TMI Blog2013 (2) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in the said Appeal from Order. 3. Before recording the rival submissions, a brief background of the facts is required to be stated that the aforesaid Special Civil Suit No. 288/2011 came to be filed by the plaintiffs against original defendants Nos.1-2, the appellants in Appeal from Order No. 200 of 2012, and against original defendants Nos. 3 4 who are the the appellants in Appeal from Order No. 199 of 2012, for specific performance of the writing/banachitti dated 18.11.2010 on the grounds set out in the Appeal from Orders. The said writing/banachitti is stated to have been executed pursuant to an oral understanding or an agreement between the parties for sale of land in question situated at Surat. 4. Learned Sr. Counsel Shri Mihir Thakore appearing with learned advocate Shri AB Munshi appearing for the appellants in Appeal from Order No. 200 of 2012 has stated that there is no agreement to sell entered into by and between the parties for which a specific performance of the contract can be claimed Learned Sr. Counsel Shri Mihir Thakore submitted that the property in question has been a joint property of one Balubhai Kasanji and Nanubhai Kasanji in the year 1986. Nanub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is stated by defendant No. 1 mother that she has signed as power-of-attorney holder of defendants Nos. 3-4 (sisters). 6. Learned Sr. Counsel Shri Mihir Thakore submitted that by such conduct and lip service, the plaintiffs are not entitled for any injunction. 7. Learned Sr. Counsel Shri Mihir Thakore also submitted that a broad understanding arrived at between the parties cannot be termed as an agreement to sell for which a specific performance can be claimed. Learned Sr. Counsel Shri Mihir Thakore therefore submitted that no enforceable agreement in law can be said to have been entered into as there are no stipulations made in the writing produced at Mark 3/10, p. 43 44. referred to as banachitti. 8. In support of his submissions, he has referred to and relied upon the judgments of the Hon ble Apex Court in the case of H.G. Krishna Reddy and Co. v. M.M. Thimmiah and anr., reported in AIR 1983 Madras 169 (para 9, 19), in the case of Punit Beriwala v. Suva Sanyal and anr., reported in AIR 1998 Calcutta 44 (para 17), in the case of Rajni Kumar Mahto v. Smt. Uma Devi Budhia and ors., reported in AIR 2005 JHARKHAND (para 14) and in the case of Dresser Rand S.A. v. M/s. Bin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o challenge the writing/banachitti dated 18.11.2010 on the ground that it is merely an understanding or any intention to enter into a banakhat and it is not a banakhat in itself. Learned Sr. Counsel Shri Soparkar submitted that merely because a formal banakhat with all terms and conditions stipulated in detail is not executed would not make much difference when the banachitti/banakhat/writing executed dated 18.11.2010 contains all particulars, namely, the consideration, the property as well as the signatures and therefore it can be said that the parties are ad idem. 12. Learned Sr. Counsel Shri Soparkar submitted that the submission that merely a writing or intention or desire to enter into an agreement/contract cannot be specifically enforced is one thing and on the basis of oral understanding when it has been culminated into a writing/banachitti dated 18.11.2010 is a different thing and it is an agreement/contract which can be specifically enforced. Learned Sr. Counsel Shri Soparkar submitted that as per the provisions of the Indian Contract Act, there is no specific form in which a contract is required to be made and an agreement/contract could be in any form and it has to me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd evidence, the view taken by the court below is also a plausible view, then it may not be disturbed. 16. In support of his submissions, he has referred to and relied upon the judgment of the Hon ble Apex Court in the case of Wander Ltd. and anr. v. Antox India P. Ltd., reported in 1990 (Supp) SCC 727. He pointedly referred to the observations made in para 14. He submitted that it has been focused as to when interference is called for and merely because a different view is possible is by itself not sufficient. Learned Sr. Counsel Shri Soparkar submitted that the parameters for grant of injunction are required to be considered as per O.39 R. 1-2. He referred to O.30 R.1-2 and submitted that in view of the background of the facts hereinabove, the impugned order cannot be said to be erroneous and therefore the present Appeal from Orders may not be entertained. He has also referred to and relied upon the judgment of the Hon ble Apex Court in the case of Julien Educational Trust v. Sourendra Kumar Roy and ors., reported in (2010) 1 SCC 379. 17. Learned Sr. Counsel Shri Soparkar also referred to the provisions of the Specific Relief Act and referred to the judgment of the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to S. 49. 18. He, therefore, submitted that in such a situation where respective claims would be considered on the basis of evidence at the trial and prima facie the trial court having examined the material has granted the injunction, the same may not be disturbed. He submitted that the approach, normally, is to maintain the status-quo to avoid further litigation. In support of his submissions, he has referred to and relied upon the judgments of the Hon ble Apex Court reported in AIR 2005 SC 104. He has also referred to and relied upon the judgment in the case of Ibrahim Shah Mohamad and ors. v. Noor Ahmed Noor Mohamed and ors., reported in 1983(2) GLR 961, and the judgment in the case of Adani Exports Ltd. v. Hindustan Organic Chemicals Ltd., reported in 2000(3) GLR 2759. Learned Sr. Counsel Shri Soparkar, therefore, submitted that the present Appeal from Orders may not be entertained. 19. Learned counsel Shri AJ Patel appearing for the appellants in Appeal from Order No. 199 of 2012 has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reed for any such transaction. Learned counsel Shri Patel has also referred to sec. 44 of the Transfer of Property Act and submitted that unless the formal document is executed, such a writing cannot be specifically enforced as it is incomplete and it cannot be termed as an agreement or a contract which can be specifically enforced. 21. In rejoinder, learned Sr. Counsel Shri Mihir Thakore has submitted that the banachitty dated 18.11.2010 cannot be said to be an agreement, but it is an understanding to enter into an agreement. He emphasised and submitted that it cannot be said to bean agreement for two reasons, (a) the sisters were not party to it, and (b) there is no clarification or specific details with regard to taxation, that is, the stamp duty, who will bear it, etc. He, therefore, submitted that this sodachitti was never meant to be implemented as it was merely an understanding. Learned Sr. Counsel Shri Thakore therefore submitted that a mere understanding or intention to enter into an agreement/contract cannot be enforced and it is not an agreement itself. 22. Learned Sr. Counsel Shri Thakore pointedly referred to the papers, particularly the sodachitti (Mark 3/10) da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal from Order may be allowed. He ha also referred to and relied upon the judgment of the Hon ble Apex Court in the case of Mayawanti v. Kaushalya Devi, reported in (1990) 3 SCC 1, and referring to the observations in para 17 submitted that the approach of the court has been discussed for the purpose of grant of injunction. 24. In view of these rival submissions, it is required to be considered whether the present Appeals from Orders can be entertained or not and whether the impugned order passed by the court below Exh. 5 in Special Civil Suit No. 298/2011 dated 2.3.2012 calls for any interference. 25. As it is evident from the rival submissions which have been made at length and recorded hereinabove, the focus is on the banachitti dated 18.11.2010. Whether this banachitti can be termed as an agreement or a contract or there was merely an understanding or intention to enter into an agreement or banakhat is required to be considered. 26. As could be seen from the record referred to by both the sides, the understanding or the oral agreement has been arrived at which has been reduced to writing by the parties in the form of banachitti dated 18.11.2010. The said banachitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference is always made to the terms and conditions forming part of the tender document. In the same way, the understanding arrived at between the parties reduced to writing in the form of banachitti would always have a bearing on the transaction even though the agreement to sell or banakhat with further stipulations may not have been made. In other words, the banachitti itself would be an agreement as there is no specific format or form is provided for an agreement or contract under the law. Therefore, when the banachitti itself provides the relevant aspects as stated above which has also been acted upon, and in part performance thereof, substantial payment has been made, it cannot be said that it was merely a desire or intention of the parties to enter into an agreement/contract or enter into a transaction at a later stage subject to fulfillment of some conditions. If that be so, like the consent of the sisters was necessary and was required to be obtained, then, the banachitti itself would not have been made after the understanding is arrived at between the parties since the sisters were not available or their consent was not there. In that case, the consideration or part payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention of the parties where they had consented for the deal/transaction or not. Further, it may also require that if the party has held out to the other side on the basis of which the other side has acted to the knowledge of the party who has made the promise, the principle of estoppel would be attracted. In the present case, when the respondents have by conduct assured about the consent of all concerned and having allowed the appellants to act upon them by making part payment, now cannot be permitted to back out. 32. It may be noted that the Law of Contracts in India does not require such contract to be in writing like in England where some contracts are required to be made in the form of a contract made by deed. The statutory provision prevailing there like the Law of Property (Miscellaneous Provisions) Act, 1989 refer to the scheme of contract for dispossession of interest in land. It is not applicable in India and therefore the contracts are governed by Law of Contracts and the courts have considered the other aspects like principle of estoppel and also equitable principles of fair play or the doctrine of part performance while considering and interpreting the contracts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the consent of the sisters and therefore the contract is contingent or there is no specific details in the form of a formal agreement to sell, it would mean that one can take the advantage of one s own lapses. The law of promissory estoppel also would be attracted based on the respective conduct of the parties particularly the appellants having arrived at the understanding entered into an agreement like the banachitti, having accepted substantial consideration and also such consideration are paid on assurance that the sisters consent would be obtained. Therefore, as an afterthought such contentions are raised which are not permissible on the ground of justice, equity and fair play. 35. A useful reference can also be made to the observations made by the Hon ble Apex Court in a judgment in the case of Aloka Bose (supra) referred to by learned Sr. Counsel Shri Soparkar wherein it has been observed, All agreements of sale are bilateral contracts as promises are made by both - the vendor agreeing to sell and the purchaser agreeing to purchase. On the other hand, the observation in S.M. Gopal Chetty (supra) that unless agreement is signed both by the vendor and purchaser, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asoda Indralal Vadhva v. Hemendrabhai Kakulal Vyas ors. has also made the observations, Granting of injunction is a matter of discretion. Balance of convenience and irreparable injury are triable issues and are required to be examined and positively found. It is settled law that while hearing appeal against discretionary exercise of powers by the trial Judge, while deciding the application under O.39 R. 1 2 of CPC, the appellate court is not expected to interfere with the discretion, unless it is shown that power has been exercised arbitrarily, capriciously or in perversity and against the settled principles of law. Appellate Court is not expected to re-assess the material and to reach a conclusion different than the one reached by the Court below.... 38. Thus, what is required to be considered is whether the trial court while considering such an application has considered the relevant criteria for grant of injunction based on the material and evidence or not. If the broad principles with regard to grant of injunction provided under O.39 R.1-2 are considered, the discretionary order does not call for any interference. In the facts of the present case, the impugned order r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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