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TaxTMI 
TaxTMI 
2019 (8) TMI 1905
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.... Suit No. 322 of 2018. Since common questions of law and facts are involved in the present appeals, by treating Appeal From Order No. 72 of 2019 as a lead matter, all three appeals were heard together and are being decided by the present common judgment and order. 2. The facts reflecting from Appeal From Order No. 72 of 2019 are that K.S. Infraspace LLP through its partner Ketan Bhailal Shah had instituted a suit being Special Civil Suit No. 322 of 2018 in the Court of learned Principal Civil Judge at Vadodara for seeking declaration and specific performance against the defendant i.e. Haryana Containers Ltd. on the premise that, the plaintiff is a limited liability partnership firm involved in the business of real estate and engaged in the property development since last number of years in the city of Vadodara. The defendant is a limited company registered under the provisions of the Companies Act, which is a wholly owned subsidiary of Ambalal Sarabhai Enterprise Limited and is claiming to be in possession of various parcels of land as shown in the map enclosed with the draft memorandums of understanding dated 29.3.2018 and 30.3.2018 admeasuring 1260 sq. mtrs. and 5442 sq. mtrs ....
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.... of memorandum of understanding/agreement to sell/contract with respect to the land in question. This suit filed by the present plaintiff numbered as Special Civil Suit No. 323 of 2018 appears to have been presented in the month of October, 2018. 3. Similar is the position with respect to Appeal from Order No. 73 of 2019 which is arising out of the very same order dated 18.2.2019 in which Special Civil Suit No. 323 of 2018 is filed against two defendants namely, Ambalal Sarabhai Enterprise Ltd. and Neptune Infraspace Pvt. Ltd. So far as this Appeal From Order is concerned, it is filed by Ambalal Sarabhai Enterprise Ltd., original defendant No. 1 of Special Civil Suit No. 323 of 2018 in which the facts are almost similar, but parcel of land is different. In this suit being Special Civil Suit No. 323 of 2018, the plaintiff i.e. K.S. Infraspace LLP has entered into transaction with the defendant No. 1, which is a Public Limited Company holding the ownership and possession of various pieces of land mentioned in memorandum of understanding dated 29.3.2018 and 30.3.2018 respectively. Such lands are: (A) admeasuring about 2078 sq. mtrs. of City Survey No. 383/1 paiki of Villag....
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.... suit for specific performance and also for a declaration against the defendants. 5. Similar is the case with respect to Appeal From Order No. 74 of 2019 filed by original defendant No. 2 against the common order dated 18.2.2019 passed in Special Civil Suit No. 323 of 2018. The facts emanating from this Appeal From Order are identical in nature which are mentioned hereinabove in Appeal From Order No. 73 of 2019 and hence, the Court need not repeat the same but this action of the defendants have given rise to aforesaid two suits which are filed for seeking declaration and specific performance in which it appears from the record that original plaintiff has filed an application for injunction below Exh. 5 inter alia seeking relief against the defendants from executing any further document including the sale deed with respect to the lands which are described in the prayer clause and also prayed that defendant No. 2 be prevented from creating any further charge or interest or deal with aforesaid subject matter of the suit. The injunction below Exh. 5 in Special Civil Suit No. 323 of 2018 is almost similar to that of Exh. 5 application of Special Civil Suit No. 322 of 2018 in which th....
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....tted that no contract has been concluded with the original plaintiff-K.S. Infraspace LLP in any manner. It has been submitted that there is no specific prayer made in the suit as to which agreement is sought to be specifically performed. A bare reading of the cause of the suit itself makes it clear that alternative reliefs are sought in the suit which are thoroughly vague and on that count alone, no specific performance even otherwise be granted. It has been submitted that there is no specific signed agreement which can even infer the concluded contract in favour of the plaintiff. Even the emails and WhatsApp correspondences, which are reflecting on the record, are also clearly missing the unequivocal intention of agreement and in the absence of any unconditional acceptance, the oral agreement of the contract cannot be inferred. It has been submitted that when the case is based upon oral agreement, the heavy burden is lying on the plaintiff to plead and to establish even a cogent inference of the oral contract. It is a settled position of law that no doubt oral agreement is permissible under the law but the assertion of acceptance must be unequivocal and must be in clear terms and ....
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.... equity, the very conduct of the plaintiff is suggesting that the said relief cannot be granted particularly in a suit which has been filed for seeking specific performance. Various exchange of emails and mere drafts are indicating that the plaintiff's request for injunction on both the counts i.e. on the count of conduct as well as on the count of delay cannot be granted looking at the well recognized principle of equity. Even the entire correspondences which have taken place between the parties are not suggesting even remote acceptance of the defendants. The Court without looking at it ought not to have granted relief in favour of the plaintiff which has got a far reaching consequences. Mr. Joshi has further submitted that on the contrary, conduct is suggesting a serious attempt by the plaintiff to drag the defendants to a situation where the defendants may be embarrassed. The averments contained in the plaint are, on the contrary, suggesting that the suit itself is not maintainable and maintainability of the main proceeding since is a relevant consideration, by ignoring the same, no order of injunction could have been granted. This being the position, the order in question d....
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.... 2 is an agreement by virtue of which the payments which have been made have been directly appropriated towards the income tax liability which are clearly reflecting from page 474 onwards. By referring to page 474/11, learned Senior Advocate has submitted that defendant No. 2 has entered into a transaction which is registered on 31.3.2018 and towards the same, payments have also been realized on 30.3.2018 which amount has been appropriated towards the income tax liability and this was clearly known from the beginning that this transaction is going to take place to meet with these liabilities and this negotiation with other party was also well within the knowledge of the plaintiff and so it is not that some under dealing has taken place in any manner. He has drawn the attention towards the WhatsApp correspondences precisely communication dated 18.12.2017 at 12.06 p.m. as well as at 12.14 p.m. By referring to further communications of 20.12.2017 at 9.26 a.m. and 25.12.2017 at 10.15 a.m., it has been conveyed that it was not that only with the plaintiff, the transaction was being negotiated and even the plaintiff was also aware about the fact that with original defendant No. 2 also, t....
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.... a registered agreement to sell and to intercept these process of transaction in a situation like this would clearly has got the serious prejudice and, therefore, in the absence of any prima facie case or balance of convenience, no interim relief could have been granted. Mr. Joshi has further submitted that apart from this, here is the case in which, on one side there is a registered agreement to sell which has already taken place on 31.3.2018 and on the other side, there is a mere draft of agreement to sell and memorandum of understanding which has not even been signed and additionally, the amount of Rs. 2.16 crores was also returned back which was not even for this transaction. Hence, if the balance of equity is to be examined, the same is leaning towards the holder of registered agreement to sell than that of the plaintiff, hence, no relief could have been granted in such a situation. Learned Senior Advocate has submitted that even on the basis of these material facts, which are reflecting on record, even specific performance of agreement is not at all possible and the suit itself appears to be laconic on cause of action and hence, not tenable. In such a situation, when the main....
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....tract. It is submitted that from the beginning, the plaintiff was aware about the fact that talks regarding transaction were going on in parallel with both the persons and Mr. Nimish Vasa, the person having a link between the plaintiff and the defendant and who was an interested person. It has further been contended that the transaction was to be done for the purpose of business and meeting with liability regarding income tax assessment and the last date was 30.3.2018 since 31.3.2018 was a holiday being Saturday. The chronology of events according to Mr. Thakore, learned Senior Advocate is clearly indicating that there is neither any agreement nor any concluded contract came into existence. To substantiate this, learned Senior Advocate has drawn attention to WhatsApp correspondence of material dates along with the time and has submitted as if it is the trial of the suit and thereby contended that since there is no concluded contract, there is no question of granting any injunction. It has been submitted that WhatsApp talks/messages reflecting on page 104 of paper book compilation more particularly on 26.3.2018 at 1.29 p.m. and the messages reflecting on page 106 on 30.3.2018 would ....
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....ce can be drawn about contract being concluded. He has relied upon yet other decisions reported in (1997)3 SCC page 1 in the case of K.S. Vidyanadam and others Vs. Vairavan, (1990)3 SCC page 1 in the case of Mayawanti Vs. Kaushalya Devi and (2016) SCC Online Bombay 6784 in the case of Rohit A. Kapadia Vs. Perviz J. Modi and by referring to several paragraphs from those judgments, it has been submitted that in the absence of existence of any concluded contract, there is no question of granting any interim relief and the learned Judge has materially erred in exercising jurisdiction. By referring to rojkam, learned Senior Advocate has submitted that actually, Exh. 5 application has never been heard. What has been heard is an application filed under Order 7 Rule 11(d) of CPC and, therefore also, the impugned order which has been passed is in complete disregard to the principles of natural justice and hence, the same is required to be quashed and set aside on this count alone. 12. In counter to this submission, learned Senior Advocate, Mr. Deven Parikh appearing on behalf of the plaintiff has submitted that systematic steps have been taken to reach upto to final stage of the contract....
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....ues are to be adjudicated upon during the course of trial. Simply because some more amount is paid by another person and agreement to sale is registered, that would not disentitle the plaintiff to seek a remedy of injunction. On the contrary, it is a settled position of law that mere agreement to sale would not confer any absolute right, as a result of this, no interference deserves to be made. Apart from this, a close reading of the material would also indicate that as on 31st March, 2018, the plaintiff was not aware about denial. On the contrary, till last moment, the plaintiff was kept under an impression that transaction is to take place with the plaintiff. So, even independently, it has been established that a denial was never communicated or conveyed to the plaintiff. Their withdrawal either on 30th or 31st March from the contract is not supported by any valid material and this being highly disputed and triable one, the learned Judge has justifiably exercised the discretion. It is a settled position of law that whenever a surrounding circumstance is emerging, mere non-signing may not affect the legitimate right at this stage of the proceedings. Mr. Parikh, learned Senior Advo....
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....ng various drafts and by referring to page 117 of paper book compilation, it is submitted that exchange of final draft and agreement to sale through Legal Department is a final stage of entering into transaction and sending of final draft of agreement to sale is a concluded step on the part of the defendant which would easily infer a clear intention to conclude the contract. It is submitted that as soon the plaintiff came to know about the fact regarding return of amount of Rs. 2.16 crores, immediate protest was lodged and as on 3.4.2018, sufficient balance was also maintained in the account with a view to complete their part of the contract by the plaintiff. The story which has been tried to be created that amount of Rs. 2.16 crores was in the form of personal loan and not about the transaction, it may be noted that this stand is nothing but a clear concoction and as such, when this be the situation on record, the learned trial Judge has rightly exercised the discretion. According to him, as WhatsApp exchanges took place with Ketan and not with the plaintiff, it cannot be inferred to have been communicated to the plaintiff and in that view of the matter, the injunction has been ri....
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....AIR 1996(8) SC 1028 in the case of Kollipara Vs. T. Aswatha Narayana to suggest that case is not made out by the defendant. On the contrary, learned Senior Advocate has relied upon other decisions reported in (2017)9 SCC 622 in the case of Nadiminti Suryanarayan Murthy (dead) through Legal Representatives Vs. Kothurthi Krishna Bhaskara Rao and others, AIR 1990 SC and (2016) SCC Online Bombay 6784 in the case of Rohit A. Kapadia Vs. Perviz J. Modi. Yet another decision which has been relied upon is reported in AIR 2006 SC page 87 and by referring to the judgment of Hon'ble Mr. Justice A.S. Kureshi, a contention is raised that a case is made out by the plaintiff. Lastly, learned Senior Advocate has submitted that no case is made out by the defendant as still the plaintiff is ready and willing to deposit an amount of Rs. 2.16 crores before the registry of this Court or before the Court concerned to preserve the interest in the subject matter of the suit and keeping in view the interest of the defendant as well within a reasonable time that may be fixed by this Court. With these submissions, learned Senior Advocate has requested the Court to dismiss the Appeals From order. 14. I....
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....o prudent person would keep such a huge amount separate without any just reason. The readiness and willingness are continued throughout and there was a sufficient financial capacity to meet with the consideration. On the contrary, the last talk is clearly suggesting that there was no waiver by the plaintiff and for that purpose, a reference is made to a decision which is reported in AIR 2017 SC 3608 in the case of Dev Prakash Vs. Indra. Yet another decision which is referred to and relied upon is reported in 1983 GLH 538 in the case of Ibrahim Shah Mohmad and others Vs. Noor Ahmed Noor Mohamed and others and submitted that status quo has to be maintained during the trial of the suit which is a normal rule throughout canvassed by series of decisions. Thereafter, by referring to a decision reported in AIR 2005 SC 104 in the case of Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass, a request is made not to disturb the order which has been passed by learned court below. Additionally, certain other decisions have also been cited to substantiate his contention to ultimate request not to entertain the appeals which are otherwise not deserve to be entertained. 16. Having heard t....
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..... It has also been asserted in substance that token amount of Rs. 2.16 crores has been paid on 10.1.2018 in connection with the transaction in question since the sale and purchase were orally agreed at the relevant point of time and then final drafts with certain modifications have been exchanged. It has also been asserted in the plaint that after acceptance of payment towards part sale consideration, the defendant has provided all the copies of title deeds and documents as well as title clearance report of A.C. Damani and company and then several meetings and deliberations have taken place. It was specifically averred in the plaint that the plaintiff was always ready and willing to pay the balance amount of Rs. 27.84 crores as stipulated in memorandum of understanding dated 30.3.2018, but despite memorandum of understanding, the defendant has cleverly sidelined from the contract and then through RTGS, unilaterally, without communicating denial, returned the amount. It has specifically been averred in paragraph 9 that on 30.3.2018, at around 10.39.54 a.m. IST, one more email was received from Legal Department of defendant No. 1 company stating that final drafts of MOU and ATS are a....
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....m-Nimish Vasa: Kartikey bhai, it would be prudent that WE meet at your earliest convenience and FINALIZE long PENDING matter of my pending dues. Also your comments about commission for D2 is not really business like and morally correct but in case you have determined to sell it to Krupesh, it really then doesn't matter. Only if you still wish to continue discussion with Ketan and explore to get best possible rate and terms, I insist that we meet and clear the issue immediately to avoid further misunderstanding in this matter. If you are still open to talk to him please let me know when to call him to Abad for meeting with you and Mohal (if you wish to directly call him and fix the meeting, please go ahead however it doesn't change the issue of commission due to me in case you finalise to sell D2 to Ketanbhai) Waiting for your response and meeting time. Thanks. NIMISH" "25/12/2017, 10:15 am-Nimish Vasa: Kartikey bhai, i am now hesitant to pursue you because as Ketan informed me, if you have already made up your mind to sell D2 to Krupeshbhai and using me and Ketan to push his price as high as possible, I feel quite let down and think that there's no need for us ....
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....:36 am-Nimish Vasa: Thanks Kartikey bhai for your response. Today I am in Kolkata. But if there is anything that you want me to handle with Ketan please let me know. I spoke to Chaulla on Monday and she said she is sending fully corrected mou to ketan later on Monday and if there's anything she will get back to me. Since she never called I thought all OK 22/03/2018, 10:45 am-Kartikeya Sarabhai: MOU is accepted. But there are issues with income tax which they are meeting today 22/03/2018, 10:46 am-Nimish Vasa: OK let's talk tomorrow and if convenient to you then meet on Saturday. 25/03/2018, 5:26 pm-Nimish Vasa: Kartikey bhai, have you decided your plans for tomm? If you agree I can go with you and will be able to push Ketan to complete payment tomm and get you to also meet commissioner of IT to aliviate your fear. If not true then i will ensure that he hands over payment to him in front of you to ensure that you don't get in any additional trouble. Will wait to hear from you. Thanks. 26/03/2018, 12:29 pm-Nimish Vasa: Kartikey bhai, Ketanbhai called me and asked me to convey to you that our understanding was to pay 30 Cr before 31st Ma....
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.... 26/03/2018, 10:12 pm-Nimish Vasa: Kartikey bhai, I didn't want to say this in presence of Ketanbhai but I definitely don't agree with your decision and views especially to break our commitment and agreement on some imaginary perception. If you were thinking of such issue you could have told me about it and we would have informed Ketanbhai not to go in that direction. This can't be a ground to break our word or commitment and I disagree with you. I request you to please reconsider your views and let's conclude our deal with Ketanbhai to honor our words. This is also a matter of my commitment and involvement and I request you not to take such a hurried decision on pretex of mishandling of Income tax issue. I hope you will not go that route which in my opinion is not fair and also not honourable way of doing business. I sincerely request you to please do not go the wrong way of thinking about breaking our words and commitment especially when he still has up to 31st to honor his commitment. I hope you will not put both of us (you and me) to such an awkward position to defend our honour and words." "26/03/2018, 10:27 pm-Nimish Vasa: If you think you need tighte....
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....n't dishour our commitment. 30/03/2018, 5:52 pm-Nimish Vasa: I don't want to face criminal case of misguiding and cheating some one deliberately. I am blaming this situation only on Kartikeya bhai that he knew all along and plotted for this harming everyone. Ketan is saying what ever you need to pay to IT I will pay and will adjust in your last installment so what is the excuse now. 30/03/2018, 5:53 pm-Nimish Vasa: You have to come out of this situation which is self created and have to honour your and my word 30/03/2018, 6:53 pm-Nimish Vasa: You can not pull a fraud and cheating keeping me in between. I will not take this lying down and I will confirm with Ketan that this was a deliberate attempt to mislead Ketan and me. 30/03/2018, 6:54 pm-Nimish Vasa: Till this morning you are giving us a different picture and all along you had planned this. I will not be party to this cheating. 30/03/2018, 7:12 pm-Nimish Vasa: Ketan bhai told me that I am to remain present at 10 AM Tomm at Baroda, where??? and either complete this transaction or face consequences !! I sincerely request you to talk among yourselves and find a way to honour our....
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....at everything was decided and agreed upon in my presence and I am party to this commitment. Now what can I say if he puts me on stand and asked me to confirm that deal was already finalized and payment has started. I think I am already feeling worried about myself facing consequences, you may be used to such behaviour of not honouring your commitment, but I am truly not comfortable with such an idea and in my dictionary it amounts to cheating, and fraud. I plead you not to go this route or it will destroy everything that is dear to my heart. Hope you will open your eyes to reality. Thanks. Nimish 30/03/2018, 8:15 pm-Nimish Vasa: Sent to kartikey bhai 30/03/2018, 9:32 pm-Nimish Vasa: It is just occurring to me, are you doing it for more money?? I really don't see any reason for such a behaviour unless you have some compulsion or temptation. I am also now wondering that as per your nature such a large and complicated deal could not have been concluded in last one or two days with other party, so maybe all along keeping us in dark you were talking to him for better price and better terms and pretending with us till you conclude !!! How can you be such a back stab....
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....ou negotiated higher price with other party keeping us in dark using our name to get better terms. These are all unethical behaviour and not honouring your name and family. Now exposing all of us to unnecessary legal hassle for small benifit Which any way I can match if you give me a transparent chance. 31/03/2018, 1:16 pm-Nimish Vasa: Kartikey bhai, I plead you to please find a way out of this mess. Please kindly get the deal restored. What ever you want we will get you the assurance of the most credible person that you will agree. I am sorry to say that once committed you can't take such step of taking money from some one else for same deal. Please give back his money after taking from Ketan. This is the request. 31/03/2018, 1:34 pm-Nimish Vasa: Please don't sign anything with Krupeshbhai, which will put you in trouble as I see that Ketan and his associates will go to any extent to get deal restored, I hope we don't come under cross fire for no apparent advantage and if they manage to pressurized Krupeshbhai, or local authorities, we will be the main sufferer. Please understand the gravity of the situation and if not yet signed any thing then don'....
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....n as a personal loan and not by way of consideration in part towards the transaction. Now for that purpose, if this is to be examined prima facie with page 115, a chart which is attached, it is reflecting an overall figure including Rs. 2.16 crores. This chart is indicating that overall figures tallied with the main consideration as on 30.3.2018 which is reflecting a left out amount of Rs. 27.84 crores. Now if these figures are to be tallied with the figures which are mentioned in the final draft of MOU, they appear to be matching with the amount shown in the chart on page 116. If the last column on page 116 is to be compared with the last modified MOU precisely reflecting on page 125 in 2nd paragraph, it would suggest that there is a clear inference about Rs. 2.16 crores, may be by way of part sale consideration towards the transaction and, therefore, the story put up of personal finance is not lending support from the material on record. 23. On the contrary, the final draft which has been submitted including agreement to sale reflecting on page 117 appears to have been sent on 30.3.2018 at 10.39.54 a.m. IST. Now if this is to be compared with a WhatsApp entry dated 30.3.2018 a....
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....ration and further, there is a flat denial about receiving any confirmation about proposed transaction from the plaintiff and then it was conveyed in paragraph 24 that in that situation, on 30.3.2018 in the afternoon, the plaintiff company was personally informed about cancellation of all proposed drafts. It is also reflecting that Board of Directors put their foot down after appreciating everything and decided not to travel in the direction of proposed MOU with the plaintiff. But then resolution of the Board of Directors was of previous date and subsequently, the drafts of MOU as well as ATS continued to be sent. A clear stand is taken that the plaintiff was incapable of clearing income tax liability of defendant No. 1 but then this is clearly in contrast with the balance certificate which has been issued by Oriental Bank of Commerce. This stand of the defendant is to be examined from the documents which are attached in the paper book compilation precisely page 474/U dated 3.4.2018 wherein M/s. Neptune Infraspace Pvt. Ltd. has paid the amount towards the assessment of income tax on behalf of the defendant. All these payments are of 30.3.2018 totaling to around Rs. 11,78,10,000/-. ....
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....ns to be examined at the stage of trial, in the considered opinion of this Court. Therefore, it is not an open and shut case where the moment the agreement to sale took place and some amount is accepted from other party, the contract which was in process of getting materialized would evaporate. At least at this stage, with no certainty, a clear conclusion is possible to be arrived at. It is further reflecting from record and the conduct of the defendant that a projection is given that transaction is taking place with a view to mitigate the total amount of income tax but the same appears to be not the conclusion at this stage. The measurement which is reflecting in the agreement to sale which has taken place with M/s. Neptune is also a matter of concern and examination and further, the amount of Rs. 2.16 crores is paid by way of token payment towards transaction or not is also a matter of trial, since the said amount was undisputedly accepted in January, 2018 and then to convey later on that it was a personal finance, the plaintiff is definitely entitled to get clear answer which can be given at the time of trial. This is more so in view of the fact that the stand and the conduct of....
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....ation went on even till the previous evening to the agreement to sell which came to be registered with defendant No. 2, is an indication that on certain terms the parties have reached over the period of time to a particular stage where an inclination was shown to enter into a transaction. The fact that documents on record indicate that proper balance of the total consideration was available in the bank as certified by the bank officials and WhatsApp interactions suggest that the defendant was kept under a lame hope to arrive at an agreed contract. Prima facie, the learned counsel appearing for the respondent, Mr. Devan Parikh, has successfully match the amount of Rs. 2.16 crores which has been paid to the appellant in January,2018, is in response to the transaction in question. 29. It has further been reflecting from the record that triable issues are very much involved which deserve proper adjudication at the time when the suit to be conducted. The readiness and willingness is also visible not only from the fact that an amount of Rs. 2.16 crores has been paid way back on 10.1.2018. But even an amount of Rs. 27.84 crores, a balance amount, was kept ready to be paid. The manner i....
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...., are made as if the Court is to conduct a mini trial at this stage and as such, without much opining anything on rival contentions in detail and concluding which may influence the trial, the Court desists from commenting anything further, but is of the opinion that at least the case is made out where the property in question is required to be preserved during the course of trial. 31. It is settled position of law that normally, during the litigating process when a case is made out, the status-quo deserves to be granted and simply because the transaction is of a high value or simply because the legal proceedings taking some more time, would not be a circumstance to lift the order of status-quo, because ultimately the same would lead to a multiplicity of proceedings and would seriously prejudice the ultimate outcome if taking place in favour of the plaintiff. As a result of this, to save this situation, the Court is of the opinion that the order in question of maintaining status-quo does not call for any interference and at the best, the suit will have to be expedited considering the peculiarity of circumstances reflecting on record. 32. In light of aforesaid situation, keepin....
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.... upon proper adjudication and in the background of that fact, this principle is discussed which stage has yet not been reached in the present proceedings, as it would always be available for the appellant to press into service this principle when the suit is to be dealt with finally by the court. 36. Yet another decision which has been pressed into service is a decision of Court of Appeal, decided on 17.4.1986, in which what can be said to be a binding contract concluded between the parties and by citing this, learned Senior Counsel has indicated that herein in the present case on hand, the parties have not yet signed the contract. Therefore, it could not have a binding effect. But to derive at that stage if we look to the order at length, it relates to a challenge to a final decision and, therefore, in the present situation when there is a stiff debate on both the sides about the continuous negotiations and till previous evening, whether it amounts to a binding contract or not is matter of examination and can be proved and dealt with by leading the evidence and, therefore, to jump to a conclusion that simply because the signature is missing, binding effect is not emerging is a ....
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.... issue whether correspondence which took place suggests that acceptance was absolute or not where two minds were ad idem or not with respect to the property to be sold. But as said earlier the Court reiterates that such issues are to be examined by allowing the parties to lead the evidence. 39. Yet another judgment which has been pressed into service is a decision of the Apex Court in case of Rohit A. Kapadia & Anr. v. Perviz J. Modi, reported in 2016 SCC Online Bom. 6784. But then if we look at the said judgment, the said judgment was dealing with the appeal against the suit which was dismissed after full-fledged trial, where the court had an advantage of looking at the effect of evidence which has been led and hence, as said earlier, this is not the case where the Court at this stage would like to clearly opine either the effect of binding nature of the negotiation or the effect of readiness and willingness or the effect of subsequent registered agreement to sell which came to be entered into despite previous day interaction with the original plaintiffs. All these issues are left it open for trial to the court concerned. Hence, the Court would not like to prejudge these intric....
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....ies on record, meaning thereby, delaying further proceedings for bringing them on record,' having their say, etc and thus delaying the passing of final decree? The Court should 'always lean towards seeing that there is no multiplicity of proceedings and also that the proceedings should go on as far as possible so smooth that the decision can be arrived at between the parties who are on record as early as possible. If injunction is not granted, then probably the result would be as mentioned by us above and, therefore, it is in fitness of things that Civil Application No. 37M of 1982 should be allowed and the relief prayed for therein is granted." 42. Yet another decision which is pointed by one of the assisting counsel Mr. Mehul S. Shah is a decision of the Apex Court in case of Dev Prakash v. Indra, reported in 2017 (0) AIJEL-SC 60709 and has pointed out the observations which are at the stage of considering the powers of Order 39 Rule 1 and 2 of the CPC. Same will have some assisting feature to this Court and as such, the observations contained in Para. 14 are reproduced hereinafter: "14. In the preponderant factual background, as outlined herein above, we are ....
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....ective test-An acceptance is a final and unqualified expression of assent to the terms of an offer. The objective test of agreement applies to an acceptance no less than to an offer. On this test, the mere acknowledgment that an offer has been received would not be an acceptance; nor would a person to whom an offer to sell goods had been made accept it merely by replying that it was his 'intention' to place an order' or by asking for an invoice. But an 'acknowledgment' may by its express terms or, in a particular context by implication, contain a statement that the sender agreed to the terms of the offer and that he was therefore accepting it: this might, for example, be the effect of an 'acknowledgment' of a customer's order in website trading. Where the offer makes alternative proposals, the reply must make it clear to which of them the assent is directed. In one case an offer to build a freight terminal was made by a tender quoting in the alternative a fixed price and a price varying with the cost of labour and materials. The offeree purported to accept 'your tender' and it was held that there was no contract as there was no way of telling....
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....erty to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored." 47. Similarly, yet another decision of the Apex Court in case of Kalavakurti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy, reported in (1999) 7 SCC 114 is pressed into service, in which a comprehensive suit for specific performance of the agreement came to be filed an....
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....0 (Supp) SCC 727, the relevant observations contained in paragraph 9 are reproduced hereinafter: "(9) Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated: "--Is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented 732 from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the 'balance of convenience lies. ....