Anil Kumar Sharma v. Kamlesh Gupta & Ors.

9. A reading of the above would show that even as per the case of the plaintiff, the defendant nos.[1] and 2/applicants were not physically present at the time of entering into the alleged Oral Agreement dated 25.11.2021. The plaintiff asserts that the defendant no.3 pleaded that it has the authority to negotiate and finalise the deal of the subjectproperty on behalf of the defendant nos.[1] and 2. A copy of the alleged Document of Authority, however, has not been placed on record. The plaintiff does not state that he made any endeavour to verify the assertion of the defendant no. 3 as to his authority from defendant NO. 1 and 2.

10. The plaintiff then goes on to say that the consideration for the Sale of the subject-property was mutually agreed between the plaintiff and the defendant no.3, and the defendant no.3 sought the final approval of the defendant nos.[1] and 2 telephonically. On receiving such approval, the plaintiff and the defendant no.3 executed the Receipt-cum-Agreement dated 25.11.2021, and the plaintiff paid an amount of Rs.5,00,000/- to the defendant no.3 for and on behalf of the defendant nos.[1] and 2. Therefore, even on culmination of the alleged negotiations, which even as per the plaintiff, took place only between the plaintiff and the defendant no. 3, the plaintiff took no steps to seek approval thereof from the defendant no. 1 and 2/applicants, but relied upon some telephonic confirmation taken by the defendant no. 3 from the defendant no. 1 and 2/applicants.

11. Though the plaintiff alleges that the Receipt-cum-Agreement dated 25.11.2021 was executed by the defendant no. 3 for and on behalf of the defendant no. 1 and 2/applicants, interestingly, the Receipt-cum-Agreement dated 25.11.2021 does not show that the defendant no.3 had either executed the same for and on behalf of the defendant nos.[1] and 2/applicants or received the alleged amount of Rs. 5,00,000/- for and on behalf of the defendant no. 1 and 2/applicants. It is at best an agreement between the plaintiff and the defendant no.3. The alleged Receipt-cum-Agreement dated 25.11.2021 is reproduced herein below:

12. Leading of oral evidence against the terms of the written document shall be barred by Sections 91 and 92 of the Indian Evidence Act, 1872. [Ref: V. Anantha Raju and Another v. T.M. Narasimhan and Others, 2021 SCC OnLine SC 969.]

13. The assertion of the learned senior counsel for the plaintiff is that whether the defendant no.3 was authorized to enter into the Oral Agreement for and on behalf of the defendant nos.[1] and 2/applicants; the price was agreed by the defendant no.3 with the approval of the defendant nos.[1] and 2/applicants and the payment of Rs. 5,00,000/was received by the defendant no.3 for and on behalf of the defendant nos.[1] and 2/applicants, are matters of evidence and, therefore, the suit cannot be dismissed as being without any cause of action.

14. I am unable to agree with the submissions of the learned senior counsel for the plaintiff. In the present case, as noted hereinabove, the plaintiff has not placed on record any document to show the authorization of the defendant no.3 to enter into an agreement with the plaintiff for and on behalf of the defendant nos.[1] and 2/applicants. In fact, it is not even the case of the plaintiff that the plaintiff sought confirmation from the defendant no. 1 and 2/applicants for the defendant no. 3 to enter into the Oral Agreement for and on their behalf. Interestingly, paragraph no. 2 of the plaint states that no relief is being sought against the defendant no.3 in the suit. The same reads as under:-

15. In paragraph no. 7 of the plaint, the plaintiff asserts that the final approval for the price of the subject-property was obtained by the defendant no.3 from the defendant nos.[1] and 2/applicants telephonically. It is not stated that it was the plaintiff who spoke to the defendant nos.[1] and 2/applicants and that the approval of the consideration was given by the defendant nos.[1] and 2/applicants to the plaintiff. The consideration is also alleged to have been paid only to the defendant no.3. As noted hereinabove, the Receipt-cum- Agreement dated 25.11.2021 does not state that it has been executed by the defendant no.3 for and on behalf of the defendant nos.[1] and 2/applicants. Clearly, there is no privity of contract between the plaintiff and the defendant nos.[1] and 2 in the present case. The claim of the plaintiff, if at all, would have only against the defendant no.3, against whom the plaintiff claims no relief in the present plaint.

16. The learned senior counsel for the plaintiff submits that the defendant no.3 has now filed a document along with his Written Statement, which shows that a similar Receipt-cum-Agreement has been executed by the defendant no.1 in favour of the defendant no.3 on 24.11.2021, and an amount of Rs.5,00,000/- was paid by the defendant no.3 to the defendant no.1.

17. The above-said document as also the purported Written Statement filed by the defendant no. 3 is, however, not on record. In any case, the plaintiff must stand on its own legs. The plaintiff has not pleaded in the plaint that he has entered into an Oral Agreement based on any such document. The said document does not even find a mention in the Receipt-cum-Agreement dated 25.11.2021 relied upon by the plaintiff as bedrock of his claim. Therefore, no cognizance of this document can be taken at this stage.

18. In fact, this document would go to show that there appear to be back-to-back agreements; one between defendant no. 1 and defendant no. 3, while the other being between the plaintiff and the defendant NO. 3. As the defendant no. 3 acquired no right, title or interest in the subject property merely because of the execution of the alleged Receipt-cum-Agreement dated 24.11.2021 between the defendant NO. 3 and the defendant no. 1, he could not have transferred any right, title or interest in the subject property to the plaintiff on the strength thereof. It appears that for this reason, this Receipt-cum-Agreement was not relied upon by the plaintiff in his plaint.

19. Any which way, the above Receipt-cum-Agreement dated 24.11.2021 is not a subject matter of this Suit and therefore, need not detain this Court any further, apart from saying that even if the said document is taken cognizance of, it would not substantiate the stand of the plaintiff that there was a privity of contract between the plaintiff and the defendant no. 1 and 2 by virtue of the execution of the Receipt-cum-Agreement dated 25.11.2021 executed between the plaintiff and the defendant no. 3.

20. In T. Muralidhar (supra), it was held that one of the important ingredients necessary to make out a legal, valid and enforceable Agreement to Sell is the certainty as to party, that is, the seller and the purchaser. In the present case, the Receipt-Cum-Agreement identifies only the plaintiff and the defendant no. 3 as its parties.

21. In Raman (supra), the Supreme Court held that a Court cannot grant the relief of specific performance against a person compelling him to enter into an agreement with a third-party and seek specific relief against such a third party. The said ratio is clearly applicable to the facts of the present case.

22. In the present case, the Receipt-cum-Agreement dated 25.11.2021 is executed between the defendant no.3 and the plaintiff. It does not purport itself to have been executed by the defendant no.3 for and on behalf of the defendant nos.[1] and 2/applicants.

23. The sequence on basis on the basis of which the plaintiff asserts that an Oral Agreement was executed by the defendant no.3 for and on behalf of the defendant nos. 1 and 2/applicants, also has no merit. In fact, in light of the written document of Receipt-cum-Agreement being relied upon by the plaintiff himself, the entire theory of an Oral Agreement between the plaintiff and the defendant no. 1 and 2/applicants must fail. As noted, it is not the case of the plaintiff that the plaintiff entered into some oral agreement with the defendant no. 1 and 2/applicants. On the contrary, it is the case of the plaintiff that the written agreement in form of the Receipt-cum-Agreement dated 25.11.2021 was entered into between the plaintiff and the defendant no. 1 and 2/applicants. This assertion, on the face of the document itself, cannot be accepted. While there can be no doubt that the Agreement to Sell can also be oral, unless otherwise provided in law, in the present case, the plaintiff has relied upon the Receipt-cum- Agreement dated 25.11.2021 and not any purported Oral Agreement between the plaintiff and defendant nos.[1] and 2/applicants. The only question before the Court would be whether the Receipt-cum- Agreement dated 25.11.2021 binds the defendant nos.[1] and 2/applicants as well, which on the face of it, deserves to be rejected. In view of the above, the reliance of the learned senior counsel for the plaintiff on Brij Mohan and Others (supra) and Alka Bose (supra) is unfounded.

24. In Dahiben (supra), the Supreme Court held that the remedy under Order VII Rule 11 of the CPC is a special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidenced, and conducting a trial, if it is satisfied that the plaintiff must not be allowed to unnecessarily protract the proceedings in the Suit and it would be necessary to put an end to the sham litigation so that further judicial time is not wasted. It was held that the test for exercising the power under Order VII Rule 11 of the CPC is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the Court would be justified in exercising and, in fact, must exercise its power under Order VII Rule 11 of the CPC. I quote from the judgment as under:- “23.2. The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. xxxx

23.4. In Azhar Hussain v. Rajiv Gandhi [Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315. Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281: (1998) 2 GLH 823] this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words: (SCC p. 324, para 12) “12. … The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action.” xxxx

23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC. xxxx

23.15. The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the court has no option, but to reject the plaint.

24.2. In T. Arivandandam v. T.V. Satyapal [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467] this Court held that while considering an application under Order 7 Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words: (SCC p. 470, para 5) “5. … The learned Munsif must remember that if on a meaningful—not formal—reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing.…” (emphasis supplied)

24.3. Subsequently, in ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.

24.4. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Rama Chandra Murthy v. Syed Jalal [Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174: (2017) 5 SCC (Civ) 602] held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.”

25. I must also remind myself of the observations and stern message of Justice V.R. Krishna Iyer in T. Arivandandam v. T.V. Satyapal & Anr., (1977) 4 SCC 467, as under:-