It is no longer res integra that when the court is considering the question of maintainability under Order VII Rule 11 CPC, it has to consider whether clever drafting is creating illusions of a cause of action as held by the High Court of Delhi through the learned bench led by Justice Asha Menon in the case of Ashwani Kumar v. Aditya Mannohar Bhide and Ors. (CS(OS)33/2021, I.As.790/2021)
The Brief facts of the case are that the plaintiff/Ashwani Kumar has filed the present suit for specific performance of an oral agreement to sell a property in New Delhi. The four defendants are the owners of the suit property. It is to be noted that summons in the suit had not been issued as Ms. Malavika Rajkotia, learned counsel for the defendant No.1, appearing on advance notice, submitted that the suit was without cause of action and deserves to be rejected. In between, the parties were referred to the Delhi High Court Mediation and Conciliation Centre to enable them to work out an amicable settlement. However, the Mediation Centre reported that the efforts had failed.
The Hon’ble High Court held, “It was highlighted that an agreement to sell relates to valuable property and the intention of the parties to reduce the terms of the agreement into writing had to be kept in mind before determining the existence of an oral agreement which was binding. This case held that while an oral agreement could be enforced, but for such an enforceable oral agreement, the sale consideration, the time of completion of the sale deed and the mode of payment, were all vital terms on which the parties ought to have been in agreement to result in a binding oral agreement. Thus, it is clear on facts and in law, the plaintiff has no cause of action, as no oral agreement, as claimed, had ever come into existence and neither was such an oral agreement intended by the parties, as they repeatedly referred to a written agreement to sell in the emails on which the plaintiff relies. Without a binding agreement between the parties, there is nothing to enforce specific performance of. Thus, the present suit is rejected as disclosing no cause of action under Order VII Rule 11(a) CPC, along with the pending applications.”
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Judgment reviewed by Vandana Ragwani
