Special Civil Suit No.

: 25/2022/B

CNR No.: GANG040008972022

O R D E R (Below Exhibit D-3)

(Delivered on this the 4th day of the month of

January of the Year 2023)

This is an application filed by the plaintiff under

Order 39 read with Section 151 of Civil Procedure Code for

temporary injunction seeking to restrain the defendants

and/or their agents, servants or any other persons claiming

through them or acting on their behalf from carrying on

any construction or changing the status quo and/or

creating any third party rights in respect of the suit

properties pending the final disposal of the suit.

2. Reply is filed by defendant no.1 at exh 27, defendant

no.2 at exhibit 32 and defendant no.3 at exh 33 objecting to

the application.

S.C.S.No. 25/2022/B Exhibit D-3 Page 13 of 56

3. Heard Ld. Sr. Adv. N. Sardessai for the plaintiff, Ld.

Adv. P. Rao for defendant nos.1 and 2 and Ld. Adv. S.

Karpe for defendant no.3. The plaintiff also filed written

arguments at exhibit 55. Perused the records and

considered the arguments of the learned counsels.

4. The following points arise for my determination and

my reasons and findings to the same are as under:-

Sr.No Points for determination Findings

1. Whether the plaintiff has made In the
out a prima facie case in his negative.
favour?
2. Whether balance of convenience In the
tilts in favour of the plaintiff? negative.

3. Whether irreparable loss and In the

injury will be caused to the negative.
plaintiff if temporary injunction
is not granted?

REASONS

5. Point No.1:- This suit is filed by the plaintiff for

specific performance, permanent injunction and

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cancellation of sale deed under Section 10, 31 and 38 of The

Specific Relief Act, 1963. The plaintiff has prayed for the

following reliefs: (a) to declare the deed of sale dated

07.09.2021 as null and void, (b) for cancellation of the deed

of sale dated 07.09.2021 registered in the office of the Sub-

Registrar, (c) for specific performance of the agreement

between the plaintiff and the defendant nos.1 and 2 and to

direct the defendant nos.1 and 2 to comply with their part

of the agreement entered into in July 2020 and to execute a

deed of sale in favour of the plaintiff in relation to a 3

bedroom villa in the 11 villa development project alongwith

corresponding built up area to be constructed in the first

suit property and a 400 sq. mtrs. partitioned plot in the

second suit property, (d) permanent injunction restraining

the defendants and/or their agents, servants or any other

persons claiming through them or acting on their behalf

from carrying on any construction or changing the status

quo and/or creating any third party rights in respect of the

suit properties pending the final disposal of the present suit

S.C.S.No. 25/2022/B Exhibit D-3 Page 15 of 56

6. The question before me is whether the plaintiff has

been able to prove that there was a concluded oral

agreement between the parties in the third week of July

2020 in order to seek the relief of injunction his favour.

7. There is no doubt that a party is entitled to specific

performance based on oral contract for sale. However the

burden lies heavily upon the plaintiff to establish the same.

8. In the case of Brij Mohan and Ors. Vs. Sugra

Begum and Ors. MANU/SC/0492/1990 the Hon'ble

Supreme Court has held 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

contract for sale of immovable property. Whether there was

such a concluded oral contract or not would be a question

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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.

9. It is not in dispute that the plaintiff and the

defendant no.1 was having a business relation. The nature

of agreement pleaded by the plaintiff in brief is as follows:

the plaintiff and defendant no.1 jointly purchased Mapusa

property vide Deed of Sale dated 18.11.2011 for Rs.45 lakhs

out of which plaintiff contributed an amount of Rs.25 lakhs

and defendant no.1 contributed Rs.20 lakhs. Thereafter,

the plaintiff purchased a property in Nachinola bearing

survey no.21/1 for Rs.1.5 crore and defendant no.1 was paid

brokerage/commission. On 24.12.2012, the plaintiff and

defendant nos. 1 and 2 entered into Development

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Agreement with the developer for MICASA project wherein

the plaintiff was to get 2 regular flats and one studio flat

and a monetary consideration of Rs.30 lakhs. Thereafter

the plaintiff and defendant nos. 1 and 2 signed a

Memorandum of Understanding dated 21.01.2013 with the

owner Mr. Julian Nazareth with respect to two properties

situated at village Nachinola bearing survey nos.34/10 and

67/10 and plaintiff made part payment of Rs.15 lakhs to

Christopher Nazareth.

10. Thereafter the parties decided to revise the terms of

the Development Agreement of MICASA project dated

24.12.2012 and in the year 2013, Agreement for

Development dated 31.08.2013 was executed whereby it

was mutually agreed upon that the monetary consideration

of Rs.60 lakhs would be reduced to Rs.45 lakhs and the

built-up area and flats were increased from 4 flats with 370

sq.mts. super built up area to 5 flats with 480 sq.mts. super

built-up area. The defendant no.1 represented the plaintiff

in the said Agreement for Development dated 31.08.2013

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as his attorney. The defendant nos.1 and 2 sold the entire

ownership of the plaintiff in the flats in MICASA project.

The defendant nos.1 and 2 took over the rights of the

plaintiff in the MOU dated 21.01.2013 in respect of the

Nachinola property and subsequently sold the same as

confirming parties to M/s. Takshila Educational Society.

11. In the year 2018 the defendant no.1 alongwith his

associate Mr. Umesh Kambli attempted to purchase the

first Nachinola property and by entering into MOU dated

18.07.2018 after paying a consideration of Rs.30 lakhs out

of which the defendant no.1 paid a sum of Rs.10 lakhs. Both

the defendant no.1 and his associate, failed to pay anything,

thereby abandoning the MOU dated 18.07.2018.

12. In the year 2019, the defendant no.1 along with his

two partners Mayur Sawkar and Tukaram Salgaonkar came

to the plaintiff to purchase the property bearing survey

no.21/1 that was under litigation for consideration of

Rs.5.40 crores. A Memorandum of Understanding dated

09.11.2019 was executed by advancing a sum of Rs.90 lakhs

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to the plaintiff. On account of their inability to handle the

pending litigation and failure to pay the balance

consideration, they abandoned the MOU in March 2020

and in the month of July 2020 asked for a refund of the

sum of Rs.90 lakhs paid to the plaintiff.

13. The plaintiff claims that since the defendant no.1 had

taken a lot of money from him and sold his shares without

giving anything in return and only constant

promises/assurances were given, the plaintiff informed the

defendant no.1 that the plaintiff would refund the amount

of Rs.90 lakhs only when the defendant nos. 1 and 2 would

execute a written document defining in clear terms what

properties would be given to the plaintiff in exchange for all

the earlier sales of the plaintiff's' share and appropriation

of the sale proceeds by the defendant nos. 1 and 2. The

defendant nos. 1 and 2 and his partners agreed to the same

and offered the plaintiff the following (a) a 3 bed room Villa

in the development project consisting of 11 identical villas

which was to come up in the first suit property with

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corresponding undivided rights in that property and (b) a

plot admeasuring 400 sq. mts. surveyed under no.54/15-A

in the second suit property. According to the plaintiff the

offer was in full and final settlement, superseding all

previous offers. The plaintiff claims that the defendant no.1

then handed over a copy of the gift deed dated 01.07.2013,

approval plan showing 11 identical villas with respect to the

first suit property and the Deed of Sale dated 14.02.2018

with respect to the second suit property thus confirming

that there was consensus ad-idem with respect to the

concluded contract. According to the plaintiff this contract

was finalized in the 3rd week of July 2020, in a meeting

held at the residence of the plaintiff in the presence of the

defendant nos.1 and 2. Based on the said oral agreement

the plaintiff is seeking specific performance of the oral

contract concluded in July 2020.

14. On the other hand, the claim of the defendant no.1 is

that the plaintiff had borrowed a sum of Rs.9.25 lakhs from

the defendant no.1 in the year 2008. On 03.10.2008, the

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defendant no.1 advanced a sum of Rs.9.25 lakhs to the

plaintiff, which the plaintiff was yet to return when the

investment was jointly made by the plaintiff and defendant

no.1 in purchasing the property at Cuchelim, Mapusa,

wherein the project MICASA has come up.

15. The defendant no.1 claims that he and the other

persons party to the MOU dated 08.07.2008 were entitled

to a commission of total Rs.30 lakhs in respect of the

property belonging to one Mrs. Emilia, admeasuring 2500

sq.mts. situated at Colvale. The defendant no.1 was entitled

to a payment of Rs.7 lakhs on the sale of Colvale property.

The plaintiff by keeping the defendant no.1 and the other

three persons in the dark, organized the sale of the Colvale

property to a third party, on the strength of the MOU dated

08.07.2008 and appropriated approximately a sum of

Rs.35 lakhs. When the defendant realized the devious

manner in which the plaintiff had organized the sale of

Colvale property, the defendant no.1 and the said three

persons confronted the plaintiff. The plaintiff promised the

S.C.S.No. 25/2022/B Exhibit D-3 Page 22 of 56

defendant no.1 and the said three persons that the plaintiff

shall give due credit to the account of the defendant no.1

and the said three persons in future transactions. The

plaintiff had also promised to give Rs.25 lakhs each to the

defendant no.1 and one Sanjay Lal who both had slogged

for bringing about the sale of the first Nachinola property

in favour of the plaintiff in the year 2011.

16. The defendant no.1 claims that when he requested the

plaintiff to pay a sum of Rs.41.25 lakhs immediately, the

plaintiff started giving sob stories, however acknowledged

the amounts due and payable to the defendant no.1 since

the year 2008, informed that he will give him a Power of

Attorney to deal with all the apartments which would come

to his share and to appropriate the cash consideration after

making necessary adjustments in respect of MICASA

project by paying a sum of Rs.15 lakh to the plaintiff in cash

and that upon the defendant appropriating the balance

amounts from project MICASA, their account would stand

squared off. Therefore considering the fact that the plaintiff

S.C.S.No. 25/2022/B Exhibit D-3 Page 23 of 56

was due and liable to pay a sum of Rs.16.25 lakhs to the

defendant no.1 since the year 2008, a sum of Rs.25 lakhs

towards first Nachinola property since the year 2011 and

considering the golden opportunity lost by the defendant

no.1 on the Mapusa property, which he could not purchase

on account of failure of the plaintiff to repay the sum of

Rs.41.25 lakhs to the defendant no.1, upon payment of

Rs.15 lakhs in cash to the plaintiff, the entire account

between the plaintiff and the defendant no.1 was squared

off in the year 2013 itself.

17. Ld. Sr. Adv. N. Sardessai for the plaintiff contended

that the vital and fundamental terms settled between the

plaintiff and defendant nos. 1 and 2 are as follows: (i)

Property description i.e. a three bedroom villa in the

development project consisting of 11 identical villas to be

constructed in the first suit property along with undivided

proportionate rights in the first suit property and a 400 sq.

mts. in the second suit property situated at Nachinola

bearing survey no.54/15-A (ii) Area description i.e. the area

S.C.S.No. 25/2022/B Exhibit D-3 Page 24 of 56

of the three bedroom villa is described in detail in the

approval plan wherein the area calculations are mentioned

in detail, all 11 villas were identical. The area of the plot was

400sq.mts. (iii) ownership- the defendant nos. 1 and 2 are

the owners of the first and second suit properties. The

defendant no.2 acquired ownership rights in the first suit

property by virtue of the deed of gift dated 01.07.2013 and

the defendant no.1 acquired ownership rights to the second

suit property vide deed of sale dated 14.02.2018. (iv)

consideration - the sale proceeds appropriated by the

defendant nos. 1 and 2 by selling the plaintiff's right and

share in the MICASA project and second Nachinola

property and for utilising these sale proceeds for a

considerable time by investing in property giving

exponential returns formed the basis of consideration for

the three bedroom villa and 400 sq. mts. plot given in

exchange. (v) time limit - the time limit was upon the

defendant nos. 1 and 2 obtaining construction licence from

the Village Panchayat of Siolim in relation to the first suit

S.C.S.No. 25/2022/B Exhibit D-3 Page 25 of 56

property and upon the defendant nos. 1 and 2 obtaining the

partition in relation to the second suit property.

18. Per contra, it is the contention of Ld. Adv. P. Rao for

defendant nos.1 and 2 that the plaintiff claims entitlement

of a villa and a plot of land 400 sq.mts., the value whereof

together would be about Rs.3.50 crores on a conservative

estimate. He further contended that in a commercial

project of 11 villas whose specifications, areas and the types

differ, the plaintiff has not even specified the particular

number of the villa out of the said 11 villas. Further it is

contended that the plans came to be approved only on

10.03.2021, therefore the claim of the plaintiff in respect of

a villa in a 11 villa project in suit property no.1 without the

approval or sanction for 11 villas being there, is on the face

of it preposterous. There could never have been a

concluded contract in respect of a project which had not

received the technical clearance, much less a concluded

contract with specific terms. It is further contended that by

deed of sale dated 07.09.2021 the entire suit property 1 is

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sold to the defendant no.3 with no condition for retention

of a villa even for defendant no.1 and the defendant no.2

leave alone the plaintiff.

19. It is the contention of Ld. Adv. Karpe for defendant

no.3 that there are no pleadings in the plaint to establish

oral contract or that the parties were at ad idem consensus.

He further contended that the villa in the first suit property

could not have been agreed to be allotted at the time when

the plaintiff claims that such a transaction was entered, as

in fact the approvals for the villas came to be granted by the

competent authority on 10.03.2021 and without approvals

from the competent authority the question of concluded

contract for allotment of any villa in first suit property

would not arise.

20. The plaintiff claims that 50% of the sale proceeds of

MICASA project and 50% of Rs.15 lakhs due and payable,

i.e. Rs.1.83 crores + Rs.15 lakhs = Rs.1.98 crores, of which

50% is Rs.99 lakhs and 50% of Rs.57.50 lakhs being sale

proceeds of second Nachinola property totals Rs.28.75

S.C.S.No. 25/2022/B Exhibit D-3 Page 27 of 56

lakhs. Therefore Rs.99 lakhs + Rs.28.75 lakhs =

Rs.1,27,75,000/- is the plaintiff's share which sale proceeds

were used by defendant nos. 1 and 2 to invest in property

giving them exponential returns for which the defendant

nos.1 and 2 promised good clear title property/plots in

return. Thus the claim of the plaintiff is for an amount of

Rs. 1,27,75,000/- from the defendant no.1.

21. If that be so, how can the plaintiff claim a villa and a

plot, the cost of which is approximately to the tune of Rs.4

crores. The defendant no.3 is marketing the villas in the

first suit property for a consideration of Rs.3.75 crores and

has already got four purchasers for four of the villas. It

cannot be believed that the defendant no. 1 would agree to

allot properties worth Rs. 4 crores to the plaintiff, even if

some amount was due and payable to the plaintiff. Thus

with respect to the price there is no consensus ad item

between the parties.

22. There is no pleading in the plaint as to which villa out

of the 11 villas was to be given to the plaintiff, the area of

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the villa, the location of the villa in the first suit property,

amenities to be provided, time frame for completion of the

villa.

23. With respect to the project of 11 villas in the first suit

property, the technical clearance order granted by the office

of the Senior Town Planner Mapusa is dated 10.03.2021.

Thereafter the construction licence was granted by the

Village Panchayat in respect of the said construction on

07.08.2021. Without getting the approvals and permissions

from the concerned authorities in respect of the

construction of the villas in the first suit property, there

could not have been any concluded contract between the

parties. Likewise without partition of the plot of 400

sq.mts. from the second suit property, there could be no

concluded contract. As such the plea of the plaintiff that the

oral contract was concluded in third week of July 2020

fails.

24. With respect to the time for executing the written

document, the plaintiff claims that defendant nos.1 and 2

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requested for time to draw up the written agreement as

they were awaiting construction license from Village

Panchayat of Siolim in relation to the first suit property and

paperwork was remaining to be completed with respect to

the partition of the second suit property. The defendant

nos.1 and 2 assured the plaintiff that they would complete

the necessary documentation required to convey the

properties to the plaintiff and requested for time till

October 2021. As discussed earlier without approvals/

permissions from the concerned authorities with respect to

the construction of the villas in the first suit property and

the partition of the plot in the second suit property, there

could be no concluded contract as the identity of the villa

and the plot could not have been ascertained in July 2020.

At the most it could be said that there were negotiations

between the parties but definitely no concluded contract

between the parties.

25. Ld. Sr. Adv. for the plaintiff has relied upon the case

of Smt. Sohbatdei v/s. Deviplal and Others; (1972)

S.C.S.No. 25/2022/B Exhibit D-3 Page 30 of 56

3 Supreme Court Cases 495. In the said case from the

agreement pleaded by the plaintiff the following facts are

clear: (a) price is fixed at Rs.10,000/-; (b) items of

properties to be sold are definite; (c) plaintiff being put in

possession in pursuance of the agreement; (d) the entire

sale consideration to be paid by the plaintiff by January,

1956; and (e) any amount that is paid by the plaintiff before

January 1956 is to be adjusted towards the sale price and

the balance alone is to be paid by January towards the sale

price and the balance or the full amount of Rs.10,000/- as

the case may be, the first defendant was to execute the sale

deed in January, 1956. The Hon'ble Allahabad High Court

held that there is no ambiguity or uncertainty in any of the

terms pleaded by the plaintiff.

26. In the present case there was no certainty with

respect to the items of properties to be sold in July 2020,

the price is at variance and the plaintiff was not put in

possession of the properties. Therefore the aforesaid case of

Sohbatdei (supra) does not aid the plaintiff.

S.C.S.No. 25/2022/B Exhibit D-3 Page 31 of 56

27. Reliance is also placed upon the case of Kollipara

Sriramulu (Dead) by his legal representative v/s.

Aswatha Narayana (dead) by his legal

representative and others; (1968) 3 SCR 387

wherein the Hon'ble Supreme Court held that there are

important circumstances indicating that the case of the first

respondent with regard to the oral agreement is highly

probable. Respondent no.1 had built a valuable cinema

theatre building on the disputed site and he had very strong

reasons to make an outright purchase of the site, otherwise

he would be placed in a precarious legal position.

Negotiations for purchase were going on for several years.

The witnesses had given evidence which corroborated the

case of respondent no.1 with regard to the conclusion of the

oral agreement. 20 out of 30 shareholders executed sale

deeds in favour of the first respondent after the date of the

alleged oral agreement. The fact that the shareholders sold

their shares at the identical price to the first respondent

and the others sold at the same price to the appellant is

only explicable on the hypothesis that the price was fixed

S.C.S.No. 25/2022/B Exhibit D-3 Page 32 of 56

by agreement between all the shareholders willing to sell i.e

all those other than the appellant. The next question was

whether the oral agreement was ineffective because the

parties contemplated the execution of a formal document

or because the mode of payment of the purchase money

was not actually agreed upon. The Court held that it is well-

established that a mere reference to a future formal

contract will not prevent a binding bargain between the

parties. The fact that the parties refer to the preparation of

an agreement by which the terms agreed upon are to be put

in a more formal shape does not prevent the existence of a

binding contract. There are, however, cases where the

reference to a future contract is made in such terms as to

show that the parties did not intend to be bound until a

formal contract is signed. The question depends upon the

intention of the parties and the special circumstances of

each particular case. The Court further observed that the

evidence adduced on behalf of respondent no.1 does not

show that the drawing up of a written agreement was a pre-

requisite to the coming into effect of the oral agreement. It

S.C.S.No. 25/2022/B Exhibit D-3 Page 33 of 56

is therefore not possible to accept the contention of the

appellant that the oral agreement was ineffective in law

because there is no execution of any formal written

document. It is true that there is no specific agreement with

regard to the mode of payment but this does not necessarily

make the agreement ineffective. The mere omission to

settle the mode of payment does not affect the

completeness of the contract because the vital terms of the

contract like the price and area of the land and the time for

completion of the sale were all fixed.

28. Ld. Adv. for the defendant no.3 has relied upon the

case of IG Builders & Promoters Pvt. Ltd., Vs. Dr.

Ajit Singh and Ors. ILR (2011) IV Delhi 724 wherein

it is held by the Hon'ble Delhi High Court that the four

ingredients necessary to make an agreement to sell are: (i)

particulars of consideration; (ii) certainty as to party i.e. the

vendor and the 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,

S.C.S.No. 25/2022/B Exhibit D-3 Page 34 of 56

time etc. The first fundamental which must be proved

beyond all reasonable doubt is the existence of a valid and

enforceable contract. It is further held that the stipulations

and terms of the contract have to be certain and the parties

must have been consensus ad idem. The burden of showing

the stipulations and terms of the contract and that the

minds were ad idem is on the plaintiff. If the stipulations

and terms are uncertain, and the parties are not ad idem,

there can be no specific performance, for there was no

contract at all. Where there are negotiations, the court has

to determine at what point, if at all, the parties have

reached agreement.

29. In the present case there is no certainty with respect

to the terms of the contract. The plaintiff has prima facie

failed to prove the existence of a concluded contract.

30. As rightly contended by Ld. Adv. for defendant no. 1

the plaintiff did not react to the sales of the apartments

made by the defendant no.1 since the year 2016 and never

made a claim for any amounts due to him in the MICASA

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project, until 13.08.2021. The plaintiff's claim that a sum of

Rs.99 lakhs was due and payable by him on account of sale

of apartment in the MICASA project was made for the first

time by the plaintiff only on 13.08.2021. In the MOU dated

18.07.2018 or in the MOU dated 19.11.2019 or at any time

prior to the communication of 13.08.2021, issued by the

plaintiff to the defendant no.1 no reference has been made

to any amounts due on account of sale of apartments in the

MICASA project. Between 2016 to 2021 i.e. for a period of

five years, there is no any written demand or

communication of any amount due and payable by the

defendant no.1 to the plaintiff. Any prudent man would

have made communication if any such huge amount was

due and payable to him.

31. The plaintiff objected to the public notice dated

07.03.2021 by Adv. Aditya Naik with respect to first and

second suit property. In March 2021 the plaintiff had

objected to the sale of the first and second suit property.

The letter dated 10.05.2021 of M/s Bennett and Bernard

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states that the plaintiff has objected on the grounds of

having concluded oral contract with the defendant nos. 1

and 2 with respect to 3 bedroom villa along with

corresponding undivided proportionate share in the first

suit property and 400 sq.mts. plot in the second suit

property. The plaintiff claims that upon coming to know of

the attempted sale of the first and second suit properties,

contacted the plaintiff and upon meeting requested for six

months time to complete all the paperwork related to

permissions and partition and the defendant no.1 assured

the plaintiff that the written agreement would be signed

latest by October 2021.

32. It is the contention of the plaintiff that when the

advocate of the defendant no.3 received the objection on

14.08.2021, the defendant no.3 got prepared demand drafts

of Rs.2.5 crores on 16.08.2021, which proves that

defendant no.3 showed undue haste to buy the first suit

property without any due diligence and without taking legal

advice and without asking the defendant nos. 1 and 2 to

S.C.S.No. 25/2022/B Exhibit D-3 Page 37 of 56

rebut the plaintiff's categorical assertion of a concluded

contract. This establishes that all the defendants colluded

to defeat the rights of the plaintiff. It is contended that the

copy of the notice dated 30.08.2021 was also issued to

advocate for defendant no.3, but despite that there is a

mention in the sale deed that no objections were received

in response to a notice of intent to purchase the first suit

property, which proves that the defendant no.3 is a

malafide purchaser.

33. In the public notice dated 09.07.2021 issued by

defendant no.3, objections were invited within 14 days

along with supporting documents and if no objections were

received within the stipulated time, the defendant no.3

would proceed with the sale in respect of the first suit

property. Within the stipulated time, no objections were

received from any party. It is only by letter dated

13.08.2021 the plaintiff raised the plea of oral contract,

however no supporting documents were produced thereof.

It is claimed by the defendant no.3 that upon receipt of the

S.C.S.No. 25/2022/B Exhibit D-3 Page 38 of 56

letter from plaintiff, the defendant no.3 contacted the

defendant nos.1 and 2 who informed that there is no oral

contract entered between defendant nos.1 and 2 with the

plaintiff and that the apartments in the MICASA project

were sold at the behest and with the consent of the plaintiff

and for this purpose Power of Attorney was issued by the

plaintiff in favour of defendant no.1 and 2 to sell the

apartments in MICASA project. Therefore the defendant

no.3 went ahead and executed the conveyance deed in

respect of the first suit property. There was no

documentary evidence or concrete evidence produced by

the plaintiff in support of his claim of concluded oral

contract and therefore it cannot be said that the defendant

no.3 is a malafide purchaser.

34. Ld. Sr. Adv. for the plaintiff has relied upon the case

of Vijay A. Mittal and others Vs. Kulwant Rai

(dead) through legal representatives and

Another; (2013) 3 Supreme Court Cases 520 where

there was a sale in favour of subsequent purchasers who

S.C.S.No. 25/2022/B Exhibit D-3 Page 39 of 56

had notice of prior agreement to sell, after the execution of

agreement to sell. D-1 instead of selling the suit property to

the plaintiffs in terms of agreement dated 12.06.1979 sold it

to D-2 and D-3 on 27.11.1981 It was held that the sale deed

made in favour of D-2 and D-3 by D-1 was bad in law and

collusive sale made to avoid the agreement of the plaintiffs.

The sale deed was declared as null and void. The Hon'ble

Supreme Court has held that applying the law laid down in

Durga Prasad, AIR 1954 SC 75, the proper form of decree in

such cases is to direct specific performance of the contract

between the vendor (D-1) and prior transferee (plaintiffs)

and direct the subsequent transferee (D-2 and D-3) to join

in the conveyance, directed accordingly.

35. Ld. Sr. Adv. for the plaintiff has also relied upon the

case of M.M.S. Investments, Madurai and Others

Vs. V. Veerappan and Others; (2007) 9 Supreme

Court Cases 660 wherein the Hon'ble Supreme Court

held that after the conveyance, the only question to be

adjudicated is whether the purchaser was a bona fide

S.C.S.No. 25/2022/B Exhibit D-3 Page 40 of 56

purchaser for value without notice. The question whether

the appellants were ready and willing is really of no

consequence. Once there is a conveyance the concept would

be different and the primary relief could be only

cancellation.

36. Ld. Sr. Adv. for the plaintiff has also relied upon the

case of Bharatbhai Parshotambhai Gohel Vs.

Niravkumar Jintendrabhai Jethva & 1; 2018 SCC

OnLine Guj 2340 wherein reference is made to the case

of Ghanshyambhai Dhirubhai Barvallya v/s Rasikbhai

Dhirubhai Amballya; [Appeal from Order No.457/2016

decided on 10.01.2017] to the following observation "it is

the case of the appellant i.e. subsequent purchaser that he

has no knowledge about execution of sale agreement inter

se between plaintiff and defendant no.1 and therefore, they

have bonafidely entered into the registered sale deed dated

03.09.2014 without notice of prior sale agreements and

paid full value in good faith. Upon re-appreciation of the

events, which occurred before and after registered sale

S.C.S.No. 25/2022/B Exhibit D-3 Page 41 of 56

deed dated 03.09.2014, it shows that the defendants with

unusual haste, carried out the sale deed. It requires to be

considered here that the defendants with unusual haste,

carried out the sale deed, where such transactions, as a

rule, are carried out with appropriate inquiry and, more

particularly, after obtaining title clearance certificate and

also by publishing notice in newspaper before purchase.

37. Ld. Sr. Adv. for the plaintiff has also relied upon the

case of Dr. Govinddas and Another Vs. Shrimati

Shantibai and Others; (1973) 3 Supreme Court

Cases 418. The said suit was for specific performance of

the agreement wherein the point involved in the appeal is

whether the appellants had notice of the agreement to sell

between the plaintiff and the vendor. The Hon'ble Supreme

Court observed that all the parties are residents or have

shops in the same vicinity and in places like this it is not

probable that the appellants would not come to know of the

execution of the agreement of the plaintiff. Secondly, the

haste with which the sale deed in favour of the appellants

S.C.S.No. 25/2022/B Exhibit D-3 Page 42 of 56

was executed was unusual. It is more usual for an

agreement to be executed in such cases rather than arrive

at an oral agreement on one day and have the sale deed

executed the next day and registered the following day. For

some reason the appellants were in a hurry to get the deed

registered What was the reason? In view of all the

circumstances the evidence of Hem Raj Chouhan was

accepted and the same was corroborated by Hayat, that

Goverdhandas knew of the execution of the agreement with

the plaintiff on March 1, 1960.

38. In the present case, there was no concluded oral

contract between the parties and therefore the conveyance

in favour of defendant no.3 by defendant nos. 1 and 2

cannot be said to be bad in law.

39. Ld. Sr. Adv. for the plaintiff has relied upon the case

of Rathnavathi and Another Vs. Kavita

Ganashamdas; (2015) 5 Supreme Court Cases 223

wherein it is held that in a contract for sale of immovable

property for consideration, if a seller fails to transfer the

S.C.S.No. 25/2022/B Exhibit D-3 Page 43 of 56

title to the purchaser, for any reason, on receipt of

consideration towards the sale price then a seller has no

right to retain the sale consideration to himself and he has

to refund the same to the purchaser.

40. Ld. Sr. Adv. for the plaintiff has relied upon the case

of Julien Educational Trust Vs. Sourendra Kumar

Roy and Others; (2010) 1 Supreme Court Cases

379 where the appellant Educational Trust sought specific

performance of agreement for purchase of land for

extension of school run by it and injunction restraining

respondent from changing nature and character of suit

property. In the said case talks of sale proceeded to an

extent where the respondents made over certified copies of

their title deeds to the appellant Trust. Separate draft deeds

of conveyance were sent by the appellant to the

respondents in respect of their undivided shares in the suit

property for approval. The appellant applied to Inspector

General and Commissioner of Stamp Revenue for

exemption from payment of stamp duty in registering the

S.C.S.No. 25/2022/B Exhibit D-3 Page 44 of 56

deeds of conveyance in respect of the suit property.

Respondent 1 approved the draft deed sent to him by

putting his signatures thereon, subject to some

rectifications made by him in the said draft. The final deed

of conveyance in respect of share of respondent no.1 was

engrossed on stamp paper. Thereafter defendant 2 to 6 also

approved their respective draft deeds of conveyance which

were also engrossed on stamp paper. The Hon'ble Supreme

Court held that from the materials on record it is clear that

a prima facie case has been made out by the appellant Trust

as to the agreement for sale, which has to go to trial.

Whether there was a concluded contract or not between the

appellant Trust and respondents 1 to 8 is a matter of

evidence and can only be gone into during the trial of the

suit. The all important question as to whether the balance

of convenience and inconvenience lay in favour of the grant

of an interim order of injunction in favour of the appellant

Trust and as to whether the appellant Trust would suffer

irreparable loss and injury, if no such interim order was

passed. Although, loss, if any, to the appellant Trust could

S.C.S.No. 25/2022/B Exhibit D-3 Page 45 of 56

be compensated in terms of money, the said submission

does not appear to hold good in the instant case. Equally

important is the question of balance of convenience and

inconvenience since the principal object of the appellant

Trust in wanting to acquire the suit property was to extend

its school unit at Kolkata. If the suit property is allowed to

be commercially exploited by raising multi-storeyed

structures thereupon, the entire object of the suit filed by

the appellant Trust will be rendered meaningless and the

purpose for which the suit had been filed would be

completely defeated.

41. In the present case no prima facie case has been

made out by the plaintiff with respect to the concluded

contract.

42. Ld. Adv. for defendant no.3 has relied upon the case

of Ouseph Varghese v/s. Joseph Aley and Ors.;

MANU/SC/0493/1969 wherein the Hon'ble Supreme

Court has held that before a court can grant a decree for

specific performance, the contract pleaded must be a

S.C.S.No. 25/2022/B Exhibit D-3 Page 46 of 56

specific one and the same must be established by

convincing evidence. Rarely a decree for specific

performance is granted on the basis of an agreement

supported solely by oral evidence. The Court noted that the

agreement pleaded by the defendant is wholly different

from that pleaded by the plaintiff. They do not refer to the

same transaction. The plaintiff did not at any stage accept

the agreement pleaded by the defendant as true. The

agreement pleaded by the plaintiff is said to have been

entered into at the time of the execution of Exh. P-1

whereas the agreement put forward by the defendant is one

that is said to have been arrived at just before the filing of

the suit. The two are totally different agreements. The

plaintiff did not plead either in the plaint or at any

subsequent stage that he was ready and willing to perform

the agreement pleaded in the written statement of

defendant. In a suit for specific performance it is

incumbent on the plaintiff not only to set out the

agreement on the basis of which he sues in all its details, he

must go further and plead that he has applied to the

S.C.S.No. 25/2022/B Exhibit D-3 Page 47 of 56

defendant specifically to perform the agreement pleaded by

him but the defendant has not done so. He must further

plead that he has been and is still ready and willing to

specifically perform his part of the agreement. Neither in

the plaint nor at any subsequent stage of the suit the

plaintiff has taken those pleas.

43. Ld. Adv. for the defendant no.3 has relied upon the

case of Pravin D. Thakker and Ors. Vs. Rita J. Shah

and Ors; MANU/MH/0289/2020. In the said case the

plaintiff has vaguely stated that the agreement was entered

sometime in the year 1988. The relevant averments in the

plaint are that the defendant no.1 had agreed to sell the suit

shop for price of Rs.2,58,000/- and accepted Rs.10,000/-

as booking amount. It is also averred that the balance sale

consideration was agreed to be paid on the date of handing

over of possession of the suit shop, which was to be within

one year from the date of the agreement. These are the only

averments on which the contract allegedly stood confirmed.

The Hon'ble Bombay High Court observed that the plaint

S.C.S.No. 25/2022/B Exhibit D-3 Page 48 of 56

lacks other material particulars as to the nature of title of

the defendant No.1, details of the plan, license and location

of the suit shop, amenities to be provided, payment of

earnest money, mode of and time frame of payment of sale

consideration, liability of each party to pay probable cost of

conveyance/registration charges or stamp duty,

consequences of non payment of consideration or breach of

terms and conditions of the agreement etc. The pleadings

also do not spell out whether the alleged oral agreement

was preceded by negotiations or whether the terms and

conditions of the agreement were finalized in presence of

any witness. The averments in the plaint are vague,

ambiguous and do not contain material particulars.

44. Ld. Adv. for defendant no.3 has also relied upon the

case of Mannalal v/s Upendrakumar & ors.;

MANU/MH/1325/2009 wherein the Hon'ble Bombay

High Court has held that it cannot be disputed that even

oral agreement to sale of immovable property, can be

specifically enforced. However, assessment of prima facie

S.C.S.No. 25/2022/B Exhibit D-3 Page 49 of 56

case, in a suit for specific performance of contract, based

upon the oral agreement, has to be different than such a

suit, based upon the written agreement. In a suit based

upon the written agreement, the agreement placed on

record and its contents, become significant and the same

can be read along with the averments made in the plaint.

The written agreement placed on record, discloses the

names of parties, their place of residence, the place of

agreement, consideration, the description of the property

and other terms and conditions of contract, which the

parties have entered into. Normally, in such a suit, what is

required to be seen, is the interpretation of the terms of

contract and compliance of it. It becomes easier for the

Court to reduce the controversial position. This is not the

advantage, in case of suit based upon the oral agreement.

The court is at loss to know the prima facie, undisputed

factual position, which can only be ascertained, by reading

the averments made in the plaint and the stand taken in

written statement. In a suit for specific performance of

contract based upon the oral agreement, the averments

S.C.S.No. 25/2022/B Exhibit D-3 Page 50 of 56

made in the plaint carry great weight and significance in

ascertaining even a prima facie case. The averments are

required to be strictly construed and heavy burden lies

upon the plaintiff to establish the consensus ad idem. The

Court has to proceed cautiously and read the averments

minutely, to understand the exact nature of case, to find

out, whether prima facie case is made out or not. The

averments in the plaint, must inspire the confidence of the

court, as to credibility of the plaintiff and truthfulness of

the averments. The inconsistency in the averments made in

the plaint, lack of material facts and particulars or

vagueness and unspecific averments in plaint etc, would be

the instances, which shall be considered against the

plaintiff, while judging the prima facie case. The very first

thing to find out the prima facie case is whether, the plaint

averments contain the material facts and particulars

establishing the complete chain of events disclosing the

cause of action. It has to be borne in mind that even the

absence of single material fact, entails the consequences of

rejection of plaint, leave apart the question of making out

S.C.S.No. 25/2022/B Exhibit D-3 Page 51 of 56

prima facie case. Even if the material facts are pleaded and

material particulars are absent or if the averments in the

plaint are inconsistent, it can be said that the plaint

averments do not make out a prima facie case. It is further

held that from the scanning of the entire averments made

in the plaint, it is apparent that there is absence of some

material facts as well as material particulars. The

averments in the plaint are totally vague and unspecific.

There is total inconsistency in the case put forth in the

plaint, if looked into, in the light of documents placed on

record. The undisputed factual position pointed out earlier,

particularly the fact that none of the parties are the

residents of one place, the quantum of amount of earnest

money offered, the price of property etc. makes the

complete case improbable to succeed. The averments made

in the plaint, do not inspire the confidence, either as to the

credibility of the plaintiff or as to the truthfulness of the

said averments. The plaintiff has failed to establish a

complete chain of events by pleading material facts and

particulars. Prima facie, there is no concluded contract,

S.C.S.No. 25/2022/B Exhibit D-3 Page 52 of 56

which is established. Thus, the plaintiff has failed to make

out prima facie case.

45. In the present case the plaintiff has failed to establish

a concluded oral contract. In the absence of a concluded

oral contract, the affidavits of the witnesses relied upon by

the plaintiff does not aid his case. Thus the plaintiff has

failed to make out a prima facie case for grant of injunction.

Hence point No.1 is answered in the negative.

46. Point No.2: Balance of convenience does not tilt in

favour of the plaintiff as the plaintiff has failed to establish

existence of a concluded oral contract. Therefore point

No.2 is answered in the negative.

47. Point No.3: Ld. Sr. Adv. for the plaintiff has relied

upon the case of Maharwal Khewaji Trust (Regd.)

Faridkot Vs. Baldev Dass; (2004) 8 Supreme

Court Cases 488 wherein it is held that unless and until

a case of irreparable loss or damage is made out by a party

to the suit, the court should not permit the nature of the

S.C.S.No. 25/2022/B Exhibit D-3 Page 53 of 56

property being changed which also includes alienation or

transfer of the property which may lead to loss or damage

being caused to the party who may ultimately succeed and

may further lead to multiplicity of proceedings. In any

event, it is always open to the other party to claim damages

if the case of the party pleading a maintenance of the status

quo is ultimately found to be baseless, in an appropriate

case, the court may itself award damages for the loss

suffered, if any, in this regard. On facts, no such case of

irreparable loss made out. The contention that the legal

proceedings are likely to take a long time, therefore the suit

property should be permitted to be put to good one, is not

good enough.

48. No irreparable loss and injury will be caused to the

plaintiff if temporary injunction is not granted as the

plaintiff has failed to establish concluded oral contract.

Secondly in case the defendant nos.1 and 2 owe any money

to the plaintiff then the plaintiff can be adequately

compensated in terms of money.

S.C.S.No. 25/2022/B Exhibit D-3 Page 54 of 56

49. On the other hand, the defendant no.3 has

commenced the project of construction of villas in the

name and style of 'Zed Point by Zaavi” in the suit property

no.1 upon obtaining necessary approvals and licenses from

the competent authorities. The defendant no.3 has spent

substantial amount on the construction. The defendant

no.3 has commitment to sell 4 villas in respect of which the

purchasers have made advance payments. The defendant

no.3 is required to complete the project within the

stipulated time. Therefore irreparable loss and injury will

be caused to the defendant no.3 if injunction is granted.

Hence point No.3 is answered in the negative.

50. In the result, I pass the following :

ORDER

Application for temporary injunction at exhibit 3 is

dismissed.

S.C.S.No. 25/2022/B Exhibit D-3 Page 55 of 56

 Pronounced in the open Court.

(Reina S. Fernandes)
Civil Judge Senior Division,
‘B’ Court Mapusa.

rpn*

S.C.S.No. 25/2022/B Exhibit D-3 Page 56 of 56