IA No. 932/2009 in CS(OS) No. 176/2007

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 23.10.2009

Date of Order: November 11, 2009

IA No. 932/2009 in CS(OS) No. 176/2007

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11.11.2009

Sobhag Narain Mathur

... Plaintiff

Through: Mr. Arjun Harkauli, Advocate

Versus

Pragya Agrawal & Ors.

... Defendants

Through: Mr. Deshraj, Advocate &

Mr. D.K.Kaushik, Advocate

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

Yes.

2. To be referred to the reporter or not?

Yes.

3. Whether judgment should be reported in Digest?

Yes.

ORDER

By this application under Order 7 Rule 11 CPC, the applicant/defendant

has sought rejection of the suit on the ground that no cause of action had been disclosed

by the plaintiff for specific performance of the alleged contract. The contract relied upon

by the plaintiff was merely a contract for entering into a further agreement and the Court

could not compel the parties to enter into an agreement to sell.

2.

Before dealing with further averments made by the applicant, it would be

fruitful to reproduce the contract which is the basis of this suit. The contract as disclosed

by on ‘bayana’ receipt executed by the defendant, reads as under:

2009:DHC:4750

IA No. 932/2009 in CS(OS) No. 176/2007

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3.

It is contended by the applicant that the above ‘bayana’ receipt does not

amount to an agreement to sell and it only provides that a detailed agreement would be

signed between the parties on 14^th February 2006 on receiving 10% of the sale

consideration. Thus, the ‘bayana’ receipt was an agreement to enter into a further

agreement in respect of the property in question and does not amount to a concluded

contract and cannot be specifically performed. It is submitted that the ‘bayana’ receipt

does not contain mode or installments of payment. It does not record the responsibility

of obtaining mandatory prior consent of the perpetual lessor and also does not contain

as to who shall be liable to pay the unearned increase for the property. The document

does not record as to who shall obtain prior consent of income tax authorities and

‘bayana’ receipt was not even stamped and thus, is no document in the eyes of law in

view of provisions of the Stamp Duty Act. It was also silent about the obligation of the

defendant to obtain sale deed in her favour from the predecessor in interest from whom

she allegedly acquired rights in respect of the property in question. It is stated that in

absence of any agreement regarding material aspects, ‘bayana’ receipt would not

amount to a concluded contract between the parties and this is clear from the receipt

itself where parties had agreed to enter into a sale agreement after payment of 10%

earnest money by the plaintiff.

2009:DHC:4750

IA No. 932/2009 in CS(OS) No. 176/2007

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4.

Thus, the question which arises and to be answered is - whether the

above ‘bayana’ receipt is a concluded contract of sale or not. The Counsel for the

plaintiff submitted that the ‘bayana’ receipt shows that the parties had concluded a

contract for sale of the property. The parties were ad idem on the identification of

properties which were to be sold to the plaintiff. They had also agreed to the sale

consideration of Rs.6,20,00,000/- as is clear from the agreement. Parties also agreed

that this consideration was to be paid by the plaintiff to the defendant on or before 15^th

February, 2007. It was also agreed that tea vendor, tyre puncture repair vendor and

scooter repair mechanic, squatting in front of the plots would be removed by the

defendant. The only unconcluded part of the contract was the details of payment of

consideration that is how the consideration would be paid between 14^th December, 2006

and 15^th February, 2007 by the plaintiff. On 14^th December, 2006 plaintiff was to pay

10% of the total