Carnation Promoters Pvt. Ltd. vs Mrs. Sangeeta Srivastava Wife Of ...
2006 Latest Caselaw 609 Del

JUDGMENT

Madan B. Lokur, J.

Page 1381

1. IA No. 6356/2005 is filed by the Plaintiff for an injunction under Order XXXIX Rules 1 and 2 of the CPC.

2. The Plaintiff claims to have entered into an oral agreement on 15th September, 2004 for the purchase of agricultural land admeasuring 44 bighas 10 biswas comprised in Khasra 7/21 (5-09), 22 (4-16), 23 (4-16), 24 (4-16), 25 (4- 06), 18/4 (4-16), 5 (4-05), 6/2 (3-02), 7/1 (2-08), 19/1 (4-16), 45/1-3/1 (1-0) situated in village Samalkha Tehsil, Vasant Vihar, New Delhi (hereinafter referred to as suit land).

3. According to the Plaintiff, the oral agreement was for purchase of the suit land for a sum of Rs.27 crores and it was entered into between the Plaintiff and Defendant No.1, the owner of the land who was represented by herPage 1382 attorney Defendant No.2. It is not stated in the plaint who negotiated the agreement on behalf of the Plaintiff even though it is a private limited company.

4. The Plaintiff has further stated in the plaint that on 15th September, 2004, the day the oral agreement was entered into between the parties, a sum of Rs.5,01,000/- was paid by the Plaintiff in cash to Defendant No.2 as earnest money. The Plaintiff states that no receipt was given by Defendant No.2 for the cash payment since the amount was nominal for such a big deal. Again, the plaint is silent about who made the payment of earnest money on behalf of the Plaintiff.

5. According to the Plaintiff, Sita Ram Khemka, who is a property consultant/broker was associated in the negotiations and formalisation of the deal between the parties and is a witness to the finalisation of the terms, the payment of part consideration and the oral agreement between the parties. Sita Ram Khemka filed an affidavit dated 16th August, 2005 generally supporting the averments of the Plaintiff and indicating that negotiations on behalf of the Plaintiff were conducted by one of its directors Pankaj Nakra. The affidavit of Sita Ram Khemka goes even beyond what is stated in the plaint.

6. It is stated by the Plaintiff that since the Defendants failed to complete the transaction, the Plaintiff was left with no option but to file a suit for specific performance and a permanent injunction.

7. Both the Defendants have filed written statements and they have stated that negotiations for sale/purchase of the suit land were conducted by Pankaj Nakra on behalf of the Plaintiff but there is a denial of any oral agreement between the parties and receipt of any earnest money in cash.

8. Learned counsel for the Plaintiff has submitted that Defendant No.2 was given a general power of attorney by Defendant No.1 and it is on the basis of this general power of attorney, which is Exhibit P-1, that negotiations were conducted between the parties and which binds both the Defendants. In addition, reliance was placed upon relevant extracts of the khatauni, which were handed over to the Plaintiff to show that Defendant No.1 was the owner and in possession of the suit land. Reliance has also been placed on a form filled up under Section 8 of the Delhi Lands (Restriction on Transfer) Act, 1972 (the Act) for the purposes of ascertaining whether the suit land is under acquisition or not. This document (Exhibit P-3), which is signed on behalf of the Plaintiff and by Defendant No.2, mentions that the transfer price of the suit land is Rs.27 crores and the transfer is to be effected from Defendant No.1 to the Plaintiff.

9. Learned counsel for the Plaintiff contended that certain facts are not disputed by the Defendants and these are: that a general power of attorney was executed by Defendant No.1 in favor of Defendant No.2 authorising Defendant No.2 to sell land belonging to Defendant No.1; that negotiations took place through Sita Ram Khemka between Pankaj Nakra on behalf of the Plaintiff and Defendant No.2 on behalf of Defendant No. 1 for the sale/purchase of Page 1383 the suit land; that the identity of the suit land is not in dispute; that Defendant No.1 is the owner of the suit land; and finally, the form under Section 8 of the Act is also not in dispute and the story given by Defendant No.2 that he had signed a blank form is incorrect.

10. On behalf of the Defendants, it was contended that it is most unlikely that a transaction of Rs.27 crores for purchase of immovable property would be conducted orally. There is nothing on record to suggest that the Plaintiff gave any earnest money to Defendant No.2, as alleged; that there is no averment in the plaint who negotiated the sale/purchase of the suit land on behalf of the Plaintiff the affidavit of Sita Ram Khemka goes beyond what is stated in the plaint; that the general power of attorney granted by Defendant No.1 to Defendant No.2 did not authorise the latter to sell land owned by the former; and finally the form filed under Section 8 of the Act does not show that any concluded agreement was arrived at between the parties.

11. Having heard learned Counsel for the parties, I am not at all impressed by the contentions of learned Counsel for the Plaintiff.

12. It is well settled that in a suit for specific performance of an oral agreement, the burden on the Plaintiff is extremely heavy and he has to prove, as a matter of fact, that the parties had reached a consensus. The Plaintiff has to establish that vital and fundamental terms of sale of immovable property were orally concluded between the parties and a written agreement, if any was to be executed subsequently, would only be a formal agreement incorporating such terms as had originally been settled and concluded in the oral agreement (Brij Mohan and Ors. v. Smt. Sugra Begum and Ors.).

13. In the present case, the Plaintiff has failed to plead anything about the terms of the oral agreement between the parties. The only fact averred by the Plaintiff is to the effect that the suit land was to be sold for a sum of Rs.27 crores. There is nothing to indicate, for example, the period of time within which the payment was to be made nor is there any indication as to handing over of vacant possession (or otherwise) of the suit land to the Plaintiff or any other terms that may have been agreed between the parties. In fact, the plaint is quite vague because it does not even indicate who negotiated the sale/purchase of the suit property on behalf of the Plaintiff. That a transaction worth Rs.27 crores has been orally entered into between the parties in such a casual manner is by itself quite unbelievable, but that is only one aspect of the matter.

14. To lend some credibility to the transaction between the parties, the Plaintiff has averred that a sum of Rs.5,01,000/- was paid in cash to Defendant No.2 but again there is no receipt for this amount. Had there been some sort of a receipt given by Defendant No.2, which receipt could even have been prepared in a few minutes, there may have been some occasion to believe the Plaintiff but on its own showing, there is not even a receipt for a part payment of the consideration.

Page 1384

15. The main document that the Plaintiff relies upon is the application made under Section 8 of the Act but this document cannot be, in any way, evidence for a financial transaction between the parties. An application is required to be made under Section 8 of the Act only for the purposes of ascertaining whether the land is under acquisition and nothing more. Such an application can be made at any stage prior to registration of a sale deed. Therefore, the contents of this document do not lead the Plaintiff anywhere at all.

16. Perhaps, the most significant aspect of the matter is the power of attorney given by Defendant No.1 to Defendant No.2. On a reading of this document in its entirety, the only possible conclusion that one can come to is that Defendant No.1 has authorised Defendant No.2 to purchase land on her behalf for some project. There is no clause in the document that authorises Defendant No.2 to sell the land so purchased to anybody. Learned counsel for the Plaintiff placed considerable emphasis on Clause 7 of the power of attorney, which reads as follows: -

to execute any deed for conveying the so agricultural land purchased by him in my name and represent me in the registration office of Sub-Registrar for execution of sale deed on my behalf.

17. This clause is quite clear and relates to conveying the title in the name of Defendant No.1 and not conveying the title in the name of anybody else. Moreover, if this clause is read in conjunction with other clauses of the power of attorney, such as Clause 1, which entitles Defendant No.2 to negotiate for the purchase of land, and Clause 2, which entitles him to execute the agreement to sell for the purchase of land and Clause 4, which entitles him to take actual physical possession of the land on behalf of Defendant No.1, it clearly suggests that Clause 7 only means that Defendant No.2 can represent Defendant No.1 before the Sub-Registrar of Assurances for execution of a sale deed of the land purchased by Defendant No.2 for and on behalf of Defendant No.1. Even by twisting the language of Clause 7 of the power of attorney, it cannot be read to mean that this document gives any authority to Defendant No.2 to sell the suit land on behalf of Defendant No.1.

18. The affidavit of Sita Ram Khemka can hardly be believed. He says much more than even what the Plaintiff says in the plaint. For example, he says that Pankaj Nakra negotiated the transaction on behalf of the Plaintiff ? a fact not even averred in the plaint. Then he says that Pankaj Nakra asked Defendant No. 2 for a receipt of the cash payment of Rs. 5,01,000/- but Defendant No. 2 'said that the said sum was a small amount as compared to the balance consideration and since they had already executed the statement evidencing the agreement between the parties, a receipt was not necessary and desired to proceed on trust. Shri Pankaj Nakra on such assurance by Shri Virat Verma did not insist upon issuance of a receipt.' again a fact not even averred in the plaint. This is a case of being more loyal than Caesar.

19. Learned counsel for Defendant No.1 brought to my notice an order dated 6th February, 2006 passed by a learned Single Judge in CS (OS) No.1201/2005, (Anant Raj Industries Ltd. v. Sanjay Kaushish and Anr.) in which the Plaintiff (who is admittedly a part of the Anant Raj Group of Companies / Industries) set up a somewhat similar case with respect to purchase of land Page 1385 on an oral agreement with the defendants therein. The learned Single Judge who heard the interim application for injunction has drawn a comparison between the essential ingredients of the averments made in that suit with another suit being Suit No. 904/2004 (Pelikan Estates Pvt. Ltd. v. Shri Kamal Pal Singh, 2004 VI AD (Delhi) 185), where the plaintiff therein through its authorised director Pankaj Nakra entered into an oral agreement dated 28th July, 2004 for purchase of land. The submission made by learned Counsel for Defendant No.1 was that Pankaj Nakra seems to be in the habit of entering into oral agreements for purchase of immovable property and thereafter litigating for specific performance of those oral agreements, and that this is at least the third such case. I need not make any comment on this contention of learned Counsel for Defendant No.1 except to say that this conduct of the Plaintiff seems to be very odd. In any case, in so far as the present matter is concerned, the Plaintiff has not been able to show any prima facie case for the grant of an injunction based on an oral agreement.

20. Under the circumstances, the application is dismissed with costs of Rs.10,000/-, which will be shared equally by both the Defendants.

21. The conclusions arrived at are only for the purpose of disposing of this application and will not bind the parties in the trial.

IA No. 9654/2005

22. There is no merit in this application. Dismissed.