd floor and two garages and servants quarters of the said premises. The defendants in the first suit had filed written statement only in 1991, almost after a lapse of two years, wherein, while admitting that there was an oral agreement between the parties by which they were engaged as contractors/builders to construct 3 additional floors over the pre-existing two storeyed building at the said premises, it was on terms materially different from those pleaded by the plaintiff. In particular, it was pleaded that as a term of the said agreement, the defendant no.1 would be entitled to retain the 3rd floor, once constructed, measuring about 7000 sq.ft. along with two garages and one servants’ quarter on the ground floor at a total costs of Rs.10.50 lacs. In their version of oral agreement, allegedly made in January, 1986, the rates per sq. ft. at which the said defendants would be paid for such work of construction, were also different from those pleaded by the plaintiff in his plaint. along with two garages and one servants’ quarter on the ground floor at a total costs of Rs.10.50 lacs. In their version of oral agreement, allegedly made in January, 1986, the rates per sq. ft. at which the said defendants would be paid for such work of construction, were also different from those pleaded by the plaintiff in his plaint. On the aforesaid basis, the defendants stated in their written statement that the plaintiff has committed a breach of the aforementioned agreement, inter alia, by refusing to execute conveyance in respect of the 3rd floor flat for a total consideration of Rs.10.50 lacs. In addition, the defendants have also pleaded that a sum of Rs.24.50 lacs towards the cost of construction of the 2nd floor incurred by them has not been paid. As regards the 4th floor, the defendants say that the plaintiff has paid nothing whatsoever, save a paltry sum of Rs.1.35 lacs, though said 4th floor flat was made over to the plaintiff way back in June, 1988. Mr. S.P. Sarkar, learned Senior Counsel appearing on behalf of the plaintiff in Suit No.451 of 1989 submitted that the plaintiffs’ version of the proposal for the sale of third floor flat would be evident from the facts stated in the plaint in Suit No.451 of 1989 and in the written statement in C.S.348 of 1991 and are corroborated from the documentary evidence and oral testimony of the PW1. Mr. Sukdeb Sinha in answer to Question Nos.24 and 25 specifically stated that an oral agreement was entered into between the parties by which Bhutoria was appointed as a contractor. The negotiation about the defendants’ proposal to purchase the third floor flat would be evident from the answer given to Question Nos.132 and 133. The said questions and answers are reproduced here-in-below:- Q.24. And the construction has been correctly recorded in both these documents – is that so ?/ Yes. Q.25. You said that you had something to do with the preparation of conveyance – is that so ?/ Yes. Q,132. After they are approaching you for selling the portion iof the third floor what did you do ?/ He proposed that he wanted to purchase the portion of the third floor on south western side of an area not exceeding 5,000 and offered Rs. 650/- per sq. ft. I said I could not believe your early statement. Q,132. After they are approaching you for selling the portion iof the third floor what did you do ?/ He proposed that he wanted to purchase the portion of the third floor on south western side of an area not exceeding 5,000 and offered Rs. 650/- per sq. ft. I said I could not believe your early statement. You give me a written document, the terms of your purchase and offer. Q.133. Then after you said that to the defendants what did the defendants do ?/ He promised to send the draft agreement by 13th December for my approval and after I approved then the agreement for sale would be executed on 16th December,1988. In so far as the defendants’ version of the alleged agreement to purchase the third floor flat is concerned, reference was made to Question Nos.33, 37, 40, 78 and 506 and in respect of the terms of the agreement, Question Nos.126, 139 and 554. The said questions and answers are as follows :- Q.33. You discussed the matter with Bani Bose and Sampa Bose – is that so ?/ Yes. And also with their representative. Q.37. Just now you have told that the consideration is on the conveyance ?/ Rs. 7 lakhs in the conveyance. Q.40. Did you know anything about the work of construction which were being carried on in the premises in question ?/ I have no idea. Only I know it was covered space on the first floor roof without any big wall internally or externally. Q.78. You have said that there was delay in doing the casting work by the defendants ?/ Yes. Q.506. Since when you have residing at the said premises at No. 11, Hungerford Street, Calcutta ?/ June/July,1988. Q.126. The garage which was made available for your house – whether is it to be made available and in which part of the building ?/The garage is under the street level. They have not made it available. Q.139. Do you recognise ?/ It is signed by some officers. It was not desirable. It was received on 19.12.88. Q.554. Why did you not mention this fact in your plaint ?/ At that point of time I could not trace out the receipt which was given to me. I was searching for it. I could not get it. Q.139. Do you recognise ?/ It is signed by some officers. It was not desirable. It was received on 19.12.88. Q.554. Why did you not mention this fact in your plaint ?/ At that point of time I could not trace out the receipt which was given to me. I was searching for it. I could not get it. That is why I had to file the suit on the basis of what I could find out at that time. Mr. S.P. Sarkar submitted that the resolution of dispute would require, as indicated earlier, examination of the two aspects of the matter as under: (a) First, which of the two versions of the oral agreement contended for by each party is correct; and (b) Secondly, whether the plaintiff, in any view of the agreement, is entitled to recover possession of the said 3rd floor flat, 2 garages and one servants’ quarter. The learned senior Counsel had referred to the respective versions of the parties as regards proposal to sell the third floor flat, namely, in Paragraphs 24, 25 and 27 of the Plaint and in Paragraph 1(c)(v) of the written statement. The oral testimony of Sukdeb Sinha in Cross-examination was also referred to, namely, Question Nos. 223 and 228. The said questions and answers are as follows : Q.223. In the written statement the defendants have alleged that it was a part of the agreement that 3rd floor of the said premises, two garages and two servants’ quarters in the ground floor were to be retained by the defendant no. 1. What do you say to that ?/ There is no agreement whatsoever for retaining 3rd floor, two garages and two servants’ quarters. rd floor was in my possession since the roof of the second floor was constructed. So far as the garages are concerned, those two garages were in my possession. Q.228. What about the covered portion of the 3rd floor ?/ Same thing – no agreement etc. for retaining the covered space. It is my property. rd floor was in my possession since the roof of the second floor was constructed. So far as the garages are concerned, those two garages were in my possession. Q.228. What about the covered portion of the 3rd floor ?/ Same thing – no agreement etc. for retaining the covered space. It is my property. It is submitted that the contention of the plaintiff that his version with regard to negotiation for sale of third floor flat to Bhutoria i.e. insisting on a stipulation for a formal agreement to be drawn up looks more natural and consistent with natural course of events in a commercial venture of this nature and particularly so when it is known that he was a Senior most Solicitor. According to the plaintiff, in so far as it relates to a claim with regard to the said rd floor flat it did not go beyond a mere proposal and agreement, if any, might be termed as inchoate and non-existent in the eye of law and more so when defendants contend for a completely different alleged agreement with different terms. The contention of the defendant in this regard, on the face of it, appears to be too naïve and makes no commercial sense. Again, significantly, at no stage, the defendant made any demand of the plaintiff for execution of conveyance in his favour, nor had he at any stage offered to pay the alleged consideration of Rs.10.50 lacs to the plaintiff. It was only in 1991, some two years after filling of the instant suit, the defendant in his written statement raised this point by way of an afterthought. His contention, both in his pleading and evidence to the effect that such payment is to be made by adjustment of the cost incurred by him for construction of the entire building, is an absurdity itself. No person with such a stake would consider leaving such matter in an intangible and fluid state which would give him no footing for a claim for specific performance. That the plaintiff did not agree to the sale of the said 3rd floor flat to the defendant is further strengthened from the evidence of Mr. No person with such a stake would consider leaving such matter in an intangible and fluid state which would give him no footing for a claim for specific performance. That the plaintiff did not agree to the sale of the said 3rd floor flat to the defendant is further strengthened from the evidence of Mr. Amiya Nath Bose, an eminent Barrister and Senior Advocate of this Hon’ble Court, now deceased, who deposed that at some stage when work of construction was half-way through, he negotiated with both the plaintiff and the defendant with regard to purchase of the self-same 3rd floor flat. In this regard reference was made to Question Nos.154-157, 176-178 in chief of Sukdeb Sinha and Question Nos.540 to 548 and 612 of Mr. Arun Kumar Bhutoria in cross. The said questions and answers are as follows:- Sukdeb Sinha: Q.154. With regard to the 3rd floor construction are you aware that the evidence was given as debenese by Amiya Nath Bose as one of your witness – is that so ?/ Yes. Q.155. What was the connection of Mr. Bose with the property ?/ Mr. Bose for some time was looking for an accommodation for his family in the city of Calcutta as he was living in Tollygunge. He told me and then I asked him : “Are you interested to shift your residence to my property that is third floor of Hungerford Street ?”/ I am interested provided the approval of the site in which my wife and son are interested. Q.156. What happened thereafter ?/ They went there. They saw the site and approved. Mr. Bose, Mrs. Bose and his son saw. They have said they will not require more 3500 sq. ft. They would like to purchase the same. Q.157. In which floor ?/ Third floor and construct our residential flat there and then Mr. Arun Bhutoria who was present there suggested that when you were purchasing portion for construction of a flat, we wished to prepare the plan. We shall not construct the flat. Mr. Bose said that : “I am not going to take your help in the preparation of plan or any construction. This will be done by my own architect and engineer on my cost and I am prepared to pay to you whatever construction you have made for costing in proportion to that area and other expenses. Mr. Bose said that : “I am not going to take your help in the preparation of plan or any construction. This will be done by my own architect and engineer on my cost and I am prepared to pay to you whatever construction you have made for costing in proportion to that area and other expenses. They will pay since Mr. Bose declined to have the plan prepared and construction made by these defendants to which they did not agree. Mr. Bose did not proceed further. Q.176. You have further stated in your evidence that Mr. Amiya Nath Bose, Senior Counsel of this Court was willing to purchase a portion of the 3rd floor ?/ Yes. Q.178. Can you tell My Lord what stood in the way of Mr. Bose purchasing that 3rd floor area?/ Mr. Bose was ready and willing to pay the cost of construction. He intended to purchase. He was also prepared to pay and bear expenses for modification of the plan and also prepared to bear the expenses for construction of the proposed flat in the portion he intended to purchase. He was not satisfied with the performance of these defendants. That is the reason he said, “I will have the plan prepared by my architect and have the construction made by my engineer and not by you.” The defendants insisted, ‘No, we shall prepare the plan and we shall construct the flat for you.’ Mr. Bose did not agree and there the transaction was fizzled out. Arun Kumar Bhutoria: Q.540. Had you been earlier told that you are going to meet Mr. Amiya Bose?/ So far I remember My Lord Mr. Sinha told me that Mr. Amiya Nath Bose will take some space in the second floor. Q.541. What was your response to that query of Mr. Sinha ?/ I have nothing to do it, as to whom he will give it, how can I say. Q.542. Then what was the purpose of your attending the meeting ?/ I submit before My Lord that there was no intention of meeting as I was going in the side. Q.543. So, is it your evidence that you met Mr. Amiya Nath Bose by accident, you were in the site and Mr. Sinha brought Mr. Amiya Bose ?/ As I said that I do not remember whether Mr. Bose came or Mr. Q.543. So, is it your evidence that you met Mr. Amiya Nath Bose by accident, you were in the site and Mr. Sinha brought Mr. Amiya Bose ?/ As I said that I do not remember whether Mr. Bose came or Mr. Sinha brought him I do not recollect. Q.544. So, it could be possible according to you, Mr. Sinha was not present in meeting between you and Mr. Amiya Nath Bose ?/ I wish to say before My Lord that there was no formal meeting. It was a old history, I do not remember whether he came alone or Mr. Sinha brought him, I do not remember. Q.545. What was the discussion which took place between you and Mr. Amiya Bose, or there was no discussion at all ?/ My Lord, what discussion took place I do not remember, as I submitted before. Q.546. In October 1987, what was the stage of construction in the Hunger Ford Street site ?/ I do not remember. Q.547. Sometime before October’87 you had already completed the superstructure of the 2nd floor in that site and proceeded to the third floor ?/ I do not remember. Q.548. Can you deny that you met Mr. Sinha in October’87 when already third floor construction had been done in part, so far structural work was concerned ?/ I do not remember whether he came in October’87 or not. Mr. Sinha used to visit me regularly, whether he came to me in October’87 is really of no relevance. Q.612. Now your receipt shows that you are acknowledging the sum from Mr. Sinha and not from any messenger or from any other person. Have you see that ?/ I received the amount from Mr. Sinha. His person tendered the money to me. With regard to the 2nd issue, it was submitted that since the defendant has not been able to put up any basis in support of his wrongful possession of the 3rd floor flat, there cannot be any defence to the plaintiff’s claim for recovery of possession whatsoever. It is a settled principle of law that when there was no explanation as to why the agreement for sale of a property was not reduced in writing, specific performance cannot be claimed. In this regard reliance was placed on A. Ganapathy Vs. Venkatesan reported at AIR 2002 Mad 203 @ 209. It is a settled principle of law that when there was no explanation as to why the agreement for sale of a property was not reduced in writing, specific performance cannot be claimed. In this regard reliance was placed on A. Ganapathy Vs. Venkatesan reported at AIR 2002 Mad 203 @ 209. Again, in order to support a case for oral agreement of sale, there should be some evidence of payment of the price or possession of the property by a party. The learned Senior Counsel has referred to Sampatraj & Ors. Vs. Pokar & Ors. reported at AIR 1955 Raj 70 , Paragraph 5 The defendant had not, at any stage, offered alleged price to the plaintiff and his wrongful occupation of the 3rd floor flat cannot be termed as ‘possession’ since such possession is clearly not referable to the alleged agreement pleaded by him. Special Officer’s minutes of inspection, in terms of the order dated June 27, 1999 passed by Hon’ble Justice Umesh Chandra Banerjee, makes it quite clear that kind of articles which were stored in the said 3rd floor flat were diverse building materials procured by the defendant in course of his work of construction and not furniture or the articles of household use. It is argued that any event an oral agreement for sale of 3rd floor flat, does not create any interest and consequently gives right of interest to such property. The learned Senior Counsel has referred to Section 54 of the Transfer of Property Act and Ram Baran Prasad Vs. Ram Mohit Hazra & Ors. reported at AIR 1967 SC Page 744 Paragraphs 9, 10, 11. Finally, it is submitted that contract of sale is no defence to eviction suit (PIR Bakhsh Vs. Mahomed Tahar reported at 6 Indian Appeal Page 388 @ 391 & 396) nor can an agent/contractor claim title against owner. In this regard reliance is place on the following decisions:- 1. Maria Margarida Sequeria Fernandes & Ors. Vs. Erasmo Jack de sequeria (Dead) through L.Rs. reported at AIR 2012 SC 1727 Para 19); 2. Namdeo Vs. Collector, East Neemar, Khandwa & Ors. reported at (1995) 5 SCC 598 . Per contra Mr. Raja Basu Chowdhury has submitted that Mr. In this regard reliance is place on the following decisions:- 1. Maria Margarida Sequeria Fernandes & Ors. Vs. Erasmo Jack de sequeria (Dead) through L.Rs. reported at AIR 2012 SC 1727 Para 19); 2. Namdeo Vs. Collector, East Neemar, Khandwa & Ors. reported at (1995) 5 SCC 598 . Per contra Mr. Raja Basu Chowdhury has submitted that Mr. Bhutoria, in course of his examination, has proved the factum of the agreement to transfer the third floor of the said premises along with two garages and two servants quarters on the ground floor of the said premises by Sinha to Bhutoria at the agreed rate of Rs.150/- per sq. ft. for 7000 sq.ft. The prevailing market rate has also been disclosed by Bhutoria. The learned Counsel has relied upon the evidence of Mr. Bhutoria. The questions in this regard relied upon questions and answers Nos.33 to 40, 77, 87, 88, 95, and 137, 386, 387, 392, 469 to 472, 486 and 487 which are reproduced below:- “Q.33. What was agreed about the 3rd floor ?/ I will take the possession of 3rd floor and I have to give him Rs. 150/- per s.ft as roof right. Along with that he would give me two garages and two servants’ quarters. He would not give anything about repairs of the building and for the lift and other facilities and services which are needed for the infrastructure of the building. Q.34. you have mentioned ‘repair’ of the building. What do you mean by that ? / It was an old building. The total pluster had to be removed and new plustering was to be done. All the pipelines had to be removed and in that place new G.I.C.I. pipeline had to be fitted and the construction to be made above first floor, the roof had to be treated for construction of the other storeyes. Q.35. Was there anything to be done on the ground floor ?/ Yes. Ground and 1st floor both had to be repaired. Q.36. What was the agreed terms about the construction of 2nd floor?/ I have to build the staircase from the 1st floor to the 2nd floor. I have to make common passages. I have to make the super structure of the 2nd floor. Super structure means columns, beams and slabs. I have make the outer brickwork. I have to make outside plustering of the wall. I have to make common passages. I have to make the super structure of the 2nd floor. Super structure means columns, beams and slabs. I have make the outer brickwork. I have to make outside plustering of the wall. I have to make all other outside services i.e. water supplies, sewarages connection etc. had to be done by me. I have to put the PVC condute pipe on the roof of the 2nd floor. Q.37. Was there anything terms agreed ?/ It was also settled between us that I will reside on the 3rd floor. He will stay on the 4th floor and 2nd floor will remain with him and it will be his discretion that what he will do with it. He will only pay me Rs. 350/- per s. ft. Q.38. What is the total area ?/ 7000 s. ft. Q.39. What is your expectation for the 2nd floor ?/ It is around Rs. 24.50 lacs for the 2nd floor. Q.40. How much according to the agreement you are required to pay from Sukdeb Sinha for the 3rd floor ?/ I would have to pay Rs. 10.5 lacs for roof rights at the rat e of Rs. 150/- per s. ft. for 7000 s. ft. Q.77. You have said that according to the terms of the agreement with regard to the 3rd floor you would pay Mr. Sinha @Rs. 150/- per s.ft – was it at the prevailing market rate at that point of time ?/ In those days the prevailing market rate ranged from Rs. 150-200, but I have not paid that money. Q.87. Will you tell My Lord what promoted you to take up this job at No. 11 Hungflord Street ?/ I took up the construction work because I decided to reside on the 3rd floor of the building. Q.88. What was the agreed terms with regard to the 3rd floor between you and Mr. Sinha ?/ Mr. Sinha agreed that he would take @ Rs. 150/- pers. ft from me for the roof of the 2nd floor that is, for the 3rd floor, which would come to about Rs. 10.5 lakhs. Q.95. In answer to question no. 59 you have said that you exactly cannot say because the materials and ingredients were brought from several places. Sinha agreed that he would take @ Rs. 150/- pers. ft from me for the roof of the 2nd floor that is, for the 3rd floor, which would come to about Rs. 10.5 lakhs. Q.95. In answer to question no. 59 you have said that you exactly cannot say because the materials and ingredients were brought from several places. What did you mean to say by that ?/ As I decided to live on the 3rd floor, I brought the materials from different work sites where our construction works were going on and I used the materials for constructing that building. Q.137. In answer to Q. 87 on the last occasion, you told My Lord that you took up the construction work because you had decided to reside on the third floor of the building. Would you elaborate on that ?/ Since I had decided to reside on the third floor, I took up this construction work. Otherwise, I would not have taken such a small construction work, because this construction work was not viable, so far as our firm was concerned. I took up this work because the area of each floor was near about 7000 sq. ft. and another point was that each floor would be owned by one single person. Q. 386. Your case is that the plaintiff Mr. Sinha had promised to sell you the third floor space in the Hungerford street building under construction – is that right ?/ Mr. Sinha had agreed to sell me the roof right of the third floor along with two servants’ quarters and two garages on the ground floor. Q. 387. So forgetting the two garages and two servants’ quarters, if we concentrate on the third floor, would it be your case that Mr. Sinha had promised to sell the third floor roof to you – is that correct?/ Yes. Q.392. According to you, there was an agreement that you would build the superstructures on the second floor and third floor- is that right ?/ That is not fully correct. So far as the agreement regarding the second floor is concerned it was agreed that I would construct the superstructure on the second floor. Q.392. According to you, there was an agreement that you would build the superstructures on the second floor and third floor- is that right ?/ That is not fully correct. So far as the agreement regarding the second floor is concerned it was agreed that I would construct the superstructure on the second floor. So far as the third floor is concerned, it was agreed that I would be occupying the third floor and so whatever was to be done in respect of the third floor, would be according to my own desire and choice. Q.469. I can be in 1987 also ?/ May be so, may be 1987-88. Q.470. You have said earlier that it was a term of the agreement between you and Mr. Sinha that Mr. Sinha would execute a conveyance in your favour in respect of three things :- (1) the third floor roof (2) the two garages in the ground floor (3) the two servant’s quarter in the ground floor, do you remember that ?/ Yes, I remember. Q.471. Did you also agree when Mr. Sinha would execute the conveyance ?/The date I do not remember, but he said so. Q.472. The total roof space of the third floor was 7,000 sq. ft. ?/ That is so. Q.486. And your evidence is that it was an agreement between you and Mr. Sinha that Mr. Sinha would sell you the roof right which is equivalent to selling you the land area @ Rs. 150/- per sq. ft. ?/ Mr. Sinha had actually agreed to sell me the roof right for 7000 sq. ft. area @150 per sq. ft. along with the two servants’ quarters and two garages on the ground floor. Q.487. 7000 sq. ft. @ Rs. 150/- per sq. ft. works out to Rs. 10.5 lakhs ?/ Yes. As regards Bhutoria’s readiness and willingness to perform his part of the contract, as also availability of funds, it is submitted that Mr. Bhutoria has proved that Mr. Sinha owed Bhutoria more than Rs.33,00,000/- at that stage and in this respect Question Nos.120 to 122, 142, 246, 346 to 350, 489 and 504 are referred. The aforesaid questions and answers are as follows :- Q.120. You have told My Lord that you are obliged to pay Rs. 150/-per square feet for the roof right of the 2nd floor. Sinha owed Bhutoria more than Rs.33,00,000/- at that stage and in this respect Question Nos.120 to 122, 142, 246, 346 to 350, 489 and 504 are referred. The aforesaid questions and answers are as follows :- Q.120. You have told My Lord that you are obliged to pay Rs. 150/-per square feet for the roof right of the 2nd floor. Why have you not paid that money ?/ The total cost of 7,000 square feet at the rat e of Rs. 150/- per square foot comes to Rs. 10,50,000/-. I am to get more than Rs. 33,00,000/-from Mr. Sinha. He is supposed to pay the balance money to me. I have nothing to pay after the adjustment. Q.121. Did you have Rs. 10,50,000/- towards the payment of third floor at the time when the suit was filed ?/ Yes. I certainly had. Q.122. Do you have it now at present ?/ Yes, I do have. Q.142. In answer to Q. 123 on the last occasion you told My Lord that you were always and are still ready and willing to pay the sum of Rs. 10.5 lakhs. Would you elaborate on that ?/ To get the roof right of the third floor I was supposed to pay Rs. 10.5 lakhs to Mr. Sinha. From the very beginning I am ready to pay the said money to Mr. Sinha, although I am not to pay the same to him, because there should be adjustment of money as I would get huge sum of money from Mr. Sinha. It is submitted that Bhutoria has not contradicted himself and has sustained his case in Cross-examination as would be evident from answers to Question Nos.246, 346 to 350 which read:- Q.246. Where does she reside ?/ She stays with me. Q.346. According to you, when he was supposed to make this payment to you ?/ Mr. Sinha would give me Rs. 24,50,000/- for the second floor – Mr. Sinha will also give me Rs. 10 lakhs for the 4th floor where he would reside and I would have to give him Rs. 10,50,000/- for the roofing right of 3rd floor along with two garages and two servants’ quarters on ground floor. It was, however, not decided exactly on what date this would be given. I, however, requested him to hand over the conveyance in my favour and the balance amount from time to time. 10,50,000/- for the roofing right of 3rd floor along with two garages and two servants’ quarters on ground floor. It was, however, not decided exactly on what date this would be given. I, however, requested him to hand over the conveyance in my favour and the balance amount from time to time. Q.347. When did you first make this request to make over the balance amount ?/ I do not remember exactly the date. Q.348. Do you remember the month ?/ No. Q.349. Do you remember the year ?/ 1987 - may be 1986 also. Q.350. Where did you make this request ?/ At my site at 11, Hungerford Street which is my office also. It is submitted that Bhutoria has proved that Sinha having admitted and agreed to execute conveyance on repeated occasions, there was no question on Bhutoria’s part to issue letters. Further since the entire transaction was oral, there was no question on the part of Bhutoria to either document the oral agreement or to demand execution of conveyance by written notice. Even the garages that were to be conveyed to Bhutoria were to be repaired and had been repaired by Bhutoria at his own costs and expense as stated by Bhutoria in answer to Question Nos.489 and 504 which read:- Q.489. You did not construct any of these garages on the ground floor?/ I repaired them. Q.504. Haven’t you kept the building material in those two garages and thereby blocked up the two garages ?/ The third floor and the garages belong to me. What I have kept stored there or what I have not is upto me. It is argued that Mr. Arun Kumar Bhutoria agreed to develop the said property on the inducement that he would acquire ownership of the third floor of the said premises along with two garages and two servants quarters at the ground floor of the said premises. On the basis of the pleadings in C.S.No.451 of 1989, the following issues were settled and framed on 9th November, 1998:- 1. Was there any agreement between the plaintiff and the defendant No.2 as pleaded in Paragraph 7 of the plaint? 2. If so, did the defendant commit any breach of the said agreement? 3. On the basis of the pleadings in C.S.No.451 of 1989, the following issues were settled and framed on 9th November, 1998:- 1. Was there any agreement between the plaintiff and the defendant No.2 as pleaded in Paragraph 7 of the plaint? 2. If so, did the defendant commit any breach of the said agreement? 3. Is the plaintiff entitled to a declaration that he is the owner of the third floor and the two garages, open land and covered space on the ground floor of the said premises? 4. Is the plaintiff entitled to recovery of possession of those areas? 5. Is the plaintiff entitled to damages? 6. To what other relief or reliefs is the plaintiff entitled? On the basis of the pleadings in C.S.No.348 of 1991, the following issues were settled and framed on 9th November, 1998:- 1. Is the plaintiff entitled to specific performance of the agreement mentioned in Paragraph 7 of the plaint in respect of 7000 square feet on the third floor and two garages and servant’s quarter on the ground floor of premises No.11, Hungerford Street, Calcutta? 2. Is the plaintiff, in addition to specific performance, entitled to damages for Rs.9,00,000/- or for any other sum as pleaded in paragraph 21 of the plaint? 3. Is the claim of the plaintiff barred by the laws of limitation? 4. To what relief or reliefs the plaintiff is entitled to? Both the parties have pleaded oral agreement to support their respective case. The versions of the respective parties as regards the oral agreement, the proposal to sell the third floor are stated below:- Plaintiff’s version Defendants’ version Paragraphs 24, 25 and 27 of the Plaint in Suit No.451 of 1989 (Sukdeb Chandra Sinha Vs. Arun Kumar Bhutoria) and Paragraph 1(c)(v) of the written statement in Suit No.348 of 1991 are set out below:- 24. Sometime in November 1988 the Defendant Nos.1 and 3 approached the plaintiff with the request that a portion of the 3rd floor of the said premises situated on the South-Western side of the building and measuring not more than 5000 sq. ft. might be sold to them instead of to any outsider and they offered a price of Rs.650/- per sq. ft. and also to pay 10% of such price as earnest money. 25. ft. might be sold to them instead of to any outsider and they offered a price of Rs.650/- per sq. ft. and also to pay 10% of such price as earnest money. 25. At the earnest request of the said defendants, the plaintiff expressed his willingness on principle to consider the offer provided the terms and conditions as agreed were set out in a formal written agreement and payment of the earnest money was made. 27. Thereafter on the 13th December, 1988 the defendant No.1 intimated to the plaintiff that he had prepared a formal written agreement and that he would present it to the plaintiff for his approval and if approved by the plaintiff the agreement would be executed on 16th December, 1988. The defendants would also make payment of the earnest money simultaneously with the execution of the agreement. 1(c)(v). In case the defendant decides to sell the 2nd and 3rd floors or any portion thereof, he would intimate to the plaintiff and/or the said company and would arrange and/or cause payment of the costs of construction to be made to the said company by the intending buyers; Paragraphs 1(d)(v) of the written statement in Suit No.451 of 1989 and 7(vii) of Suit No.348 of 1991 are set out below:- 1(d)(v). The third floor of the said premises, and two garages and two servants quarters in the ground floor would be retained by the defendant No.1. The defendant No.1 would pay the plaintiff for the covered area of the third floor comprising 7000 sq. ft. at the rate of Rs.150/-per sq. ft. i. E. Rs.10,50,000/-and the plaintiff would execute a conveyance in respect of the third floor as also of the said garage and servants quarters. The super structure and all other work relating to and concerning the third floor of the said premises would be done by the defendant No.1 at this own cost and according to the liking of the defendant No.1. 7(vii). The 3rd floor of the said premises and two garages and two servants quarters in the ground floor would be retained by the original plaintiff. The original plaintiff would pay the defendant for the covered area of the third floor comprising 7000 sq.ft. at the rate of Rs.150/-per sq.ft. Rs.10,50,000/- and the defendant would execute a Conveyance in respect of the 3rd floor as also of the said garages and servants quarters. The original plaintiff would pay the defendant for the covered area of the third floor comprising 7000 sq.ft. at the rate of Rs.150/-per sq.ft. Rs.10,50,000/- and the defendant would execute a Conveyance in respect of the 3rd floor as also of the said garages and servants quarters. The super structure and all other work relating to an concerning the 3rd floor of the said premises would be done by the original plaintiff at his own cost and according to the liking of the original plaintiff. The success or failure of the suits are largely dependant upon the acceptance of either version of the oral agreement. There is another aspect of the matter. If the Court on the basis of the analysis of evidence, is unable to accept either version what would be the duty of the Court in this regard would also need to be seen. Both the parties have adduced extensive evidence. The plaintiff has produced four witnesses. The summary of the evidence that can be culled out from the evidence adduced by the parties would show that the cost of construction for second, third and fourth floor would be borne by Mr. Bhutoria and the plaintiff shall make arrangement for payment of the cost of construction to the defendants from the intended buyers of the second and third floor. The fourth floor would be occupied by the plaintiff for his personal use and occupation. The provision of payment for fourth floor was that the cost of construction would be on actual cost basis as it would be occupied and used by the plaintiff personally. The proposed construction was to be completed within six months from the commencement of the construction, that is, February, 1986. The construction was to be completed by August, 1986. The original plaintiff would make arrangement for payment of the cost of construction from the buyers to the defendants. During the period of six months, the defendant appears to have only done casting work of the roof, pillars and beams of the second floor and some progress was made with regard to the third floor. Ultimately, the defendants stopped work from November, 1987. Since the construction was incomplete in August, 1986, the plaintiff tried to find out intending buyers who would be interested to buy a space of that nature, namely, only roof with pillars and beams. Mr. Ultimately, the defendants stopped work from November, 1987. Since the construction was incomplete in August, 1986, the plaintiff tried to find out intending buyers who would be interested to buy a space of that nature, namely, only roof with pillars and beams. Mr. Sinha has asserted that save and except beams and pillars, no floor work, no wall, no plastering internal or outside was done by the defendants during the subsistence of the agreement. The plaintiff while looking for the buyers of the said spaces in the second floor, received an offer from Ms. Sampa Bose and Ms. Bani Bose and thereafter by the two agreements of sale both dated 1st August, 1987, the second floor was sold to the said two persons. At the time when the said spaces were sold the second floor was comprised of only pillars, beams and roofs. The purchasers agreed to complete the second floor at their own cost by engaging a construction company. The grievance of the plaintiff as it comes out from the evidence is that as a result of delay in executing the contract and construction of the second and third floor, the original plaintiff had no other alternative but to sell the second floor as it was then, namely, the concrete roof with pillars at a much reduced price. In so far as third floor is concerned only concrete roof was cast with some pillars here and there as also the periphery walls and apart from those structures, there was no evidence of any construction. The defendant was also not taking steps to complete the third floor. In the meantime the plaintiff had received an offer from Mr. Amiya Nath Bose a senior barrister for sale of the third floor at Rs.350/- per sq.ft but, ultimately, the said sale could not happen since the original defendant insisted that whatever construction and changes Mr. Bose wanted to make at the third floor was to be awarded and given to the defendants to which Mr. Bose did not agree. That the defendant intended to sell the third floor and not to keep the said floor for his own use and occupation would be evident from the deposition of the plaintiff as also of Mr. Bose. The evidence shows that one Mr. G.D. Sharma, a Manager of the defendants accompanied Mr. Bhutoria to Mr. Bose did not agree. That the defendant intended to sell the third floor and not to keep the said floor for his own use and occupation would be evident from the deposition of the plaintiff as also of Mr. Bose. The evidence shows that one Mr. G.D. Sharma, a Manager of the defendants accompanied Mr. Bhutoria to Mr. Amiya Nath Bose to negotiate the sale of the said third floor. This evidence clearly shows that there was no agreement as such between the plaintiff and the said original defendants for sale of the third floor to the defendant. However, it is also revealed during evidence that the plaintiff was prepared in principle to sell the entire third floor to Mr. Bhutoria for a price of Rs.650/- per sq. ft. subject to the defendant preparing an agreement for sale and forward the same for examination, verification and approval. The total consideration for 5000 sq.ft. area at a price of Rs.650/- per sq.ft. would be Rs.32.50 lakhs. The evidence does not show that the defendant even had tendered any earnest money or the entire consideration to the plaintiff at any given point of time. The defendants, however, during the cross-examination tried to set up a defence that since the plaintiff did not pay the agreed amount to the defendants after sale of the second floor and the defendants have incurred further expenditure for making further construction in the property, the defendant would only be required to pay balance amount, if any, to the plaintiff as consideration for the third floor. As I have recorded earlier, the defendant has failed to establish that at the time when the second floor flat was sold to the two ladies, the said flat was complete in all respect. On the contrary it appears that the said flat had only some bare structures and the purchasers had to complete the said flat in all respect. The defendant could not have asked for the amount that the defendant had insisted to be paid by Mr. Sinha to Mr. Bhutoria upon sale of the said flat. Since the flat was in an incomplete stage there was no obligation on the part of the plaintiff to pay the amount as demanded by the defendant and the evidence of the plaintiff was that the plaintiff was compelled to sell the said incomplete flat at a reduced rate. Sinha to Mr. Bhutoria upon sale of the said flat. Since the flat was in an incomplete stage there was no obligation on the part of the plaintiff to pay the amount as demanded by the defendant and the evidence of the plaintiff was that the plaintiff was compelled to sell the said incomplete flat at a reduced rate. The original plaintiff, however, candidly stated during his evidence that the plaintiff is agreeable to pay the cost of construction in respect of the construction that the defendant had made on the second, third and fourth floor although it was open for the plaintiff to deny such payment on the ground that the defendant left the construction in an incomplete stage. There cannot be any doubt that the plaintiff at the relevant point of time did not have the required fund to raise construction of the second, third and fourth floor and for that reason, the plaintiff had agreed to pay an agreed sum to the defendant out of the sale proceeds of the second floor flat. The plaintiff admittedly did not pay any significant amount to the defendant for whatever construction the defendant had made on the property. While the plaintiff claims that he had paid about 4.45 lakhs, the original defendant says that the he had received about 1.25 lakhs approximately. However, most significant part of the evidence is that the firm engaged by the defendant for the purpose of construction, namely, M/s. A.K. Construction Company Pvt. Ltd. in their balance sheet has shown an expenditure of 11.24 lakhs as on 31st March, 1988 as expenditures incurred towards construction. The plaintiff does not say that the said amount has been paid to the defendant, save and except, a sum of Rs.4 lakhs approximately. Accordingly, there cannot be any dispute that the plaintiff would be required to pay the cost of construction which the plaintiff had agreed to pay in course of examination. The plaintiff, however, has failed to adduce any evidence to show that the plaintiff had, in fact, paid a sum of Rs.4.45 lakhs. However, the defendants admitted that the defendants have received a sum of Rs.1.25 lakhs. It is for the plaintiff to prove that the plaintiff has paid any sum over and above Rs.1.25 lakhs. Over and above such payment a sum of Rs.11.25 lakhs is found to be due. However, the defendants admitted that the defendants have received a sum of Rs.1.25 lakhs. It is for the plaintiff to prove that the plaintiff has paid any sum over and above Rs.1.25 lakhs. Over and above such payment a sum of Rs.11.25 lakhs is found to be due. Under such circumstances, I am of the view that the defendant is entitled to receive a sum of Rs.11.25 lakhs being the amount due and payable as on 31st March, 1988. The Court can only enforce specific performance of a contract if it is based on a valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court would not make a contract for the purpose. The discretion of the Court to grant a specific relief would always be there even if the contract is otherwise valid and enforceable and it can deny a decree of specific performance even if there is no breach of the contract. However, what is necessary is to find out if there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation. The vexed question is if the defendant is entitled to specific performance of an oral agreement. 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 fact 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. 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. In the present case the Bhutorias have failed to prove that there was a concluded oral agreement between the parties on January, 1986. The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The acceptance must be absolute, and must correspond with the terms of the offer. The burden of showing the stipulations and terms of the contract and that the minds were ad item is, of course, on Bhutoria. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. Where there are negotiations, the court has to determine at what point, if at all, the parties have reached agreement. Negotiations thereafter would also be material if the agreement is rescinded. (See Brij Mohan & Ors. Vs. Sugra Begum & Ors. reported at (1990) 4 SCC 147 , Mayawanti Vs. Kaushalya Devi reported at (1990) 3 SCC 1 and Dinesh Ranchhoddas Kapadia Vs. Manoj S. Kasliwal reported at 2014 (3) CHN (Cal) 5). In a suit for specific performance the plaintiff would not only require to aver but prove readiness and willingness to perform his obligation. The averment and proof of the said requirement is essential and mandatory in view of Section 16(c) of the Specific Relief Act. In Manjunath Anandappa Urf Shivappa Hansi Vs. Tammanasa & Ors. reported at AIR 2003 Supreme Court 1391, this principle was discussed. In paragraph 17, the Hon’ble Supreme Court has considered, followed and approved its earlier view in Ouseph Verghese. In Manjunath Anandappa Urf Shivappa Hansi Vs. Tammanasa & Ors. reported at AIR 2003 Supreme Court 1391, this principle was discussed. In paragraph 17, the Hon’ble Supreme Court has considered, followed and approved its earlier view in Ouseph Verghese. Paragraph 17 of the said judgment reads as follows:- ‘The requirement to comply with the mandatory provisions of S. 16(C) of the Specific Relief Act came up for consideration of this Court in Ouseph Varghese v. Joseph Aley and Others (1969) 2 SCC 539 where it was held: “…… The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. 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. In a suit for specific performance it is incumbent on the plaintiff not only to set out 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. He must further pleaded that he has bee and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken those pleas. As observed by this Court in Pt. Prem Raj v. D.L.F. Housing and Construction (Private) (Ltd.) and another (Civil Appeal No.37/66, decided on 4-4-1968) (reported in 1968 (3) SCR 648 ) that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation that suit is not maintainable.” Mere averment in the plaint that the defendant was ready and willing to perform his part of the contract would not be sufficient. The mandatory provision of Section 16(C) of the Specific Relief Act requires not only such plea but also proof of the same. Mr. Bhutoria, on his own showing, did not tender the alleged consideration Rs.10.50 lakhs at any point of time. In this regard reference may be made to question nos.368 to 370, question no.504 and question nos.514 to 524. The mandatory provision of Section 16(C) of the Specific Relief Act requires not only such plea but also proof of the same. Mr. Bhutoria, on his own showing, did not tender the alleged consideration Rs.10.50 lakhs at any point of time. In this regard reference may be made to question nos.368 to 370, question no.504 and question nos.514 to 524. The said questions are as follows:- Q.368. Before you filed a suit in 1991 you have not made a single demand in writing from Mr. Sinha ?/ That is so. Q.369. This suit was filed in 1989 – do you know that ?/ I cannot remember the date. The suit was filed - may be in 1988-89. Q.370. And you took one year and five months to file your written statement in November, 1990 after five extensions of time ?/ I do not remember how much time – it is lawyer’s work. I have instructed them what was got to say. I have already said what had happened with me and I have briefed everything to my Counsel. Q.504. Haven’t you kept the building material in those two garages and thereby blocked up the two garages ?/ The third floor and the garages belong to me. What I have kept stored there or what I have not, is upto me. Q.514. Did you also make any request to Mr. Sinha about conveying the third floor roof?/ I have said so several times. Earlier also I have said this. Q.515. When did you first make the request to Mr. Sinha for making over the conveyance regarding the second floor roof or third floor ?/ I cannot correctly remember. Q.516. How many times did you make this request ?/ Many times. Q.517. Can you remember any of the timings when you make the requests?/ How can I say that? I am saying that this is a very old matter. Q.518. You do not remember the month when you made all these various requests ?/ I cannot. Q.519. You are saying that you made these requests to Mr. Sinha many times and you cannot recall the timing of any of those requests made by you – you cannot recall the month, Can you recall the years of those requests – in which year, in which year and in which year ?/ In 1986, 1987 and 1988. Q.520. Q.519. You are saying that you made these requests to Mr. Sinha many times and you cannot recall the timing of any of those requests made by you – you cannot recall the month, Can you recall the years of those requests – in which year, in which year and in which year ?/ In 1986, 1987 and 1988. Q.520. Your evidence is that you made the requests to Mr. Sinha to convey the second floor roof or the third floor to you in 1986, 1987 and 1988, although you do no remember ?/ Yes. Q.521. Did you have the occasion to make any of the requests in writing?/ Since the whole agreement was verbal, I do not know how the request for conveyance can be made in writing. Q.522. You have said that you yourself were making these requests to Mr. Sinha. Where did you make those requests ?/ I cannot exactly remember the place. It may be either at my office or at Mr. Sinha’s office. I might have been also at the site itself. Q.523. When you made these requests, what was Mr. Sinha’s answer at the beginning ?/ I cannot remember what he had answered in the beginning or at the end. He said that conveyance would be done. Q.524. Did you know a gentleman called Mr. Amiya Nath Bose ?/ Yes, I know. Section 16(c) of the Specific Relief Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his obligation one has to see the pith and substance of a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or he has always been willing to perform his part of the contract. So the compliance of ‘readiness’ and ‘willingness’ has to be in spirit and substance and not in letter and form. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The court is to grant relief on the basis of the conduct of the person seeking relief. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. (See Syed Dastagir v. T.R. Gopalakrishna Setty reported at (1999) 6 SCC 337 and H.P. Pyarejan Vs. Dasappa (dead) by Lrs. & Ors. reported at (2006) 2 SCC 496 ) The original plaintiff has throughout contended that Mr. Bhutoria was engaged for the purpose of making a construction of the said building. The original plaintiff has also stated that at some stage during construction Mr. Sinha had agreed to sell the third floor flat to Mr. Bhutoria on fulfillment of the other conditions. The fact remains that there is no concluded agreement between the parties. It was only at the negotiation stage that did not fructify in a contract. The evidence of Mr. Amiya Nath Bose would go to show that Mr. Bhutoria was trying to sell off the third floor flat contrary to assertion made by Mr. Bhutoria that an oral agreement was reached by and between the plaintiff and Mr. Bhutoria for sale of the said flat in favour of Mr. Bhutoria. In a suit for specific performance of an oral agreement, the degree of proof is much higher than a claim made on the basis of a written contract. Over and above that the defendant is also required to establish at the trial that he was ready and willing to perform his part of the obligation. The defendant had left the construction at an unfinished stage and had failed to aver and prove his readiness and willingness to perform his obligation of the alleged oral agreement. A prudent businessman like Mr. Bhutoria in the normal situation and as expected in a case of this nature would have forwarded a draft deed of conveyance recording the terms and conditions for approval by Mr. Sinha. There is nothing on record to show that any correspondence was made by Mr. A prudent businessman like Mr. Bhutoria in the normal situation and as expected in a case of this nature would have forwarded a draft deed of conveyance recording the terms and conditions for approval by Mr. Sinha. There is nothing on record to show that any correspondence was made by Mr. Bhutoria either contemporaneously or even before filing of the suit making a claim of ownership or claiming a right in respect of the third floor on the basis of the alleged oral agreement. The report filed by the Special Officer in this proceeding would also indicate that during the inspection the said third floor flat was in an incomplete stage with many cubicles and building materials stored at the said floor. There cannot be any doubt that the defendant had left the suit premises without completing the project. A claim to title based on an alleged oral agreement on the basis of the evidence on record is extremely difficult to sustain. An argument sought to be made that Mr. Bhutoria would not require to pay any amount if the accounts are mutually settled between the parties is also difficult to accept. In the written statement or in the plaint filed by Mr. Bhutoria, the case of the alleged oral agreement surfaced only in 1991, that is to say two years after Mr. Sinha filed his suit for recovery of possession in 1989, when Mr. Bhutoria filed his written statement. The failure to pay any consideration amount for the third floor coupled with the fact that only a sum of Rs.11.25 lakhs (approximately) was spent by Mr. Bhutoria in respect of the said property seriously cast a doubt as to whether any oral agreement for sale at all had taken place as put forth by Mr. Bhutoria. Mr. Bhutoria cannot be allowed to depart from his own case. If during the trial a different agreement between the parties surfaces and is established, which is contrary to the agreement pleaded in the plaint, the case of the plaintiff must fail. Bhutoria. Mr. Bhutoria cannot be allowed to depart from his own case. If during the trial a different agreement between the parties surfaces and is established, which is contrary to the agreement pleaded in the plaint, the case of the plaintiff must fail. In A Ganapathy (Supra), the learned Single Judge of the Madras High Court has reiterated this principle in paragraph 20 which says that in a suit for specific performance the plaintiff cannot be allowed to depart from his case as set up in the plaint and therefore, if one agreement is set up in the plaint, but another is established, the case of the plaintiff has to be rejected on that ground. Since the relief of specific performance is in the nature of an equitable relief, even the conduct of the party may disentitle him to the relief asked for. It is important to mention at this stage that in the instant case Mr. Bhutoria, who has come up with a specific performance of an oral agreement for sale, has not adduced any evidence to establish such claim. The oral evidence adduced by him is contrary to the materials on record. In Sampatraj (supra), the Hon’ble Division Bench was considering the essential requirement of an oral agreement for sale. It was held that before an oral sale can be allowed to be established in a Court of law, the Court must be convinced of one or two things, namely that the entire consideration had been paid by the purchaser to the vendor or the possession of the property in question is made over from the one to the other. It is then and only then the Court can reasonably come to the conclusion that there has been a transfer of ownership of the property intended to be sold. In the instant case, Mr. Bhutoria has failed to establish that any consideration was paid or even offered to the plaintiff or that he was given possession on the basis of an agreement for sale. These two conditions have remained unfulfilled. Hence the suit for specific performance cannot succeed. However, Mr. Sarkar has relied upon a decision of the House of Lords in Rhesa Shipping Co. SA Vs. Edmunds & Anr. These two conditions have remained unfulfilled. Hence the suit for specific performance cannot succeed. However, Mr. Sarkar has relied upon a decision of the House of Lords in Rhesa Shipping Co. SA Vs. Edmunds & Anr. reported at (1985) 2 All ER 712 for the proposition that where the Court is in doubt on evidence, as to correctness and credibility of both versions of facts put forward by the parties, it should go by the rule of onus of proof. This judgment was cited in anticipation that the Court may, on the basis of the different versions of the agreement, find it difficult to accept either version as the Judge may not be bound always to make a finding one way or the other with regard to the fact averred by the parties. No Judge would like to decide a case on burden to prove if he can legitimately avoid having to do so. There are cases, however, where owing to the unsatisfactory case of evidence or otherwise, deciding on the burden of the proof is the only just course for him to take. Mr. Bhutoria has failed to discharge his onus. Under such circumstances, Mr. Bhutoria has failed to establish its claim for specific performance. C.S. 348 of 1991 is dismissed. The plaintiffs in Suit No.451 of 1989 are entitled to a decree in terms of prayer (a) and (b). In the event the defendants make over possession of the schedule property to the plaintiff within six weeks from date the plaintiff shall not be entitled to mesne profits. In default Mr. Sabyasachi Chowdhury, Advocate, is appointed as Commissioner to compute mesne profits from the date of filing of the suit till delivery of actual physical possession. There shall be a decree for a sum of Rs.11.25 lakhs in favour of the plaintiffs in C.S.No.348 of 1991. The said sum shall carry interest at the rate of 16% per annum from April, 1988 till payment. However, there shall be no order as to costs. The Department is directed to draw up the decree as expeditiously as possible. Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.