Allahabad High Court

Ramesh Chandra Agrawal And Others vs Smt. Bitta Devi Alias Bitto on 12 October, 2015

Bench: Sudhir Agarwal, Shamsher Bahadur Singh




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 34                                                                             A.F.R.
 

 
Case :- FIRST APPEAL No. - 117 of 2002
 

 
Appellant :- Ramesh Chandra Agrawal And Others
 
Respondent :- Smt. Bitta Devi Alias Bitto
 
Counsel for Appellant :- Pankaj Agarwal
 
Counsel for Respondent :- Devendra Dahma, A.S.Jadaun
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Shamsher Bahadur Singh,J.

1. Heard Sri Pankaj Agarwal, learned counsel for appellants. None appeared on behalf of respondent though the appeal has been called in revised and names of Sri Devendra Dahma and Sri A.S. Jadaun, Advocates for respondent are shown in the cause list. Therefore, we proceed ex parte to decide the appeal.

2. It is a plaintiff's appeal.

3. This First Appeal, under Section 96 of Code of Civil Procedure, has arisen from judgment and decree dated 10.12.2001, passed by Additional Civil Judge (Sr. Division), Court No. 2, Aligarh in Original Suit No. 143 of 1998 (Ramesh Chandra Agrawal and others vs. Smt. Bitta Devi @ Bitti), whereby it has dismissed Original Suit No. 143 of 1998, in so far as the relief of specific performance was prayed by plaintiffs appellants but has decreed to the extent of refund of advance money along with interest.

4. The plaintiffs appellants instituted Original Suit No. 143 of 1998 impleading Smt. Bitta Devi @ Bitti W/o Aedal Singh as sole defendant. The plaint case set up by the appellants was that the defendant is owner in possession of property in dispute, situate at village Madrak Paragana & Tehsil Koil, District Aligarh. A registered contract for sale, dated 9.7.1993, was executed for a total sale consideration of Rs.5,49,150/-, out of which Rs.50,000/- was paid by the plaintiffs to the defendant as earnest money. Rest of the amount was payable at the time of execution and registration of sale deed. The parties agreed to execute sale deed after defendant collect clearance certificate from income tax department and inform the plaintiffs accordingly, but within one year from the date of execution of agreement to sell. Since the requisite clearance from income tax department could not be received by defendant within time, the parties agreed to extend period of one year more for execution of sale deed vide another registered agreement to sale dated 20.5.1994. Since defendant did not thereafter abide by its own terms of contract, the plaintiffs served notice dated 12.8.1997 requiring defendant to appear before Sub Registrar, Koil on 5.9.1998 for execution of sale deed. They (plaintiffs) also presented themselves in the office of Sub Registrar on the said date but defendant did not come, hence suit for specific performance was instituted by plaintiffs.

5. The defendant contested the matter, wherein she denied execution of agreement to sale on 9.7.1993 and also denied receipt of advance money of Rs.50,000/- from plaintiffs. She also denied execution of another registered agreement to sale dated 20.5.1994 and claimed that it is false and manufacture.

6. Since the very foundation of plaint case was disputed by defendant. Trial Court formulated following issues for deciding suit :

**1- D;k izfrokfnuh us okn i= esa cf.kZr lEifRr dk iathd`r bdjkjukek fn0 9-7-93 dks oknhx.k ds i{k esa fu"ikfnr fd;k \

1. Whether the lady defendant executed a registered agreement in favour of the plaintiffs on 9.7.93 of the property mentioned in the plaint?

2- D;k oknh bdjkjukek dh 'krksZ ds vuqlkj lnSo cSukek djus ds fy, bPNqd jgk vkSj vc Hkh rS;kj o bPNqd gS] ;fn gkW rks izHkko \

2. Whether the plaintiff, as per conditions of the agreement, was always willing to enter into a sale deed and is still prepared and willing? If so, its effect?

3- D;k oknh dk okn /kkjk 2 ch] 2,p-] 2lh-] rFkk 10 o 20] lafonk vf/kfu;e ls ckf/kr gS \

3. Whether the plaintiff's suit is barred by the Section 2B, 2H, 2C, 10 and 20 of the Contract Act?

4- D;k nkok le; vof/k ls ckf/kr gSa \

4. Whether the suit is time barred?

5- D;k nkok fof'k"V vuqrks"k vf/kfu;e dks /kkjk 12] 16 o 20 ls ckf/kr gSa \

5. Whether the suit is barred by the Section 12, 16 and 20 of the Specific Relief Act?

6- vuqrks"kA

6. Relief.**

(English translation by the Court)

7. Issue nos. 1 and 3 were taken together. The trial Court recorded a finding that two agreements for sale possess signature of defendant but plaintiffs had not signed both these documents and, therefore, the aforesaid documents, being unilateral, having been signed only by vendor, would not constitute a contract in terms of provision of Contract Act, 1882 (hererinafter to referred to as 'Act 1882') and relied upon the decisions of Madras High Court in S.M. Gopal Chetty vs. Raman @ Natesan and 7 others AIR 1998 Madras 169 and in case of Pushpa Bai vs. Dr. Williams and others AIR 2001 Madras 447. It accordingly, answered issue nos. 1 and 3 against plaintiffs holding that though the documents i.e. agreement to sale did contain signature of defendant but since they were unilateral documents executed only by vendor, therefor, were not 'contract' in terms of the Act, 1882.

8. Now the only point for determination, which has arisen in this appeal for adjudication is, "whether the agreement to sale unilaterally executed by vendor can be said to be a valid agreement to salel which can be enforced in a suit for specific performance by the prospective vendee" ?

9. Sri Pankaj Agarwal, learned counsel appearing on behalf of plaintiffs appellants contended that matter is now settled by Apex Court's decision in Aloka Bose vs. Parmatma Devi AIR 2009 (SC) 1527, wherein Madras High Court judgment in S. M. Gopal Chetty (Supra) has been overruled.

10. We have examined the submission of the learned counsel for appellants and perused the judgment of Apex Court in case of Aloka Bose (Supra). The Hon'ble Court in para 7 of the judgment has held as follows:

"7. ............. All agreements of sale are bilateral contracts as promises are made by both - the vendor agreeing to sell and the purchaser agreeing to purchase. On the other hand, the observation in S.M. Gopal Chetty (supra) that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. Section 10 of the Act provides all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the Contract Act. The proviso to section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognized communication). "

11. In present case, it is evident from judgment of the Court below that both the documents i.e. agreement to sell dated 9.7.1993 and 20.5.1994 did contain signature of vendor i.e. defendant but since the aforesaid agreements were not signed by vendee i.e. plaintiffs appellants, only on that basis Court below held that these documents are not valid agreements, which can be executed in a suit for specific performance. Since Court below did not find contract for sale valid for execution, hence other aspects as to whether the conditions exits justifying specific performance of contract in the present case, etc. have not been considered and, therefore, this is a fit case for remand.

12. In our view, the judgment cannot be sustained and the matter requires reconsideration by the Court below. Accordingly, the aforesaid question formulated in this appeal is answered in favour of appellants. The impugned judgment and decree dated 10.12.2001, passed by Additional Civil Judge (Sr. Division), Court No. 2, Aligarh in Original Suit No. 143 of 1998 (Ramesh Chandra Agrawal and others vs. Smt. Bitta Devi @ Bitti) is hereby set aside. The appeal is allowed. The matter is remanded back to the Court below with a direction to decide aforesaid suit, afresh, in accordance with law and in the light of observations made above. The appellants are entitled to costs.

Order Date :- 12.10.2015

S.S.

Case :- FIRST APPEAL No. - 117 of 2002

Appellant :- Ramesh Chandra Agrawal And Others

Respondent :- Smt. Bitta Devi Alias Bitto

Counsel for Appellant :- Pankaj Agarwal

Counsel for Respondent :- Devendra Dahma, A.S.Jadan

Hon'ble Sudhir Agarwal, J.

Hon'ble Shamsher Bahadur Singh, J.

1. This is an application seeking condonation of delay in filing substitution application.

2. Heard.

3. Cause shown is sufficient.