TMI Blog2012 (4) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... le of their undivided 1/3rd share in the property being: plot no.15, block no.172, Jor Bagh, New Delhi-110 003 (in short the suit property). 2.2 It is averred that the total consideration for sale of the suit property was fixed at ₹ 3,87,50,000/-. It is alleged that towards the said consideration, in the first instance, a cheque of ₹ 21 Lakhs was issued in favour of the appellants on the date of the execution of the MOU, which was thereafter replaced with a cheque of ₹ 25 Lakhs. 2.3 There is a further averment in the plaint to the effect that, on 09.01.2006, the appellants agreed in writing to the extension of the final date for praying the balance amount. 2.4 It is also averred that the appellants having received a sum of ₹ 25 Lakhs towards earnest money and/or part sale consideration, failed to fulfill their contractual obligations and consummate the transaction as agreed. The receipt, in respect of the said sum of ₹ 25 Lakhs, as alleged was executed on 23.02.2006. 2.5 It is further alleged that the appellants, though belatedly, had referred to the fact that there was litigation pending qua the property in issue. However, the fact that there was no i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king rejection of the plaint. By the impugned judgment, the learned Single Judge has dismissed the said application. 5. Before us, Mr Sawhney, Advocate who appeared for the appellant has assailed the judgment of the learned Single Judge on the following grounds: (i) A perusal of the MOU itself demonstrates that it is an agreement to enter into an agreement to sell. The MOU, by itself, was not an agreement to sell, of which specific performance can be obtained. For this purpose, he relied upon the terms of the MOU, in particular, clause 2 and 3. (ii) The MOU was to translate into an agreement to sell only upon the respondent conveying that, all documents were in order and he was agreeable to the understanding contained in the MOU being carried forward. In other words, according to the learned counsel, the respondent was to convey his acceptance of the understanding recorded in the MOU. In support of this submission reliance was placed on the provisions of Section 7 of the Indian Contract Act, 1872 (in short the Contract Act). Learned counsel thus submitted that, the MOU was merely a proposal and that its acceptance should be absolute and unqualified for the understanding to get c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfied then both of us will get into a proper agreement by 10th January, 2006. In case documents are not proper than I shall refund the money ₹ 21,00,000/-. 3. In case everything is agreed by Mr Ravinder Singh then further payment of ₹ 79,00,000 (Rs. Seventy Nine lacs) would be paid at the time of agreement to sell and balance ₹ 2,87,50,000 (Rs. Two Crores Eighty Seven Lacs and fifty thousand only) shall be paid on or before 10th Feb. 2006. 4. I also agree that further to this transaction Mr Ravinder Singh will follow all the legal proceeding and will be entitled to any benefits which he can achieve out of that but will reimburse me the accumulated rent which has been received by my aunt till the date of sale 6.3 A perusal of the terms contained in the MOU would show that parties are ad idem as regards the necessary ingredients which are, fundamental to the execution of valid and a legally enforceable agreement, of the like kind: (a) the particulars of the property in respect of which the transaction is envisaged; (b) the total sale consideration; (c) the manner in which it is required to be paid. 6.4 It is not unknown to law that specific perfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suing for a specific performance based on an oral agreement to prove before the court the terms on which an agreement had been arrived at between the parties. In the instant case, fortuitously, the terms are reduced to writing which are reflected in the MOU and bear signatures of the appellant. As observed above, the MOU is not disputed. The fact that the respondent adhered to the terms of the MOU is reflected in the fact that, admittedly a sum of ₹ 25 lacs has been paid by the respondent to the appellant. Therefore, by conduct it has been suitably demonstrated by both parties that a legally enforceable agreement was in place qua the suit property. 7. As a matter of fact in one of the judgment cited by the learned counsel for the appellant, this very course found favour with the court. See Para 9 at page 59 in the case of Randhir Singh Chandhok (supra). 8. Mr Sawhney has also argued that, clause 2 and 3 of the MOU provided for compliance of certain aspects on or before the dates adverted to therein. In this regard Mr Sawhney submitted that since the payment of the amounts referred to in the MOU was not made before 10.02.2006, the MOU stood dissolved. We are unable to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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