The importance of proving consensus ad idem in an oral agreement for sale, the requirement of readiness and willingness of the plaintiff under Section 16 of the Specific Relief Act.

JUDGMENT :

Soumen Sen, J.

1. This appeal is arising out of judgment and decree dated 7th June, 2016 passed by the learned Civil Judge, Senior Division, 2nd Additional Court at Burdwan in a suit filed by the respondents for specific performance of an agreement for sale. The learned Court below decreed the suit in favour of the plaintiff and directed the appellant to execute and register a sale deed in respect of ‘A’ scheduled property in favour of the plaintiffs/respondents within a period of 60 days from the date of the judgment. Certain consequential directions were given for deposit and execution of the sale deed.

2. This decree is now assailed before us by the defendant.

3. In the appeal the plaintiffs/respondents have filed an application for amendment of the plaint seeking inclusion of prayer for possession of the ‘A’ Scheduled property consequent upon a decree for specific performance being allowed in favour of the plaintiffs/respondents by the Trial Court.

4. This application is opposed by the appellant/defendant.

5. The principal grievance of the appellant in this appeal is that the learned Trial Judge had passed the decree in favour of the plaintiffs/respondents without considering the existence of a prior oral agreement between the parties whereby the plaintiffs/respondents had agreed to pay a sum of Rs. 35 lakhs as the consideration amount for purchase of the suit property.

6. Mr. Mukherjee, the learned Senior Counsel has submitted that the plaintiffs/respondents have failed to prove and establish readiness and willingness on their part to complete the transaction in absence whereof the Trial Court should not have passed a decree in favour of the plaintiff. Moreover, the learned Trial Court has failed to take into consideration that on 1st June, 2012, plaintiffs were not in possession of the suit property and did not pay the agreed consideration amount of Rs. 35 lakhs within a period of 4 months from date as stipulated in the said agreements. It is further submitted that the agreement for sale between the parties have been vitiated by fraud, undue influence, coercion and misrepresentation.

7. The learned Trial Judge also had failed to take into consideration that the price of the property had increased in the meantime and even if it is assumed that there is a valid agreement between the parties, the learned Trial Judge ought to have considered the present market value of the property and determine such price before granting a relief in favour of the plaintiff.

8. It is submitted in the alternative that considering the present market value of the property, enforcement of the agreement for sale would be inequitable.

9. It is submitted that the power of the Court in allowing a prayer for specific performance is discretionary. The trial court in any event could not have allowed the claims for specific performance without requiring the plaintiff to pay the balance consideration of Rs.11.50 lakhs that is the differential amount between 23.50 lakhs and 35 lakhs.

10. Mr. Mukherjee submits that the trial Court has completely overlooked and ignored that in terms of the oral agreement between the parties, the plaintiffs /respondents had in fact agreed that they would assist the appellant to get a flat at Burdwan Housing Development Private Limited as well as rented premises from where the appellant could run his electrical business. The consideration price was arrived at Rs.35 lakhs on the basis of such consideration although at the relevant point of time, the property is capable of fetching a much higher price. This oral agreement has been discarded by the learned Trial Judge on grounds unsustainable in law. The learned Trial Judge has overlooked material piece of evidence in relation to the said oral agreement and could not have discarded the said oral agreement merely because nothing is reflected in the deed of sale.

11. Mr. Srijit Chatterjee, the learned Counsel appearing on behalf of the plaintiffs/respondents has submitted that unde