FAO(OS) 10/2010 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI 1. + FAO(OS) 10/2010 PRAGYA AGRAWAL & ORS ..... Appellants Through: Mr. Madan Bhatia, Sr. Adv. with Mr. Desh Raj, Mr. D.K. Kaushik, Advs. versus SOBHAG NARAIN MATHUR ..... Respondent Through: Mr. Sanjay Jain, Sr. Adv. with Mr. Arjun Harkauli, Ms. Ruchi Jain, Advs. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW O R D E R % 12.01.2010 This appeal has been preferred by the defendant in a suit for specific performance of an agreement of sale of immovable property and against the order dated 11th November, 2009 of a single Judge of this Court dismissing the appellant-defendant’s application under Order 7 Rule 11 of the CPC. Rejection of the plaint was sought on the ground that the document titled ‘Bayana Receipt’ relied upon by the respondent-plaintiff as an agreement to sell, of which specific performance was claimed, itself contemplated execution of a detailed agreement to sell. It was thus the contention of the appellant-defendant that in the absence of settlement of material terms to be incorporated in the detailed agreement, no case for specific performance was made out. It is the contention that there is no concluded contract and the contract on the basis whereof the suit has been filed is void under Section 29 FAO(OS) 10/2010 Page 2 of 5 of the Contract Act for the reason of uncertainty, ambiguity and for being contradictory in nature. It is also the contention of the appellant – defendant that the alleged agreement is void and the suit is thus urged to be contrary to law. 2. The learned single Judge has, in the order impugned in this appeal, held that the Bayana Receipt showed that the appellant- defendant had agreed to sell the property for Rs.6, 20,00,000/-; there was to be no future negotiation in respect of the consideration or in respect of the extent of the property agreed to be sold which was properly identified. It was further held that at the time of execution of the Bayana Recipt, the appellant-defendant had received part consideration of Rs.20 Lakhs; however, since in normal parlance, earnest money is 10% of the consideration, the Bayana Receipt provided that the balance to make up the 10% would be paid by 14th December, 2006 and a detailed agreement to sell would be executed on that date. It has further been held that the parties had also agreed to the last date for payment of the remaining 90% of the sale consideration as 15th February, 2007 as recorded in the said Bayana Receipt. It was further held that though it was not specified as to who will pay for the stamp paper and when the parties will approach the Registrar’s office but it was held that the same were not material things and the parties were found to be ad idem on all the material aspects of sale. The learned single Judge held that prima facie it could not be said that the agreement subject matter of specific performance was an unconcluded or unenforceable contract. 3. The learned senior counsel for the appellant-defendant has FAO(OS) 10/2010 Page 3 of 5 drawn attention to the judgment of the Division Bench of the Bombay High Court in New Mofussil Co. Ltd. & Anr. v. Shankerlal Narayandas Mundade, AIR 1941 Bombay 247, particularly pages, i.e. Pg.254 and Pg.255 thereof. However, that was not a case at the stage of Order 7 Rule 11 of the CPC, as the stage in the suit in the present case is; in that case, the Division Bench was concerned with an appeal against a decision in a suit after trial. The said judgment itself refers to Von Hatzfeldt-Wildenburg v. Alexander, [1912] 1 Ch. 284, where Lord Parker held that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through; in the former case, there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract; in the latter case, there is a binding contract and the reference to the mere formal document may be ignored. The paragraphs of the said judgment relied upon by the senior counsel for the appellant themselves show that the question aforesaid has to be decided after giving an opportunity to the parties to lead evidence and is a question of intent of the parties. Thus, without examination and cross-examination of the witnesses, the Court at the stage of Order 7 Rule 11 of the CPC cannot adjudicate on as to what was the intention of the parties. The said intention can be deciphered only after the trial. The learned single Judge has rightly held that at this FAO(OS) 10/2010 Page 4 of 5 stage, it cannot be said as to what was the intent of the parties. The interpretation of the document is not possible without oral evidence. 4. The senior counsel for the appellant next has taken us through the plaint. Undoubtedly in the plaint, there is no express averment that all the essential terms and conditions for an agreement to sell of immovable property stood concluded between the parties and the execution of an agreement on 14th December, 2006 was a mere formality. Nevertheless, in para 7 of the plaint, there is a categorical averment that the appellant-defendant had agreed to sell the property to the respondent-plaintiff and in the prayer paragraph in the plaint, the relief of specific performance by directing the appellant-defendant to execute the sale deed on receipt of the agreed sale consideration and to deliver possession of the property to the respondent – plaintiff has been claimed. 5. An agreement to sell immovable property in so far as the city of Delhi is concerned is not necessarily required to be in writing. The respondent-plaintiff has pleaded an agreement to sell and relied upon the aforesaid Bayana Receipt in support thereof. We may also notice that though in the said Bayana Receipt it is mentioned that the installments in which the balance 90% of the sale consideration shall be paid shall be mentioned in the agreement to sell to be signed on 14th December, 2006, the last date for payment of the entire sale consideration is mentioned as 15th February, 2007. The learned single Judge has rightly held that at this stage, it cannot be said that the same was an essential term of the agreement to sell or owing to lack of consensus whereon it can be said that there was no FAO(OS) 10/2010 Page 5 of 5 agreement between the parties. 6. Since any further observations may come in the way of the final adjudication of the aforesaid question at the time of final adjudication of the suit, we refrain ourselves from discussing the issue any further. 7. No case for rejection of the plaint under Order 7 Rule 11 of the CPC is made out. The appeal is dismissed. No order as to costs. CHIEF JUSTICE RAJIV SAHAI ENDLAW, J JANUARY 12, 2010 pk