JUDGMENT 1. This Appeal from Order is directed against an order dtd. 11/7/2022, passed by the learned Ad-hoc Civil Judge Senior Division, 'B' Court, Mapusa, Goa, whereby an application for temporary injunction filed by the Appellant-plaintiff under Order 39 Rule 1 and 2 of the Code of Civil Procedure, stands dismissed. 2. For convenience, the parties are referred as they stand in the suit, namely the appellant is referred as "the plaintiff" and the respondents as "the defendants". 3. The plaintiff had approached the learned Adhoc Civil Judge, Senior Division 'B' Court, Mapusa, by the suit in question praying for a decree of specific performance of an "oral contract" alleged to be entered between the plaintiff and the defendants. The prayers in the plaint are required to be noted, which read thus : "a) directing the Defendants to specifically perform the oral agreement to sell dtd. 24/9/2021 (followed by a written confirmation) and to sell suit property i.e., land admeasuring 6527:14 square Meters bearing Survey No. 16/1-A situated at Village Moira, Taluka and Registration Sub - District of Bardez, District North Goa, State of Goa (more specifically described in para 2 of plaint) to Plaintiff for agreed total consideration of Rs.4,89,53,550.00 (Rupees 'Four Crore Eighty Nine Lacs Fifty Three Thousand Five Hundred Fifty Only) by executing sale deed and by getting the said sale deed registered-in the office of concerned Sub-Registrar. b) declaring that the public notices dtd. 5/2/2022 published in newspaper on behalf of the Defendant No. T. -1 and Defendant No. 2 as illegal and void ab initio and that the oral agreement dtd. 24/9/2021 of the Plaintiff is legal and valid. c) permanently restraining the Defendants from creating third party rights either by way of mortgage, sale, lease or in any other manner with respect to suit property [i.e., land admeasuring 6527.14 square Meters bearing Survey No. 16/1-A situated at Village Moira, Taluka and Registration Sub-District of Bardez, District North Goa, State of Goa (more specifically described in para 2 of plaint)] in favour of any third person other than the Plaintiff. d) That in addition to the same, this Hon'ble- Court may kindly be pleased to grant a money decree for Rs.1,00,00,000.00 (Rupees One Crore only), as damages caused by Defendants to Plaintiff by deliberate breach of the Oral Agreement to Sell dtd. d) That in addition to the same, this Hon'ble- Court may kindly be pleased to grant a money decree for Rs.1,00,00,000.00 (Rupees One Crore only), as damages caused by Defendants to Plaintiff by deliberate breach of the Oral Agreement to Sell dtd. 24/9/2021 alongwith interest thereon @ 18% per annum with, effect from date of institution of suit till payment. e) Directing the Defendants to pay the costs of present suit to Plaintiff. f) This Hon'ble Court may further be pleased to pass such other and further order(s) which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case." 4. The dispute in the suit concerns land belonging to the defendants admeasuring 6527.14 square metres bearing survey no.16/1-A, being a portion of the larger property known as "Bouticachem Batt" or "Condulem" situated at Village Moira, situated within the jurisdiction of Village Panchayat of Moira, Taluka Bardez, District North Goa, (for short, 'suit property'). 5. The case of the plaintiff as set out in the plaint can be stated. That the plaintiff was contacted by the defendants as the defendants had received knowledge, that the plaintiff had recently purchased a property in Goa, admeasuring 3000 square metres, as recorded in the Revenue Office under No.1628 in Village Moira. Hence, Defendant no.1 contacted the plaintiff in Delhi and informed the plaintiff that he had come across a public notice issued on 19/6/2021, and, upon inquiry, he had come to know that the plaintiff had purchased the said property. Defendant no.1 represented that the defendants are the owners of the suit property which was near to the property already purchased by the plaintiff and that the defendants were intending to sell the same. It is contended that in pursuance thereto, several discussions took place between the parties on zoom calls. That at the instance of defendant no.1, the plaintiff visited Goa and during such meetings, one Shri Uday Kaul used to be present. 6. In one of zoom calls, defendant no.1 had screen-shared Form I and XIV showing that the name of defendant no.1 had been duly entered in the said forms along with defendant no.2. It was promised that the copy of the same would be emailed to the plaintiff, which was not done. The defendants represented to the plaintiff that the suit property was jointly owned by the defendants. It was promised that the copy of the same would be emailed to the plaintiff, which was not done. The defendants represented to the plaintiff that the suit property was jointly owned by the defendants. It was further represented by defendant no.1 to the plaintiff that an assignment deed had been executed by defendant no.2 in his favour thereby assigning all rights in favour of defendant no.1 including the right to sell the suit property in question. The plaintiff wanted to develop a total area of 10,000 square metres and without the same, even the purchase of 3,000 square metres property as purchased by him under entry registered with the Revenue Office as entry no.1628, was to be rendered redundant. In these circumstances, after discussion, the defendants confirmed that the suit property would be sold only to the plaintiff. Finally in the month of September, 2021, the plaintiff agreed to purchase the property from the defendants. Accordingly, an "oral agreement dtd. 24/9/2021", for sale and purchase, was arrived at between the plaintiff and the defendants, whereby defendants agreed to sell the suit property to the plaintiff for a total sale consideration of Rs. 4,89,53,550/-. In the plaint the plaintiff contended, that as per the oral agreement, defendants were to execute a Sale Deed qua suit property in favour of plaintiff on or before 30/5/2022, against balance receipt of consideration. It is contended that the said consideration was arrived at in the presence of Shri Uday Kaul. In pursuance of such oral agreement, on 24/9/2021, the plaintiff issued a cheque for Rs. 2,70,000/-, drawn on HDFC Bank, stated to be payment of part consideration, which was duly received by defendant no.1, in the presence of Shri Uday Kaul. A photocopy of this cheque was also signed by defendant no.1. It was the plaintiff's case that the defendants also represented that defendants shall also get certain compliances, namely, Sanad to be obtained by the plaintiff on or before 30/4/2022, boundary wall to be built by the defendants at the expense of the plaintiff, TCP and Panchayat approval to be obtained by the defendants for building of boundary wall, Succession Certificate was to be obtained by the defendants and title certificate was to be taken from a reputed Lawyer, whose fees were to be paid by the plaintiff. Also that a ten metre road abutting north side of the property had already been approved, however, the construction was not done by the Panchayat, for which the follow up and other efforts were to be undertaken by the defendants, at the expense of the plaintiff. It was also the case of the plaintiff that subsequently on the same day, (24/9/2021), the existence of the suit sale was confirmed in writing when defendant executed a document titled as "NOC for Public Notice", in favour of the plaintiff for publishing a public notice in newspapers inviting objections, for sale of suit property by defendants to the plaintiff. This signature was made in presence of Mr. Devidas D. Gadekar and Mr. Lazaro Fernandes and Mr. Uday Kaul were present at that time. It is next averred in the plaint that the defendants sent their representative Mr. Samuel to Delhi and a meeting took place at Delhi, when Mr. Uday Kaul was also present. The defendants' representative had stated that for the purposes of works to be done in regard to the suit property, money was required to be sent and thus the representative demanded Rs. 2,00,000/- for boundary wall and Rs. 1,00,000/- for expenditure on road. He also demanded Rs. 1,00,000/- towards part sale consideration. It was also represented that road was being constructed. The plaintiff having become confident on such representations of the defendants, the plaintiff agreed to give the said amount of Rs. 2,00,000/- to the defendants. The plaintiff wanted to issue another cheque for the said purposes, however, the defendants insisted that Rs. 3,00,000/- be paid in cash to the defendants. Accordingly, in Delhi in the presence of Shri Uday Kaul, a further amount of Rs. 1,00,000/- was paid in cash, as advance sale consideration, to the representative of the defendants. The plaintiff avers that such payment was confirmed to have been received by the defendants over phone. It is stated that such cash was legitimately available with the plaintiff. The agreement for sale was thus acted upon by the plaintiff and the defendants. Thereafter on 7/1/2022, defendant no.1 had applied to the Additional Collector-III/the Mamlatdar Bardez, Goa, being an application under sub-sec. (1) of Sec. 32 of the Goa Land Revenue Code, 1968, for a permission to use the suit land for residential purposes. Mr. The agreement for sale was thus acted upon by the plaintiff and the defendants. Thereafter on 7/1/2022, defendant no.1 had applied to the Additional Collector-III/the Mamlatdar Bardez, Goa, being an application under sub-sec. (1) of Sec. 32 of the Goa Land Revenue Code, 1968, for a permission to use the suit land for residential purposes. Mr. Samuel, the representative of the defendants, handed over to the plaintiff a copy of the said application filed by the defendant no.2 containing the original stamp towards receipt along with other accompanying documents. 7. The plaintiff has next averred that the defendants had represented that in the State of Goa before the registration of the property, a Sanad is to be first obtained, therefore, after showing the document dtd. 7/1/2022, the representatives of the defendants stated that a demand draft is to be deposited for the purposes of the said Sanad and represented that for such purpose, an amount of 150/- per square metre is to be paid as fees and demanded an amount of Rs. 9,79,071/- towards Sanad. It is averred in the plaint that Defendant no.1 so represented that the said amount is to be paid in cash, which the defendant no.1 assured shall be used for giving the demand draft for the Sanad. Upon the same, the plaintiff paid the said amount of Rs. 9,79,071/- in cash. This was done in the presence of Uday Kaul. It is thus the case of the plaintiff that steps were taken towards implementation of the documentation including but not limited to the perfecting property for sale. The plaintiff after going through the document also found that Form I and XIV was part of the said accompanying documents, from which it became clear that the said name entered in the said Form are Yvonne Cunha, Nelia Cunha-defendant no.2 and Marilia Souza Cunha e Avila, all under Mutuation No. 37030. Upon inquiry, it was found by the plaintiff that Yvonne Cunha and Marilia Souza Cunha e Avila, had already expired. It was seen from Form I and XIV that the name of defendant no.1 was not entered into the said Form and that Form I and XIV shown by the defendant no.1 to the plaintiff, before the sale transaction in 2021 was a forged and fabricated document which was used to induce the plaintiff to enter into an oral agreement with the defendants. Though the title to the property was undisputed, however the plaintiff was shown a forged fabricated document by defendant no.1 with such dishonest intention to cheat the plaintiff. The plaintiff has stated that when defendant no.1 was confronted, there was no satisfactory reply. 8. The plaintiff in paragraph 25 of the plaint averred that on 28/1/2021, the plaintiff came to know that in order to defeat the rights of the plaintiff, the defendants were trying to sell the suit property to some other person. Therefore, the plaintiff issued a public notice dtd. 29/1/2022, in newspapers Navhind Times and Gomantak Times, informing the public at large that plaintiff's right to purchase suit property is superior, and in case any person enters in any transaction with respect to aforesaid property, he will do so at his/her own risk. There was another public notice published in Herald Newspaper issued by M/s. Hariana & Co., Advocates & Solicitors, whereby written objections were called in regard to the suit property. It is the case of the plaintiff that the said public notice was issued in active collusion and criminal conspiracy between defendant nos. 1 and 2 to defeat the rights of the plaintiff which was issued under the hope that the public notice would escape the attention of the plaintiff and thereafter some misconceived right may be claimed by the issuer, as it was specifically recorded in the public notice that if objections are not received in writing within a period of 15 days from the date of notice, then all right, title, benefit, interest, claim and/or demand shall be deemed to have been waived and/or abandoned. 9. The plaintiff has averred that upon coming to know of the said public notice, the plaintiff issued a legal notice dtd. 22/2/2022 to M/s. Hariana and Co., Advocates and Solicitors, calling upon them to withdraw the above notice, however, no reply was received. It is hence the plaintiff's case that plaintiff was ready and willing to perform her part of the agreement and to pay the balance agreed consideration to defendants, and that, such consideration was available with the plaintiff in the bank account as set out in paragraph 30. It is hence the plaintiff's case that the plaintiff was pursuing the defendants with request to accept the sale consideration and execute the sale deed in respect of the suit property in favour of plaintiff. It is hence the plaintiff's case that the plaintiff was pursuing the defendants with request to accept the sale consideration and execute the sale deed in respect of the suit property in favour of plaintiff. However, defendants neither presented for encashment the cheque dtd. 24/9/2021 of Rs. 2,70,000/- nor disclosed the date when they would execute the sale deed of suit property in favour of plaintiff. The defendants kept on representing the plaintiff that they have some family issues and would accept the sale consideration from plaintiff and execute the sale deed of suit property, in favour of plaintiff in few days, however, subsequent conduct of the defendants clearly depicted the dishonest intention on the part of the defendants since the beginning. The plaint accordingly avers that despite the plaintiff requesting the defendants to specifically perform the oral agreement dtd. 24/9/2021, the defendants failed to do so. In such circumstances, the plaintiff contends that the plaintiff last approached the defendants for execution of the sale deed and to accept the sale deed on 1/2/2022. The plaintiff was always ready and willing to specifically perform the oral agreement to sell dtd. 24/9/2021 and was always ready and willing to pay the entire sale consideration to the defendants. The defendants were under obligation to perform their part of oral agreement to sell dtd. 24/9/2021 and to execute and register the sale deed of suit property in favour of plaintiff. In these circumstances, the plaintiff filed the suit in question on 26/3/2022, inter alia stating in para 34 of the plaint that the cause of action for the suit had accrued in favour of the plaintiff on 24/9/2020, when the oral agreement to sell was arrived between the parties and the same was subsisting and continuing. 10. On such case, as set out in the plaint, a brief application was filed by the plaintiff praying for a temporary injunction, relying on the statements as made in the plaint contending that the defendants were under an obligation to perform the oral agreement to sell dtd. 24/9/2021, and that the plaintiff was entitled to a decree of specific performance of the contract of the oral agreement. 24/9/2021, and that the plaintiff was entitled to a decree of specific performance of the contract of the oral agreement. The plaintiff contended that a prima facie case was made out by her, as also the balance of convenience was in favour of the plaintiff, and that an irreparable loss/injury would be suffered in case a relief as prayed for in the temporary injunction was not granted. The application for temporary injunction accordingly that prayed, pending the final disposal of the suit, the defendants be restrained from creating any third party rights in respect of the suit property. 11. The defendant no.1 appeared in the suit and filed his written statement, inter alia, denying the contentions as urged by the plaintiff in the plaint. The relevant contents of the written statement can be noted. Defendant no.1 contended that the case of the plaintiff as pleaded in the plaint was totally false. Defendant no.1 stated he did not contact the plaintiff but it was the plaintiff who contacted the defendant no.1. That defendant no. 1 was not at all aware that plaintiff had purchased property in Goa of 3000 square metres in Village Moira and in fact for the first time, from the plaint, defendant no.1 has come to know that the plaintiff has purchased any such property. Defendant no.1 contended, that he never went to Delhi and never contacted the plaintiff. Defendant No.1 contends that in the first week of September, defendant no.1 came to know the plaintiff for the first time through Uday Kaul, Lazaro Fernandes and Devidas Ghadekar. That Devidas Ghadekar and Lazaro Fernandes informed defendant no.1 that Mr. Uday Kaul was a potential buyer and that after a few days they informed that Mr. Uday Kaul had arranged for another buyer namely the plaintiff. Defendant no.1 denied that he represented to the plaintiff that the suit property is near to the property purchased by the plaintiff. It was also denied that defendant no.1 represented that if the plaintiff chooses to purchase the property, she shall get the advantage of the economy of scale. Any discussions on zoom calls are also specifically denied as also the negotiations. Defendant no.1 has stated that if at all there were only discussions and negotiations between the plaintiff and the defendant no.1 however there was no agreement whatsoever, as the plaintiff could not match the price of Rs. Any discussions on zoom calls are also specifically denied as also the negotiations. Defendant no.1 has stated that if at all there were only discussions and negotiations between the plaintiff and the defendant no.1 however there was no agreement whatsoever, as the plaintiff could not match the price of Rs. 12,500/- per square metre which the defendant no.1 had proposed. It is denied that defendant no.1 was aware that the plaintiff wanted to develop the total area of around 10,000 square metres and that without the same, even the purchase of 3000 square metres would in fact be rendered redundant and would cause any prejudice to the plaintiff. In responding to para 11 of the plaint, Defendant no.1 has stated that during the meeting at the residence of Uday Kaul, Lazaro Fernandes and Devidas Gadekar, defendant no.1 tried to find what the price the plaintiff had in her mind. At that time, he specifically told the plaintiff that the property belonged to him and his aunt and that both had to sell it together and that he would not agree to sell anything without the consent or participation of his aunt since he did not intend to have any dispute with her. Defendant no.1 also told the plaintiff that the amount expected was at least Rs. 12,500/- per square metre. The plaintiff told defendant no.1 that she had found that the price of Rs. 12,500/- per square metre, was not the prevailing price, and that she was offering Rs. 10,000/- per square metre. On such backdrop, the plaintiff told the defendant no.1 that as she was a genuine bonafide buyer and that she was giving him a cheque of Rs. 2,70,000/- on a condition that he should encash the same only if he is able to convince his aunt and himself to sell the property at 10,000/- per square metre and that the said amount of Rs. 2,70,000/- if accordingly encashed, would then be taken into account in the final price. Defendant no.1 contended that he told the plaintiff that it did not appear to him that his aunt would agree for the said price quoted by the plaintiff. The plaintiff however told defendant no.1 to show the cheque of Rs. 2,70,000/- the aunt (defendant no.2) and to inform the aunt that the plaintiff was a genuine purchaser and that the petitioner had given the cheque of Rs. The plaintiff however told defendant no.1 to show the cheque of Rs. 2,70,000/- the aunt (defendant no.2) and to inform the aunt that the plaintiff was a genuine purchaser and that the petitioner had given the cheque of Rs. 2,70,000/- as advance although the agreement had not been concluded, so that the aunt (defendant no.2) would consider that the plaintiff had the monies to go ahead, with the sale deed and that the defendants need not have any apprehension that they would have to struggle to receive the price. Defendant no.1 has contended that the plaintiff had not expressed her satisfaction to the title, nothing was mentioned about the payment of earnest money and the mode of payment of the price whether by instalments or otherwise, the time frame for payment of the installments and the consequences of non payment of consideration, etc. The cheque of Rs. 2,70,000/- was of no relevance as the defendant no.1's aunt never agreed to sell the suit property to the plaintiff and the plaintiff had also stated that unless the price was agreed, the cheque ought not to be encashed. It is in these circumstances that the plaintiff requested defendant no.1 to sign on the photocopy of the cheque as acknowledgment, that the plaintiff issued the cheque to him. It was only an acknowledgment of the issue of the cheque and to make sure that the defendant no.1 would return the said cheque, if it did not serve the purpose of convincing defendant no.1's aunt. Defendant no.2 did not agree that the suit property should be sold at the rate of Rs. 10,000/- per square metre and rejected the said price stating that she would not sell the property for the said price. After about 7 or 8 days, defendant no.1 went to meet the plaintiff to return the cheque and to inform her that he was unable to convince his aunt (defendant no.2) to enter into any deal with the plaintiff and accordingly he also would not agree to have any agreement with the plaintiff. The plaintiff however requested defendant no.1 to keep the said cheque with him without encashment, as it would show that the aunt would ultimately believe that she is a good person and that she would agree to enter into an agreement with an agreeable price. The plaintiff however requested defendant no.1 to keep the said cheque with him without encashment, as it would show that the aunt would ultimately believe that she is a good person and that she would agree to enter into an agreement with an agreeable price. After some days, the plaintiff inquired with defendant no.1, if he had been able to convince his aunt, when defendant no.1 answered in the negative, she handed over another cheque of Rs. 3,00,000/- under the same condition to be shown to the aunt that the plaintiff was genuine buyer and would pay the price. Defendant no.1 stated that the said cheque also met with the same fate since the aunt refused to agree for the said price. After some months, when defendant no.1 went to return the cheques, the plaintiff informed defendant no.1 that the period of encashment had expired and so he can retain the cheques with him, and use the same if necessary to convince the aunt, so that the defendants could execute the written agreement for sale. 12. Insofar as the contention of the plaintiff that defendant no.1 had signed the NOC for public notice as the plaintiff had stated that she would publish the notice of her intention to purchase the defendants' land as she wanted to see if there were any objetions from any neighbours or creditors. Defendant no.1 has averred that he had told the plaintiff that he would not be able to get the defendant no.2 to sign the NOC as the defendant no.2 had become very cautious in signing anything and more specially as there was no agreement arrived at between the plaintiff and the defendants. Defendant no.1 has denied that the said NOC records that the said property was sold to the plaintiff as also the same does not bear the signature of the defendant no.2. Thus inter alia on the above premise, the case of the plaintiff in totality has been denied by defendant no.1. 13. Defendant no.2 has also filed written statement. She has denied the case of the plaintiff in totality. She has categorically stated that she never confirmed any oral agreement between the parties on 24/9/2021, as alleged by the plaintiff or any such agreement was arrived at on 24/9/2021. 13. Defendant no.2 has also filed written statement. She has denied the case of the plaintiff in totality. She has categorically stated that she never confirmed any oral agreement between the parties on 24/9/2021, as alleged by the plaintiff or any such agreement was arrived at on 24/9/2021. She has stated that defendant no.2 never executed a document in writing titled as NOC for public notice in favour of the plaintiff for any alleged publishing of a public notice in newspaper inviting objections for sale of the suit property. She has categorically averred that there was no oral agreement for sale between the plaintiff and the defendants and the question of the agreement of the sale being acted upon by the defendants, did not arise. She also denied that the defendants had taken any steps for making expenses for completing the sale transactions. She stated that on 7/1/2022, defendant no.2 applied for the conversion of the land, as she was informed that the running price was Rs. 12,500/- per running square metre and on conversion for the price of land for Rs. 15,000/- per square metre. She has stated that this information had been given to defendant no.2 by Mr. Lazaro Fernandes. Defendant no.2 stated that she had requested Mr. Lazaro Fernandes to file the said application before the Collector on behalf of defendant no.2 and she handed over the same to him along with duplicate for necessary endorsement from the office. After some days, she asked Mr. Lazaro Fernandes for the said duplicate copy with the acknowledgment from the office of the Collector when Mr. Lazaro Fernandes promised her to give her a copy of the acknowledgment and stated that he would keep with him the duly acknowledged copy to show to any person searching for buying the land. Defendant no.2 stated that she had started the process of conversion as she expected the price of Rs. 15,000/- per square metre of the land on its conversion. Defendant no.2 has contended that Lazaro Fernandes was in collusion with the plaintiff and has the alleged that it was Mr. Samuel who had made it possible for the acknowledged copy of the application (containing the stamp towards the receipt and other documents) to reach the plaintiff and thereby help the plaintiff to make a false claim against the defendants. Defendant no.2 has contended that Lazaro Fernandes was in collusion with the plaintiff and has the alleged that it was Mr. Samuel who had made it possible for the acknowledged copy of the application (containing the stamp towards the receipt and other documents) to reach the plaintiff and thereby help the plaintiff to make a false claim against the defendants. Thus, in short, the entire case of the plaintiff that there was any agreement muchless concluded agreement, was denied by defendant no.2. 14. Defendant nos. 1 and 2 also filed their respective replies to the application filed by the plaintiff praying for temporary injunction, contending that the case of the plaintiff was totally untenable, incorrect and false. 15. The learned Trial Judge considering the rival contentions, has observed that there was no material to indicate that there was any concluded contract between the parties. The learned Trial Judge observed that the price consideration is the basis of any contract for sale which was totally absent in the present case, as there were no consensus ad idem in respect of any agreed consideration for sale of the suit property. It was hence observed that there was no concluded contract between the parties. It was observed that the offer of the plaintiff to purchase the suit property at the rate of Rs. 7,500/- per square metres, was not accepted by the defendant no.1 and, therefore, precisely, the cheque of Rs. 2,70,000/- was not encashed by defendant no.1. It was observed that there was no meeting of minds between the parties which would be a basic ingredient for any acceptable contract, hence no binding contract had come into existence between the parties. The learned trial Judge observed that negotiating or a bargain can by no stretch of imagination could be said to be a concluded contract. The learned trial Judge rejected the case of the plaintiff observing that a prima facie case of a concluded contract was not established by the plaintiff, made the following observations : "15. In the present case also, negotiations were going on between the parties but there was no concluded contract when the cheque was issued. The cheque was not encashed by the defendant no.1 and therefore the plaintiff was very well aware that the defendant no.1 could not convince the defendant no.2 to sell the suit property to the plaintiff. In the present case also, negotiations were going on between the parties but there was no concluded contract when the cheque was issued. The cheque was not encashed by the defendant no.1 and therefore the plaintiff was very well aware that the defendant no.1 could not convince the defendant no.2 to sell the suit property to the plaintiff. Therefore there was no need for defendant no.1 to communicate to the plaintiff in writing that they did not agree to the offer. 16. The defendant no.1 alone is not the absolute owner of the suit property. The Form I and XIV of the suit property shows three names appearing in the occupants column i.e. Yvonne Cunha, Nelia Cunha and Marilia Souza e Cunha Avila. The defendant no.2 at para 2 of her written statement has averred that the defendant no.1 owns 1/3rd undivided share as the sole successor of his late mother Mrs. Marilia Avila, the defendant no.2 owns 1/3rd of the same and remaining 1/3rd belongs to the undivided estate of another sister late Yvonne. Admittedly defendant no.1 is not the absolute owner of the suit property and the defendants are both joint owners of the suit property. Admittedly the plaintiff has not produced any authorization of the defendant no.2 to agree with the alleged oral agreement between the plaintiff and the defendant no. 1. It is not in dispute that during the discussions between the plaintiff and the defendant no.1, the defendant no.2 was not present. So also there was no power of attorney given by the defendant no.2 in favour of the defendant no.1 authorising the defendant no.1 to deal on behalf of the defendant no.2. 17. The NOC for public notice dtd. 24/9/2021 is seen to be signed only by defendant no.1. Though the NOC mentions both the names of the defendants, there is no authority by the defendant no.2 in favour of the defendant no.1 authorising him to act on her behalf, as such NOC cannot be said to be issued on behalf of both the defendants." 16. The learned Trial Judge thereafter observed that there are no pleadings, nor there was any consensus between the parties with respect to the payment schedule, whether payment was to be made by installments, mode of payment, time frame of payment and the consequences of non payment of consideration. The learned Trial Judge thereafter observed that there are no pleadings, nor there was any consensus between the parties with respect to the payment schedule, whether payment was to be made by installments, mode of payment, time frame of payment and the consequences of non payment of consideration. It was observed that ancillary acts of construction of compound wall, TCP and Panchayat approval, drawing up of Succession Certificate, getting a title report, etc., were required to be done by the defendants in furtherance of the alleged oral agreement which was also not done. All this according to the learned trial Judge indicated that there was no concluded oral agreement and therefore the defendants did not act upon it and in these circumstances, the mere fact that the plaintiff is ready and willing to perform her part of the agreement and that her Savings Bank account show that she has money to perform her part of the oral agreement is of no substance. On such observations, the application for temporary injunction was rejected by the learned Trial Judge. Submissions on behalf of the Plaintiff (Appellant) 17. Mr. Kapadia, learned Counsel for the appellant-plaintiff, assailing the impugned order has made the following submissions : (i) That there is an ex facie error on the part of the learned trial Judge in rejecting the appellant's application for temporary injunction inasmuch as there was a clear concluded oral contract between the parties; there was no dispute that the parties met about four times; that defendant no. 1 was desirous of selling the suit property; that cheque of Rs.2,70,000.00 was paid to defendant no.1 when he came to negotiate; that clearly on 24/9/2021, the parties met twice; defendant no.1 had executed a NOC and all this was witnessed by two individuals; also money was paid in cash, hence, necessarily it is required to be accepted that there was an oral agreement on 24/9/2021. It is hence his contention that surrounding circumstances are required to be taken into consideration. It is submitted that essentials of an oral contract on preponderance of probabilities stands established. (ii) The parties are identified as also the price is identified. The price agreed is required to be inferred from the fact that the cheque of an amount of Rs. 2,70,000/- was accepted and the said cheques were never returned to the plaintiff. It is submitted that essentials of an oral contract on preponderance of probabilities stands established. (ii) The parties are identified as also the price is identified. The price agreed is required to be inferred from the fact that the cheque of an amount of Rs. 2,70,000/- was accepted and the said cheques were never returned to the plaintiff. (iii) That, when all these circumstances are available on record, the learned Trial Judge could not have observed that there was no concluded contract. (iv) The case of the plaintiff has not been examined by the learned trial Judge on materials and well settled principles of law applicable in the facts and circumstances of the case would apply, namely the test of preponderance of probabilities. The specific performance of a contract is no more discretionary due to the amendments and hence applicable law is not applied. (v) The learned Trial Judge has erred in failing to give weightage to the applicability of the test of preponderance of probabilities as there is nothing on record to show that respondent no2 had objected. In fact the conduct of defendant no.2 reflects concurrence. (vi) It is clear from the materials on record that the plaintiff had made out a prima facie case as also the balance of convenience was in favour of the plaintiff and also there was to be irreparable prejudice to the plaintiff if the relief was not to be granted. (vii) In support of his contention, Mr. Kapadia, learned Counsel has relied on the decisions in Dalpat Kumar and anr vs. Prahlad Singh and Ors., (1992) 1 SCC 719 . Lateefa Begum vs. B. G. Kirloskar (Dead) By LRs., (2005) 11 SCC 515 . Brij Mohan and Ors. vs. Sugra Begum and Ors., (1990) 4 SCC 147 . B. Santoshamma and anr. vs. D. Sarala and anr., (2020) 19 SCC 80 . K. Nanjappa (Dead) By legal representatives vs. R. A. Hameed alias Ameersab (dead) by legal representative and anr., (2016) 1 SCC 762 . and Wockhardt Limited vs. Torrent Pharmaceuticals Limited anr.,(2018) 11 SCC 346. Submissions on behalf of the Defendants (Respondents) 18. On the other hand, Mr. M. B. D'Costa, learned Senior Counsel for the defendants, at the outset would submit as under : (i) That there is no error, perversity and any legality in the impugned order as passed by the learned Trial Judge. Submissions on behalf of the Defendants (Respondents) 18. On the other hand, Mr. M. B. D'Costa, learned Senior Counsel for the defendants, at the outset would submit as under : (i) That there is no error, perversity and any legality in the impugned order as passed by the learned Trial Judge. He submits that these are equitable and discretionary remedies. (ii) Mr. D'Costa, has referred to the plaintiff's Advocate's notice dtd. 22/2/2022, issued to the defendants prior to the filing of the suit and more particularly in regard to the contents of paragraph 2 thereof to contend that in paragraph 2(b) the plaintiff asserted that an agreement was entered between the parties on 24/9/2021 for substantial consideration. However, there is no material whatsoever that any consideration was agreed between the parties. His contention is that consideration is a vital and fundamental term of an agreement and unless the parties agree on the consideration, there was no question of a concluded contract of sale of property coming into existence. (iii) There is no material whatsoever and no reference whatsoever even in the legal notice to show as to how the agreement could be concluded. (iv) The Court's attention is drawn to the contents of paragraph 2 of the legal notice dtd. 22/2/2022, to submit that the vagueness of the plaintiff's case is writ large from paragraph 2 clauses (a) to (f) of the legal notice, to submit that, on such material by no stretch of imagination, can an opinion be formed that there was any concluded contract between the parties and for which specific performance was being sought. (v) It is submitted that there is something peculiar about the NOC for public notice alleged to be issued by the defendant no.1 inasmuch as such as a NOC does not require signature of any witnesses. However, Devidas Ghadekar and Lazaro Fernandes have been shown to be the witnesses and the said NOC has not been signed by defendant no.2. According to Mr. D' Costa, by having such witnesses to the NOC, it is a clear case that innocent person like defendant no.1 has been attempted to be trapped and more particularly as the husband of the plaintiff was a Lawyer. According to Mr. D' Costa, by having such witnesses to the NOC, it is a clear case that innocent person like defendant no.1 has been attempted to be trapped and more particularly as the husband of the plaintiff was a Lawyer. (vi) It is submitted that infact there is a clear modus operandi to even pressurize the defendants, as a false police complaint was filed by the plaintiff against the defendants before the Police Station Tilak Marg, New Delhi, alleging fabrication of Form I and XIV and alleging that defendants cheated the plaintiff by making a false promise to sell the property, and on a false allegation, that the defendants had misappropriated an amount of Rs. 9,79,071/- received from the plaintiff. Mr. D' Costa has submitted that it is surprising that on one hand the plaintiff has filed a complaint that the defendants had forged document and, on the other hand, a suit is filed praying for specific performance in respect of property of which according to the plaintiff, the documents are forged. Mr. D' Costa, has submitted that such conduct of the plaintiff is clearly not bonafide as it is seen that the oral agreement as alleged is of 24/9/2021 and the suit was filed on 26/3/2022. (vii) It is submitted that Mr. Uday Kaul also filed an affidavit not on the day on which the suit was filed but three months thereafter. It is his submission that even assertions in the plaint are on mere representations. (viii) It is next submitted that it is unbelievable that for a property which even on the consideration as alleged to be paid by the plaintiff to the respondent, namely of Rs. 4,89,53,550/- the part consideration could not be a meagre amount of Rs. 2,70,000/- and/or the further amount of Rs. 3,00,000/-. It is submitted that a false story of cash being paid is set up by the plaintiff as there is no material/record whatsoever of any cash paid by the plaintiff to the defendants. There are no witnesses and hence such case of the plaintiff has rightly been rejected by the learned trial Judge. (ix) It is next submitted that even otherwise defendant no.2 never had direct contact with plaintiff. Also Mr. Uday Kaul had not come forward right from the inception of the suit. It is his submission that discretionary reliefs only on the basis of inferences are being sought. (ix) It is next submitted that even otherwise defendant no.2 never had direct contact with plaintiff. Also Mr. Uday Kaul had not come forward right from the inception of the suit. It is his submission that discretionary reliefs only on the basis of inferences are being sought. (x) It is next submitted that even otherwise, admittedly, the defendants are joint owners of the property, defendant no.1 could not have in any manner bound defendant no.2 by his actions. There is no inventory (Succession under the Portuguese Law) filed much less any Inventory Proceedings inter se between the defendants as per The Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 were filed. It is submitted that the entire case of the plaintiff is on speculations and conjunctures and the Court cannot grant equitable relief on such considerations. In support of the above contentions,reliance is placed on the decision of the Supreme Court in Mayawanti vs. Kaushalya Devi, (1990) 3 SCC 1 . Rejoinder Submissions on behalf of the Plaintiff : 19. Mr. Kapadia in responding to Mr. D' Costa's submission, would submit that the relief as prayed for is based on sound judicial principles. He submits that it can never be the case that consideration is disclosed in a reply which is filed objecting to a public notice of a third party. Thus, there is nothing incorrect in what was stated by the plaintiff in paragraph 2(c) of the notice dtd. 20/2/2022 addressed by the plaintiff to M/s. Hariani and Company. In fact, Form I and XIV shown by defendant no.1 to plaintiff was a forged and fabricated document as name of defendant no. 1 did not appear on the said form. It is hence his submission that the appeal be allowed. Analysis and Conclusion : 20. I have heard learned Counsel for the parties. I have also perused the record. 21. At the outset, it is required to be noted that the suit property is of joint ownership as shown in the revenue records (Form I and XIV). The suit property has been shown in the name of (1) Yvonne Cunha, (2) Nelia Cunha and (3) Marilia Souza Cunha e Avila. These are three sisters who inherited the said property. Out of these three sisters, Yvonne Cunha expired. Nelia Cunha is defendant no.2 and defendant no.1 is the son of another sister Marilia Souza Cunha e Avila. The suit property has been shown in the name of (1) Yvonne Cunha, (2) Nelia Cunha and (3) Marilia Souza Cunha e Avila. These are three sisters who inherited the said property. Out of these three sisters, Yvonne Cunha expired. Nelia Cunha is defendant no.2 and defendant no.1 is the son of another sister Marilia Souza Cunha e Avila. Thus, on first principles, if there was to be any agreement for sale of the suit property, (which was not partitioned) as asserted by the plaintiff on an oral agreement dtd. 24/9/2021 necessarily any such agreement for sale was required to be entered with the joint owners, namely with both the defendants, who are admittedly the joint owners, being the co-heirs on whom the property has devolved. 22. At the outset, it is also required to be noted that from whatever has been stated in the plaint, relevant to allege an oral agreement, it is only qua defendant no.1 with whom the plaintiff is stated to have purportedly held negotiations. There is nothing on record to show that defendant no.1 was having any authority either under any Special Power of Attorney or a General Power of Attorney from defendant no.2, which would permit defendant no.1 to either enter into any negotiations or to enter into an agreement to sell the suit property. It is also not the case of the plaintiff that the plaintiff at any point of time had any negotiations with defendant no.2, who is a senior citizen aged 74 years. There is not a whisper of even one negotiation with defendant no.2, which would aid the case of the plaintiff that there is any oral agreement for sale of the suit property to the plaintiff by the defendants. 23. Apart from the lacking of such fundamental requirements for a contract to be established, much less of a concluded contract, it may be observed, that the case of the plaintiff that the surrounding circumstances are required to be taken into consideration so as to gather a concluded contract between the parties, cannot be accepted. Moreover, such contention needs to fail. If the case of the plaintiff on surrounding circumstances is to be examined, even applying the test of preponderane of probabilities to such surrounding circumstances, as urged by Mr. Moreover, such contention needs to fail. If the case of the plaintiff on surrounding circumstances is to be examined, even applying the test of preponderane of probabilities to such surrounding circumstances, as urged by Mr. Kapadia, it is quite clear that except for the bald averments and the speculations in the plaint, there is no material that the parties had agreed on the consideration on which the defendants could be said to have agreed to sell the suit property to the plaintiff. On one hand, there is a clear version of the plaintiff saying that rate of Rs. 7,500/- ought to have been accepted, on the other hand, the case of the defendants is that they were never agreeable to accept anything below Rs. 12,500/- per square metre. Thus, in the absence of any sale consideration being agreed, it cannot be accepted that there is any concluded contract or meeting of minds between the parties so as to conceive an agreement to sale of the suit property. 24. Further the case of the plaintiff that on 24/9/2021, a cheque for an amount of Rs. 2,70,000/- was paid to defendant no.1 which was required to be taken as part consideration is also totally untenable for more than one reason. Firstly, there is no material whatsoever to reasonably believe such contention. There is no receipt acknowledged whatsoever of the defendant that such amount is a part consideration. It also cannot be a part consideration when except for the bare and bald words of the plaintiff there is no material on record that there was any agreed consideration fixed. Thus, the plaintiff intends that such contention be accepted only on her assumption that the suit property was to be sold by the defendants to the plaintiff at the rate of Rs.7,500.00at the total amount is Rs. 4,89,53,550/- as seen from the plaint. If this be so, it is quite illogical that Rs. 2,70,000/- would be a part consideration for such a weighty transaction and that too in the absence of any receipt that the said amount is being paid as part consideration. Moreover it is significant that the said cheque was not encashed as there was no reason to do so. If this be so, it is quite illogical that Rs. 2,70,000/- would be a part consideration for such a weighty transaction and that too in the absence of any receipt that the said amount is being paid as part consideration. Moreover it is significant that the said cheque was not encashed as there was no reason to do so. Thus, there is much substance in the contention as urged by the defendants as seen from the surrounding circumstances that it was a cheque issued by the plaintiff to defendant no.1, only for defendant no.2 to be impressed that the plaintiff would be a bonafide purchaser, as defendant no.2 was not willing to sell the suit property for an amount below Rs. 12,500/- per square metre. Even the cheque of Rs. 3,00,000/- purported to be given to defendant no. 1 was not encashed. It cannot be, that any transaction which, according to the plaintiff, had stood concluded, the defendants would not encash the amounts and the cheques would lapse. Further, the plaintiff is not a person who is novice to property transactions as she had already purchased a property in the vicinity which was about 3000 square metres. She was hence certainly aware, as to in what manner transactions for sale of vulnerable immovable property are undertaken and concluded and more particularly, when she has adequate sources of information in this regard, her husband being a lawyer. 25. From the perusal of the record it appears that there is much substance in the contention of Mr. D'Costa, learned Senior Counsel, for the defendants that when a NOC was being obtained to raise objections from the general public in respect of the land by issuance of a public notice, the plaintiff made the letter of NOC to be signed by two witnesses. Mr. D'Costa is correct in his contention that the modus operandi of the plaintiff was put the defendants into a trap to block the property and to coerce the defendants to sell the property at the rate of Rs. 7,500/- per square metre, knowing well that the defendants were not agreeable to sell the land as the defendants expected rate of Rs. 12,500/- which was not being agreed between the parties. 26. 7,500/- per square metre, knowing well that the defendants were not agreeable to sell the land as the defendants expected rate of Rs. 12,500/- which was not being agreed between the parties. 26. Insofar as the case of the plaintiff that Form I and XIV was fabricated by defendant no.1, appears to be a totally bhogus and a concocted story as seen from the averments in the plaint itself. The averments in the plaint in this regard is contained in paragraph 23 of the plaint, which reads thus : "However, from Form 1 and XIV, it is clear that the name of Defendant No. 1 was not entered into the said Form and that the Form I and XIV shown by the Defendant No. 1 to the Plaintiff before the sale, transaction in 2021 was a forged and fabricated document, which was used to induce the Plaintiff to enter into the Agreement with the Defendants. Though the title to the property is undisputed, it is, however, stated that the Plaintiff was shown the forged and fabricated document by the Defendant No. 1 with dishonest intention to cheat the Plaintiff. The copy of the forged document is aanexed herewith -as Annexure-P5." 27. Thus from the averments in the plaint the plaintiff's contention is that the name of defendant no.1 was not entered in Form No. I and XIV as "shown by defendant no.1 to the plaintiff before the sale" and, therefore, according to the plaintiff, it was a forged and a fabricated document. Such avernment is not only astonishing but of a nature which would shock one's conscience to say the least. It is certainly not the plaintiff's case that the original Form I and XIV was handed over by defendant no.1 to the plaintiff and the original Form was fabricated. In fact, the avernment is only that the said Form was "shown" to the plaintiff. This itself makes it clear that a false, bogus and a concocted story is being put up against the defendants by the plaintiff and on the basis of which, it appears from the record, that a complaint has been lodged by the plaintiff against defendant no.1 before the Tilak Marg Police Station, New Delhi. This itself makes it clear that a false, bogus and a concocted story is being put up against the defendants by the plaintiff and on the basis of which, it appears from the record, that a complaint has been lodged by the plaintiff against defendant no.1 before the Tilak Marg Police Station, New Delhi. In fact, it appears that there is a dishonest intention on the part of the plaintiff to cheat the defendants and to trap the defendants to agree to sell the property to the plaintiff and for achieving such illegal gains, the process of law has been misused to the detriment of the defendants. 28. In the above circumstances, it appears that on a totally bogus case the plaintiff is alleging that there is an oral agreement and prayed for a discretionary relief in her application for a temporary injunction. In fact it is quite astonishing that on such false case of a concluded oral contract, the plaintiff could seek discretionary relief of a temporary injunction. 29. Insofar as the NOC for a public notice dtd. 24/9/2021 is concerned, there was no letter of authority on record which would show that respondent no.1 had the authority to act on behalf of respondent no.2 for granting the said NOC. 30. The case of the plaintiff in regard to cash payments being made to the defendants prima facie appears to be totally false in the absence of any material to that effect. There is no acknowledgment/receipt brought on record by the plaintiff to show that any cash payment/transaction was entered by the plaintiff under any oral contract. Also there is no material to prima facie link any such payment towards any property transaction of such nature. It is also required to be observed that the Sanad application which was filed by one Lazaro Fernandes of which the duplicate was available with the plaintiff, cannot show that the application was filed for the benefit of the plaintiff, in the absence of any concluded contract. In fact it can be seen that a "Sanad" is required to be obtained by invoking the provisions of Sec. 32 of the Goa, Daman and Diu Land Revenue Code, 1968. If an application under Sec. 32 is granted, the land gets converted to other uses. In fact it can be seen that a "Sanad" is required to be obtained by invoking the provisions of Sec. 32 of the Goa, Daman and Diu Land Revenue Code, 1968. If an application under Sec. 32 is granted, the land gets converted to other uses. If the plaintiff's case is that a "Sanad" was to be obtained by the defendants as a condition for sale of the suit land, admittedly such a "Sanad" having not being procured, there could not have been a concluded contract for sale of the suit land. This is another significant facet to disbelieve the plaintiff's case that there was a concluded contract. 31. The principles of law to be applied for grant of a temporary injunction in a claim for such reliefs when oral contract is in question, are well settled. The Court has to take a cautious approach considering the materials on record. Considering the materials on record and the submissions as made by the learned Counsel for the parties, to my mind it is very clear that in the present case there was merely an attempt on the part of the plaintiffs to explore the possibility to purchase the land in question from the defendants and in that regard, there were merely discussions/negotiations between the plaintiff and the defendant no.1. To such discussion, defendant no.2 being an undivided owner, was not a party, nor had she consented to any such sale as seen from the record. Without defendant no.2's consent, there could never have been a concluded contract. The Supreme Court in Mayawati vs. Kaushalya Devi (supra), has observed that if there is an element of uncertainty or ambiguity in the contract in respect of an event which the plaintiff claims had happened and when the share was undefined, it is difficult to spell out any agreement from such uncertainty. When a consensus ad idem was lacking and it did not mature into a concluded contract between the parties there was no question of a relief of a temporary injunction being granted. It may be observed that mere negotiations in the absence of the other essential ingredients forming a valid contract to be prima facie seen cannot entitle the plaintiff for the interim reliefs as prayed for. It may be observed that mere negotiations in the absence of the other essential ingredients forming a valid contract to be prima facie seen cannot entitle the plaintiff for the interim reliefs as prayed for. In the absence of such basic essentials, by no stretch of imagination, the Court could come to any prima facie conclusion that there was a concluded agreement between the parties. 32. In Brij Mohan and Ors. vs. Sugra Begum and Ors., (1990) 4 SCC 147 . the Supreme Court has held that when the plaintiff comes 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 plaintiff to prove that there was a consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. This is a question of fact to be determined in the facts and circumstances of each individual case and that it has to be established by the plaintiff that vital and fundamental terms of sale of immovable property, were concluded between the parties orally and the written agreement, if any, to be executed. The observation of the Court in paragraph 20 of the report reads thus : "20. We have given our careful consideration to the arguments advanced by learned counsel for the parties and have thoroughly perused the record. We agree with the contention of the learned counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. 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." The above observations are applicable in the facts of the present case, as the vital fundamental and essential terms in a contract for sale of immovable property, so as to presume that there is a concluded oral agreement, are totally missing in the facts of the present case. Mr. Kapadia's reliance on this decision would not assist the plaintiff for primary reason that there is no material on record that there was a meeting of minds between the parties on any consideration and the other vital terms of the contract in regard including the title of land to be perfected by the defendants by obtaining a Sanad and other aspects as noted above. The time for completion of sale, etc., were totally absent. 33. Mr. Kapadia's contention relying on the provisions of Sec. 12 of the Specific Performance Act, 1963, as it stands amended w.e.f. 1/10/2018, also cannot be accepted. This is not a case where the Court ought to construe that there is an oral agreement whatsoever between "any of the defendants", for which, specific performance of part of the contract can be granted. 34. Mr. D' Costa, learned Senior Counsel, would be correct in placing reliance on the decision in Mayawanti vs. Kaushalya Devi (supra), where the Supreme Court has observed that where a contract is to be made, the intention of the offeree to accept the offer must be express without leaving any room for doubt as to the fact of acceptance or to the coincidence of the terms of acceptance with those of the offer. It was observed that if the two minds were not ad idem in respect of the property to be sold, there cannot be said to be a contract for specific performance, and if the parties themselves were not ad idem as to the subject matter of the contract, the Court cannot order specific performance. The observations of the Supreme Court in paras 8, 11 and 18 can be noted, which reads thus : "8. The observations of the Supreme Court in paras 8, 11 and 18 can be noted, which reads thus : "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 con- tract 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. ... 11. If the above correspondence were true, it would appear that the contract was in the alternative of either whole or half of the property and that the offer and acceptance did not correspond. It is settled law that if a contract is to be made, the intention of the offeree to accept the offer must be expressed without leaving room for doubt as to the fact of acceptance or to the coincidence of the terms of acceptance with those of the offer. The rule is that the acceptance must be absolute, and must correspond with the terms of the offer. If the two minds were not ad idem in respect of the property to be sold, there cannot be said to have been a contract for specific performance. If the par- ties themselves were not ad idem as to the subject matter of the contract the court cannot order specific performance. If the plaintiff understood the terms to have included the building but the defendant understood it to have excluded the building and the so called memorandum Ext. If the par- ties themselves were not ad idem as to the subject matter of the contract the court cannot order specific performance. If the plaintiff understood the terms to have included the building but the defendant understood it to have excluded the building and the so called memorandum Ext. PW-11/A did not mention the building, there is no contract before the court for specific performance. While Mr. Subramaniam would argue that the land was also included, Mr. Nariman rightly points out that land was nowhere mentioned in PW-11/A. It is true that Issue Nos. 2 and 3 were whether the defendant delivered possession of the property to the plaintiff pursuant to the agreement and whether the possession was illegally taken by the defendant, and the Trial Court found no independent evidence and Kasturilal admitted that there was no document to prove the delivery of possession. However, on basis of a suggestion to Kasturilal that it was "incorrect to suggest that any goods, i.e. gunny bags, oil, khal, was in possession having been taken out from the factory building at the time of repairs", the trial court concluded that delivery of possession was there. The first appellate court also took it to be a "vital and material suggestion" and upheld the finding. Admittedly the possession was with the defendant at the time of the suit and there was no proceeding to recover the possession by the plaintiff. This inferential finding, therefore, can not have any bearing on the subject matter of the contract contrary to what was stated in Ext. PW-11/A which was heavily relied on by the plaintiff. ... 18. 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 burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. 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. 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." 35. In K. Nanjappa vs. R. A. Hameed (supra), the Supreme Court considered the principles and/or settled position in law in regard to specific performance of an oral contract, as to when it can be granted. It was held that the plaintiff has to establish that vital and fundamental terms for sale of immovable property were concluded between the parties. In paragraph 21, 22 and 23 of the said decision, the Court has observed thus : "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 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 Sec. 20 of the Specific Reliefs Act. This Sec. 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 Sec. 20 of the Specific Reliefs Act. This Sec. 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." 36. It is therefore quite clear that the plaintiff failed to make out any prima facie case. The balance of convenience was certainly not in favour of the plaintiff and also it is not possible to accept and believe any case of prejudice being caused to the plaintiff. 37. As a result of the above discussion, in my opinion, the plaintiffappellant has miserably failed to make out any case for interference in the impugned order, passed by the learned trial Judge. The observations as made by the learned Trial Judge are on sound legal principles after taking into consideration all the facts and circumstances of the case as borne out by the record. It cannot be said that the view taken by the learned Trial Judge is in any manner illegal and much less perverse. In facts of the case apart from being an eminently possible view it is the correct view. 38. The appeal lacks merit. It is accordingly dismissed, however, with costs of Rs. 1,00,000/- (Rupees One Lakh Only) to be paid by the appellant/plaintiff to the respondents/defendants within two weeks from today. 39. It is clarified that the observations as made in the present order are prima facie observations only for the purpose of deciding the present proceedings. All contentions of the parties on merits in the final adjudication of the suit are expressly kept open and the suit be decided on its own merits. 40. Civil Application No. 1810 of 2022(F) also would not survive and stands disposed of accordingly. 41. At this stage, learned Counsel for the appellant/plaintiff has prayed for extension of time to make payment of the cost. 40. Civil Application No. 1810 of 2022(F) also would not survive and stands disposed of accordingly. 41. At this stage, learned Counsel for the appellant/plaintiff has prayed for extension of time to make payment of the cost. In the facts and circumstances of the case, the request is rejected.