Dr. Mukundakam Sharma, J.— This appeal is filed by the appellant/plaintiff and is directed against the order dated 6th September, 2006 passed by the learned Single Judge dismissing the application of the appellant/plaintiff filed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, which was registered as CM No. 3769/2005. The aforesaid appellant/plaintiff filed the suit for specific performance of the agreement to sell allegedly entered into between the appellant/plaintiff and the respondents/defendants No. 1 and 2 in respect of the property No. 60, Poorvi Marg, Vasant Vihar, New Delhi measuring 819 sq. yds. or, in the alternative, for recovery of damages in respect of the said property. Along with the suit the appellant/plaintiff also filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for an ad interim injunction in respect of the aforesaid suit property. An interim order was also granted on the said application by the learned Single Judge on 11th May, 2005 directing for maintenance of status quo to be maintained in respect of the suit property. The said application along with the suit was listed subsequently before the learned Single Judge when an order came to be passed directing the plaintiff/appellant herein to appear in court along with the documents to show that the appellant/plaintiff was capable of making the payment of Rs. 9.30 crores, which was allegedly the sale consideration in respect of the suit property and also to produce income tax returns and pass book of the banks maintained by the appellant/plaintiff. On perusal of all the documents filed, the learned Single Judge held under order dated 4th August, 2005 that in one of the accounts of the appellant/plaintiff the balance amount as on 31st March, 2005 was Rs. 4146/- and that in respect of another account, the balance amount was Rs. 2304/-. It was also observed that there also appeared to be huge transaction running into crores of rupees which was found to be rather strange as the appellant/plaintiff is a house wife. In terms of the records produced the learned Single Judge held that he was not satisfied that the appellant/plaintiff was in a position to pay Rs. 9.30 crores to the respondents/defendants. Consequently, the learned Single Judge dismissed the application seeking ad interim order of injunction directing for maintenance of status quo.
2. Being aggrieved by the aforesaid order, the appellant/plaintiff filed an appeal before this court, which was registered as FAO (OS) No. 243/2005. Before the appellate court also further documents were filed by the appellant/plaintiff. In the light of the documents placed on the record, the learned Division Bench held that the matter would require a deeper consideration. Consequently, the order of the learned Single Judge dated 4th August, 2005 dismissing the application was set aside with a direction to pass a fresh order after hearing the parties on the basis of the documents filed on record. Consequent thereto, the application was again taken up for consideration by the learned Single Judge and on consideration of all the documents placed on record and upon hearing the counsel for the parties, the application was once again dismissed holding the same to be without any merit.
3. Counsel appearing for the parties have taken us through the entire records of the case including the aforesaid order passed by the learned Single Judge which is challenged before us. A bare perusal of the said impugned order would indicate that the learned Single Judge has discussed indepth the respective case of the parties. The case of the plaintiff, as pleaded in the plaint, has been set out. The defence taken by the respondents/defendants No. 1, 2 and 3, who filed a common written statement, has also been discussed in paragraphs 7 and 8 of the impugned judgment and order. After discussing the respective case of the parties, the learned Single Judge has considered the documents which were filed on record and on careful consideration of the said documents, it was held that there was apparently creditworthiness of M/s Ambience Projects Limited, which is the company with which the husband of the appellant/plaintiff is associated.
4. Having held thus, the learned Single Judge proceeded to decide other issues so as to effectively decide the application under order xxxix rules 1 and 2 cpc. The learned Single Judge in order to decide as to whether or not there was a prima facie case made out, was required to decide as to whether there was any agreement arrived at between the parties whereby terms and conditions of sale were settled. In order to appreciate the said issue various documents produced by the parties were considered and after such consideration and after looking into the various decisions placed by the parties, the learned Single Judge held that there was no certainty as to the terms and conditions arrived at between the parties and, therefore, if there was no such certainty of the terms there could be no specific enforcement of the alleged agreement. The learned Single Judge also prima facie held that the respondent/defendant No. 4 was only a broker, who was negotiating the deal and that the broker was not authorised to make any final commitment on behalf of the owners being respondents/defendants No. 1 and 2. In the aforesaid context it was held that the plaintiff had failed to make out any prima facie case. The court also observed that the subject matter of the suit is an immovable property but as the plaintiff had also prayed for an alternative relief for damages and, therefore, the criteria of irreparable loss and injury as also the balance of convenience was not found satisfied in the case of the plaintiff. Having held thus, the application was rejected holding it to be without any merit and cost of Rs. 20,000/- was imposed.
5. Being aggrieved by the aforesaid order, the present appeal is filed on which we have heard the learned counsel appearing for the parties. During the course of arguments, the counsel appearing for the parties have also drawn our attention to various documents placed on record and, therefore, we have also had an opportunity to critically examine the impact of the said documents on the present case. It was submitted by the learned counsel appearing for the appellant that there was a concluded contract between the parties for the enforcement of agreement to sell for which the suit was filed and, therefore, the learned Single Judge acted illegally and without jurisdiction in not giving protection to the appellant/plaintiff by ordering for preservation of the suit property during the pendency of the suit. It was also submitted that the order passed by the learned Single Judge was erroneous as the same was passed without keeping in mind the orders dated 10th August, 2005 passed by the Division Bench in the appeal allegedly restricting the scope of consideration of the prayer of injunction only in respect of capacity of the appellant/plaintiff to pay the sale consideration. It was submitted that the learned Single Judge ought not to have gone beyond the aforesaid scope and that he erred in deciding even prima facie as to whether or not there was a concluded contract between the parties.
6. In order to prove and establish that there was a concluded contract between the parties, counsel appearing for the appellant has taken us through the documents on record including the alleged draft of sale deed on which there are allegedly some notings and endorsement of the son of the owners of the suit property.
7. In the light of the aforesaid submissions, we may now proceed to discuss the merit of the arguments and facts placed before us by the counsel appearing for the parties and dispose of the appeal by recording reasons thereof.
8. The appellant herein, plaintiff in the suit, is a house wife whose husband is in the real estate business. The respondents/defendants No. 1 and 2, at the time of filing of the suit, were husband and wife and retired Indian Foreign Service Officers and living as NRIs in France. They were the joint owners of the suit property at 60, Poorvi Marg, Vasant Vihar, New Delhi, which was purchased by them under a perpetual lease deed dated 11th March, 1969. Respondent/defendant No. 2, Mr. H.K Kochar, expired during the pendency of the suit on 23rd April, 2006. Respondent/defendant No. 3 is their son, whereas defendant No. 4 is a real estate broker based in Delhi.
9. It is alleged in the plaint by the appellant that the defendant No. 4 represented that he was duly authorised by the respondents/defendants No. 1 and 2 to sell the suit property bearing No. 60, Poorvi Marg, Vasant Vihar, New Delhi measuring 819 sq. yds. to the appellant/plaintiff and that on 1st November, 2004, after some discussion and negotiation between the appellant/plaintiff and the respondent/defendant No. 4, a total sale consideration of Rs. 9.30 crores was finalised between the parties for purchase of the entire suit property and that the respondents/defendants No. 1 and 2 also confirmed the said sale consideration and desired that the entire sale consideration would be payable by the appellant/plaintiff to the said respondents/defendants in one instalment at the stage of registration of the sale deed and handing over the vacant and peaceful possession of the suit property. It is alleged that the parties also agreed and confirmed that the sale is to be completed within next 4-5 months and that the respondents/defendants No. 1 and 2 being old, their son Mr. Bali Kochar, respondent No. 3 would be authorised to execute the sale deed on their behalf and enter into all communications with the appellant/plaintiff and would settle the terms of the sale deed and also to execute the sale deed on the basis of an authority given to him under a special power of attorney. It is stated that there was a concluded contract between the parties settling the entire sale consideration at Rs. 9.30 crores and also on various terms and conditions to be incorporated in the sale deed at the time of finalising the same. The plaintiff requested the respondents/defendants No. 1 and 2 to send their son, Mr. Bali Kochar, respondent No. 3, so that sale could be executed and registered in favour of the appellant/plaintiff. When the respondents/defendants backed out of their promise and agreement to sell the suit property, the suit was filed after issuing a legal notice to the respondents/defendants. In the written statement filed, the respondents/defendants No. 1 to 3 took up a common plea that no final agreement between the parties was arrived at or entered into and that only negotiations for sale of the property were going on through respondent/defendant No. 4, who was the agent of the appellant/plaintiff and not of the respondents No. 1 to 3. It is the specific stand of the respondents/defendants that there is no enforceable concluded agreement on which specific performance could be sought for.
10. In the light of the aforesaid facts pleaded by the parties, the issue, which arises for our consideration is as to whether or not there was any concluded contract between the parties. As is clear from the aforesaid discussion, there is admittedly no contract in writing, which is sought to be enforced. What is pleaded is an alleged oral agreement which is sought to be enforced by making a prayer in the plaint to the following effect:
“(a) pass a decree for specific performance in favour of the Plaintiff and against the Defendants 1 & 2 for specific performance of the agreement to sell dated 1st November, 2004, directing them to execute the Sale Deed in favour of the Plaintiff in respect of property bearing No. 60, Poorvi Marg, Vasant Vihar, New Delhi and get the same registered in the office of the Sub-Registrar, New Delhi and hand over the vacant and peaceful possession of the property in suit to the Plaintiff.”
11. The facts leading to the aforesaid oral agreement pleaded dated 1st November, 2004 are stated in paragraph 4 of the plaint contending, inter alia, that on 1st November, 2004 after some discussions and negotiations between the appellant/plaintiff and the respondent/defendant No. 4, a total sale consideration of Rs. 9.30 crores was finalised between the parties for the purchase of the said entire property and the defendants No. 1 and 2 confirmed the said sale consideration and desired that the entire sale consideration would be payable by the appellant/plaintiff to the respondents/defendants in one instalment at the time of execution and registration of the sale deed. Those facts are dealt with at length during the discussion of the facts hereinbefore.
12. What is, therefore, alleged is only an oral agreement, which is also between the appellant/plaintiff and the respondent/defendant No. 4 for a total sale consideration of Rs. 9.30 crores for the property at 60, Poorvi Marg, Vasant Vihar, New Delhi. In the context of the said facts the case argued before us was that the property having been identified and the total sale consideration having been fixed and concluded between the appellant/plaintiff and the respondents/defendants No. 1 and 2, the respondents/defendants cannot wriggle out of the said concluded contract. The aforesaid contention appears to us to be prima facie untenable as the agreement alleged to have been arrived at on 1st November, 2004 was between the appellant/plaintiff and the respondent/defendant No. 4. Although it is stated in paragraph 4 of the plaint that the respondents/defendants No. 1 and 2 confirmed the said sale consideration, not even a whisper is made in the plaint as to how and in what manner the defendants No. 1 and 2 have confirmed the said sale consideration and have also confirmed the deal. Admittedly, no consideration, not even any part thereof, was ever paid by the appellant/plaintiff to the respondents/defendants No. 1 and 2. It is also not the case of the appellant/plaintiff that the respondents/defendants No. 1 and 2 made any offer or acceptance in writing nor did they plead in the plaint that the appellant/plaintiff and the respondents/defendants No. 1 and 2 entered into any written agreement in respect of either the sale consideration or other terms and conditions.
13. Counsel appearing for the appellant drew our attention to the draft-sale deed in respect of the suit property, particularly in respect of the few endorsements and entries allegedly made by respondent No. 3, Mr. Bali Kochar, who happens to be the son of the respondents No. 1 and 2. It was submitted that the aforesaid sale deed was settled by the respondent No. 3 by fixing the quantum of the sale consideration and also identifying the property.
14. However, we are not persuaded by the aforesaid submissions made, for the aforesaid draft sale deed, a copy of which is placed on the records, indicates that the same was in the hands of the respondent No. 3, if at all. But none of the entries made therein indicates that any of the terms and conditions mentioned in the said draft sale deed had the approval of the real owners i.e the respondents No. 1 and 2. So far the role of the respondent No. 4 is concerned, he was a broker. There is no document placed on record indicating that he had any authority to conclude any contract or even negotiate for finally deciding on the agreement to sell on behalf of the owners. Any agreement arrived at between the appellant/plaintiff and the respondent/defendant No. 4 could not and would not bind the respondents No. 1 and 2, who were the real owners of the property. However, it is alleged that the sale consideration is fixed at Rs. 9.30 crores. That the parties would enter into an oral agreement of this nature to sell a property worth Rs. 9.30 crores or more and that also without some advance payment, which is the generally followed practice and custom, is incomprehensible and rather difficult to accept. Be that as it may, the plaint avers that after the alleged oral agreement between the appellant/plaintiff and the respondent No. 4, the respondents No. 1 and 2 confirmed the said sale consideration. It is also stated that the respondents/defendants agreed and confirmed that the sale would be completed within the next 4-5 months. Unfortunately, the plaint does not give any detail of the time or circumstances in which the aforesaid alleged confirmation was given or to whom it was given.
15. So far the copies of the sale deed and power of attorney are concerned, admittedly they were only drafts and, therefore, there was no final agreement on the terms and conditions. There was no communication placed on record indicating that the appellant/plaintiff accepted the terms and conditions, which were allegedly intimated by the respondent/defendant No. 3 to the appellant. There were changes and alterations made in the terms and conditions apparent on the face of the records and on a reading of the draft sale deed placed on record. As to whether or not those revised and altered terms and conditions were accepted by the appellant/plaintiff, there is no documentary evidence placed on record/Therefore, we agree with the findings arrived at by the learned Single Judge that there was no concluded contract arrived at between the parties i.e plaintiff and the defendants No. 1 and 2 in respect of sale of the suit property in favour of the appellant/plaintiff by the respondents/defendants No. 1 and 2, which is also clearly established from the documents placed on record and the pleadings of the parties.
16. What is sought to be enforced through the present plaint is the oral agreement between the plaintiff and the defendant No. 4 dated 1st November, 2004. There is now an apparent effort to digress from the aforesaid oral agreement dated 1st November, 2004 by making an endeavour to state that agreement was not a final agreement to sell so arrived at. The plea taken is that the 1st November, 2004 oral agreement was later confirmed by defendants No. 1 and 2. There is no pleading on record to show the manner and mode in which such confirmation was given. While the aforesaid draft was allegedly sent by the respondent/defendant No. 3 to the husband of the appellant/plaintiff, there is no authority placed on record indicating that the respondent No. 3 was authorised to negotiate for sale or to arrive at a settlement with the appellant/plaintiff regarding sale of the suit property nor any power of attorney is placed on record indicating that respondent No. 3 was so authorised by the respondents/defendants No. 1 and 2. In Abdul Rasheed and others v. Abdul Hakeem, 1998 (6) ALT 399, the Andhra Pradesh High Court has held that the burden of proof naturally lies heavily on the plaintiff to prove the alleged agreement of sale by reliable, cogent and convincing evidence. It was also held that law, no doubt, recognises oral agreement of sale and there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. But in a case where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden is on the plaintiff to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. The Andhra Pradesh High Court recorded the aforesaid principles on the basis of the decision of the Supreme Court in Brijmohan and others v. Surga Begum and others, (1990) 4 SCC 147. In Mayawanti v. Kaushalya Devi, (1990) 3 SCC 1 and Mirahul Enterprises and others v. Mrs. Vijaya Sirivastava, AIR 2003 Delhi 15, it was held that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contact has not been made, the court will not make a contract for the parties. We may also refer to a decision of the Supreme Court in Ganesh Shet v. Dr. C.S.G.K Setty and others reported as AIR 1998 SC 2216 wherein it is laid down that in a suit for specific performance of contract, the evidence and proof of the agreement must be absolutely clear and certain. It was further held that a greater amount or degree of certainty is required in the terms of an agreement which is to be specifically enforced, than is necessary in a contract which is to be the basis of an action at law or damages.
17. It is also established from the records that the appellant/plaintiff has also sought for an alternative relief for payment of damages. Since in a case like this, damages suffered by the appellant/plaintiff are to be established by leading evidence and since the appellant/plaintiff could be compensated in terms of money, we approve the findings recorded by the learned Single Judge that the criteria of irreparable loss and injury as also the balance of convenience is also not satisfied in favour of the appellant/plaintiff.
18. The contention that the learned Single Judge should have restricted himself only to the fact as to whether or not the plaintiff has the capacity to pay the entire sale consideration, in our considered opinion, is also misconceived as what was being considered by the learned Single Judge was not only the capacity of the plaintiff to make the payment, but all the pleas that are involved and connected for grant of an injunction in favour of a party seeking it. Whether or not there is a prima facie case and whether there is a case of irreparable loss and injury made out and also the factor of balance of convenience is also to be examined by the court considering the application under order xxxix rules 1 and 2 cpc and the said consideration cannot be” given a go-by by the court while deciding an application under order xxxix rules 1 and 2 cpc. Therefore, at any rate it cannot be said that the learned Single Judge should have considered only the capacity of the appellant/plaintiff for deciding the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. The learned Single Judge while deciding the application under order xxxix rules 1 and 2 cpc under order dated 4th August, 2005 confined himself only to the capacity of the parties and since he found and held that the appellant/plaintiff did not have the capacity, there was no point of going into the other issues involved in the application. The said order of the learned Single Judge was set aside by the Division Bench and the matter was remitted back to the learned Single Judge, who was, therefore, required to consider not only the capacity of the appellant/plaintiff to pay the entire consideration amount but all other facts which are required to be considered for deciding and disposing of an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure.
19. In this view of the matter, all the pleas that are raised by the counsel appearing for the appellant are found to be misconceived and are rejected. We find no infirmity in the order passed by the learned Single Judge. We dismiss this appeal with costs of Rs. 20,000/- (Rupees twenty thousand only) to be paid to the contesting respondents.
20. All the observations and views expressed herein shall be construed to be prima facie views for the purpose of deciding the present appeal which shall have no bearing for the purpose of deciding the main suit.