A. Kulasekaran, J.

1. The Plaintiff is the appellant herein who has filed a suit fox specific performance in C.S No. 495 of 1980 to direct the defendants to receive the balance sale consideration of Rs. 1,45,000 and to execute sale deed in his favour in respect of the suit property at Door No. 40, Old Door No. 32, Venkatanarayana Road, T. Nagar, Madras - 17 which consist of ground and first floor together with an out house and for recovery of possession of the out house in the suit property.

2. The case of the plaintiff was that he started a political party known as Gandhi Kamaraj National Congress on 18.6.1978 After formation of the said party, he was searching for suitable accommodation for the party's office. The defendants are the owners of the suit property. The defendants have orally agreed to sell the same to the plaintiff for a consideration of Rs. 2,70,000 in or about the end of June 1978. It is also agreed between the parties to complete the sale on or before 31.12.1979 The defendants have handed over the copies of the title deeds marked as Exs.Pl to P7 and also delivered possession of a portion of the suit property namely ground floor to enable him to house his party's office. One tenant namely Chitramahal Krishnamoorthy was in occupation of the upstair portion, the other two tenants namely Gowri and Ghyare were in occupation of the out house. The Plaintiff has also carried out certain repairs in the building and opened the party's office on 5.7.1978 The Plaintiff started collecting funds for the purchase of the suit property and made payments to the tune of Rs. 1,25,000 as mentioned below:-

12.11.1978 Rs. 20,000 by Cash (Ex.P8) 29.11.1978 Rs. 15,000 by Cheque 20.12.1978 Rs. 5,000 by Cheque 26.4.1979 Rs. 10,000 by Cash (Ex.P.9) 3.5.1979 Rs. 50,000 by Cheque 13.7.1979 Rs. 5,000 by Cheque 26.10.1979 Rs. 20,000 by Cash (Ex.P.10)

The tenant in occupation of the upstair portion vacated in 1979, possession of the same was delivered to the plaintiff by the defendants; that the defendants promised to deliver vacant possession of the out house by 15.11.1979 and promised to execute the sale deed after receiving the balance sale consideration. As instructed by the defendants, the plaintiff has also purchased requisite stamp papers and the plaintiff was ready and willing to pay the sum of Rs. 1,45,000 towards the balance sale consideration, but the defendants were postponing the delivery of vacant possession of the out house. Later, the defendants have agreed to execute the sale deed on 15.2.1980 and to deliver possession. As 15.2.1980 was considered as an inauspicious day, the plaintiff, who was then away from Madras had issued a telegram to the defendants and requested them to postpone the execution of the sale deed to the next auspicious day. On return to Madras, the Plaintiff approached the defendants to fix a date for completion of the transaction, but the defendants have been evading the execution of the sale deed, consequently a lawyer's notice Ex.P.14 dated 15.3.1980 was issued calling upon the defendants to execute the sale deed. The defendants have also sent a reply Ex.P.15 dated 25.3.1980 with false allegations, immediately a rejoinder Ex.P16 dated 11.4.1980 was sent by the plaintiff to the defendants denying all the allegations. Subsequently, the 2nd defendant has sent a separate reply notice dated 24.4.1980 reiterating the allegations made in their earlier reply. The defendants have demanded excess payment of Rs. 90,000 without any basis, which was not agreed upon by the plaintiff. The Plaintiff has also deposited the balance of sale consideration of Rs. 1,45,000 in Canara Bank, T. Nagar, Madras and filed the suit.

3. The first defendant in his written statement pleaded that there was no privity of contract between him and the plaintiff and no agreement of sale was entered into with the plaintiff. The Plaintiff was not entitled to the relief of specific performance. The suit is not maintainable as the same was filed in the name of the plaintiff, though it is alleged that the agreement was entered into by the plaintiff to purchase the suit property for the benefit of the political party namely Gandhi Kamaraj National Congress. The defendant never agreed to sell the suit property for a sum of Rs. 2,70,000 to the plaintiff; that when the ground floor of the suit property fell vacant, one Perumal Nadar approached him through a broker for leasing out the same to one Paul Durai, who has married the plaintiff's sister. The said Perumal Nadar has married the sister of said Paul Durai. An agreement of lease was entered into for a period of 11 months in respect of the ground floor between the first defendant and Paul Durai, marked as Ex.Dl dated 22.6.1978 In and by the said agreement,- Paul Durai agreed to pay a sum of Rs. 750 towards monthly lease amount. In pursuance of the said agreement, the said Paul Durai occupied the property and paid a sum of Rs. 1,500 towards rental advance. After Chitramahal Krishnamoorthy vacated the first floor, it was kept vacant under lock and key by the 1st defendant. The said Perumal Nadar approached the 1st defendant to purchase the suit property through a broker namely Palanichamy in the year 1978. The Ist defendant agreed to sell the suit property for a consideration of Rs. 2,70,000 to the said Perumal Nadar. Apart from the said amount, Perumal Nadar agreed to pay a sum of Rs. 40,000 towards estimated tax on capital gains. It is also agreed between the 1st defendant and Perumal Nadar that the sale transaction should be completed on or before 31 at December 1978. While things are such, the said Paul Durai, without any authority had broke open the lock and occupied the first floor. Though the 1st defendant had made arrangements to file a criminal complaint against the Paul Durai, Perumal Nadar had requested him not to initiate any criminal action against Paul Durai and promised to complete the sale as assured by him within the time stipulated and considering the same the first defendant had also dropped it; that Perumal Nadar did not complete the sale transaction with the result the defendant issued a notice Ex.D3 dated 25.4.1980 and cancelled the oral agreement entered into between the first defendant and Perumal Nadar. Ex.D2 dated 25.4.1980 legal notice was sent by the 1st defendant to Paul Durai calling upon him to pay a sum of Rs. 30,500 towards arrears of rent. The 1st defendant did not obtain consent of the 2nd defendant for sale of the property. After receipt of the telegram, Ex.P13 dated 15.1.1984 from the plaintiff, the 1st defendant immediately contacted Paul Durai and Perumal Nadar and sought clarification from them but they expressed their inability and requested him to complete the sale transaction. The advocate's notice Ex.P14 dated 13.3.1980 was also duly replied to by the first defendant under Ex. D15 dated 25.3.1980 thereby an opportunity was given to the plaintiff to complete the sale within two weeks. The Plaintiff has also issued a rejoinder Ex.P16 dated 11.04.1980 with some false allegation. The amounts mentioned by the plaintiff were only received from Perumal Nadar. The 1st defendant has not delivered possession to the plaintiff nor assured to deliver out house by 15.11.1979 The Plaintiff is a trespasser and his alleged possession was illegal and unauthorised. The amounts received from Perumal Nadar has been adjusted towards arrears of rent due and payable by Paul Durai from September 1978 onwards at the rate of Rs. 750 per month and towards damages for illegal and, unauthorised occupation of the first floor by Paul Durai.

4. According to the 2nd defendant, he was not aware of the sale agreement between the 1st defendant and the plaintiff or with any one. The 2nd defendant did not meet the plaintiff in June 1978 or earlier, nor handed over copies of the title deeds to the plaintiff, nor delivered possession of the suit property as alleged since he did not want to sell his share in the suit property. The payments made to the 1st defendant would not bind him. The 2nd defendant was informed by the 1st defendant that the first floor was leased out to one Paul Durai and he was collecting rent from him. The 2nd defendant has denied the receipt of the notice or rejoinder from the plaintiff.

5. The trial court framed the below mentioned issues:

(i) Whether there was an agreement of sale between the Plaintiff and the defendants and if so, what are the terms and conditions of the agreement?

(ii) Whether the plaintiff is entitled to specific performance of the agreement of sale?

(iii) Whether there is any privity of contract between the plaintiff and the second defendant?

(iv) Whether the first defendant has got authority to act on behalf of the second defendant?

(v) Whether the Plaintiff is entitled to any relief? By consent of the parties, the first issue was modified as follows:-

(i) Whether there was an agreement of sale between the Plaintiff and the defendants as alleged in the plaint and, if so, what are the terms and conditions of the agreement?

6. The Plaintiff examined himself as PW1 and marked Exs. P1 to P18 on his side. The defendants 1 and 2 have examined themselves as DW1 and DW2 respectively and marked Exs. Dl to D12.

7. The learned trial judge answered all the issues against the plaintiff. The case of the plaintiff was that he had started the political party on 18.6.1978, entered into an oral agreement in the end of June 1978, opened the party's office on 5.7.1978 in the suit property and subsequently made payments of Rs. 20,000 on 12.11.1978 vide receipt Ex. P8, Rs. 15,000 on 29.11.1978, Rs. 5,000 on 20.12.1978, Rs. 10,000 on 26.4.1979 vide receipt Ex.P9, Rs. 50,000 on 3.5.1979, Rs. 5,000 on 13.7.1979 and Rs. 20,000 vide receipt Ex.P10 on 26.10.1979 in all Rs. 1,25,000. The said receipts did not contain the name of the person from whom the amounts had been received. The 1st defendant has also alleged that he received cash as well as cheque only from Perumal Nadar and issued receipts therefor to him. Ex. P11 is the letter issued by the Bank which shows that the cheques issued by the Plaintiff were credited into the account of the 1st defendant.

8. Ex. Dl dated 22.6.1978 was entered into between the 1st defendant and Paul Durai in respect of the ground floor of the suit property for a monthly rent of Rs. 750 for a period of 11 months and an advance of Rs. 1,500 was also paid. That agreement was attested by Perumal Nadar and the broker Palanisamy. Admittedly, Paul Durai is Plaintiff's sister's husband. The 1st defendant has issued Ex. D3 dated 25.4.1980 to Perumal Nadar wherein it was stated that he and the said Perumal Nadar have entered into an oral agreement for sale of the suit property, that ground floor was let out to Paul Durai, who unauthorisedly broke open the lock of the upstair portion and occupied it and at the request of Perumal Nadar, the proposed action against him was dropped and that the oral agreement of sale was cancelled as Perumal Nadar had breached the terms of the contract. Admittedly, the said Perumal Nadar has not chosen to give any reply to the said notice nor was he examined. Ex. D2 dated 25.4.1980 was issued by the 1st defendant to Paul Durai, which contained the details of lease agreement dated 22.6.1978 entered into between them, the default committed in paying the rent by Paul Durai and Perumal Nadar's promise to complete the sale transaction in two weeks, when the defendant was pressing for payment of arrears of rent of Rs. 15,000. Ex. D4 dated 28.5.1980, reply sent by Paul Durai stating that even before the conclusion of lease agreement dated 22.6.1978, the plaintiff has approached the 1st defendant for out right purchase and he has agreed to sell the same to him and the proposal of leasing of the same to him was given up. The execution of Ex. Dl dated 22.6.1978 was also denied by Paul Durai. The 1st defendant has also sent his rejoinder to the reply under Ex. D5 dated 20.6.1980 and denied the said averments. The payments allegedly made by the Plaintiff on instalment basis was small and insignificant.

9. Ex. P15 dated 25.3.1980, reply notice was issued by the defendants through their advocate stating that Perumal Nadar along with Paul Durai approached the 1st defendant to take the ground floor of the suit property for lease, later Perumal Nadar was interested to buy the suit property for a sum of Rs. 2,70,000 and agreed further to pay another sum of Rs. 40,000 towards estimated capital gains tax-and the duration for the sale was two months; that the Plaintiff never approached him directly for purchasing the suit property but he has unauthorisedly occupied the ground floor after Chitramahal Krishnamoorthy vacated the first floor taking advantage of relationship with Paul Durai and Perumal Nadar. Inspite of these allegations made against the plaintiff, he has not chosen to examine Perumal Nadar, who, it was according to the plaintiff, was the person who introduced the plaintiff to the first defendant, and was present at the time the oral agreement was entered into.

10. The evidence of the second defendant shows that during the period of the alleged oral agreement, he was not in Madras. The 2nd defendant sent a notice, Ex. P17 wherein he has categorically denied his consent to the alleged oral agreement of sale but the plaintiff has not sent any reply.

11. According to the plaintiff, the first payment made by him was Rs. 20,000 under Ex. P9 dated 12.11.1978; whereas he pleaded that the oral agreement was made in the end of June 1978, and possession was delivered to him immediately without payment of any advance. The onus is on the plaintiff to prove the specific case of oral agreement during end of June 1978. Ex. Dl dated 22.6.1978, lease agreement entered into between first defendant and plaintiff's brother-in-law Paul Durai dispells the case of the plaintiff. Non-mention of Plaintiff s name in Ex. P9 suggests that Perumal Nadar wanted to negotiate the sale to a person of his choice, and later decided to help the plaintiff, which is admittedly not the case of the plaintiff. If such an oral agreement had taken place, there was no need for mentioning the date of completion as 31.12.1979 in Ex. P9. The oral agreement, if at all could be on 12.11.1978, that too with Perumal Nadar, but the case of the plaintiff was totally different. The Plaintiff has come to the court taking advantage of the receipt issued to Perumal Nadar, who is his close relative. Admission of receipt of money by 1st defendant will not prove the case of the plaintiff. Failure to discharge the onus will not entail the' plaintiff to fall back on partial admission made by the defendants and claim that onus is shifted from the Plaintiff to the defendants.

12. As rightly pointed out by the trial court, non-examination of Perumal Nadar and Paul Durai is fatal to the case of the plaintiff. It is well settled that in a suit for specific performance the evidence and proof of the agreement must be clear and certain which is patently missing in this case. The trial court has rightly held that the agreement pleaded by the plaintiff is not true even though the terms of the contract were not vague; that the identity of the property is made certain and the plaintiff also categorically stated that price for which he has agreed to purchase and the defendants also received amounts from the plaintiff. On perusal of Ex. P14 & 15, the trial court has found that both the parties are not speaking the truth, however held that the case of the defendants are more probable than that of the plaintiff.

13. According to the plaintiff, the original date of registration was fixed on or before 30.12.1979 and that the date of registration was postponed to 15.02.1980 by mutual agreement but the plaintiff is unable to say date and time the parties mutually agreed to postpone the registration to 15.02.1980 Even on that date the plaintiff has not completed the sale transaction, but sought for further extension on flimsy grounds. The trial court held that the stamp papers have been purchased by the plaintiff on various dates between 12.10.1979 to 15.10.1979, but no draft sale deed has been prepared. The trial court after careful consideration held that the date of purchase of the stamp papers and the name in which they were purchased were not properly explained by the plaintiff. The trial court further found that it was not the intention of the plaintiff to use the suit property for his personal use but for the benefit of his political party as amounts were paid from the funds collected for the party, but no evidence was let in by him to prove that he collected any money from the Party. On perusal of oral and documentary evidence, the transaction taken place more probably as pleaded by the defendants not as alleged by the plaintiff. The Plaintiff has intruded the property, made use of the possession of his brother-in-law Paul Durai and has come to the Court taking advantage of the receipt given to his relative Perumal Nadar.

14. The case of the plaintiff, on the face of it is unbelievable as there was no satisfactory explanation offered by the plaintiff as to why the agreement was not reduced into writing. No evidence was let in by the plaintiff to assert that the 2nd defendant was a party to the oral agreement or there was privity of contract with him. Further, the 1st defendant has no written authority to convey the share of the 2nd defendant. The trial court has rightly refused to grant the discretionary relief of specific performance since the plaintiff has failed to prove his case.

15. Learned Senior counsel for the appellant/plaintiff sought to rely on the contradictions in the defendants' case in order to sustain the plaintiff's case. He pointed out that the defendants, in the reply notice (Ex.P.15) issued by them through their counsel even while claiming that the agreement had not been entered into with the plaintiff but with Perumal Nadar, had stated that the defendants would be willing to execute the sale deed on payment of the balance sale price as also a further sum of Rs. 40,000 towards capital gains tax and yet another sum of Rs. 50,000 as compensation for the alleged loss due to inordinate delay.

16. It was also pointed out that the defendants had not denied the fact that the plaintiff had paid the sum of Rs. 1,25,000, although it was claimed by the defendants that such payment was received by them as having been made on behalf of Perumal Nadar. Learned counsel also submitted that the fact that the defendants had indicated the willingness to execute the sale deed would itself substantiate the agreement alleged by the plaintiff.

17. Learned counsel made further submissions that the second defendant even though by a subsequent notice (Ex.P.17) denied that the first defendant had any authority to sell his share of the property to the plaintiff, he had again in that notice, taken the stand that there was indeed an oral agreement with Perumal Nadar and that the agreement provided for payment of sum of Rs. 40,000 in addition to Rs. 2,70,000, the additional sum being towards the capital gains tax. Counsel submitted that the denial of the authority of the first defendant to enter into an agreement with the plaintiff had not been stated in the first reply notice (Ex.P.15). Counsel further pointed out that the defendants are reneging on an oral agreement which had, in fact, been entered into and that the plea put forth by them that the agreement was with Perumal Nadar and not with the plaintiff, is not true.

18. The plaintiff in a suit for specific performance must succeed on the strength of his case and the discrepancies in the case set up by the defendants, especially when the agreement alleged is an oral agreement, cannot enable the plaintiff to secure a decree for specific performance. Even though the conduct of the defendants would indicate that there was an oral agreement with one Perumal Nadar, that cannot enure to the benefit of the plaintiff when the defendants have specifically denied that there was any privity of contract between them and the plaintiff and the plaintiff who alleged the oral agreement has failed to examine any of the persons who were allegedly present at the time of the formation of the oral agreement especially Perumal Nadar, who according to the plaintiff, is his cousin and who had introduced him to the first defendant and was present at the time of the alleged formation of the oral agreement in the first defendant's house in the morning of a day towards the end of June, 1978. The plaintiff -has not even specified the day or the date of the agreement.

19. The case set up by the plaintiff and the evidence adduced in support thereof or far from being sufficient to enable him to claim the relief of specific performance. His case is that he formed a new political party and had entered into the oral agreement of purchase of property for the political party. He claims to have been put into possession without any document, without his having paid any advance and being given a period of \xh years to complete the sale transaction. He also claims to have become entitled to secure possession of the upstairs and the outhouse almost a year prior to the date by which the transaction, according to him, should have been completed, and has claimed that the owner had agreed to allow him to remain in possession of the property without any liability for any rent or any other payment for 1 1/2 years. He had admitted the fact that Paul Durai is his wife's brother and that Perumal Nadar is the brother of Paul Durai's wife. He has, through his counsel, suggested to the first defendant in cross examination that P.W.1 had executed the lease agreement, Ex.D.1 Nevertheless he has not chosen to examine Paul Durai to support the plaintiff's assertion that despite the lease agreement, the defendants had agreed to put the plaintiff in possession on the terms alleged by him. The non examination of Perumal Nadar has not been explained at all by the plaintiff. The only inference that can be drawn is that he would not have supported the plaintiff's case.

20. The terms of the alleged agreement with the plaintiff are not terms which the defendants have stated were the terms of their oral agreement with Perumal Nadar. According to the defendants Perumal Nadar was to pay a further sum of Rs. 40,000 towards capital gains tax. Even if Perumal Nadar had been given the right to nominate a purchaser and if it were possible to regard the plaintiff as nominee he would be bound to conform to the terms of the agreement with Perumal Nadar. The plaintiff has only asserted that there was no term for payment of Rs. 40,000 in addition to Rs. 2,70,000. The provision for additional payment as claimed by the defendants appears to be more probable having regard to the fact that Perumal Nadar with whom they say that they had an agreement had not given any advance and they had agreed to give him a long period of time to pay the advance.

21. The evidence in the case clearly suggests that it was Paul Durai, the plaintiff's brother-in-law who took the ground floor on lease and on the strength of that lease the plaintiff entered into possession and used the premises for his political activities, later on took control of upstairs portion after it was vacated by the tenant taking advantage of the fact that the first defendant was an elderly man who was living at a long distance from his house, although in the city of Madras, and retain such possession and later sought to assert a right to acquire ownership by setting up the oral agreement.

22. The receipt relied on by the plaintiff, Ex.P.8 which is dated 12.11.1978 which is signed by the first defendant and mentions the receipt of advance of Rs. 20,000 does not state that it was received from the plaintiff. The advance received was in November, 1978. According to the plaintiff, the oral agreement was in June and that agreement did not provide for payment of any advance.

23. However viewed, the evidence offered by the plaintiff in support of his case is not credible and the plaintiff cannot merely on the strength of some contradictions in the defendants' case deprive the defendants of a valuable property in the heart of the city of Madras, which today is worth several millions. So far as the second defendant is concerned it is abundantly clear that he had, at no point of time, authorised his brother to sell his share to the plaintiff. The plaintiff who has asserted that the first defendant had such authority has not produced any document to substantiate that assertion.

24. The learned counsel for the 3rd respondent relied on the following decisions in support of his case.

(i) Ouseph Varghese v. Joseph Aley and others, 1969 (2) SCC 539 wherein in Para Nos. 4 & 8 it was held thus:-

“4. The first question that arises for decision is whether the agreement pleaded in the plaint is true. The burden of proving that agreement is naturally on the plaintiff. The agreement in question as mentioned earlier is said to be an oral agreement. Therefore the plaintiff's task is all the more difficult. The sale Deed Ex.PI proceeds on the basis that it evidences an outright sale. It does not either specifically or by implication lend support to the case put forward by the plaintiff…….”

8. It appears likely that neither side has come forward with the true version. But before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence. Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence. That apart, as mentioned earlier, in this case the oral testimony adduced in support of the agreement pleaded is a highly interested one.

(ii) Ganesh Shet v. Dr. C.S.G.K Setty and Others, 1998 (5) S CC 381 wherein in Para Nos. 13 to 16 it was held thus:- “13. It is again well settled that in a suit for specific performance, the evidence and proof of the agreement must be absolutely clear and certain.

14. In Pomeroy on Specific Performance of Contracts (3rd Edn.) (Para 159) it is stated clearly that a “greater amount of degree of certainity is required in the terms of an agreement, which is to be specifically executed in equity, than is necessary in a contract which is to be the basis of an action at law for damages. An action at law is founded upon the mere non-performance by the defendant, and this negative conclusion can often be established without determining all the terms of the agreement with exactness. The suit in equity is wholly an affirmative proceeding. The mere fact of non performance is not enough; its object is to procure a performance by the defendant, and this demands a clear, definite and precise understanding of all the terms; they must be exactly ascertained before their performance can be enforced. This quality of certainity can best be illustrated by examples selected from the decided cases.

15. The question is whether, when parties have led evidence in regard to a contract not pleaded in the evidence, relief can be granted on the basis of the evidence and whether the plaintiff can be allowed to give-a go-by to the specific plea in the plaint. Is there any difference between suits for specific performance and other suits?

16. It appears to us that while normally it is permissible to grant relief on the basis of what emerges from the evidence - even if not pleaded, provided there is no prejudice to the opposite party, such a principle is not applied in suits relating to specific performance. In Ganesh Ram v. Ganapat Rai, the Calcutta High Court has considered the same question. There the agreement pleaded was not proved but the plaintiff wanted to prove an antecedent agreement based on correspondence. It was held that the plaintiff, in a suit for specific performance could not be permitted to abandon the case made out in the plaint and to invite the Court to examine whether a completed agreement may or may not be spelt out of the antecedent correspondence.”

The ratio laid down by the Supreme Court in both the cases are applicable to the facts and circumstance of the case on hand.

25. The learned counsel for the fourth respondent relied on the following decisions in support of his case:-

(i) V.V Rathinasabapathi Pilial and four others v. T.R Sriramulu Chettiar, 1999 LW 239 (DB) Madras wherein it was stated in Para 44 as follows:-

“44 These features, assuming they are aspertive on the conduct of the defendants, cannot absolve the plaintiff from his legal obligations under the contract and the implications of non-fulfilment or, in other words, breach of the same. The vendors are not seeking specific performance, so that it could be stated that their culpable conduct will impinge upon the questions of grant of specific performance to them. But here, the vendee is seeking specific performance, on the ground of the culpable conduct of the vendors, the vendee is not avoiding the contract. The conduct of the vendors will not be very germane to bolster up the claim of the vendee if he himself is found to be at fault and which claim could not otherwise be sustained in law. The features pointed out by the learned counsel for the plaintiff are on the other question of the release deed and the consideration paid therefor. As we have already pointed out, the defendants are not, in this appeal, treating the plaintiff at fault for not disbursing the sum of Rs. 40,000 and they are on the question of non-payment of the sum of Rs. 10,000 which is essential term, as already discussed. In a suit for specific performance of contract, the falsity of the defence story does not necessarily establish the truth of the plaintiff's story, which must stand or fail on its own merits independently of any inherent weekness in the defence case. Such a view has been expressed by Renupaka Mikherjee, J in Nallni Nath V. Bepin Behari which we have already referred to and we are in complete agreement with this view.

In the said Judgment, a Division Bench of this Court held that in a suit for specific performance of contract, the falsity of the defence story does not necessarily establish the truth of the plaintiff's story, which must stand or fail on its own merits independently of any inherent weakness in the defence case. This Judgment is also squarely applicable to the fact of the present case.

(ii) Mool Chand Bakhra and another v. Rohan and Others, 2002 (1) M.L.J 161 (S.C) wherein in Page 165 it was held thus:-

“14…. The letters written by Mool Chand cannot be termed as an agreement to sell, the terms of which have been reduced into writing. At the most it is an admission of an oral agreement to sell and not a written agreement. Statutorily, the emphasis is not on a written agreement only. In addition the emphasis is on the terms of the agreement as well which can be ascertained with reasonable certainity from the written document. There was no meeting of minds. Admission made by Mool Chand of an oral agreement to sell does not spell out the other essential terms of the agreement to sell such as the time frame within which the sale deed was to be executed and as to who would pay the registration charges etc., The letters written by Mool Chand cannot be taken to an agreement to sell within the meaning of Sec. 53-A spelling out the terms of an agreement for sale. In our view, the High Court fell in error in coming to the conclusion that the letters written by Mool Chand, referred to above, constituted an agreement to sell the terms of which have been reduced into writing. Terms necessary to constitute the transfer with reasonable certainity could not be ascertained from the letters written by Mool Chand to his uncle. At the most it is an acknowledgment that there was an oral agreement to sell but the same could not be construed to be a written agreement to sell the terms of which have been reduced into writing. Written agreement has to precede the putting of the proposed vendee in possession of the property. Bhagwan Dass was never put in possession in property in performance of the written agreement arrive at between the parties. “

26. The Division Bench of this Court where one of us was party (Justice R. Jayasimha Babu) held, which is reported in Bhagwandas Fatechand Daswani and 4 others v. H.P.A International, a partnership firm carrying on Its business at Casa Major Road, Egmore, Madras-8, rep. By Its Managing Partner H.A.Md Aleemuddln and 2 others, 2001 (3) CTC 86 in Para-59 as follows:-

“59. Learned counsel for the plaintiff respondent laid great emphasis oh the misconduct or the part of the appellant in the course of the trial, in denying his identity as Bob Daswani, and his conduct in proceeding with the construction despite the interim injunction, and submitted that the lack of candour and dishonesty in his pleading and affidavits, disentitles him to any relief in equity, as one who plays foul with equity cannot use it as a shield. This submission though relevant to the grant or withholding of discretionary relief, where the plaintiff is otherwise not disentitled in law or equity to such relief, cannot be regarded as relevant for the purpose of deciding the existence or otherwise of a legally enforceable contract at the time the trial court granted the decree for specific performance. What does not exist in the eye of law cannot be deemed to exist, because of the acts of omission or commission of the defendant during the course of the trial. If the plaintiff having regard to it's own conduct is not entitled to the relief, the misconduct of the defendants cannot result in plaintiff becoming entitled to such relief.”

27. In a suit for specific performance of the contract, the onus is on the plaintiff to prove the contract, unless its existence is admitted by the Opposite Party. When the plaintiff fails to prove the contract, the mere fact, that the defendant admits receipt of money but on altogether different account, does not shift the burden of proof to the defendant.

28. When the defendant pleaded that no contract was ever concluded, the Court has to determine whether at the time of alleged agreement, the minds of the parties had come together in actual assent. There must be a clear accession on both sides to one and the same set of terms and nothing should be left for future settlement.

29. Where parties are at issue on a vital question of fact, the safe principle is to consider which story fits in with the admitted circumstances. The learned trial judge on consideration of document and oral evidence and elaborate discussion held that there was no oral agreement as alleged by the Plaintiff.

30. It is an undoubted rule that giving specific performance is a matter of discretion. Of course the discretion shall not be arbitrary, but sound and reasonable. In this case on hand, the plaintiff has failed to prove the existence of oral agreement and the learned trial judge has rightly dismissed the suit.

31. The appeal is dismissed with costs.