IMPORTANT POINT
In a suit for specific performance while examining the case of oral agreement, Court should exercise due care and caution.

Kalidas Mukherjee, J.—By consent of parties the appeal and the application are taken up together. This appeal is directed against the Order No. VIII dated 13.8.2008 passed by learned Civil Judge, Ist Court. (Senior Division) at Alipore in T.S. No.40 of 2008 rejecting thereby the petition for temporary injunction. A separate application being CAN No. 7923 of 2008 has been filed praying for stay of operation of impugned order and issuance of an order of injunction restraining the respondent/defendant from dealing with the property and/or disposing of the Suit property to any third party till the disposal of the suit pending before the learned Court below. -

2. (a) The plaintiff instituted the suit for specific performance or the agreement dated December, 15, 2006 as varied upon and mentioned in paragraphs 9 to 12 of the plaint. The case of the plaintiff/appellant, in short, is that the defendants are the owners of the property prescribed in Schedule A. The defendant No.1 is the owner to the extent of undivided 85% and the defendant No. 2 is the owner of undivided 15%. There was an agreement between the parties to develop the suit premises on the following terms and conditions :

(i) 50% of the aforesaid sanctioned area would be the owner’s allocation and remaining areas would be developer’s area.

(ii) There will be an interest free refundable security deposit of Rupees three crore.

(iii) Rs.11 lac will be paid at the time or execution of the agreement.

(iv) Rs. 150 lac shall be paid upon the settlement of dispute with Mr. Sahaya.

(v) Balance on or before the sanction of the building plan.

(b) The aforesaid terms and conditions were recorded in the agreement dated December 15, 2006. In terms of the said agreement, the plaintiff duly paid Rs. 11,00,000/- to the defendants, who accepted such payment as earnest money and/or part consideration towards the development of the suit premises. On December 18, 2006 the defendant No.1 sent the necessary documents pertaining to the suit premises to the plaintiff. By a letter dated August 23, 2007 the defendant informed the plaintiff about certain alleged non-compliance, which was allegedly required to be complied with by the plaintiff. The plaintiff by letter dated September 20, 2007 denied all such allegations. To resolve the dispute and difference between the plaintiff and the defendants several meetings were held on November 21, 2007, February 2, 2007, February 23,2008 and March 18, 2008. In the meeting dated November 21, 2007 it was agreed upon between the parties that in lieu on 50% sanctioned area allotted to the defendants as provided in the agreement dated December 15, 2006 the plaintiff would pay Rs.7 crore as total consideration to the defendants and it would be the responsibility of the plaintiff to make the suit premises free from all encumbrances at their own cost and the plaintiff will obtain No Objection Certificate from Urban Land Ceiling Development and the suit property will be sold on “as is where is and whatever there is basis”. It was further agreed upon that the payment of Rs.11,00,000/- made by the plaintiff to the defendants at the time of agreement dated December 15, 2006 shall be considered as part consideration money by the plaintiff to the defendant against the sale of the suit premises.

3. The aforesaid variation of the original agreement dated December 15, 2006 was agreed upon by the parties on good faith and, as such, no further documentation was required. In the aforesaid meetings it has further been decided that the defendant No. 1 will transfer the company, who is the owner to the extent of 85% of the undivided share of the suit premises whereas the defendant No.2 will sell its 15% undivided share to the plaintiff. It was further stipulated that the sale and purchase shall be completed before August 15, 2008. The factum of outright sale was confirmed by the defendants by their fax dated December 28, 2007. The plaintiff is ready and wil