Anant Raj Industries Ltd vs Sanjay Kaushish & Anr.
2009 Latest Caselaw 2344 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO(OS) No.138/2006

ANANT RAJ INDUSTRIES LTD .....Appellant through
                         Mr. Harish Malhtora, Sr.
                         Adv.    with     Mr.   Rahul
                         Kumar, Adv.

                     versus

SANJAY KAUSHISH & ANR.              ......Respondent through
                                    Mr. Dinesh Garg with
                                    Ms. Rachna Aggarwal,
                                    Advs.

%                         Date of Hearing : May 20th, 2009

                          Date of Decision : May 29th, 2009

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MR. JUSTICE RAJIV SHAKDHER
      1. Whether reporters of local papers may be
         allowed to see the Judgment?                      Yes
      2. To be referred to the Reporter or not?            Yes
      3. Whether the Judgment should be reported
         in the Digest?                                    Yes

VIKRAMAJIT SEN, J.

1. The Appellant who had filed a Suit for specific

performance assails the Order dated 6.2.2006 whereby the

learned Single Judge had, after considering the facts and

the law in great detail, dismissed the Plaintiff/Appellant's

Application under Order XXXIX Rules 1 and 2 of the Code

of Civil Procedure, 1908 (CPC for short). The Plaintiff had,

in that application, prayed that the Defendants be

restrained from selling, transferring or disposing of or

parting with possession or creating any third party

interest, whatsoever, in respect of the title, character and

possession of agricultural land ad measuring 25 bigha, 9

biswas situated in the revenue estate of village Samalika,

Tehsil Vasant Vihar, New Delhi.

2. According to the averments made in the Plaint, the

parties had orally arrived at an agreement for sale of the

said property on all essentials. A Draft Agreement was

prepared and even initialed by one of the Defendants. It is

contended that although the price was agreed upon, it was

not so mentioned in the Draft Agreement itself. It is on this

basis that the Plaintiff/Defendant seeks specific

performance of this Agreement. We have perused this

document which contains hand-written figures which,

according to the Defendants, have been written

unauthorisedly by the Plaintiff. The further contention is

that a sum of Rupees 20,00,000/- was paid by the Plaintiff

to the Defendants, but this assertion has been vehemently

and unambiguously denied by the Defendants. So far as the

initials on the Draft Agreement are concerned, the

Defendants state that this was so done in order that the

Draft Agreement may not be changed. However, the sale

consideration, as well as the mode of payment, had not

been agreed upon and was under negotiation. On this short

ground alone, it is contended that an actionable agreement

or a concluded contract had obviously not been reached.

Hence, the suit for specific performance was not

maintainable.

3. We have heard learned counsel for the Defendants as

a Caveat had been filed. He has reiterated the arguments

successfully raised before the learned Single Judge. He has

additionally taken us through previous plaints filed by the

Plaintiff in which the alleged sequence of facts is

poignantly identical. It is submitted on behalf of the

Defendants that the modus operandi of the Plaintiff is to

initiate negotiations, orchestrate a breach in respect of

immovable property in issue, to be followed by a suit for

specific performance at an absurdly low price with the

hope of blackmailing the Defendants to surrender. Reliance

has been placed on a Judgment delivered by one of us

(Vikramajit Sen, J.) reported as Pellikan Estates Pvt. Ltd. -

vs- Kamal Pal Singh, 2004 VI AD Delhi 185 in which also

the conclusion was that no prima facie case had been

disclosed as to the evolution of a binding contract for the

sale of the property. It has not been controverted that

Pellikan is a sister concern of the Plaintiff. In Pellikan

some of the pleadings had been reproduced which have

startling similarity to the case set-out in the dispute before

us. We think it advantageous to reproduce the following

passage from the decision pending in Brij Mohan -vs- Sugra

Begum, (1990) 4 SCC 147 in order to clarify that while

action for specific performance can be predicated on an

oral agreement, a heavy burden lies on the Plaintiff to

prove that complete agreement had already been reached.

Their Lordships enunciated the law in these terms:-

"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. 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 subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement."

4. Apart from Pellikan, a similar factual matrix has

been pleaded in Anant Raj Agencies P. Ltd. -vs- Narang

Industries Ltd., 149(2008) DLT 678 in which our learned

Brother, S. Ravindra Bhat, J., had dismissed the same

Plaintiff's application for temporary injunction in a suit for

specific performance.

5. We find no error, whatsoever, in the impugned Order.

The Plaintiff has not succeeded in making out a prima facie

case to the effect that a concluded contract had been

arrived at between the parties. Moreover, the learned

Single Judge had not committed any legal impropriety by

looking into the similarities between the present case and

those pleaded in several other suits for specific

performance by the very same Plaintiff.

6. In these circumstances, the balance of convenience

cannot possibly be in favour of the Plaintiff/Appellant.

Since grant of damages in the suit by the Court, is still a

possibility, irreparable loss or injury would ordinarily not

arise.

7. Appeal is without merit and is dismissed.

                                            ( VIKRAMAJIT SEN )
                                                 JUDGE



May 29th, 2009                              ( RAJIV SHAKDHER )
tp                                               JUDGE