JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellant has challenged the judgment and decree dated 9th September, 2015, passed by the learned Single Judge in Civil Suit No. 27 of 2008, titled Arjan Singh Vs. Dr. S.R. Bawa and others, vide which, the suit so filed by the present appellant stands dismissed by the learned Single Judge. 2. Before proceeding further, it is relevant to mention that vide judgment, dated 9th September, 2015, besides Civil Suit No. 27 of 2008, learned Single Judge also disposed of Civil Suit No. 116 of 2009 as well as Civil Revision No. 19 of 2011. Civil Suit No. 116 of 2009, titled Sanjeev Sharma Vs. Dr. S.R. Bawa and others was dismissed as not pressed, whereas Civil Revision No. 19 of 2011, titled Arjan Singh Vs. Punit Ahluwalia and another was dismissed as not maintainable. We are only seized with the appeal, which has been filed by the present appellant against the judgment and decree, dated 9th September, 2015 passed by the learned Single Judge, vide which, it dismissed Civil Suit No. 27 of 2008. 3. Brief facts necessary for the adjudication of the present appeal are that appellant/plaintiff (hereinafter referred to as ‘the plaintiff’) filed a suit for possession of property bearing House No. 169, Sector 11-A, Chandigarh by way of specific performance of agreement to sell, dated 20th June, 1995 and in the alternative for recovery of Rs.10,00,000.00 (Rupees Ten lacs) as damages and refund of Rs.3,20,000.00 (Rupees Three Lacs and Twenty Thousand) deposited as earnest money and for special costs. 4. The case of the plaintiff was that he was a resident of Chandigarh and in the first week of June, 1995, he had appointed Shri Amarjit S. Sethi, Property Dealer, SCO No. 345-46, Sector 35-B, Chandigarh as his broker and agent for the purpose of purchase of property in Chandigarh. Plaintiff was informed by his broker that property bearing House No. 169, Sector 11-A, Chandigarh, under the ownership of defendant No. 1, who was a non resident Indian and was settled in U.S.A., in which property, the ground floor alongwith annexe were in possession of a tenant, stood advertised for sale. Plaintiff directed his agent-cum-broker to contact defendant No. 1 and negotiate the sale of the suit property. Plaintiff directed his agent-cum-broker to contact defendant No. 1 and negotiate the sale of the suit property. Plaintiff was the member of Punjab University faculty from 1967-1972 and thus knew defendant No. 1, who was a Professor & Head of Department of Bio-Physics in the said University till 1993. Shri Amarjit S. Sethi thus acting on behalf of the plaintiff contacted defendant No. 1 and started negotiations with regard to sale of the suit property. He gave several telephone calls to defendant No. 1 at his telephone number 001-518-381-4067, which was installed at defendant’s residence in U.S.A. and also spoke with him for the purpose of finalization of sale price and other terms and conditions of the sale of property. 5. On 20th June, 1995, an agreement was concluded between plaintiff and defendant No. 1 by way of a telephonic communication, when a telephone call was placed at the abovementioned number of defendant from Chandigarh at 17:10 hours Indian Standard Time by the broker of the plaintiff in the presence of the plaintiff. Plaintiff’s broker telephonically communicated defendant No. 1 about plaintiff’s offer for an amount of Rs.30,00,000/- (Rupees Thirty lacs only) for the purchase of House No. 169, Sector 11-A, Chandigarh and defendant No. 1 made his counter offer of Rs.32,00,000/- to the broker of the plaintiff. Plaintiff heard this conversation on an extension and authorized his broker to communicate to defendant No. 1 that he would pay Rs.32,00,000/- for the purchase of the house. This was accordingly communicated by the broker to defendant No. 1 and the offer of the plaintiff was accepted by defendant No. 1 in absolute and unqualified terms and said acceptance was communicated by defendant No. 1 to the plaintiff through his broker-cum-agent telephonically in the course of same telephone call. It was further the case of the plaintiff that during the same telephone call, it was agreed between defendant No. 1 and plaintiff that plaintiff would deposit a sum of Rs.3,20,000/- in the bank account of the defendant and the said amount would be liable to be forfeited in case agreement failed on account of default on the part of the plaintiff. Defendant No. 1 intimated his saving bank account number, name of the bank alongwith his complete address for correspondence to the broker of the plaintiff. It was also agreed that plaintiff shall bear the cost of stamp duty and registration charges. Defendant No. 1 intimated his saving bank account number, name of the bank alongwith his complete address for correspondence to the broker of the plaintiff. It was also agreed that plaintiff shall bear the cost of stamp duty and registration charges. The sale was to be completed within 15 days from the arrival of defendant No. 1 in India, but in any case not later than 31st August, 1995. It was further the case of the plaintiff that on 21st June, 1995, the plaintiff had obtained a Banker’s cheque (Draft) bearing No. MC822/95, issued by Punjab & Sind Bank, Sector-11, Chandigarh for an amount of Rs.3,20,000/- in favour of defendant No. 1 and made his endorsement on its reverse to the effect that it was “Advance Payment to Dr. S.R. Bawa on account of purchase of House No. 169, Sector 11-A, Chandigarh”. Plaintiff went to the bank of defendant, i.e., State Bank of India, Sector 14, Chandigarh to deposit the draft, but when he reached the bank, he discovered that defendant No. 1 had no account in the said bank, which stood so communicated to the agent of the plaintiff by defendant No. 1. On the same day in the afternoon, his agent again telephonically contacted defendant No. 1 in the presence of plaintiff and informed him about the incorrect bank account number. Later on, again his broker contacted defendant No. 1 on the same day at around 5:00 p.m. Indian Standard Time and obtained the correct account No. 25036 from defendant No. 1. 6. Thereafter, on 22nd June, 1995, plaintiff deposited draft of Rs.3,20,000/- in the said account as part payment of the contract. On 23rd June, 1995, Amarjit S. Sethi wrote to defendant No. 1 on the basis of telephonic conversation and informed him that an amount of Rs.3,20,000/- stood deposited in his bank account, i.e., account No. 25036 in State Bank of India, Sector 14, Chandigarh on 22nd June, 1995. Alongwith this letter, an agreement to sell bearing signatures of the plaintiff was also sent to defendant No. 1 for his signatures. Defendant No. 1 was again contacted telephonically on 21st July 1995 by Sh. Amarjit S. Sethi and he confirmed the receipt of the papers and stated that he would finalize his programme to visit India to complete the sale formalities in the end of July, 1995. 7. Defendant No. 1 was again contacted telephonically on 21st July 1995 by Sh. Amarjit S. Sethi and he confirmed the receipt of the papers and stated that he would finalize his programme to visit India to complete the sale formalities in the end of July, 1995. 7. On 20th August, 1995, again the broker of the plaintiff made a telephonic call to defendant No. 1 in the presence of the plaintiff. During the said conversation, defendant No. 1 again acknowledged the receipt of earnest money and expressed his inability to visit India to complete the sale formalities, as he was unable to obtain leave. The broker of the plaintiff asked defendant No. 1 to send written receipt qua confirmation of receipt of earnest money, but defendant No. 1 stated that his word was enough. 8. Thereafter, a letter was addressed by the plaintiff on 5th September, 1995 to defendant No. 1 to confirm that he was in a position to complete the sale formalities within a week of defendant’s arrival in India. Defendant No. 1 was again contacted by Amarjit S. Sethi on 7th October, 1995, but he was not available. A message was left on his answering machine. On 17th October, 1995, Amarjit S. Sethi received a letter from defendant No. 1, dated 18th September, 1995 to the effect that earnest money of Rs.3,20,000/- was deposited without his authorization and without execution of any agreement and defendant No. 1 also enclosed cheque of Rs.3,20,000/- in favour of Amarjit S. Sethi. This communication was replied to by Sh. Amarjit S. Sethi vide letter, dated 20th October, 1995, informing defendant No. 1 that amount of Rs.3,20,000/- was deposited under instructions of defendant No. 1. It was further the case of the plaintiff that he came to know from his broker on 29th October, 1995 that defendant No. 1 had arrived in India and was negotiating the sale of said property with some other party. Plaintiff and his broker tried to meet defendant No. 1 on 30th October, 1995 but were not successful. They went to the residence of defendant on 31st October, 1995 at 8:25 a.m. and met him. When plaintiff asked defendant No. 1 to perform his part of the contract, defendant No. 1 completely refused to do so and stated that he was not interested in selling the house. They went to the residence of defendant on 31st October, 1995 at 8:25 a.m. and met him. When plaintiff asked defendant No. 1 to perform his part of the contract, defendant No. 1 completely refused to do so and stated that he was not interested in selling the house. According to the plaintiff, during the course of conversation, defendant No. 1 affirmed that agreement to sell was concluded for Rs.32,00,000/- and also receipt of Rs.3,20,000/- as earnest money from Sh. Amarjit S. Sethi. According to the plaintiff, the conversation, which took place between plaintiff, Amarjit S. Sethi and defendant No. 1 at the residence of defendant No. 1 was tape-recorded. Thus, as defendant No. 1 failed to perform his part of the agreement, plaintiff filed the suit praying for the reliefs already quoted above. 9. It was also mentioned in the suit that during the pendency of the suit, defendant No. 2 filed an application mentioning therein that defendant No. 1 had agreed to sell the suit property in his favour and thus, he was a necessary party in the present suit. However, defendant No. 2 had no right to get specific performance and it appeared that he was hand in glove with defendant No. 1. It was also mentioned in the suit (Amended Plaint) that during the pendency of the suit, the suit property stood sold by defendant No. 1 in favour of defendant No. 3 vide registered sale deed, dated 25.03.2003, which sale deed was illegal, null and void and did not affect the rights of the plaintiff. 10. In his written statement, defendant No. 1 denied the claim of the plaintiff and it was mentioned in the preliminary objections as well as in the written statement on merit that defendant No. 1 had never agreed to sell any property to the plaintiff nor was there any agreement arrived at between the parties and thus, the plaintiff was not entitled for the reliefs mentioned in the suit. It was also mentioned in the written statement that Sh. Amarjit Singh Sethi never disclosed to the defendant that he was acting on behalf of the plaintiff as his broker. Defendant No. 1 also denied the fact that he was permanently settled in USA and mentioned in the written statement that he was an educationalist and was invited in various countries to deliver the lectures. Amarjit Singh Sethi never disclosed to the defendant that he was acting on behalf of the plaintiff as his broker. Defendant No. 1 also denied the fact that he was permanently settled in USA and mentioned in the written statement that he was an educationalist and was invited in various countries to deliver the lectures. He also denied that he wanted to sell the house in question. It was mentioned in the written statement that no contract was concluded between the plaintiff and defendant on 20.06.1995 and no talk took place between the plaintiff and defendant on the said date. It was denied that any terms and conditions were settled for sale of the house with Amarjit Singh Sethi and it was mentioned that the broker was trying to prevail upon the defendant to sell the house, but no final decision and terms were settled at any point of time. It was also mentioned that he had never accepted any offer nor was there any occasion for the same, as was clear from the conduct of the defendant that he did not sign the agreement, which was sent to him to USA. It was also mentioned in the written statement that broker Amarjit Singh Sethi and Sh. Arjan Singh, in connivance with each other, tried to trap the defendant for sale of the house while he was in abroad. It was also mentioned in the written statement that broker and plaintiff in connivance with each other located the account number of the defendant and deposited the amount therein without any authority, simply with a view to trap the defendant. It was further mentioned in the written statement that broker Amarjit Singh Sethi came to the house of defendant No. 1 on the morning of 31.10.1995 with malafide intentions and wanted to get his commitment and confirmation of offer of purchase, but at no point of time, defendant had agreed to sell his property to the plaintiff nor he had any conversation in this regard with the plaintiff. As per the defendant, he discussed the matter with the broker in a very casual manner and as the intentions of the plaintiff and the broker were bad, they recorded said conversation in a cassette. On these basis, the case of the plaintiff was denied by defendant No. 1. 11. As per the defendant, he discussed the matter with the broker in a very casual manner and as the intentions of the plaintiff and the broker were bad, they recorded said conversation in a cassette. On these basis, the case of the plaintiff was denied by defendant No. 1. 11. Defendant No. 2 Sanjeev Sharma, in his written statement mentioned that much before entering into the alleged agreement to sell, dated 20.06.1995, defendant No. 1 had agreed to sell the house in question to defendant No. 2 for an amount of Rs.27,50,000/-, which amount stood deposited by him in the account of defendant No. 1 on 21.06.1995 and 22.06.1995 and as defendant No. 1 had failed to get the sale deed executed, he filed a suit for specific performance against defendant No. 1. It was also mentioned in the written statement that the suit filed by him for specific performance of agreement to sell in respect of House No. 169, Sector 11, Chandigarh had already been decreed on 19.02.2003. 12. Defendant No. 3 in his written statement inter alia took the plea that he was a bonafide purchaser of the suit property for consideration and in fact there was no agreement of sale by Dr. S.R. Bawa in favour of Arjan Singh. It was further mentioned in the written statement that Arjan Singh had filed the suit at the instance of Justice K.S. Garewal and his wife Dr. (Mrs.) Gurjeewan Garewal, who wanted to grab the suit property by hook or crook. It was also mentioned in the written statement that the plaintiff was merely a puppet in the hands of persons named above. It also stood mentioned in the written statement that banker cheque No. MC 822/95, dated 21.06.1995 for Rs.3,20,000/-, which was issued by Punjab and Sind Bank, Sector 11, Chandigarh and which banker cheque was in favour of defendant No. 1, was prepared after transferring the said amount from the saving bank account No. 10142 (HUF) of Mr. Justice K.S. Garewal with Punjab and Sind Bank, Sector-11, Chandigarh. On these basis, it was mentioned in the written statement that the alleged earnest money which was sought to be deposited by Arjan Singh was in fact the amount, which belonged to Mr. Justice K.S. Garewal. It was also mentioned in the written statement that as plaintiff and Mr. Justice K.S. Garewal with Punjab and Sind Bank, Sector-11, Chandigarh. On these basis, it was mentioned in the written statement that the alleged earnest money which was sought to be deposited by Arjan Singh was in fact the amount, which belonged to Mr. Justice K.S. Garewal. It was also mentioned in the written statement that as plaintiff and Mr. Justice K.S. Garewal had entered into a benami transaction, they had committed an offence under Section 3(3) of the Benami Transactions (Prohibition) Act, 1988. It was also mentioned in the written statement that Dr. (Mrs.) Gurjeewan Garewal, wife of Mr. Justice K.S. Garewal was occupying the ground floor of the house, i.e., the suit property, as a tenant and she and may be her husband were depositing the amount of rent in the bank account of Dr. S.R. Bawa, the previous owner of House No. 169, so the bank account of Dr. S.R. Bawa was already known to Dr. (Mrs.) Gurjeewan Garewal and her husband Mr. Justice K.S. Garewal. It was also mentioned in the written statement that this amount which was so deposited in the account of Dr. S.R. Bawa, which actually belonged to Mr. Justice K.S. Garewal was deposited without the consent and knowledge of defendant No. 1 and it did not create any right in favour of the plaintiff. 13. By way of replications, the plaintiff reiterated his case, as was put forth in the plaint. 14. On the basis of pleadings of the parties, the following issues were framed: “(1) Whether the defendant No. 1 had entered into agreement to sell house in question with the plaintiff, as alleged? If so, when and to what effect? OPP (2) Whether the plaintiff had deposited an amount of Rs.3,20,000/- in pursuance of the agreement to sell with the defendant No. 1 with the specific permission, consent and authority of Dr. S.R. Bawa, defendant No. 1? If so, to what effect? OPP (3) Whether in alternative, the plaintiff is entitled to recover the sum of Rs.10 lacs as damages and the sum of Rs.3,20,000/- allegedly deposited by him in the account of defendant No. 1 alongwith interst @ 12% P.A. as prayed for? OPP (4) Whether the plaintiff was ready and willing to perform his part of the said agreement to sell? If so, to what effect? OPP (4) Whether the plaintiff was ready and willing to perform his part of the said agreement to sell? If so, to what effect? OPP (5) Whether the defendant No. 1 S.R. Bawa was not competent to repudiate the agreement to sell, as alleged? OPP (6) Whether the defendant No. 1 had already agreed to sell the house in question to defendant No. 2 prior to the said agreement in favour of plaintiff, as alleged? If so, to what effect? OPD-2 (7) Whether the defendant No. 2 had obtained the decree for specific performance of the agreement to sell in his favour against the defendant No. 1 on 19.2.2003? If so, to what effect? OPD-2 (8) Whether the plaintiff has no cause of action? OPD (9) Whether the plaintiff is estopped by his own acts and conduct from challenging the validity and legality of the decree passed in Civil Suit titled as Sanjeev Sharma Vs. S.R. Bawa on 19.02.2003, as alleged? OPD (10) Whether the plaintiff has no locus standi to file the present suit? OPD (11) Whether the present suit is barred by the principle of resjudicata? OPD-3. (12) Whether the defendant No. 3 is bonafide purchaser for consideration and without notice of the oral agreement to sell between defendant No. 1 and plaintiff? OPD-3. (13) Whether the plaintiff has entered into Benami transaction, as alleged? OPD-3 (14) Whether the suit is liable to be dismissed with specific cost? OPD-3 (15) Relief. 15. Out of 15 issues so framed, issues No. 1 to 5, 8, 13, 14 and 15 alone were adjudicated upon by the learned Single Judge, as is evident from para-12 of the judgment, which is being quoted herein below: “12. However, before proceeding further, it may be relevant to observe that at one stage the proceedings were carried out to the Hon’ble Supreme Court and in light of the decision rendered by it only issues No. 1,2,3,4,5,8, 13, 14 and 15 alone as per the joint representation of the parties survive for adjudication.” 16. It is pertinent to mention here that though initially the Civil Suit was instituted in the High Court of Punjab and Haryana, however, the same was transferred to this Court by the orders of the Hon’ble Supreme Court. 17. It is pertinent to mention here that though initially the Civil Suit was instituted in the High Court of Punjab and Haryana, however, the same was transferred to this Court by the orders of the Hon’ble Supreme Court. 17. On the basis of evidence led by the parties, both ocular as well as documentary, learned Single Judge decided issues No. 1 to 5 against the plaintiff and issue No. 8 in favour of defendants and against the plaintiff and issues No. 13 and 14 against defendant No. 3. Learned Single Judge thus dismissed the suit of the plaintiff, leaving the parties to bear their own costs. 18. As already mentioned above, issues No. 1 to 5 were decided by the learned Single Judge against the plaintiff. Learned Single Judge held that though written statement stood filed by defendant No. 1 even to the amended plaint, which was only signed by his Advocate, said defendant had failed to enter into the witness box and subject himself to cross-examination and, therefore, adverse inference had to be drawn against the said defendant. Learned Single Judge further held that despite an adverse inference having been drawn against defendant No. 1, onus was still upon the plaintiff to prove his case and he could not rely upon the weakness of the defendants. Learned Single Judge held that it was settled principle of law that plaintiff was bound to prove his case to the satisfaction of the Court and his burden was not lightened merely because the defendant was either absent or did not step into the witness box for stating his case on oath and thereafter affording himself for cross-examination. 19. Learned Single Judge also held that as there was an oral agreement pleaded by the plaintiff, onus was upon the plaintiff to prove the same. Learned Single Judge further held that in order to constitute a valid agreement, there should be consensus ad-idem, i.e. meeting of mind between the contracting parties, i.e., plaintiff and first defendant and thus, the core question which arises for adjudication is as to whether oral agreement between the plaintiff and the first defendant was established by the so called correspondence and telephonic conversation, as was canvassed by the plaintiff. 20. 20. Learned Single Judge further held that it was the duty of the Court to construe correspondence with a view to arrive at a conclusion whether there was any meeting of mind between the parties, which would create a binding contract between them, but the Court was not empowered to create a contract for the parties, unless from the correspondence, it unequivocally and clearly emerged that the parties were ad idem to bring into existence a mutually binding contract. Learned Single Judge held that intention of the parties is to be gathered from the expressions used in the correspondence and the meaning it conveyed. 21. After relying upon the judgments of the Hon’ble Supreme Court in Mayawanti Vs. Kaushalya Devi (1990) 3 SCC 1 and Rickmers Verwaltung GMBH Vs. Indian Oil Corporation Ltd. (1999) 1 SCC 1 , learned Single Judge held that evidence available on record demonstrated that as far as plaintiff was concerned, he had never ever even had a talk with defendant No. 1 over telephone despite the fact that he was supposedly the intending purchaser and was also hearing the conversation on parallel line when the alleged deal was struck. Learned Single Judge held that it had come in evidence that the so called earnest money was in fact paid from the account of Mr. Garewal, who was interested in the transaction and entire evidence reflected that there was no privity of contract either oral or documentary, because even the documentary evidence by way of agreement retained by PW-1 and PW-2, which was alleged to be the photocopy of the agreement sent to defendant No. 1 for signatures did not bear any signature of PW-1, though he had claimed to have had signed the same. 22. Learned Single Judge also held that it was also clear that plaintiff had never talked to defendant No. 1 over the telephone prior to 31.10.1995 and, therefore, there was no such meeting of mind between the plaintiff and defendant No. 1 at any point of time relating to any oral agreement to sell. On these basis, it was held by the learned Single Judge that incontrovertible and indubitable fact was that there was no concluded contract of oral agreement to sell between the plaintiff and the first defendant. Learned Single Judge also held that it was not forthcoming as to what prevented the plaintiff from contacting defendant No. 1 directly. On these basis, it was held by the learned Single Judge that incontrovertible and indubitable fact was that there was no concluded contract of oral agreement to sell between the plaintiff and the first defendant. Learned Single Judge also held that it was not forthcoming as to what prevented the plaintiff from contacting defendant No. 1 directly. 23. Learned Single Judge dismissed the contention of the plaintiff that even if Mr. Grewal was interested in the deal, the suit in his absence was still maintainable under Section 15(2) of the Specific Relief Act by holding that there was no pleading whatsoever to this effect and moreover Mr. Grewal was perforce introduced in the lis after defendant No. 3 filed his written statement, giving details and mentioning in detail his role in the entire deal. Learned Single Judge also held that it had come on record by way of evidence that defendant No. 1 had returned the so called earnest money to PW-2 and not PW-1. Learned Single Judge held that this fact also was a clear indicator that there was no concluded contract between the plaintiff and defendant No. 1 or else there was no occasion for defendant No. 1 to have had returned the money to PW-2. 24. It was further held by the learned Single Judge that the letter alleged to have been sent by PW-1 vide Ex. P-9 to defendant No. 1 and the envelope containing endorsement of refusal Ex. P-10, was found to be opened. From this, it was concluded by the learned Single Judge that there was no doubt in his mind that the letter inside the envelope was tampered with only to create evidence in support of the plaintiff’s case. 25. Learned Single Judge thereafter held that if from the correspondence exchanged between the parties, it could not be concluded that there was no meeting of mind between them so as to create a binding contract between them, then the plaintiff was required to establish his case, based on telephonic conversation as per the parameters laid down by the Hon’ble Supreme Court in Bhagwandas Goverdhandas Kedia Vs. M/s. Girdharlal Parshottamdas and Co., and others, AIR 1966 SC 543 . Learned Single Judge held that plaintiff himself had never talked to defendant No. 1 and till that stage, even the earnest money had been paid by Mr. Grewal and not the plaintiff. M/s. Girdharlal Parshottamdas and Co., and others, AIR 1966 SC 543 . Learned Single Judge held that plaintiff himself had never talked to defendant No. 1 and till that stage, even the earnest money had been paid by Mr. Grewal and not the plaintiff. Learned Single Judge held that there was no document to prove on record that PW-2 was in fact the broker acting on behalf of the plaintiff. 26. It was further held by the learned Single Judge that even telephonic conversations no where established that there was a meeting of mind between the parties so as to create a binding contract between them. Learned Single Judge also held that there was no legal proof of the transcript of the conversation in issue and PW-1, i.e., plaintiff in his cross-examination has clearly stated that all the documents which he had placed on record as Ex. P-1 to Ex. P-13 were on the file of PW-2, which he had obtained prior to filing of the suit. 27. Learned Single Judge also held that transcript Ex. P-13 was proved by none of the witnesses, as PW-1 claimed to have obtained the same from PW-2, whereas PW-2 categorically stated in his cross-examination that the translation appearing in Ex. P-13 was done by Arjan Singh, but not in his presence. Learned Single Judge also held that the tape recorded conversation was liable to be discarded on the sole ground that there was no sample recording of the voice of defendant No. 1 and in the absence of the same, it could not be presumed that the voice was that of defendant No. 1. In holding so, learned Single Judge has relied upon the judgment of the Hon”ble Supreme Court in Ram Singh Vs. Col. Ram Singh, 1985 Supp. SCC 611. 28. Learned Single Judge also held that once defendant No. 1 had returned the cheque, the contract, if any, would stand repudiated and in such circumstances, the suit seeking specific performance would not be maintainable and it was incumbent upon the plaintiff to have had sought declaration to this effect as per the law declared by the Hon’ble Supreme Court in I.S. Sikandar (dead) by LRs. Vs. K. Subramani and others (2013) 15 SCC 27 . Vs. K. Subramani and others (2013) 15 SCC 27 . Thereafter, learned Single Judge went on to hold that as there was no concluded contract between the plaintiff and defendant No. 1, therefore, plaintiff could not be held entitled to recover a sum of Rs.10,00,000/- as damages. Learned Single Judge also held that as a sum of Rs.3,20,000/- already stood returned, therefore, no interest could be claimed upon the same and thus, issues No.1 to 5 were decided against the plaintiff. Learned Single Judge also held that as above issues stood decided against the plaintiff, accordingly he had no locus standi to file the present suit. Issues No. 13 and 14 were decided against defendant No. 3, against which no appeal has been filed by defendant No. 3. 29. Feeling aggrieved by the judgment and decree so passed by the learned Single Judge, plaintiff has filed this appeal. 30. We have heard the learned counsel for the parties and have also gone through the judgment passed by the learned Single Judge as well as the records of the case. 31. Learned Senior Counsel for the appellant has laid challenge to the judgment so passed by the learned Single Judge on the following grounds: “1. Evidence on record clearly established that there was a concluded contract between the parties, as all the material terms of agreement had been agreed to, and findings of learned Single Judge to the contrary were bad. 2. Learned Single Judge failed to take into account the judgment passed by the Hon’ble Supreme Court, dated 14.05.2008, arising out of the connected case, wherein Hon’ble Supreme Court had held that compromise between defendant No. 2 (Sanjeev Sharma) and defendant No. 1 (Dr. S.R. Bawa) was bad in law. 3. Reasons given by the learned Single Judge in para-39 of his judgment were completely irrational, as records of the case demonstrated that reason for the defendant to back out was that he had received a higher offer and this stood established through the transcript. 4. Learned Single Judge failed to draw adverse inference against defendant No. 1 on his intentionally and deliberately failed to appear as a witness in support of his written statement. 5. Learned Single Judge erred in not appreciating that plaintiff had discharged his onus not only through letter Ex. P-1, but also through agreement/draft receipt Ex. P-2, the banker’s cheque and endorsement Ex. 5. Learned Single Judge erred in not appreciating that plaintiff had discharged his onus not only through letter Ex. P-1, but also through agreement/draft receipt Ex. P-2, the banker’s cheque and endorsement Ex. D-5 and also the transcript of the tape recorded conversations.” 32. No other point was urged. 33. We will deal with all the issues raised by the appellant together. 34. As per the plaintiff, the agreement was concluded on 20th June, 1995 between the plaintiff and defendant No. 1 through a telephonic conversation, which took place between PW-2 and defendant No.1. PW-2 was the broker of plaintiff and on instructions of plaintiff, he initiated the sale of the suit property with defendant No. 1, who at the relevant time was in USA at the telephone number of defendant No. 1 and when this conversation took place between PW-2 and defendant No. 1, plaintiff was present. Case put forth by the plaintiff is that he and PW-2 had made an offer for an amount of Rs.30,00,000/- (Rupees Thirty lacs only) for the purchase of House No. 169, Sector 11-A, Chandigarh and defendant No. 1 made his counter offer of Rs.32,00,000/- to the broker of the plaintiff. Plaintiff heard this conversation on an extension and authorized his broker to communicate to defendant No. 1 that he would pay Rs.32,00,000/- for the purchase of the house. This was accepted by defendant No. 1, which led to the conclusion of the contract and thereafter, an amount of Rs.3,20,000/- as earnest money was also deposited by the plaintiff in the bank account of defendant No. 1, details whereof were provided by defendant No. 1 to plaintiff through PW-2. It has been held by the learned Single Judge that there is no evidence on record from which it could be inferred that PW-2 was the broker of the plaintiff and was in any manner acting at the behest of the plaintiff for the purchase of the suit property under his instructions with defendant No. 1. It is the case of the plaintiff himself that whenever telephonic conversation took place between the broker and defendant No. 1, he heard those conversations on an extension and continued to pass on instructions to defendant No. 1 through his broker. It is the case of the plaintiff himself that whenever telephonic conversation took place between the broker and defendant No. 1, he heard those conversations on an extension and continued to pass on instructions to defendant No. 1 through his broker. Surprisingly, during the course of arguments, learned Senior Counsel for the appellant/plaintiff could not explain as to why at no point in time, plaintiff had any interaction with defendant No. 1 either in person or telephonically. The conduct of the plaintiff of not directly making any conversation with defendant No. 1, even after the contract allegedly stood concluded between him and defendant No. 1, is rather strange. Now it has come on record and which could not be rebutted during the course of arguments by the appellant that an amount of Rs.3,20,000/- which was deposited by the plaintiff in the bank account of defendant No. 1 was deposited in the account of plaintiff by Mr. Grewal. It has also come on record that plaintiff admitted that he had agreed to sell ground floor of the property in issue once it was sold to him by defendant No. 1 in favour of Mr. Grewal. Not only this, it is also a matter of record that the so called earnest money was forthwith returned back by defendant No. 1 and that too not in the name or in favour of plaintiff, but to the broker, i.e. PW-2. It is also a matter of record that the communications, i.e., letters and agreement to sell etc., which were sent to the plaintiff through PW-2 to defendant No. 1, were sent back unsigned alongwith a communication that no such agreement had been entered into by defendant No. 1 with the plaintiff. As far as the issue of transcript is concerned, as has been rightly held by the learned Single Judge, the same has not been proved by the plaintiff in accordance with law. Whereas according to PW-1, the same was handed over to him by PW-2, PW-2 has taken a contrary stand and has stated that the same was prepared by PW-1 and that too, not in his presence. The alleged telephonic conversation of PW-2 and defendant No. 1 has also not been proved on record, because on record there is no sample of the voice of defendant No. 1, as has also been observed by the learned Single Judge. The alleged telephonic conversation of PW-2 and defendant No. 1 has also not been proved on record, because on record there is no sample of the voice of defendant No. 1, as has also been observed by the learned Single Judge. Now, in these circumstances, in our considered view also, it cannot be said that documents on record produced by the plaintiff demonstrated that there was a concluded contract between plaintiff and defendant No. 1. The judgment passed by the learned Single Judge demonstrates that the learned Single Judge after taking into consideration the evidence on record both ocular as well as documentary, has returned findings against the plaintiff in this regard. The findings so returned by the learned Single Judge are duly borne out from the records of the case and the same are as such not perverse. 35. Learned Single Judge has also rightly held that onus to prove his case was upon the plaintiff and simply because defendant No. 1 had not entered into the witness box to prove his written statement or to subject himself to cross-examination, this itself did not lessen the burden of the plaintiff to have had proved its case. It is not as if learned Single Judge has not drawn adverse inference against defendant No. 1 for not presenting himself as a witness before the Court. What has been held by the learned Single Judge is that the plaintiff had failed to discharge the onus to have had proved that there was concluded contract entered into between the plaintiff and defendant No. 1. The findings so returned by the learned Single Judge are not only substantiated from the evidence on record, but the same are also based upon the sound principles of law enunciated by the Hon’ble Supreme Court. 36 Ex. P-1 is copy of letter dated 23.06.1995 and the same is addressed by PW-2 to defendant No. 1. Incidentally, in this letter, neither there is any reference of the plaintiff not the same bears signature of the plaintiff. A perusal of Ex. P-2 demonstrates that the same does not bear the signature of any witness and the only purported signature upon the same is that of the plaintiff. Incidentally, the plaintiff has deposed in the Court that Ex. Incidentally, in this letter, neither there is any reference of the plaintiff not the same bears signature of the plaintiff. A perusal of Ex. P-2 demonstrates that the same does not bear the signature of any witness and the only purported signature upon the same is that of the plaintiff. Incidentally, the plaintiff has deposed in the Court that Ex. P-2 was sent to defendant No. 1 by his broker Amarjeet Singh Sethi and this document remained in the possession of PW-2 and only before filing the same in the Court, he obtained it from PW-2. Incidentally, only photo copy of the Ex. P-2 is on record and original copy of the same has not been produced by the plaintiff. Why so, remains unexplained, specially when it is the case of the plaintiff himself that after the said document was sent by his broker to defendant No. 1 to USA, the same was returned back by defendant No. 1 alongwith a communication indicating that he had not agreed to sell the property to the plaintiff. This, in our considered view, shrouds Ex. P-2 with suspicion. Now, when we simultaneously peruse the statement of PW-1, perusal of the same demonstrates that in his cross-examination, plaintiff has stated that he owns a house, i.e., House No. 1022 on a one Kanal plot in Sector 36-C, which plot was purchased by him in the year 1979. He also deposed that in addition thereto, he had also purchased one industrial plot in Industrial Area, Phase-1, Chandigarh in the year 1980. He also stated that he never met defendant No. 1 while he was working in Punjab University. He also mentioned in his cross-examination that he never talked with defendant No. 1 on telephone. He further stated that the talk with defendant No. 1 on telephone, which was made by Mr. Sethi, took place on 20.06.1995 from a telephone number which was of Dr. Bawa’s (defendant No. 1) tenant, namely, Kamaljit Singh, who was a sitting Judge of Punjab and Haryana High Court. He further deposed that he knew Justice Grewal earlier and PW-2 also knew him earlier. He also deposed that the interest of Mr. Justice Grewal in the deal was that he (Justice Grewal) could not arrive at an agreement for purchase of the house with defendant No. 1, so he asked him, i.e., the plaintiff to arrive at an agreement with Dr. He also deposed that the interest of Mr. Justice Grewal in the deal was that he (Justice Grewal) could not arrive at an agreement for purchase of the house with defendant No. 1, so he asked him, i.e., the plaintiff to arrive at an agreement with Dr. Bawa. He also stated in his cross-examination that their agreement (plaintiff and Justice Grewal) was that in case plaintiff succeeded in purchasing the house, then the plaintiff would be entitled to top story and Mr. Justice Grewal would purchase the ground floor. As per the plaintiff, this agreement between Justice Grewal and him took place a few days prior to talk with Dr. Bawa on 20.06.1995. He also stated that settlement between him and Justice Grewal of the respective portions was in the ratio of 60:40 and Mr. Justice Grewal was to contribute towards 60% of the sale price. Incidentally and interestingly, he further deposed in his cross-examination that documents which were sent to the defendant for signature, were drafted by PW-2 and the same were not sent in his presence. He further stated that he had no idea as to how many documents he signed nor he kept any photo copies of the same. He further stated in his cross-examinations that the understanding between him and Mr. Justice Grawal was not conveyed to defendant No. 1 and the telephone number and address of defendant No. 1 was given by Mr. Justice Grawal. He also mentioned in his cross-examination that all the documents which he had placed on record, i.e., Ex. P-1 to Ex. P-13 were on the file of PW-2, which he obtained before the filing of suit. He further stated that he did not receive any cheque from Dr. Bawa of the amount which he had deposited in defendant No. 1 saving bank account. He further stated that conversations which took place between PW-2 and defendant No. 1 on 20.06.1995, 21.06.1995 and 22.06.1995 were overheard by him at House No. 169, Sector-11, Chandigarh, i.e., residence of Mr. Justice Grewal and on the phone of Justice Grewal. 37. Similarly, a perusal of the cross-examination of PW-2 Amarjeet Singh Sethi demonstrates that he admitted therein that he made telephonic calls to defendant No. 1 at U.S.A. from the house of a friend of the plaintiff, namely, Sh. Kamaljit Singh Grewal. He admitted that agreement Ex. P-2 did not bear his signatures. 38. 37. Similarly, a perusal of the cross-examination of PW-2 Amarjeet Singh Sethi demonstrates that he admitted therein that he made telephonic calls to defendant No. 1 at U.S.A. from the house of a friend of the plaintiff, namely, Sh. Kamaljit Singh Grewal. He admitted that agreement Ex. P-2 did not bear his signatures. 38. In K. Nanjappa Vs. R.A. Hameed (2016) 1 SCC 762 , the Hon’ble Supreme Court discussed the proposition of law with regard to passing a decree for specific performance in the following terms: “20. Before we express our view on the findings recorded by both the trial court and the High Court while passing a decree for specific performance, we would like to discuss first the settled proposition of law in this regard. 21. There is no dispute that even a decree for specific performance can be granted on the basis of oral contract. Lord Du Parcq in a case (AIR 1946 Privy Council) observed, while deciding a suit for specific performance, that an oral contract is valid, binding and enforceable. A decree for specific performance could be passed on the basis of oral agreement. This view of a Privy Council was followed by this Court in the case of Koillipara Sriramulu vs. T. Aswatha Narayana, AIR 1968 SC 1028, and held that an oral agreement with a reference to a future formal contract will not prevent a binding bargain between the parties. 22. However, in a case where the plaintiff come forward to seek a decree for specific performance of contract of sale of immoveable property on the basis of an oral agreement or a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immoveable property. Whether there was such a concluded 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 immoveable property were concluded between the parties. 23. In a suit for specific performance of a contract, the Court has to keep in mind Section 20 of the Specific Reliefs Act. This Section preserves judicial discretion to grant decree for Specific performance. It has to be established by the plaintiffs that vital and fundamental terms for sale of immoveable property were concluded between the parties. 23. In a suit for specific performance of a contract, the Court has to keep in mind Section 20 of the Specific Reliefs Act. This Section preserves judicial discretion to grant decree for Specific performance. However, the Court is not bound to grant specific performance merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of the case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant. 24. In the case of Surya Narain Upadhyaya vs. Ram Roop Pandey and others, 1995 Supp (4) SCC 542, this Court while considering Section 20 of the Specific Relief Act held as under:- “4. Though the decree for specific performance is a discretionary power, yet the court is not bound to grant such a relief merely because it is lawful to do so; but the discretion of the court is not arbitrary, but sound and reasonable, guided by judicial principles of law and capable of correction by a court of appeal. Therefore, the discretion should be properly exercised keeping in view the settled principles of law as envisaged in Section 20 of the Act. This case demonstrates that the High Court took irrelevant consideration into account to refuse to grant the decree for specific performance. It also committed manifest illegality in reversing the concurrent finding of facts recorded by the trial court as well as the first appellant court, namely the appellant has always been ready and willing to perform his part of the contract.” 25. It is equally well settled that relief of specific performance is discretionary but not arbitrary, hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The cases providing for a guide to courts to exercise discretion one way or other are only illustrative, they are not intended to be exhaustive, In England, the relief of specific performance pertains to the domain of equity, but in India the exercise of discretion is governed by the statutory provisions. 26. In the case of Mayawanti vs. Kaushalya Devi, (1990) 3 SCC 1 , this Court observed as under:- “8. 26. In the case of Mayawanti vs. Kaushalya Devi, (1990) 3 SCC 1 , this Court observed as under:- “8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether 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.” 39. Similarly, in Rangammal Vs. Kuppuswami and another (2011) 12 SCC 220 , the Hon’ble Supreme Court has held that onus is on the plaintiff to positively establish his case on the basis of material available and could not be allowed by the Court to rely on the weakness or absence of defence of the defendant. In para- 37 of the judgment, the Hon’ble Supreme Court has held as under: “37. It is further well-settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. This basic principle, seems to have been missed not only by the trial court in this case but consistently by the first appellate court which has been compounded by the High Court.” 40. This basic principle, seems to have been missed not only by the trial court in this case but consistently by the first appellate court which has been compounded by the High Court.” 40. Coming back to the appeal, from the documents on record as well as the statements of PW-1 and PW-2, we find that the plaintiff has failed to prove that there was any concluded agreement entered into between the plaintiff and defendant No. 1 qua the sale of suit property. Plaintiff has failed to prove any meeting of mind between him and defendant No. 1 qua the sale of suit property. In fact according to us, there is not even an iota of evidence on record from which it can be inferred that any deliberations, leave aside entering upon a concluded contract, ever took place between the plaintiff and defendant No. 1 qua the sale of suit property. Cross-examination of plaintiff so conducted on 10.11.2010 demonstrates that Mr. K.S. Grewal had given him a banker’s cheque for an amount of Rs.3,20,000/-. He also deposed that he got banker’s cheque amount of Rs.3,20,000/- deposited in the account of defendant No. 1. As per plaintiff, he had entered into an agreement with Justice Grewal day’s before the alleged concluded agreement was entered into between him and defendant No. 1 qua the suit property, as per which in case plaintiff was able to purchase the suit property from defendant No. 1, then the plaintiff was to retain upper storey whereas ground floor was to be purchased by Justice Grewal. He also admitted in his cross-examination that this entire exercise was undertaken because Justice Grewal had failed to purchase the suit property from defendant No. 1. Be that as it may, the fact of the matter still remains that the plaintiff has neither been able to fulfill the parameters of oral agreement as have been laid down by the Hon’ble Supreme Court mentioned supra nor the plaintiff was able to discharge the burden of proof that a concluded agreement was in fact entered into between him and defendant No. 1. 41. The transcript is on record as Ex. P-13. The sealed envelope containing the tape conversation so recorded by the plaintiff has been exhibited on record as Ex. P-12. In his cross-examination, plaintiff stated that Mr. Sethi had informed him in October, 1995 about the arrival of Dr. 41. The transcript is on record as Ex. P-13. The sealed envelope containing the tape conversation so recorded by the plaintiff has been exhibited on record as Ex. P-12. In his cross-examination, plaintiff stated that Mr. Sethi had informed him in October, 1995 about the arrival of Dr. Bawa, i.e., defendant No. 1 at Chandigarh. He thereafter deposed that he was not aware as to from where he got this information. He further deposed that tape recording version was necessary because Dr. Bawa had not fulfilled any of the commitments that he had given during the course of agreement nor he had contacted the plaintiff after his arrival in Chandigarh. He further stated that he went to the house of defendant No. 1 on 30.10.1995 in the morning, but did not remember the exact time. He further deposed that microphone was with him and the tape recorder was in the car, as he was using a radio microphone. He further stated that he had borrowed it from the friend of his. The so called friend of the plaintiff from whom he had borrowed the same was not examined by the plaintiff. He volunteered that he overheard all the conversation in respect of the deal. In his cross-examination, he also stated that the translation of the recorded version was done by Mr. Sethi and he did not knew as to from where he got it typed. Thus, it is evident from the statement made by the plaintiff in his cross-examination that as per the plaintiff, the translation of the recorded version was done by Mr. Sethi and not by him. When we peruse the testimony of Mr. Sethi, who entered the witness box as PW-2, in his cross-examination, he has deposed that “the translation was done by Arjun Singh but not in my presence.” Now, this demonstrates that there is a clear contradiction in the statements of plaintiff and PW-2 as to who prepared the translation Ex. P-13. Whereas as per the plaintiff, the same was prepared by PW-2, however, PW-2 deposed that the same was prepared by PW-1. This major contradiction in the statements of PW-1 and PW-2 could not be explained by the learned Senior Counsel for the appellant during the course of arguments. P-13. Whereas as per the plaintiff, the same was prepared by PW-2, however, PW-2 deposed that the same was prepared by PW-1. This major contradiction in the statements of PW-1 and PW-2 could not be explained by the learned Senior Counsel for the appellant during the course of arguments. Further, in our considered view, this major contradiction leads us to only one conclusion that the so called translation of the tape conversation could not be said to have been proved in accordance with law by the plaintiff. 42. As far as the veracity of the tape recording is concerned, the contention of the plaintiff that on account of the failure of defendant No. 1 in not appearing as a witness, the tape recorded conversation must be deemed to be admitted, cannot be accepted. Hon’ble Supreme Court in Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra and others 1976 (2) SCC 17 has held that the tape-records of speeches were admissible in evidence on satisfying the following conditions: “(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. (b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. (c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.” 43. Hon’ble Supreme Court in Ram Singh Vs. Col. Ram Singh 1985 Supp. SCC 611 has laid down the following conditions qua admissibility of a tape-recorded statement in evidence: “(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strick proof to determine whether or not it was really the voice of the speaker. (2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial. Where the voice has been denied by the maker it will require very strick proof to determine whether or not it was really the voice of the speaker. (2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of con text and, therefore, inadmissible. (4) The statement must be relevant according to the rules of Evidence Act. (5) The recorded cassette must be carefully sealed and kept in safe or official custody. (6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.” 44. Thereafter, Hon’ble Supreme Court in R.K. Anand Vs. Registrar, Delhi High Court (2009) 8 SCC 106 has held as under: “124. This leads us to consider the main thrust of Mr. Ahmed's submissions in regard to the integrity, authenticity, and reliability of the electronic materials on the basis of which the appellants were held guilty of committing contempt of Court. 125. Learned counsel submitted that the way the High Court proceeded in the matter it was impossible to say with any certainty that the microchips that finally came before it for viewing were the same microchips that were used in the spy cameras for the stings or those were not in any way manipulated or interfered with before production in court. He further submitted that the admissibility in evidence of electronic recordings or Electronically Stored Information (ESI) was subject to stringent conditions but the High Court completely disregarded those conditions and freely used the sting recordings as the basis for the appellants' conviction. 126. In support of the submissions Mr. Ahmed submitted a voluminous compilation of decisions (of this Court and of some foreign courts) and some technical literature and articles on ESI. We propose to take note of only those decisions/articles that Mr. Ahmed specifically referred to us and that have some relevance to the case in hand. 127. Two of the decisions of this Court referred by Mr. Ahmed, one in S A Khan vs. Bhajan Lal, (1993) 3 SCC 151 and the other in Quamarul Islam vs. S. K. Kanta, (1973) 1 SCC 471 relate to newspaper reports. Ahmed specifically referred to us and that have some relevance to the case in hand. 127. Two of the decisions of this Court referred by Mr. Ahmed, one in S A Khan vs. Bhajan Lal, (1993) 3 SCC 151 and the other in Quamarul Islam vs. S. K. Kanta, (1973) 1 SCC 471 relate to newspaper reports. In these two decisions it was held that news paper report is hearsay secondary evidence which cannot be relied on unless proved by evidence aliunde. Even absence of denial of statement appearing in newspaper by its maker would not absolve the obligation of the applicant of proving the statement. These two decisions have evidently no relevance to the case before us. 128. In regard to the admissibility in evidence of tape recorded statements Mr. Ahmed cited a number of decisions of this Court in (i) N. Shri Rama Reddy vs. V. Giri (1970) 2 SCC 340 (ii) R. M. Malkani vs. State of Maharashtra (1973) 1 SCC 471 (iii) Mahabir Prasad Verma vs. Dr. Surinder Kaur (1982) 2 SCC 258 and (iv) Ram Singh vs. Col. Ram Singh (1985) Suppl SCC 611. He also referred to two foreign decisions on the point, one in (i) R vs. Stevenson, 1971 (1) All ER 678, and the other of the Supreme Court, Appellate Division of the State of New York in The People of State of New York vs. Francis Bell (taken down from the internet). We need here refer to the last among the decisions of this Court and the English decisions in R vs. Stevenson.” 45. A perusal of the conditions so enumerated by Hon’ble Supreme Court demonstrate that the voice of the speaker has to be duly identified by the maker of the record or by others, who recognize his voice. Hon’ble Supreme Court has also held that the accuracy of the tape-recorded statement has to be proved by the maker of the record by way of satisfactory evidence- direct or circumstantial. Records of the case demonstrate that plaintiff himself has admitted that he had not talked with defendant No. 1 before recording the said conversation of defendant No. 1. Hon’ble Supreme Court has also held that the accuracy of the tape-recorded statement has to be proved by the maker of the record by way of satisfactory evidence- direct or circumstantial. Records of the case demonstrate that plaintiff himself has admitted that he had not talked with defendant No. 1 before recording the said conversation of defendant No. 1. It is a matter of record that the case of the plaintiff himself is that the entire negotiation was conducted on his behalf by his broker and though he was listening the telephonic conversation between his broker and defendant No. 1 on his extension, but he never personally talked with defendant No. 1. In the present case, as we have already held above, the transcript has not been proved by the plaintiff, because there is a contradiction in his statement, as compared to the statement of PW-2 as to who have prepared the transcription. In the course of his cross-examination, PW-2 Amarjit Singh Sethi deposed that he knew nothing about the tape recorder and he did not know when the recording was started and when it was stopped. He further stated that he heard the tape two times, but did not compare the translation filed in the Court with the version of tape recording. He also stated that he had not seen the audio tape in the Court nor he heard the same in the Court and he was not aware whether the tape recorded in the Court was the same which was recorded on 31.10.1995 or not. Though it is a matter of record that defendant No. 1 did not enter the witness box as his own witness, but then, he has not accepted the case of the plaintiff. Therefore, in these circumstances, onus but obvious was upon the plaintiff to have had proved not only the entire statement, which was tape recorded, by leading satisfactory evidence, but the onus was upon him to have had proved that the tape recorded statement contained the voice of defendant No. 1. It is a matter of record that there is no sample voice of defendant No. 1 placed on record by the plaintiff. It is also a matter of record, as has also been held by the learned Single Judge that neither the tape recorded statement nor its transcription has been satisfactorily proved by leading cogent evidence by the plaintiff. It is a matter of record that there is no sample voice of defendant No. 1 placed on record by the plaintiff. It is also a matter of record, as has also been held by the learned Single Judge that neither the tape recorded statement nor its transcription has been satisfactorily proved by leading cogent evidence by the plaintiff. In this background, the contention of the learned Senior Counsel for the appellant that the factum of a concluded agreement having entered into between the plaintiff and defendant No. 1 stood proved from the tape recorded statement, has no merit. We are in agreement with the findings returned by the learned Single Judge that neither the transcript so produced by the plaintiff was proved in accordance with law nor was the telephonic conversation. Reasoning as to why we concur with the learned Single Judge has already been given by us above. 46. The contention of learned Senior Counsel that the judgment passed by the learned Single Judge has failed to take note of the judgment passed by the Hon’ble Supreme Court, dated 14.05.2008, is also misconceived, because in para- 12 of the judgment, learned Single Judge has taken note of the adjudication by the Hon’ble Supreme Court and it is only thereafter that out of 15 issues which were so framed, only issues No. 1 to 5, 8, 12, 14 and 15 were adjudicated upon by the learned Single Judge. Even otherwise, having perused the judgment of the Hon’ble Supreme Court, dated 14.05.2008, in our considered view, the same is of no assistance to the appellant, because in the said judgment, Hon’ble Supreme Court was pleased to held that the compromise entered between defendant No. 2 and defendant No. 1 was bad in law and the learned Single Judge, in the present case, was not seized with that particular issue. Issues inter alia which were raised before the learned Single Judge were as to whether the plaintiff was entitled for specific performance of oral agreement or not and the same rightly stands adjudicated by the learned Single Judge against the plaintiff on the basis of evidence on record. 47. Issues inter alia which were raised before the learned Single Judge were as to whether the plaintiff was entitled for specific performance of oral agreement or not and the same rightly stands adjudicated by the learned Single Judge against the plaintiff on the basis of evidence on record. 47. Further the contention of the learned Senior Counsel for the appellant that the reasonings given by the learned Single Judge in para-39 of the judgment are completely irrational, in our considered view, also in no manner whatsoever, affect the findings returned by the learned Single Judge, because even if we ignore the findings so returned by the learned Single Judge, the inescapable conclusion still is, as has also been rightly held by the learned Single Judge, that the plaintiff has failed to prove that there was any oral agreement concluded between him and defendant No. 1 qua the suit property. The factum of defendant No. 1 not having entered into witness box has been taken into consideration by the learned Single Judge, as has been discussed by us in the above paras of the judgment. Further, the contention of the learned Senior Counsel that the learned Single Judge erred in not appreciating that the plaintiff has discharged his onus through Ex. P-1, P-2, banker’s cheque, endorsement Ex. D-5, as also transcript and tape recorded conversations, is also liable to be rejected, because we have already discussed above that as far as Ex. P-1 is concerned, neither it makes any reference of the plaintiff nor it bears the signatures of the plaintiff and as far as Ex. P-2, the amount which stood deposited by the plaintiff in the bank account of defendant No. 1 is concerned, it is a matter of record that neither the agreement was countersigned by defendant No. 1 nor the amount was accepted. On the contrary, defendant No. 1 sent back the agreement unsigned alongwith a communication, wherein he denied that he agreed to sell the suit property to the plaintiff and he also returned the amount of Rs.3,20,000/- by way of cheque in favour of PW-2. 48. Accordingly, in view of above findings, we do not find any infirmity with the judgment and decree passed by the learned Single Judge and as there is no merit in the present appeal, the same is accordingly dismissed. Miscellaneous applications, if any, also stand disposed of. 48. Accordingly, in view of above findings, we do not find any infirmity with the judgment and decree passed by the learned Single Judge and as there is no merit in the present appeal, the same is accordingly dismissed. Miscellaneous applications, if any, also stand disposed of. No order as to costs.