Sahebrao Pundlikrao Vidhale And ... vs Harishkumar Hanumandas Malpani
2015 Latest Caselaw 272 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH, NAGPUR




                                                  
                           SECOND APPEAL NO.398 OF 2014




                                           
          1. Sahebrao Pundlikrao Vidhale,
                             
              Aged about 60 years, Occ.
              Business, Mahatma Fule 
              Colony, Near Rathi Colony,
                            
              Amravati.

          2. Mohan Ramchandra Ghode,
              Aged about 61 years, Occ.
      

              Agrilst., r/o. Kota, Tq.
              Babhulgaon, Distt. Yavatmal.
   



          3. Murlidhar Annasaheb Amle,
              Aged about 76 yrs., Occ.
              Agrilst., r/o. Tiosa, Tq. Tiosa,





              Distt. Amravati.

          4. Narendra Jagatrao Ubhad,
              Aged about 50 years, Occ.
              Agrilst., r/o. Bhilona, Tq.





              Achalpur, Distt. Amravati.   ..........     APPELLANTS


                  // VERSUS //




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          Harishkumar Hanumandas Malpani,




                                                                               
          Aged about 48 years, Occ. 
          Agrilst. and Business, r/o.
          Rathi Nagar, Amravati, Tq. and




                                                       
          Distt. Amravati.                    ..........     RESPONDENT




                                                      
          -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                  Mr.V.A.Kothale, Adv. for the Appellants.
                  Mr.R.L.Khapre, Adv. for the Respondent.
           -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-




                                           
                              ig                  ********
                   Date of reserving the Judgment         : 24.8.2015.
                   Date of pronouncing the Judgment    : 2.9.2015.
                            
                                                  ********


                                         CORAM     :  A.P.BHANGALE,  J.
      


          JUDGMENT      :

1. This Second Appeal is preferred against the Judgment

and decree passed in Regular Civil Appeal No.312 of 2000

by the learned Principal District Judge, Amravati on

4.8.2014 whereby the Judgment and decree passed by Joint

Civil Judge (Sr.Dn.), Amravati for specific performance of

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agreement to sell in Special Civil Suit No.136 of 1987 was

confirmed.

2. The brief facts are as under :

Original plaintiff (respondent) had instituted Special

Civil Suit No.136 of 1987 against the present appellants

(original defendants) on the ground that the first defendant

for himself and on behalf of defendant nos. 2 to 4 had

purchased the immovable property known as Old Milan

Hotel building, Opposite Government Polytechnic

Compound, Gadge Nagar and undertook construction of

Shopping Complex of 60 ft. x 66 ft. of field bearing Survey

No.28, mouza Shegaon, Pragane Nandgaonpeth, Tq. And

Distt. Amravati. Construction was of five shops and one

room, out of which one shop premises admeasuring 10 ft. x

17 ft. was agreed to be sold by defendant no.1 for himself

and other defendant nos. 2 to 4 to the plaintiff for a

consideration of Rs.77,000/-. Earnest amount in the sum of

Rs.50,000/- was paid by the plaintiff. The defendants were

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supposed to inform the plaintiff about the exact area and

the sale deed to be executed on 21.9.1987 pursuant to

agreement to sell dt.19.7.1987. But the defendants did not

complete the transaction as agreed and sought extension till

5.10.1987. It is the case of the plaintiff that he was all

along ready and willing to perform his part of contract.

The plaintiff had issued notices and telegrams calling upon

the first defendant to execute the sale deed. He had also

issued public notice in Newspaper dt. 4.10.1987. But the

defendant failed to execute the sale deed as promised. The

plaintiff had, thus, filed suit for specific performance of

agreement to sell in respect of the suit shop, alternatively

claiming damages with refund of earnest money.

3. The defendants by Written Statement (Exh.25)

resisted the suit on the ground that the plaintiff was not

ready and willing to perform his part of contract and that

extension was sought by the plaintiff for execution of sale

deed. The appellants (original defendants) contended that

there was no evidence that defendant nos. 2 to 4 were

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bound by act of defendant no.1 and secondly that the

plaintiff was not ready and willing to perform his part of

contract.

4. The learned first Appellate Judge found that

defendant nos. 2 to 4 were bound to concur with defendant

no.1 to execute sale deed in favour of the plaintiff. It was

held by the first Appellate Court that the plaintiff was ready

and willing to perform his part of contract and therefore,

no interference was required in the decree passed by the

trial Court.

5. The defendants contended that the plaintiff had

examined power of attorney and he could not have deposed

on behalf of the plaintiff to adduce evidence regarding

readiness and willingness on the part of the plaintiff to

comply with the agreement to sell.

6. The learned first Appellate Judge, on appreciation of

the evidence, found that the power of attorney was none

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other than father of plaintiff who was personally aware of

the facts and was also present at the time of transaction. It

is also found that documentary evidence was produced on

behalf of the plaintiff such as copy of notice sent to the

defendant (Exh.63), copy of telegram dt.2.10.1987

(Exh.55) and copy of telegram dt.3.10.1987 (Exh.56) and

copy of telegram dt.7.10.1987 (Exh.59) and stamp papers

purchased by plaintiff on 5.10.1987 (Exh. Nos.57 and 58)

to show that the plaintiff was all along interested not only

to insist upon execution of sale deed but he had attended

the Sub-Registrar's Office in order to get the sale deed

executed pursuant to agreement to sell (Exh.53). The

defendants had agreed to specify the area of suit shop

before accepting balance consideration and to execute the

sale deed on 25.9.1987 or earlier.

7. The learned first Appellate Judge considered the

documentary evidence in the form of copy of notice,

telegrams, stamp papers purchased as also the

circumstances which revealed that defendant nos. 1 to 4

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had appeared and engaged common Advocate. They had

defended the suit and were represented by one Advocate.

Thus, the learned first Appellate Judge was satisfied that

defendant no.1 was acting on behalf of himself and

defendant nos. 2 to 4. The defendants, therefore, could not

have disputed the fact that defendant no.1 was representing

all the defendants. Therefore, defendant nos. 2 to 4 were

held bound u/s.13(a) and (b) of the Specific Relief Act,

1963 to concur and to execute conveyance in favour of the

plaintiff pursuant to agreement to sell executed by first

defendant in favour of plaintiff. Thus, an agreement is

entered into by one person on behalf of several persons to

execute the sale deed. The person entering into agreement

to sell on behalf of others and for himself is bound to get

concurrence of such other persons in order to execute the

sale deed. When there are strong equities in favour of the

plaintiff, there would be no justification on the part of joint

promisors to deny their obligation created under the

agreement to sell the immovable property particularly

where their share would not be affected. There is no

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dispute regarding terms of agreement to sell and also

payment of earnest money made to the defendants under

the agreement to sell. Therefore, in view of ruling in the

case of Prakash Chandra vs. Angadlal and Others

reported in AIR 1979 SC 1241, the ordinary rule that

specific performance of the agreement should be granted

must be borne in mind. Specific performance of contract

can be denied only when equitable considerations points to

its refusal and circumstances show that damages would

constitute adequate relief. At the same time, one cannot

overlook the fact that the agreement to sell the immovable

property creates equitable obligation on the part of the

vendor to execute the sale deed as promised. Particularly,

agreement to sell a shop in a shopping complex creates an

enforceable obligation in favour of the plaintiff to insist

upon execution of sale deed from the vendors who

promised to sell the suit property especially when the

plaintiff was all along ready and willing to get the sale deed

executed. It is true that grant of decree for specific

performance of agreement is purely discretionary relief. But

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such discretion to grant or refuse the decree for specific

performance of agreement to sell must be based upon

sound judicial choice after a trial Judge applies his mind to

the facts and circumstances disclosed in the evidence led

before him.

8. In the present case, the defendants were admittedly

joint owners in respect of the suit property. They had

purchased the property jointly from one Mulchand

Natthulalji Nagaria on 9.6.1987. Registered sale deed

produced on record at Exh.54 indicates clearly that Mohan

Ramchandra Ghode, Murlidhar Annasaheb Amle, Sahebrao

Pundlikrao Vidhale and Narendra Jagatrao Ubhad had

jointly purchased the suit property. Thus, they were

admittedly joint owners. The sale deed transaction would

indicate that Sahebrao Pundlikrao Vidhale had acted on

behalf of the purchaser who purchased the stamp paper for

getting the sale deed executed. None of other joint vendors

figured as participating in that transaction of sale deed.

Under these circumstances, submission made on behalf of

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the appellants with reference to the ruling in the case of

Pemmada Prabhakar and Others vs. Youngmen's Vysya

Association and Others reported in (2015) 5 SCC 355 that

when vendors are not having complete title over the suit

property, agreement not executed by all the co-sharers

cannot be enforced by plaintiff/vendee is not convincing as

the facts and circumstances in the case of Pemmada

Prabhakar and Others were different. In that case,

undisputed fact was that the suit property was a self-

acquired property of Pemmada Venkateswara Rao and he

died intestate leaving behind his wife, three sons and three

daughters as legal heirs. In the facts and circumstances of

that case, Hon'ble Supreme Court held that defendant no.1

and 2 in that case had no absolute right to property in

question. Therefore, plaintiffs in that case were held not

entitled to grant of a decree for specific performance of

agreement of sale in their favour. In that case, Section 17 of

the Specific Relief Act in the light of Section 8 of the Hindu

Succession Act was considered. The facts and circumstances

in the present case are substantially different. Here, the suit

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property was sold by such a vendor who had acquired title

to the suit property under registered sale deed acting for

himself and on behalf of other co-owners and had complete

good title to the suit property for himself and co-vendors to

convey the same. The ruling, therefore is not attracted.

9. In the same manner, the ruling in the case of

Kashinath Rajaram Kasabe and Others vs. Ramchandra

Tukaram Kasabe (deceased) as per L.Rs. and Others

(Judgment delivered by the Single Judge of this Court)

reported in 2015 (1) Mh.L.J. 748 is not attracted as, in that

case, defendant alone had put thumb impression on the

agreement. Nobody else from the family agreed to sell the

suit property. In the facts and circumstances of that case,

decree for specific performance of contract was rightly

refused as held by this Court. Therefore, in the facts and

circumstances of the present case, the rulings cited would

not apply.

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10. Another submission advanced on behalf of the

appellants is that the plaintiff himself had not entered into

witness box to insist upon specific performance of

agreement to sell. He relied upon the ruling in the case of

Man Kaur (Dead) by L.Rs. vs. Hartar Singh Sangha

reported in 2010 (10 ) SCC 512 to argue that it was duty of

the plaintiff to enter into witness box and to depose so that

opportunity could have been given to the defendants to

cross-examine the plaintiff. In the facts and circumstances

of the present case, the father of the plaintiff had deposed,

who was fully and personally aware of the facts. He was

present at the time of transaction and he acted as

representative of the plaintiff having personal knowledge in

respect of the suit transaction. Therefore, it cannot be held

in the facts of this case that the father of the plaintiff as a

power of attorney holder on behalf of the plaintiff was

incapable of proving the suit transaction. Nothing

prevented the defendants from making an application to

the trial Court or first appellate Court to allow them to

cross-examine the plaintiff in respect of the suit transaction.

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Therefore, the submission at the belated stage of Second

Appeal that the plaintiff should have entered in the witness

box in the trial Court is neither acceptable nor convincing.

No assistance can be sought by the appellants from the

ruling in the case of Man Kaur's case (supra).

11. Mr.R.L.Khapre, learned Counsel for the respondent, in

order to oppose the submissions advanced on behalf of the

appellants, cited ruling in the case of Kartar Singh vs.

Harjinder Singh and Others reported in AIR 1990 SC 854

to argue that specific performance can be granted in respect

of shares of co-sharers. Mr.Khapre, learned Counsel argued

that "power of attorney holder" can transfer the immovable

property by executing document on behalf of all. It is

further submitted that subject matter of the suit is only one

shop admeasuring about 17 ft. x 10 ft. and the executant

who signed on behalf of joint owners was one of the four

joint owners with atleast 25 % share in the joint property

which comes to around 1150 sq.ft. That being so, the shop

sold was admeasuring only 170 sq.ft. It is submitted that, in

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any case, the agreement to sell was binding on the

signatory vendor who was bound to execute sale deed of

atleast his share in joint property pursuant to agreement to

sell executed by him. Therefore, the decree passed by both

the Courts below ought to be confirmed in the facts and

circumstances of the case.

12. Considering the normal rule that specific performance

of agreement to sell ought to be granted and refusal is an

exception and after considering the evidence on record with

concurrent findings by both the Courts below granting

decree for specific performance of the agreement to sell, the

question raised by the appellants is as follows :

Is it necessary for the plaintiff to prove his case on its own merits; whereas, in the present case when Issarnote (Exh.53) is without signatures of the defendants and there is no power of attorney to

signatory defendant no.1 on behalf of defendant nos. 2 to 4, is it not perverse on the part of both the Courts below to take out right in the immovable property of defendant nos. 2 to 4 while granting

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specific performance of contract and also is it not erroneous perverse judgment given by the trial Court

by way of dismissal of the First Appeal ?

13. The above composite question of law must be

answered against the appellant in the facts and

circumstances of the case. In my opinion, it cannot be

termed as appropriate formulation of substantial question

of law so as to entertain the Second Appeal in respect of

decree dt. 26.2.1993 in Special Civil Suit No.136 of 1987

confirmed by the impugned Judgment and Order. In my

considered opinion, in the facts and circumstances of this

case, the agreement to sell in question was fully binding

upon the signatory who was joint owner having own share

in respect of the shopping complex to the extent of 1150 sq.

ft. while suit shop agreed to be sold was admeasuring only

170 sq.ft. Therefore, there cannot be any escape for the

executor of agreement to sell from to complete sale

particularly when vendor Mr.Sahebrao Pundlik Vidhale who

admittedly purchased stamp papers when entire land in

question was acquired under registered sale deed on which

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shopping complex was constructed at the premises known

as Old Milan Hotel, Opposite Government Polytechnic,

Amravati. The trial Court had dealt with facts in detail and

found that the first defendant had represented that, for

himself and along with defendant nos. 2 to 4, he had

agreed to sell the property i.e. shopping premises

admeasuring 170 sq. ft. to the plaintiff. It is undisputed

fact that original defendant no.1 Sahebrao Pundlikrao

Vidhale had purchased the property for himself and other

defendants from Mulchand Nagaria posing as joint owners

of the suit property. The plaintiff was found ready and

willing all along to pay balance consideration and to get the

sale deed duly executed. Therefore, the decree was passed

in favour of the plaintiff for specific performance of

agreement to sell. Under these circumstances, the ordinary

rule that specific performance of the agreement to sell

should be granted operates and unless exceptional case is

made out on behalf of the defendants for refusal of relief of

specific performance, there would be no justification to

deny relief of specific performance of such an agreement to

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sell as proved in the present case when substantial

consideration amount in the sum of Rs.50,000/- was

already paid as part consideration within time as agreed in

the suit agreement to sell.

14. Even otherwise, in the Second Appeal preferred

u/s.100 of the Code of Civil Procedure, the concurrent

findings of facts recorded by the trial Court and the first

Appellate Court need not be disturbed unless exceptional

case is made out on the basis of substantial question of law.

I do not find any substantial question of law so as to

entertain the Second Appeal and hence, question of law

raised by the appellants herein must be answered against

them. Therefore, for all the above reasons, the appeal

deserves to be dismissed. The appeal is dismissed

accordingly. No order as to costs.

JUDGE

jaiswal