Delhi High Court
T. Murlidhar vs P.V.R. Murthy on 1 July, 2014
Author: Sanjeev Sachdeva
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 28 th March, 2014
Judgment Pronounced on: 01 st July, 2014
CS(OS) 1397/2009
T. MURLIDHAR ..... PLAINTIFF
Through: Mr. Rajan Khosla,
Advocate.
versus
P.V.R. MURTHY ..... DEFENDANT
Through: Mr. Ankit Jain,
Advocate.
CORA M:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
SANJEEV SACHDEVA, J.
1. The Plaintiff has filed the present suit for specific
performance of an oral agreement to sell. On
29.08.2013, issues were framed and issue No.1 i.e.
―Whether the plaint in the present Suit discloses any
cause of action? (OPD)‖ was treated as a preliminary
issue.
2. The Plaintiff has contended that the Defendant is the
owner of a flat bearing No. 7430, Sector B-10, Vasant
Kunj, New Delhi and that he agreed to sell the said flat
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to the Plaintiff for a total sale consideration of
Rs.26,00,000/-. The Plaintiff paid a sum of Rs.50,000/-
in cash to the Defendant as advance and the Defendant
handed over the keys to the Plaintiff as part
performance of the deal.
3. As per the Plaintiff at that point of time, he was
employed with a Government of India Undertaking and
was drawing a salary of Rs.21,000/- per month and did
not have enough savings to pay the balance sale
consideration.
4. It is contended that the parties agreed that the
Defendant would execute the agreement to sell in
favour of the Plaintiff to enable him to generate a loan
from the financial institutions and pay to the Defendant
the balance sale consideration. However, the said
agreement was not executed but the Defendant
promised to visit Delhi to complete the formalities for
execution of the same.
5. As per the Plaintiff, at the time of taking over of
possession of the said flat, the said flat was in a
complete ramshackle condition and was not habitable
and the Plaintiff, at the request of the Defendant, spent
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Rs.75,000/- in renovating the said flat.
6. As per the Plaintiff, the Defendant failed to visit Delhi
citing ill health of his mother but promised to complete
the formalities. However, the Defendant did not do so.
Since the agreement to sell was not executed, the
Plaintiff was not able to generate the required loan. As
the Plaintiff was not able to generate the required loan,
the Defendant is stated to have requested the Plaintiff to
start paying Rs.4,000/- each month as part of the sale
consideration towards the said flat and accordingly, the
Plaintiff started depositing Rs.4,000/- each month in
cash in the Defendant's account.
7. The Plaintiff contends that the said amount was the part
payment towards the sale consideration and the said
amount was accepted by the Defendant every month.
The Plaintiff claims to have deposited the said amount
@ Rs.4,000/- per month in the bank account of the
Defendant till May/June, 2004.
8. The Plaintiff is stated to have visited Secunderabad on
19.06.2005 but the Defendant was not available and the
Plaintiff claims to have paid a sum of Rs.50,000/- to
one of the Defendant's relatives in the house. The
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Plaintiff claims to have thereafter continued to pay
Rs.4,000/- per month by depositing the same in the
Defendant's accounts.
9. It is contended that on 16.05.2009, the Plaintiff was
informed by his neighbours that three persons had
visited the flat. The Plaintiff is stated to have then
requested the Defendant to execute the necessary sale
document but he refused to do so. The Plaintiff has
filed the present suit seeking specific performance of
the oral agreement to sell.
10. The Defendant has contested the suit and filed his
Written Statement and has prayed for dismissal of the
suit for failure to show any cause of action. The issue
has accordingly been framed.
11. The Supreme Court of India in the case of SOPAN
SUKHDEO V S. A SSISTANT C HARITY C OMMISSIONER
2004 (3) SCC 137 has laid dow n that for the purposes of
deciding an application under Order 7 Rule 11, the
averments made in the plaint are germane and the pleas
taken by the Defendant in the written statement would
be irrelevant. Further, the court also emphasized that a
meaningful and not formal reading of the plaint was to
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be adopted so as to nip in the bud any clever drafting of
the plaint to create an illusion of a cause of action.
12. The court has to see the averments in the plaint to
decide whether the suit discloses a triable cause of
action. A meaningful and not a formal reading of the
plaint has to be adopted to determine whether the plaint
discloses a cause of action or a clever drafting
methodology has been used to create a semblance of a
cause of action. Where the Court comes to a conclusion
that by adopting a method of clever drafting a
semblance of a cause of action is being created, the
court has to nip the vexatious and meritless litigation in
the bud.
13. The Supreme Court in the case of T. A RIVANDANDAM
VS . T.V. S ATYAPAL 1977 (4) SCC 467 has laid down as
under:-
―5. We have not the slightest hesitation in
condemning the petitioner for the gross
abuse of the process of the court repeatedly
and unrepentently resorted to. From the
statement of the facts found in the judgment
of the High Court, it is perfectly plain that
the suit now pending before the First
Munsif's Court, Bangalore, is a flagrant
misuse of the mercies of the law in
receiving plaints. The learned Munsif must
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remember that if on a meaningful -- not
formal -- reading of the plaint it is
manifestly vexatious, and meritless, in the
sense of not disclosing a clear right to sue,
he should exercise his power under Order 7,
Rule 11 CPC taking care to see that the
ground mentioned therein is fulfilled. And,
if clever drafting has created the illusion of
a cause of action, nip it in the bud at the
first hearing by examining the party
searchingly under Order 10, CPC. An
activist Judge is the answer to irresponsible
law suits. The trial courts would insist
imperatively on examining the party at the
first hearing so that bogus litigation can be
shot dow n at the earliest stage........‖
14. The Supreme Court in the case of T. A RIVANDANDAM
( SUPRA) has laid down that where the suit is a flagrant
misuse of the mercies of the law in receiving a plaint,
the court has to give a meaningful reading of the plaint
and not a mere formal meaning. Where on a
meaningful reading of the plaint it is manifestly
vexatious or meritless in the sense of not disclosing a
clear right to sue, the Court should exercise its power
under Order VII Rule 11 taking care to see that the
grounds mentioned therein is fulfilled. If by cleaver
drafting illusion of a cause of action is created, the
court can nip it in the bud. The Supreme Court further
laid down that an activist Judge is the answer to
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irresponsible law suits.
15. Learned counsel for the Defendant has relied on the
judgment in the case of IG B UILDERS & P ROMOTERS
P VT. L TD. VS. D R. A JIT SINGH AND O RS., 2011 (183)
DLT 138 wherein this court has laid down that the
following ingredients are necessary to make an
agreement to sell:
(i) particulars of the consideration;
(ii) certainty as to party i.e. the vendor
and vendee;
(iii) certainty as to the property to be sold;
and
(iv) certainty as to other terms relating to
probable cost of conveyance to be
borne by the parties, time etc.
16. Learned counsel for the Defendant further relied on the
case of B RAHAM SINGH VS. S UMITRA & O RS., 2011
(125) DRJ 570 to contend that if any of the essential
ingredients necessary to constitute an agreement to sell
are missing, the agreement between the parties would
not amount to a concluded contract. Learned counsel
for the Defendant further relied on the judgment in the
case of M OOL C HAND B AKHRU AND A NR. V S. R OHAN
AND O RS, 2002 (2) SCC 612 to contend that where the
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admissions of an oral agreement to sell do not spell the
other essential terms of the agreement to sell such as the
time frame within which the sale deed was to be
executed and as to who would pay the registration
charges etc. It would not afford protection of 63A of
the Transfer of Property Act.
17. As per the Plaintiff the Defendant had agreed to sell the
flat for a total consideration of Rs. 26,00,000/- in March
2001. A sum of Rs. 50,000/- is alleged to have been
paid in cash. No agreement or receipt evidencing the
payment has been placed on record or relied upon. The
Plaintiff has thereafter paid a sum of Rs 4,000/- per
month. Another sum of Rs. 50,000/- is claimed to have
been paid in cash to a relative of the Defendant on
19.06.2005. Neither any receipt is produced on record
nor the name of the relative is mentioned in the plaint.
18. The Plaintiff in support of his averments in the plaint
has filed on record the bank slips to show deposit of Rs.
4,000/- per month in the account of the Defendant.
However, the said receipts do not indicate the purpose
for which the amount is deposited. The Plaintiff has
further relied on the letter dated 25.06.2005 (sic
22.06.2005). The letter is denied by the Defendant. The
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letter dated 22.06.2005 relied upon by the Plaintiff is a
letter written by the Plaintiff himself. No proof of
dispatch or delivery of the said letter has been filed.
The letter, at best, indicates that there is some
discussion for the sale of the flat but does not indicate
any terms or conditions for the sale. There is nothing
on record to indicate that the amount of Rs.4,000/- had
been deposited in the bank account towards any part
sale consideration.
19. The Plaintiff has relied upon the e-mail dated
01.07.2009 (Exhibit P - 2) sent by the Defendant to the
Plaintiff. The email shows that the Defendant had
requested the Plaintiff to fasten the process of shifting.
20. The Plaintiff has relied on the letter dated 05.04.2002
written by the Defendant to the Plaintiff wherein the
Defendant has written to the Plaintiff that he has a
quote from one NRI acquaintance but has not decided
on the said offer but would like to know what was the
present ongoing rate for the sale of such flats and in
case the Plaintiff was interested, he could indicate his
quotes/terms. This letter filed and relied upon by the
Plaintiff clearly indicates that even as on 05.04.2002,
there was no concluded contract between the Plaintiff
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and the Defendant. As per the Plaintiff, the oral
agreement for the sale of the flat had taken place in
March, 2001 and allegedly part sale consideration had
been paid. This averment is falsified by the document
filed and relied upon by the Plaintiff itself i.e. letter
dated 05.04.2002 written by the Defendant to the
Plaintiff wherein the Defendant is mentioning that he
has a quote from an NRI acquaintance and enquiring
about the ongoing rate for the sale of the flat and also
asking for a quote from the Plaintiff. The letter dated
05.04.2002 relied upon by the Plaintiff written after the
alleged oral agreement completely demolishes and
falsifies the case set up by the Plaintiff that there was
any concluded contract in March 2001.
21. There is no document produced on record whereby it
can be deciphered that there was ever any agreement to
sell between the parties. If there was any agreement
then what was the sale consideration agreed upon and
what were the terms and conditions of sale.
22. The bundle of facts pleaded, read in the light of the
documents of the Plaintiff, do not disclose a cause of
action rather they show a clear contradiction in the
stand of the Plaintiff. The Plaint does not disclose any
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clear cause of action and a clever drafting methodology
has been adopted to create a semblance of cause of
action. Even if it were to be assumed that there was an
agreement between the parties in March, 2001, then the
Suit is highly belated as the same has been filed on
31.07.2009 i.e. after a gap of over 8 years and 4
months.
23. The preliminary issue No. 1 framed on 29.08.2013, is
decided in favour of the Defendant, the Plaint is
accordingly rejected with costs quantified at Rs.
25,000/-
SANJEEV SACHDEVA, J
July 01, 2014
st
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