The Calcutta High Court clarified that electronic communications like emails and WhatsApp messages can establish a prima facie case of consensus ad idem for specific performance suits without requiring Section 65B compliance at the injunction stage, emphasizing that post-contractual disagreements do not vitiate existing agreements.
Background & Facts
The Dispute
The appellant, Smt. Keya Kundu, challenged an injunction restraining her and her co-owners from alienating suit property, alleging no agreement for sale was entered into with her personally, and that electronic evidence relied upon by the plaintiff violated Section 65B of the Indian Evidence Act, 1872.
Key Facts
- The plaintiff/respondent no. 1 sought specific performance of an agreement for sale of immovable property allegedly entered into with defendants
- By email dated September 7, 2023, sent at 3.52 p.m., the proforma respondent no. 2 (appellant's brother and co-owner) expressed disagreement to honour the proposed transfer
- Despite this disagreement, the plaintiff/respondent no. 1 had previously acknowledged receipt of an email from Dipak Kundu (appellant's husband) on August 3, 2023
- On August 23, 2023, proforma respondent no. 2 forwarded a draft agreement for sale to the plaintiff, indicating based on telephonic conversation with Raja Banerjee that the plaintiff agreed to purchase the building for Rs. 66,00,000/-
- The plaintiff/respondent no. 1 confirmed agreement to this offer via email on September 7, 2023, referring to WhatsApp calls in August 2023 where he intimated his offer of Rs. 66,00,000/-
- Thus, by the email dated September 7, 2023, prima facie consensus ad idem was reached on essential terms of property transfer
- The plaintiff/respondent no. 1 conveyed acceptance at 1.25 p.m. on September 7, 2023, while the disagreement email was sent later the same day at 3.52 p.m.
- The suit property was subject to Title Suit No. 1463 of 2023 before the learned Civil Judge (Senior Division), Fifth Court at Alipore, District - South 24 Parganas
Procedural History
- September 7, 2023: Consensus ad idem reached via email exchange (as detailed above)
- January 16, 2026: Learned Civil Judge granted injunction restraining defendants from alienating suit property till disposal of suit
- FMA No. 593 of 2026: Appeal filed challenging the January 16, 2026 injunction order
- CAN 1 of 2026: Concurrent application filed alongside the appeal
- Heard on: September 28, 2026
- Judgment on: September 28, 2026
Relief Sought
The appellant sought:
- Quashing of the impugned order dated January 16, 2026
- Declaration that no agreement for sale was entered into with her
- Direction that the plaintiff/respondent no. 1 is not entitled to injunction
- Costs of the appeal
The Legal Issue
The central question was whether electronic evidence (emails/WhatsApp messages) demonstrating consensus ad idem can be considered by a court at the injunction stage for specific performance without compliance with Section 65B of the Indian Evidence Act, 1872, and whether a subsequent expression of disagreement by a party vitiates an already concluded contract.
Arguments Presented
For the Appellant
Learned counsel for the appellant (Smt. Keya Kundu) contended that:
- No agreement was ever entered into between the plaintiff/respondent no. 1 and the appellant personally; all communications were with her husband or brother
- Under Section 65B of the Indian Evidence Act, 1872, as amended, electronic evidence (printouts of emails/WhatsApp) is inadmissible without a compliance certificate, rendering the Trial Judge's reliance thereon jurisdictional error
- Citing Anvar P.V. Vs. P. K. Basheer & others (2014) 10 SCC 473, it was argued that non-compliance with Section 65B is fatal to admissibility of electronic evidence
- Section 10 of the Indian Contract Act, 1872 requires written agreement for certain contracts, and no written deed was executed between parties
- Absence of earnest money or consideration negated existence of a concluded contract at any point
- Reliance on Ambalal Sarabhai Enterprise Limited Vs. Ks Infraspace Llp Limited (AIR 2020 SC 307) to argue specific performance is discretionary, requiring strong prima facie case which was lacking
For the Respondent/State
Learned counsel for the plaintiff/respondent no. 1 countered that:
- Series of WhatsApp messages and emails evidenced consensus ad idem between parties regarding essential terms of property transfer
- Earnest money follows conclusion of contract; its non-payment does not negate prior agreement formation
- Plaintiff/respondent no. 1 exhibited readiness and willingness by offering to deposit Rs. 6,00,000/- as advance in court if directed
- Section 65B compliance is only attracted when a document is tendered as evidence and marked as exhibit; at injunction stage, court only examines pleadings and documents to ascertain triable issue, not to prove case to hilt
- Appellant's complicity was evident from her joint written statement and objection with her brother (defendant no. 1/proforma respondent no. 2), undermining her claim of no involvement
- Citing Ram Krishan Singhal Vs. Executive Engineer and others ((1990) SCC Online Del 310), it was submitted that formal execution is not prerequisite for binding contract; exchange of letters suffices
The Court's Analysis
The Court began by noting the suit was for specific performance of an alleged agreement for sale, with the impugned order granting injunction against alienation of suit property. Addressing the Section 65B objection first, the Court held that Anvar P.V. (supra) applies only when electronic evidence is tendered and marked as exhibit during trial. At the injunction stage, under Order XXXIX Rule 1 & 2 CPC, the court merely ascertains whether triable issues exist for the matter to proceed to trial, not whether the plaintiff's case is proved to the hilt. Thus, applying Section 65B at this preliminary stage would convert injunction hearings into full-fledged trials, which no law contemplates.
On consensus ad idem, the Court found the email dated September 7, 2023, at 3.52 p.m. (expressing disagreement) was post facto and could not vitiate a contract already concluded earlier that same day at 1.25 p.m. when plaintiff/respondent no. 1 conveyed acceptance. The Court emphasized that payment of earnest money follows contract conclusion, not precedes it, rendering the appellant's earnest money argument irrelevant.
Regarding Section 10 of the Indian Contract Act, 1872, the Court clarified that while Section 10 defines contracts as agreements made by free consent for lawful consideration, its proviso expressly saves laws requiring written agreements (like Registration Act). Since no such law barred oral agreements or agreements by email/WhatsApp in this case, the absence of a written deed did not invalidate the contract.
Critically, the Court distinguished Ambalal Sarabhai (supra), noting that the 2018 amendment to the Specific Relief Act, 1963 erased statutory discretion in granting specific performance. Once parties prove ingredients of a concluded contract under Section 9 of the Act, courts must grant relief unless statutory bars apply. Unlike Ambalal Sarabhai where negotiations failed due to third-party dealings, here no subsequent indefeasible rights were created in favour of third parties that would prevent specific performance.
The Court further held that the appellant's joint written statement and objection with her brother demonstrated her complicity in the transaction, negating her claim of lack of authority. Balance of convenience favoured injunction given appellant's attempts to deny contract existence post-facto, which would cause irreparable injury and multiplicity of proceedings.
"Thus, alleged non-compliance of Section 65B is not a relevant consideration at the stage of grant of temporary injunction."
"In the facts of the present case, as evidenced by the documents furnished by the plaintiff in the Trial Court, we find that immediately after consensus ad idem was reached, by an email dated September 7, 2023, sent at 3.52 p.m, the proforma respondent no. 2, that is the brother of the appellant, one of the co -owners with the appellant, expressed disagreement to honour the same. Thus, the stage of payment of earnest money did not fructify in the present case, although the contract had already got a final shape."
"In view of the above discussions, this Court is of the opinion that the learned Trial Judge was justified in granting injunction as a sufficient case has been made out for grant of injunction."
The Verdict
The appeal (FMA No. 593 of 2026) and concurrent application (CAN 1 of 2026) were dismissed, thereby affirming the impugned order dated January 16, 2026 passed by the learned Civil Judge (Senior Division), Fifth Court at Alipore, District - South 24 Parganas in Title Suit No. 1463 of 2023. No costs were awarded. The Court clarified that the Trial Court may, at any stage of the suit, direct the plaintiff/respondent no. 1 to deposit the agreed advance amount of Rs. 6 lakh to prove readiness and willingness, subject to the suit's outcome.
What This Means For Similar Cases
Electronic Evidence At Injunction Stage
Courts considering injunction applications under Order XXXIX CPC may rely on electronic communications (emails, WhatsApp) to ascertain consensus ad idem without insisting on Section 65B compliance certificates. This stage only requires a prima facie showing of triable issue, not proof beyond doubt. Lawyers should now routinely produce email trails to establish agreement fundamentals at injunction hearings, knowing Section 65B objections are misplaced at this preliminary juncture.
Post-Agreement Disagreement Does Not Vitiate Contract
A party's subsequent expression of disagreement after consensus ad idem is reached cannot invalidate an already concluded contract. The contract's formation is fixed at the moment of mutual assent; later objections affect performance or breach, not existence. Practitioners must distinguish between contract formation (governed by offer/acceptance) and contract performance (governed by terms) when arguing specific performance suits.
Specific Performance After 2018 Amendment
Following the 2018 amendment to the Specific Relief Act, 1963, courts lose statutory discretion to refuse specific performance once parties prove concluded contract under Section 9. Relief becomes mandatory unless statutory bars (e.g., hardship, supervision difficulties) apply. This shifts focus to whether contractual ingredients exist, rather than arguing discretionary factors like in Ambalal Sarabhai.
Readiness And Willingness At Trial Stage
While readiness and willingness need not be pleaded under the amended Specific Relief Act, they must be proved at trial. Offering to deposit agreed advance in court (as plaintiff did here) sufficiently demonstrates such readiness. Defendants cannot defeat specific performance by merely alleging lack of earnest money; they must show statutory bars to relief exist.
