SA248.03.odtn247.03.odt 1/16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.248 OF 2003
APPELLANT: Mrs. Indubai w/o Mahadeorao
Deshmukh, Aged about 50 years, Occ:
(Original
Household work, Resident of
Plaintiff)
Nawabpura, Mahal, Nagpur (On R.A.)
-VERSUS-
RESPONDENTS: 1. Mrs. Anusayabai w/o Namdeorao Khode
(Original (Dead) through Legal Representatives:
Defendants)
(i) Dattatraya Namdeorao Khode, Aged 52
years, Legal Practitioner, (Already on
record as respondent no.2.).
(ii) Sanjay Namdeorao Khode, Aged 53
years, Occupation:Business,
(iii) Vijay S/o Namdeorao Khode, Aged 35
years, Occ: Business, Residing near
Zenda Chowk, Dharampeth, Nagpur.
(iv) Ku. Lata D/o Namdeorao Khode, Aged
37 years, Occ:Household,
(v) Ku. Mukta D/o Namdeorao Khode, Aged
35 years, Occ: Housewife,
::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 :::
SA248.03.odtn247.03.odt 2/16
Nos. (iv) and (v) residing C/o
Namdeorao T. Khode, near Zenda
Chowk, Dharampeth, Nagpur.
(vi) Smt. Mira W/o Suryabhan Dhoble, Aged
52 years, (Daughter of Anusayabai
Khode R/o Zingabai Takli, Koradi Road,
Nagpur.
(vii) Smt. Mala W/o Shamrao Falke, Aged 49
years, (daughter of Anusayabai Khode)
R/o Manewada Chowk, Ring Road,
Nagpur
2. Shri Dattatreya s/o Namdeorao Khode,
aged about 44 years, Occ: Legal
practitioner,
3. Shri Namdeorao T. Khode, aged about
72 years, Occ: Legal Practitioner
(Deleted).
All residents of Zenda Chowk,
Dharampeth, Nagpur (All on R.As)
Shri A. Z. Jibhkate, Advocate for the appellant.
Shri P. Dharaskar, Advocate for the respondents.
AND
SECOND APPEAL NO.247 OF 2003
APPELLANT: Mrs. Shubhangi W/o Ram Lambat, aged
about 54 years, Occupation-Household
(Original
work, resident of Ring Road, Trimurty
Plaintiff)
Nagar, Nagpur 440 022 (On R.A.).
::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 :::
SA248.03.odtn247.03.odt 3/16
-VERSUS-
RESPONDENTS: 1. Mrs. Anusayabai w/o Namdeorao Khode
(Original (Dead) through Legal Representatives:
Defendants)
(a) Sanjay S/o Namdeo Khode, Aged 53
years,
(b) Vijay S/o Namdeo Khode, Aged 35
years,
(c) Ku. Lata D/o Namdeo Khode, Aged 37
years,
(d) Mukta D/o Namdeorao Khode, Aged
major,
All (a) to (d) are R/o C/o Namdeo T.
Khode, Near Zhenda Chowk,
Dharampeth, Nagpur.
(e) Smt. Meera Suryabhan Dhobale, Aged
52 years, R/o Zingabai Takli, Koradi
Road, Nagpur.
(f) Sau. Mala Shyamrao Falke, Aged Major,
R/o Manewada Chowk, Ring road,
Nagpure.
2. Shri Dattatraya s/o Namdeorao Khode,
aged about 41 years, Occupation: Legal
Practitioner,
3. Shri Namdeorao T. Khode, aged about
69 years, Occ: Legal Practitioner
::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 :::
SA248.03.odtn247.03.odt 4/16
All residents of Zenda Chowk,
Dharampeth, Nagpur 440 010
(All on R.As)
Shri V. G. Bhamburkar, Advocate for the appellant.
Shri P. Dharaskar, Advocate for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 29-09-2017 DATE ON WHICH JUDGMENT IS PRONOUNCED: 31-10-2017 ORAL JUDGMENT :
1. Since both these appeals arise out of the common judgment of the first appellate Court, they are being decided by this common judgment.
2. The facts in brief are that defendant no.1 - Anusayabai received land admeasuring 3 acres from her father. In proceedings under provisions of the Urban Land Ceiling Act, 1984, land admeasuring 9000 square meters was released as surplus land. The plaintiff in Special Civil Suit No.649/1993 and her husband desired to purchase some property and therefore on 16-11-1984 an agreement was entered into by the plaintiff with the defendant nos.2 and 3. A plot admeasuring 5250 square feet from the aforesaid surplus land was agreed to be purchased for Rs.53,750/-. ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 :::
SA248.03.odtn247.03.odt 5/16 On the same day, the defendant no.1 also entered into a similar agreement with the plaintiff in Special Civil Suit No.1316/1993. Both the plaintiffs paid an amount of Rs.12,500/- each to the defendant no.1. Thereafter on 21-12-1984, a further amount of Rs.12,500/- each was paid by both the plaintiffs to defendant no.1. According to the plaintiffs, the defendants were to obtain necessary permission for selling the suit property and they had agreed to inform the plaintiffs about the same. In November, 1992 the plaintiffs and their husbands got knowledge that the defendant no.1 agreed to sell some land to one Nagbhumi Society. It was gathered that the defendants did not intend to complete the earlier transaction in favour of the plaintiffs. Therefore, a notice came to be issued to the defendant no.1 to have the sale deed executed. Though the plaintiffs were ready and willing to perform their part of the agreement, the defendant no.1 refused to do so. On the contrary, the defendant no.2 issued an advertisement on 6-1-1993 for selling some part of the surplus land. On that basis, suit came to be filed seeking specific performance of the agreement of sale with an alternate prayer for refund of the earnest amount.
3. The defendants filed their written statement and took the stand that the agreement entered into on 16-11-1984 was to be completed within a period of three months by having the sale ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 ::: SA248.03.odtn247.03.odt 6/16 deed executed. The plaintiffs did not take any steps to complete the transaction within that period. After the expiry of the period of three months, it was orally agreed that after cancelling the agreement dated 16-11-1984, one plot each be given to the plaintiffs from Nagbhumi Housing Society. Accordingly, on 27-6- 1988, the defendant no.1 through said Society got executed two sale deeds of plot nos.76 and 77 in favour of the husbands of the plaintiffs in lieu of the earlier agreement. It was therefore pleaded that the plaintiffs were not entitled for any relief whatsoever.
4. After the parties led evidence, the trial Court held that the execution of the agreement dated 16-11-1984 had been duly proved. It was further held that the execution of the both the plaintiffs through their husbands were sold separate plots in Nagbhumi Society by cancelling the earlier agreement of sale. On that basis, the relief of specific performance was refused and instead each plaintiff was held entitled for refund of earnest amount.
5. While the plaintiffs were aggrieved by the refusal of grant of the decree for specific performance, the defendants were aggrieved by the decree for refund of earnest amount. Both parties challenged the judgment of the trial Court. The first appellate Court on considering the entire evidence on record confirmed the ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 ::: SA248.03.odtn247.03.odt 7/16 dismissal of the suit for specific performance. It further allowed the appeal of the defendant no.1 and set aside the decree for refund of earnest amount. Being aggrieved both the plaintiffs have filed the aforesaid second appeals.
6. While admitting the appeals, the following substantial questions of law were framed:
(1) Whether the first appellate Court erred in applying the provisions of Section 62 of the Indian Contract Act?
(2) Whether the first appellate Court was wrong in observing that original agreement to modify a contract is admissible under proviso 4 to Section 92 of the Indian Evidence Act?
7. Shri A. Z. Jibhkate, learned Counsel for the appellant in Second Appeal No.248/2003 in support of the appeal made the following submissions:
(a) The first appellate Court committed an error in applying the provisions of Section 62 of the Contract Act, 1872 (for short, the said Act) while coming to the conclusion that the original agreement dated 16-11-1984 stood replaced by the transaction of sale in favour of the plaintiff. It was submitted that the original agreement dated 16-11-1984 was independent of the subsequent transaction and the plaintiff was seeking specific ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 ::: SA248.03.odtn247.03.odt 8/16 performance of the earlier agreement. Merely because a subsequent sale deed in respect of a different property came to be executed with regard to the land that was originally owned by the defendants, it could not be said that agreement dated 16-11-1984 stood substituted by the subsequent transaction. He referred to the evidence on record to indicate that both transactions were separate. The earlier agreement was never cancelled and hence, the plaintiff was entitled for its specific performance. Moreover, the parties to the transaction were different and hence, the requirements of Section 62 of the said Act were not satisfied. In that regard the learned Counsel placed reliance on the decisions in H. B. Basavaraj vs. Canara Bank & Ors. 2010 SAR (Civil) 57, Ganpat v. Mahadeo and others AIR 1925 Nagpur 26, Kedar Nath Pandey and another vs. Kripal AIR 1944 Audh 63 and Todarmal Tejmal and another v. Chironjilal, Gopilal and another AIR 1956 MB
25.
(b) That the first appellate Court committed an error in relying upon the provisions of Section 92 proviso IV of the Indian Evidence Act while considering the evidence led by the parties and coming to the conclusion that the original agreement was substituted by the subsequent sale transaction. It was submitted that such exercise was not permissible and that oral evidence could ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 ::: SA248.03.odtn247.03.odt 9/16 not be taken into consideration for modifying the written terms of the earlier agreement. It was submitted that the entire evidence on record was required to be taken into consideration and the written agreement dated 16-11-1984 could not be held to be substituted by another transaction on the basis of oral evidence. For said purpose the learned Counsel placed reliance on the decisions in Shankarlal Ganulal Khandelwal vs. Balmukund Surajmal Bharuka 1999(2) Mh.L.J. 569, Roop Kumar vs Mohan Thedani 2003 SAR (Civil) 566 and Vimalchand Ghevarchand Jain vs. Ramakant Eknath Jadoo 2009(5) Mh.L.J. 597.
It was thus submitted that the judgment of the appellate Court was liable to be reversed and decree for specific performance deserves to be passed.
8. Shri V. G. Bhamburkar, learned Counsel for the appellant in Second Appeal No.247/2003 adopted the arguments of the learned Counsel for the appellant in Second Appeal No.248/2003.
9. Shri P. Dharaskar, learned Counsel for the respondents supported the impugned judgment and made the following submissions:
(a) The appellate Court was justified in relying upon the provisions of Section 62 of the said Act for coming to the ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 ::: SA248.03.odtn247.03.odt 10/16 conclusion that the initial agreement dated 16-11-1984 stood substituted by the transaction of sale. According to him, instead of the plots agreed to be sold, plots from Nagbhumi Housing Society were sold to the husbands of the plaintiffs at the behest of defendant no.1. The entire evidence led by the parties including the exchange of legal notices indicated that the parties had consciously agreed to substitute the earlier agreement with the subsequent sale transaction. Though the initial agreement was dated 16-11-1984, no steps were taken by the plaintiffs to have the said agreement specifically enforced. The suit was filed after almost nine years from the date of the agreement. Only after the sale deeds were executed the present suits came to be filed. The appellate Court was justified in relying upon the provisions of Section 62 of the said Act while dismissing the suits. The learned Counsel placed reliance on the decisions of Privy Council in Vol. VII 345 Benjamin Scarf Vs Alfred George Jardine, G. Jayashree and Ors. vs. Bhagwandas S. Patel and Ors. (2009) 3 SCC 141 and Sasan Power Limited vs. North American Coal Corporation Ltd. (2016) 10 SCC 813.
(b) The appellate Court rightly relied upon the proviso IV to Section 92 of the Indian Evidence Act while coming to the conclusion that the original agreement was substituted by the ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 ::: SA248.03.odtn247.03.odt 11/16 subsequent transaction of sale. It was permissible to lead oral evidence to indicate that the original agreement was in fact agreed to be substituted by the transaction for sale. He therefore submitted that the appellate Court after considering the entire evidence on record had rightly found that the plaintiff was not entitled for any relief whatsoever. The appeals were therefore liable to be dismissed.
10. I have heard the learned Counsel for the parties at length and I have perused the impugned judgment. After appreciating the evidence on record, the first appellate Court took into consideration various circumstances for concluding that the initial agreement dated 16-11-1984 stood substituted by the transaction of sale. The circumstances taken into consideration are:-
(a) The original copies of the agreement dated 16-11-1984 were not produced by the plaintiffs.
(b) Except the suit notice, no other steps were taken by the plaintiffs to have the initial agreement enforced. The suit for specific performance was filed after a period of more than eight years from entering into the agreement.
(c) The suit land which was agreed to be purchased as per agreement dated 16-11-1984 was the subject matter of ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 ::: SA248.03.odtn247.03.odt 12/16 proceedings under the Urban Land Ceiling Act, 1984 and the same had not been released for being sold.
(d) Letter dated 11-8-1988 sent on behalf of Nagbhumi Housing Society to the plaintiffs alongwith deposition of Shri V. K. Bagde and DW-3.
(e) The exchange of notices between the parties.
(f) Payment of part consideration by the defendant no. 1 when the two plots were purchased from the Society.
(g) The sale deeds executed in favour of the husbands of the plaintiffs were produced by the defendants in Court.
11. Under Section 62 of the said Act, an earlier contract which is in existence can be substituted by new contract either between the same parties or between the different parties, the consideration being discharge of the earlier contract. If the rights under the earlier contract are kept alive then there would be no question of substitution of that agreement by a subsequent agreement. It would depend upon the facts of the case and the evidence on record to conclude that the original agreement was sought to be substituted by a different contract. This is the legal position that can be gathered from the decisions relied upon by the parties.
12. On a consideration of the entire evidence on record, it ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 ::: SA248.03.odtn247.03.odt 13/16 can be seen that though the initial agreement was entered into on 16-11-1984, the plaintiffs did not take any steps whatsoever for a period of almost eight years to have the said transaction completed. The earnest amount of Rs.25,000/- was paid in two installments by January 1985. The sale deed was to be executed within three months of the defendants obtaining permission from the Competent Authority. It is not in dispute that at that point of time proceedings under the Urban Land Ceiling Act, 1984 were pending and the plots agreed to be sold were not available for such transfer. The first notice issued by the plaintiffs for having the sale deed executed pursuant to agreement dated 16-11-1984 is in December, 1993. The subsequent purchase of plots from Nagbhumi Housing Society in favour of the plaintiff's husband along with the fact that the plaintiffs were not in possession of the original agreement dated 16-11-1984 is a relevant factor. The deposition of the Secretary of Society Shri V. K. Bagde supports the stand of the defendants that the defendants had paid part of the consideration while transferring the plots of the Society in favour of the plaintiff's husband. This part consideration was received by the defendant no.1 pursuant to the earlier agreement dated 16-11- 1984. The defendants in their reply dated 26-12-1992 to the notice issued by the plaintiff at Exhibit-74 had taken a stand that ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 ::: SA248.03.odtn247.03.odt 14/16 the earlier agreement was not to be acted upon and it was substituted by the transaction of sale in favour of the plaintiff's husband. In fact, the plaintiffs first issued a notice on 10-12-1992 and thereafter gave a public notice on 6-1-1993 expressing intention to purchase the suit property.
13. I find that the appellate Court after considering the entire evidence on record rightly found that the plaintiffs having noticed that it was not possible to complete the initial transaction dated 16-11-1984 were satisfied by the purchase of plots in the name of their husbands in Nagbhumi Housing Society. It has been rightly found that there was no other reason for not taking any steps whatsoever to have the initial agreement enforced. I find the appreciation of evidence by the first appellate Court to be reasonable and such appreciation of evidence cannot be said to be perverse. After considering the entire material on record, the appellate Court has found that the initial agreement dated 16-11-1984 stood substituted by the subsequent transaction of sale. I do not find any reason whatsoever to take a different view from one taken by the first appellate Court even after applying the ratio of the decisions relied upon by learned Counsel for the parties. Substantial question of law no.1 is answered by holding that the first appellate Court did not commit any error in applying ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 ::: SA248.03.odtn247.03.odt 15/16 the provisions of Section 62 of the said Act in the facts of the case.
14. Under proviso IV to Section 92 of the Indian Evidence Act, the existence of a distinct subsequent oral agreement to rescind or modify any such contract can be proved. In the present case, the defendants have led evidence in support of their stand that the initial agreement dated 16-11-1984 stood substituted by the subsequent transaction of sale. The defence of the defendants being based on the provisions of Section 62 of the said Act, it was permissible for them to lead such evidence in support of that defence. Having found that the initial agreement was agreed to be substituted by the subsequent transaction of sale, I find that the first appellate Court was justified in relying upon the proviso IV to Section 92 of the Indian Evidence Act. It was permissible for the defendants to lead evidence to prove that instead of the written agreement dated 16-11-1984 being acted upon, a separate property was sold in favour of the plaintiffs' husband. As observed in Roop Kumar (supra), Sections 91 and 92 of the Evidence Act are based on "best evidence rule". The defendants have succeeded in establishing their defence. The appreciation of evidence in that regard cannot be said to be perverse for being interfered in exercise of jurisdiction under Section 100 of the Code of Civil Procedure, 1908. The substantial question of law No.2 stands ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 ::: SA248.03.odtn247.03.odt 16/16 answered accordingly.
15. As a result of the foregoing discussion and in view of the answers given to the aforesaid substantial questions of law, I do not find any case made out to interfere with the impugned judgment. The second appeals stand dismissed with no order as to costs.
JUDGE /MU5LEY/ ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 :::