The court affirmed that an oral agreement can be specifically enforced if supported by credible evidence and clear terms, despite procedural challenges.

JUDGMENT :

Biren Vaishnav, J.

1. This appeal has been preferred by Bombay Garage (Ahmedabad) Limited and Others who are the original defendants in Civil Suit No. 2515 of 2007. By a judgement and decree dated 25.11.2021 passed by the learned Judge, Court No. 4, City Civil Court, Bhadra, Ahmedabad, the trial court allowed the civil suit in favour of the respondents who are the original plaintiffs. By the judgement and decree under challenge, the appellants were directed to execute a registered sale deed in respect of land bearing Revenue Survey No. 266/17/2, Final Plot No. 332, Town Planning Scheme No. 14, admeasuring 7384 sq. mtrs. situated in the sim of village Dariapur- Kazipur, District Ahmedabad (‘suit property’).

2. Facts in brief are as under:

2.1 It was the case of the original plaintiffs – respondent no. 1 herein before the trial court that by a mutual agreement between the plaintiff and the defendant, the appellant had contracted to sell to the plaintiff – respondent property worth Rs.18,51,00,000/- and an amount of Rs.11,000/- was paid in cash as token earnest money at the time of the agreement.

2.2 According to the respondent – plaintiff, over a period of time, three meetings were held between the parties and it was agreed between the parties that the appellants – defendants would on a consideration of Rs.20,50,00,000/- sell the suit property. It was the case of the respondents – plaintiffs that in addition to a token amount of Rs.11,000/-, Rs. 5 lakhs in cash as earnest money and a cheque of Rs. 5 crores dated 11.01.2007 bearing cheque no. 236878 drawn on Citibank, C.G. Road, Ahmedabad as initial amount for execution of the agreement was paid.

2.3 The appellants – defendants filed a written statement at Ex. 18 denying in toto such an oral agreement. In addition thereto, an objection was raised by them that the suit filed was not maintainable under the provisions of Order II Rule 2 of the Code of Civil Procedure, 1908 as an earlier suit being Special Civil Suit No. 173 of 2007 was withdrawn by the plaintiffs. After considering the evidence on record i.e. the deposition of witnesses on behalf of the plaintiffs and the documents produced by them so also the witnesses of the defendants and the documents produced, the trial court decreed the suit on the aforesaid terms. Hence, the appeal.

3. Mr. Mihir Thakore, learned Senior Advocate appearing with Mr. Anmol A. Mehta, learned counsel for the appellants – original respondents would make the following submissions :

(I) Reading the prayers in the plaint and paragraphs 3A, 3B and 3(1b), he would submit that these paragraphs originally did not form part of the plaint when filed on 06.12.2007. They were amended by an order dated 30.09.2011.

(II) Mr. Thakore would submit that on 11.05.2007, Suit No. 173 of 2007 was instituted by the very plaintiffs before Ahmedabad (Rural) seeking permanent injunction with regard to the suit property. He would read the plaint of the civil suit produced at Ex. 188. Undisputedly, according to him, no prayer for specific performance of the oral agreement was made in the suit which was subsequently withdrawn on 12.07.2007. The prior suit having been withdrawn without leave being granted to file a fresh suit, the respondents – original plaintiffs were precluded from filing a fresh suit. He would rely on the provisions of Order II Rule 3 of the Code of Civil Procedure, 1908.

(III) Mr. Thakore would submit that on reading the plaint, the examination in chief and cross examination of the plaintiff at Ex. 94, affidavit of P.W. 2 Shri Vajubhai Vala and his cross examination, affidavit of P.W. 3 - Jatin Madanlal Gupta, it was clear that there were serious inconsistencies and contradictions in the story made out in the plaint. The inconsistencies in the pleadings would indicate that the witnesses were not clear as to where did the first meeting take place i.e. whether at the residence of P.W. 1 Shri Pravinbhai Kotak at Ahmedabad or at the residence of P.W. 2 Shri Va