The central legal point established in the judgment is that for an Agreement to Sell to be enforceable, it must have consensus ad litem and comply with the provisions of the Indian Contract Act, 1872, and the Specific Relief Act, 1963.

VALMIKI J. MEHTA, J.

CS(OS) 2238/2015 & I.A. No.15282/2015 (Stay)

1. This suit was called out for the first time in its normal turn in the supplementary list. Since no one was present for the plaintiff, matter was passed over. Even on the second call no one appears for the plaintiff.

2. The subject suit is a suit for specific performance of an Agreement to Sell dated 28.02.2015. There is one defendant in the suit Smt. Rani. The suit plaint admits that the Agreement to Sell dated 28.02.2015 was to be entered into not only with the sole defendant in the suit Smt. Rani but also with another person Smt. Kamlesh. The suit property agreed to be sold was a land measuring 03 Bighas 01 Biswa out of Khasra no.15/21/2 Min (1-03), 2/2 Min (1-18), situated at Main Safiabad Road, Opposite Joni Farm House and Swami Vivekanand School, Shiv Mandir Colony, Narela, Delhi-110040.

3. I have gone through the subject Agreement to Sell dated 28.02.2015 and the same shows that the plaintiff was to enter into the Agreement to Sell not only with the existing sole defendant Smt. Rani but also with Smt. Kamlesh w/o Sh. Naresh. The Agreement to Sell does not show that the same could be severed, in that if only one party has signed the Agreement to Sell viz the existing defendant Smt. Rani, then her share will be sold separately than that of Smt. Kamlesh. Agreement is a joint Agreement to Sell whereby the two proposed sellers have agreed to sell the suit property. Admittedly, as per the suit plaint, Smt. Kamlesh never signed the Agreement to Sell. In fact, it is for this reason that the plaintiff is said to have continued to pursue Smt. Kamlesh to sign the Agreement to Sell but Smt. Kamlesh did not sign the Agreement to Sell.

4. In view of the aforesaid facts, in my opinion, there is in fact no Agreement to Sell in the eyes of law having consensus ad litem inasmuch as only one of the proposed sellers has signed the Agreement to Sell and not both the proposed sellers. Also, as stated above, it is not written in the Agreement to Sell that the agreement will come into force even if only one party signs the same. It is not stated in the Agreement to Sell that if the second party, Smt. Kamlesh does not sign the Agreement to Sell, then the Agreement to Sell will operate for the half share of Smt. Rani, the existing sole defendant. Clearly therefore there is no contract between the parties i.e there is no Agreement to Sell enforceable by law because the Agreement to Sell as a whole which was to be signed by the two proposed sellers was never entered into because one of the proposed sellers refused to sign the Agreement to Sell. As such, there is no final and concluded Agreement to Sell capable of being enforced by law as per Section 2(h) of the Indian Contract Act, 1872.

5. There is another reason why the suit cannot be entertained and which is because of Section 12(1) of the Specific Relief Act, 1963 (hereinafter referred to as ‘the Act’). Section 12 of the Act reads as under:-

“12. Specific performance of part of contract—(1) Except as otherwise hereinafter provided in this section the court shall not direct the specific performance of a part of a contract.

(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed by only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.

(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either-

(a) forms a considerable part of the whole, though admitting of compensation in money; or

(b) does not admit of compensation in money,

he is not entitled to obtain a decree for specific performance; but the court may, at the suit of the other party, direct the party in default to perform specifically