The Bombay High Court dismissed an appeal against the impugned order dated 09/11/2022, by which the Civil Court had rejected the application filed by the plaintiff for specific performance of the contract.
The Court observed that when there are doubts as to the existence of a concluded contract and there is a delay in instituting the suit, the onus is on the plaintiff to demonstrate that the parties were ad idem qua, their obligation/concluded contract.
Brief Facts:
On 20/05/2021, an oral agreement took place between the parties in presence of Dinesh Agrawal Broker and one Rajesh Bhuibhar. The plaintiff gave an amount of Rs.51,000/- to the defendants and it was agreed that the defendants will execute the sale deed within four months. The defendant further agreed to hand over a copy of tax receipts, a copy of the release deed, Namuna -D, and other documents relating to the said property before the agreed date of the sale deed.
On 02/07/2021, the plaintiff demanded a copy of Namuna – D and other documents from the defendants. But the defendants informed that, they have applied for mutation because of the release deed and the same will be received by them shortly and that they will supply the same to the plaintiff in a short time. On 01/08/2021, the plaintiff again requested the defendants to supply copies of namuna – D and other documents. But, instead of supplying the same, the defendants gave an evasive reply.
On 14/09/2021, the plaintiff issued a legal notice to the defendants through an advocate, demanding documents, i.e., PAN Card and other documents to enable the plaintiff to deposit T.D.S. as required by Section 194IA of the Income Tax Act, 1961, and deposit stamp duty, registration fees. On 18/09/2021, the plaintiff purchased three demand drafts of Rs.53,90,200/- drawn on Kotak Mahindra Bank in favour of the defendants. Accordingly, on 20/09/2021, the plaintiff was present at the Office of Sub Registrar, Akola along with three demand drafts amounting to Rs.53,90,200/- each. However, the defendants did not turn up, did not supply copies of documents, and did not cooperate with the plaintiff.
On 21/09/2021, the plaintiff again sent a legal notice to the defendants. On 27/09/2021, the plaintiff attended the office of the Sub Registrar along with the broker and the above three demand drafts. However, the defendant did not turn up, therefore, the plaintiff filed a suit for specific performance of contract, possession, and injunction against the defendants.
The learned Joint Civil Judge, Senior Division, Akola by passing the impugned order below Exh.5 dated 09/11/2022, rejected the application filed by the plaintiff. Being aggrieved by the impugned order dated 09/11/2022, rejecting the application below Exh.5, the appellant filed the present appeal.
Contentions of the Appellant:
The Learned Counsel for the Appellant contended that the Trial Court grossly erred in rejecting the application below Exh.5 filed by the plaintiff. The Trial Court ought to have fully allowed the application below Exh.5 by passing an order of temporary injunction as prayed by the appellant. The Trial Court ought to have seen that, if according to the defendants, there was not any oral agreement between the parties or that the public notice dated 25/08/2021 published by the plaintiff would have been false, then the defendants would not have waited for a single day either for taking any action against the plaintiff or for publishing any explanation in the newspaper.
Contentions of the Respondent:
The learned Counsels for the Respondent argued that the Trial Court had properly taken into account the facts, circumstances and evidence placed on record and passed an appropriate order, hence the present appeal liable to be dismissed.
Observations of the Court
The Court observed that only based on copies of the relinquishment deed in the hands of the plaintiff, one cannot conclude that there was an agreement as discussed earlier. The plaintiff is claiming specific performance of an oral contract; however, in the facts and circumstances, there is no material to establish that there was any concluded contract between the parties.
Further, the Court remarked that when there are doubts as to the existence of a concluded contract and there is a delay in instituting the suit onus is on the plaintiff to demonstrate that the parties were ad idem qua, their obligation/concluded contract. Act of taking out demand draft or putting amount for tax deducted at source in the account of somebody’s account specifically when there was the specific denial by an explanation by the defendant that there is no such contract between the parties, there is no case made out for grant of injunction.
The Court agreed with the lower court's observation that unlLeess defendants have shown to have acted dishonestly to refuse the specific performance of a contract, no injunction order can be issued against them.
The decision of the Court:
The Bombay High Court, dismissing the appeal, held that the order passed by the learned Trial Court is perfectly justified and needs no interference.
Case Title: Manoj vs Smt. Vidyadevi & Ors.
Coram: Hon’ble Justice M.S. Jawalkar
Case no.: APPEAL AGAINST ORDER NO. 12/2023
Advocate for the Appellant: Mr. A.R. Deshpande
Advocate for the Respondent: Mr. J.B. Gandhi
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