S.K. Gupta vs Ashok Malhotra And Anr.
1995 Latest Caselaw 377 Del

JUDGMENT

N.G. Nandi, J.

(1) In the suit for specific performance of agreement of sale allegedly arrived at between the parties on 15.12.1987 and for specifically performing the terms thereof requiring the defendants to accept the balance price of sale consideration of Rs.7,90,000.00 , transfer complete and clear title in the property bearing No.1 adjoining Block No.90, measuring 194.5 sq. mts. situated at Malviya Nagar, New Delhi and for vacant possession thereof and in the alternative decree for exemplary damages for Rs.8,00,000.00 with costs, the plaintiff by this application seeks to restrain the defendants from transferring, selling or otherwise disposing of or parting with possession of the suit property or any portion thereof to or in favor of any person other than the plaintiff.

(2) It has been submitted by Ms. Kumud Nijhawan counsel for the plaintiff that the receipt dated 15.12.1987 is a conclusive contract for the property worth Rs.8,00,000.00 ; that defendant No.2 is the wife of defendant No.1 and defendant No 1 had the implied authority; that defendants agreed to sell the suit property for Rs.8,00,000.00 and passed the writing with Rs.10,000.00 given as earnest money by the plaintiff; that defendants want to back out from the agreement to sell as some more monies are intended to be exhorted from the plaintiff; that in December, 1987 the prevailing market rate of the suit property was Rs.8,00,000.00 and that is the consideration for suit transaction and that defendants now want to wriggle out of the suit transaction dated 15.12.1987. It is further submitted that husband of defendant No.1 would be liable apart from the implied authority by defendant No.2- wife. As against this it is submitted by Mr. Makhija, counsel appearing for the defendants that the plaintiff has come forward with a case of oral agreement to sell. The receipt dated 15.12.1987 Annexure-P-4 which is only a corroborative piece of evidence and it is nothing else but negotiations; that the value of the suit property was Rs.15 lakhs in the year 1987 whereas according to the plaintiff the property was agreed to be sold at Rs.8 lakhs by the plaintiff. There can not be a gap between Rs.8 lakhs and Rs.15 lakhs. The receipt Annexure-P-4 does not refer to any oral agreement to sell the property nor there is any averment in the plaint for an agreement to sell the property.

(3) In the plaint it is averred that on the morning of Thursday December 15, 1987, the defendants (who are husband and wife) agreed to sell unto the plaintiff all that plot No.1 adjoining Block No.90 measuring 194.5 sq. mtrs, situated at Malviya Nagar, New Delhi at the prevailing market price of Rs.8 lakhs and after delivering photo copies of the title deeds, possession letter and the site plan, delivered receipt for Rs.10,000.00 paid by way of advance by the plaintiff against the sale of aforesaid property.

(4) The defendants have denied any agreement to sell the suit property to the plaintiff for Rs.8 lakhs or for any amount. However, it is admitted that on or before 15.12.1987 plaintiff came to defendant No.1 and offered to purchase the plot in suit. The defendants demanded a sum of Rs.15 lakhs exclusive of unearned profits payable to the Dda as consideration for the sale of the said plot; that the plaintiff wanted the price to be reduced to Rs.14.5 lakhs exclusive of unearned profits payable to the Dda, the sale price was, therefore, not settled; that it was, however suggested by the plaintiff that the sale price could be negotiated and in the meanwhile he offered to deposit a sum of Rs.10,000.00 with Shri Ashok Malhotra and requested him not to deal with any other buyer for a week. Shri Ashok Malhotra acted solely on his own behalf and issued the receipt for Rs.10,000.00 and agreed to hold the plot for a period of one week; that the plaintiff thereafter did not agree to the price of Rs.15 lakhs and the unearned profit and the other terms and conditions.

(5) ANNEXURE-P-4 at page 15 is the original receipt dated 15.12.1987, admittedly passed by defendant No.1, the same reads as follows:- "Receipt Received a sum of Rs.10,000.00 (Ten thousand) only on account of advance against my plot No. 1 Adj. Block No.90 Malviya Nagar, New Delhi from Sh. S.K. Gupta r/o R-78, G.K.I, New Delhi"

(6) It is suggested from the above receipt that Rs.10,000.00 has been received by defendant No.1 as advance against the immovable property in question. Even according to defendant No.1, the plaintiff offered to purchase suit property for Rs.8 lakhs and paid Rs.10,000.00 to defendant No.1 and asked him to hold the suit property for a period of one week. It is pertinent to note that word "deposit" does not occur in the receipt but it is the advance amount paid by the plaintiff. It is true that the consideration for the sale of the property is not suggested from the receipt. All that can be said is that Rs.10,000.00 was paid by the plaintiff to defendant No.1 as advance against suit plot.

(7) In the case of Neelavathi and others v. N. Nataranjan and others it is observed that general principle of law is that in case of co- owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. This decision has been relied upon for showing implied authority of defendant No.1 to enter into alleged transaction on behalf of defendant No.2 who is admittedly no party to the receipt and the negotiations on 15.12.1987.

(8) In the case of Kartar Singhv. Harjinder Singh & Ors. it is observed that there is neither a pleading nor a contention that the respondent and his sister did not own the property in equal shares nor agreement of sale clearly mentions that respondent was entering into the agreement both on behalf of himself and his sister, and that he was, under the agreement, selling the whole of his share and also the whole of the share of his sister in the property. It is further observed that in the agreement itself he had stated that he was responsible to get the sale deed executed by his sister and that he would persuade her to do so. In the light of these facts, it is held that the property agreed to be sold was clearly distinguishable by the shares of the respective vendors. In the circumstances when the absentee vendor, for some reason or the other, refused to accept the agreement, there is no reason why the agreement should not be enforced against the vendor who had signed it and whose property is identifiable by his specific share.

(9) In the instant case, the receipt does not indicate that the same has been executed for and on behalf of defendant No.2 absentee party nor in the plaint it is averred that defendant No.1 had implied authority to enter into the alleged agreement to sell from defendant No.2 and that the receipt dated 15.12.1987 is binding on both the defendants. Following the principle laid-down in the aforesaid judgment of the Supreme Court, in light of facts aforesaid, it prima facie, cannot be inferred that defendant No.1 had implied authority on 15.12.1987 from defendant No.2 to pass the receipt and bind herself by the same and, therefore, it prima facie appears that defendant No.2 cannot be bound by the receipt dated 15.12.1987 Annexure-P-4.

(10) Coming to the question of prima facie case for the purpose of granting relief under Order 39 Rules 1 and 2 of the Code of Civil Procedure the only evidence for the alleged transaction of 15.12.1987 is the receipt Annexure-P-4 which does not suggest the consideration for the alleged agreement to sell the property except the advance of Rs.10,000.00 . Copy of the letter dated 12.1.1988 addressed by the plaintiff to the defendants allege agreement to sell dated 15.12.1987 for the purchase of suit property which defendants allege to have purchased in public auction for Rs. Four lakhs on 26th November, 1984. It is pertinent to note that in this letter also it is not stated by the plaintiff that the property was agreed to be sold on 15.12.1987 for Rs.Eight lakhs. It appears that thereafter defendants on 22.1.1988 addressed a registered notice to the plaintiff through their advocate referring to the telegram dated 12.1.1988, stating that defendants had demanded Rs.15,00,000.00 as the consideration for the sale of the suit property and that the consideration and the other terms and conditions were not settled and asked the plaintiff to take back Rs.10,000.00 paid as advance. It is pertinent to note that in the letter dated 12.1.1988, as pointed out above, the consideration of the property is not mentioned, yet the plaintiff states that he is ready and willing to make the balance payment as a short notice of seven days at the time of execution and registration of the sale deed before the Sub Registrar. I put a question to myself as to what would be the balance amount which would be payable by the plaintiff at the time of execution of the document in the absence of consideration being mentioned anywhereb, by anywhere means receipt as well as letter dated 12.1.1988.

(11) All that could be prima facie said is that negotiations must have started between the plaintiff and defendants for the purchase of the suit property and Rs.10,000.00 were paid on 15.12.1987 as advance when the price having not been finalised and fixed. In other words, the parties must have negotiated for arriving at a price acceptable to both the sides. In the case of Ranbaxy Laboratories Ltd. v. Doon Apartments (P) Ltd. Ilr 1979 (1) Delhi page 84, it is held that under the Indian Contract Act consideration is essential if the agreement is to be valid.. If there is no agreement as to consideration then the agreement is void for lack of consideration and also for uncertainty in view of Sections 23 and 29 of the Indian Contract Act. It is further held that "Sections 92 and 115 are both provisions of the same Evidence Act. It is wrong to suppose that the latter is substantive law, while the former alone is procedural law. If the two are read together, both can operate. There is nothing in section 115 to show that it overrides section 92. Exceptions to section 92 are already laid down by the provisos to it. There is no warrant to carve out another exception to it by saying that an oral representation must be allowed to be proved in spite of section 92 because section 115 allows it to be proved. It is not the purpose of section 115 to state what can be proved and what cannot be proved................"

(12) In the case of Smt. Phuljhari Devi v. Mittal Lal and others , wherein it is held that specific performance is an equitable relief and the contract of sale of which specific performance is sought must be definite and precise- If it is uncertain no oral evidence is admissible to add to its terms and the contract would be void under Section 29 of the Contract Act.

(13) In absence of any consideration for the alleged agreement of sale dated 15.12.1987 there is no valid agreement as to consideration between the parties as the parties prima facie appear to have been negotiating with regard to the consideration for the sale of property and, therefore, uncertain and not precise as regards the consideration for the suit transaction and, therefore, against sections 23 and 29 of the Contract Act.

(14) In view of the above, the alleged agreement of sale dated 15.12.1987 being uncertain, indefinite and not precise as regards consideration it cannot be said that the parties were at ad idem as regards the terms and conditions of the contract and, therefore, it prima facie does not appear that there is any concluded contract between the parties and for this reason the plaintiff would not be entitled to equitable relief of injunction and the present application being devoid of merit would be liable to be dismissed.

(15) In the result, the application fails. Ordered accordingly.