Bombay High Court
Girjabai W/O Dayalji Meshram vs Wanmala Gangadhar Thawre & ... on 29 July, 2016
Bench: Ravi K. Deshpande
sa329.02.J.odt 1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.329 OF 2002
Girjabai w/o Dayalji Meshram,
Aged about 45 years,
Occ: Cultivation,
R/o Fule Ward, Armori,
Tq. Armori, Dist. Gadchiroli. ....... APPELLANT
...V E R S U S...
1] Wanmala w/o Gangadhar Thawre,
Aged 50 years, R/o Armori,
Tq. Armori, Dist. Gadchiroli.
2] Ku. Amrapali d/o Gangadhar Thawre,
Aged about 14 years, thr. natural
guardian mother Smt. Wanmala
wd/o Gangadhar Thawre,
R/o Armori, Tq. Armori,
Dist. Gadchiroli. ....... RESPONDENTS
----------------------------------------------------------------------------------------------------
Shri Abhijeet Khare, Advocate for Appellant.
Shri V.N. Morande, Advocate for Respondents.
----------------------------------------------------------------------------------------------------
CORAM: R.K. DESHPANDE, J.
th JULY, 2016.
DATE: 29
ORAL JUDGMENT
1] The trial Court passed a decree for specific performance of
contract on 07.11.1997 in Regular Civil Suit No.15 of 1993.
The defendant was directed to execute the sale-deed in respect of the
suit house upon payment of balance amount of Rs.6850/- by the
plaintiff. In Regular Civil Appeal No.38 of 1997, the lower Appellate
sa329.02.J.odt 2/10
Court has set aside the decree passed by the trial Court on 16.03.2002
and a decree has been passed for refund of earnest money of Rs.4200/-
along with interest at the rate of 6% per annum from the date of filing of
the suit till its realization. The original plaintiff is before this Court in the
second appeal.
2] This Court admitted the second appeal on 26.08.2003 on
the substantial question of law as under:
H] Whether the lower appellate Court was justified in
reversing the finding of the trial court with respect to the
readiness and willingness of the appellant/plaintiff to perform
her part of the contract especially when it was proved on
record that
(a) the agreement of sale was executed 21-10-1992.
(b) earnest amount paid on 21-10-1992 and subsequently
also money is paid from 26-11-1992 till 30-04-1993.
(c) appellants issues a notice on 05-05-1993 to execute the
sale deed.
(d) appellant is present on 15-05-1993 in the office of the
sub registrar for execution of the sale deed and the respondent
is absent.
(e) appellant deposits the balance sale consideration in the
bank?
3] The trial Court held that the agreement dated 21.10.1992
sa329.02.J.odt 3/10
for sale of the suit property for total consideration of Rs.11,000/- has
been established. The plaintiff has also shown readiness and willingness
to perform her part of contract and rejected a plea raised by the
defendant that the agreement was a false and fabricated document
prepared by obtaining signature of the defendant by taking advantage of
his illness and worst financial position. The lower Appellate Court
concurred with the finding of the trial Court that the agreement was
proved, but recorded the finding that the plaintiff has failed to establish
her readiness and willingness to perform her part of contract. The lower
Appellate Court exercised the discretion to refuse to grant specific
performance of contract on the ground that greater hardship shall cause
to the respondent rather than the plaintiff.
4] With the assistance of the learned counsels appearing for the
parties, I have gone through the plaint, written statement, oral evidence
and the agreement of sale dated 21.10.1992. The total consideration
agreed was Rs.11,000/- out of which an amount of Rs.4150/- was paid
and the balance of Rs.6850/- was to be paid. There was no date fixed for
performance of contract in the agreement, but the plaintiff has
established that the sale-deed was to be executed in the month of May,
1993. Since both the Courts have concurrently held that the agreement
has been established, the finding has to be accepted as it is, in the
absence of any cross-objection. On the question of readiness and
sa329.02.J.odt 4/10
willingness, the plaintiff had issued notice on 05.05.1993 calling upon
the defendant to remain present in the office of Sub-Registrar Office,
Armori on 15.05.1993, to get sale-deed executed. The defendant refused
to accept the notice and the copy of notice along with postal envelope
are placed on record at Exhibit 38 and 39. The plaintiff also marked his
presence in the office of Sub-Registrar on 15.05.1993 by purchasing the
stamp paper of Rs.10/- at Exhibit 41 and she deposited an amount of
Rs.10,000/- in her account in Gadchiroli District Co-operative Bank at
Armori on 18.05.1993. The lower Appellate Court holds that the plaintiff
had no source of income and she was dependent upon the income of her
husband, who was engaged in the business of a contractor. The plaintiff
was therefore, not in a position to pay the balance amount of
consideration. The finding recorded is not based upon any pleading and
evidence available on record. It was not the case of the defendant that
the plaintiff was not having funds to pay the balance amount of
consideration. The findings are therefore, based upon conjectures and
surmises in reversing the finding recorded by the trial Court. The same
cannot therefore, be sustained.
5] The lower Appellate Court takes into consideration the
illness of the defendant, his financial position that only her wife was the
earning member of the family consisting of three persons and that the
defendant was suffering from leprosy and being in need of money
sa329.02.J.odt 5/10
obtained the amount from the plaintiff from time to time as was paid.
Shri Morande, the learned counsel appearing for the respondents - the
legal representatives of the original defendant, invited my attention to
the mode and manner of payment by the plaintiff to the defendant.
The copy of plaint itself shows that an amount of Rs.3,000/- was paid by
way of earnest money, and thereafter an amount of Rs.750/- paid on
26.11.1992, Rs.560/- paid on 31.12.1992, Rs.300/- paid on 25.12.1992,
Rs.400/- paid on 20.02.1993, Rs.140/- paid on 12.03.1993 and Rs.50/-
paid on 30.04.1993. He submits that on the basis of the schedule of
payment itself the lower Appellate Court has recorded the finding that
the defendant was in a bad financial condition and desperately needed
the amount for his treatment and maintenance of his family.
6] In the decision of the Apex Court in case of Zarina Siddiqui
v. A. Ramalingam alais R. Amarnathan reported in AIR 2015 SC 580,
relied upon by Shri Abhijeet Khare, the learned counsel appearing for the
plaintiff, it is held in paragraph Nos.34 and 35 as under:
34. The equitable discretion to grant or not to grant a relief
for specific performance also depends upon the conduct of the
parties. The necessary ingredient has to be proved and
established by the plaintiff so that discretion would be
exercised judiciously in favour of the plaintiff. At the same
time, if the defendant does not come with clean hands and
sa329.02.J.odt 6/10
suppresses material facts and evidence and misled the Court
then such discretion should not be exercised by refusing to
grant specific performance.
35. In the instant case, as noticed above, although
defendant No. 2 held a registered power of attorney on behalf
of defendant No. 1 to sell and dispose of the property, but the
defendants not only made a false statement on affidavit that
the power of attorney had authorized the second defendant
only to look after and manage the property but also withheld
the said power of attorney from the Court in order to misguide
the Court from truth of the facts. Further, by registered
agreement the defendants agreed to sell the suit premises after
receiving advance consideration but they denied the existence
of the agreement in their pleading. Such conduct of the
defendants in our opinion, disentitle them to ask the Court for
exercising discretion in their favour by refusing to grant a
decree for specific performance. Further, if a party to a lis does
not disclose all material facts truly and fairly but states them
in distorted manner and mislead the Court, the Court has
inherent power to exercise its discretionary jurisdiction in
order to prevent abuse of the process of law.
The Apex Court granted the specific performance of contract by imposing
the condition upon the plaintiff to pay the enhanced amount of
consideration of Rs.15,00,000/- in addition to the amount already paid
to the defendant.
sa329.02.J.odt 7/10
7] Normally, this Court would not have interfered the
discretion exercised by the lower Appellate Court, but the conduct of the
defendant in the present case, has played a vital role. The defendant not
only disputes the very execution of the agreement to sale and the
payments made to her by the plaintiff, but raises the plea of fabrication
of the document of agreement to sale. The defendant alleges that the
plaintiff has taken undue advantage of the illness and financial
stringency of the defendant, to prepare a false document. In terms of the
decision of the Apex Court cited supra, the conduct of denying existence
of the agreement in the pleading becomes vital and it disentitles the
defendant to exercise of discretion in his favour and to refuse to grant a
decree for specific performance of contract. The lower Appellate Court has
therefore, committed an error in exercise of discretion in favour of the
defendant.
8] The defendant in his oral evidence before the trial Court
stated that the market value of the property on the date of execution of
the agreement to sale was Rs.40,000/- to Rs.50,000/-. The relationship
between the plaintiff and the defendant is also required to be taken into
consideration. The plaintiff is the real sister of the defendant and she has
undertaken to permit the family of the defendant to reside in the two
rooms on the first floor of the suit property during the entire life time
without charging any rent or licence fee. Shri Khare, the learned counsel
sa329.02.J.odt 8/10
appearing for the appellant - plaintiff also makes a statement that the
plaintiff shall pay the total consideration of Rs.50,000/- to the defendant
along with interest at the rate of 6% per annum from the month of May,
1993 till this date. The plaintiff has already paid an amount of Rs.4150/-
which shall be deducted and the balance amount shall be paid to the
respondents within a period of two months from today along with the
interest at the rate of 6% per annum from the month of May, 1993 till
this date. The statements are accepted as an undertaking to this Court.
9] In the result, the second appeal is allowed and the suit is
decreed as under:
i] The appellant - plaintiff to pay an amount of
Rs.45,850/- along with 6% interest from the month of
May, 1993 till this date to the respondents within a
period of eight weeks from today.
ii] Upon receipt of consideration the respondents shall
execute the sale-deed in respect of the suit property in
favour of the plaintiff and the plaintiff shall bear the
cost of execution of the sale-deed.
iii] The plaintiff shall permit the respondents to occupy
sa329.02.J.odt 9/10
two rooms on the first floor of the building in
question during their entire life time and their
possession shall not be disturbed.
It is informed that the defendants - respondents have
deposited the amount directed to be refunded by the lower Appellate
Court, in the Executing Court. The Executing Court shall permit the
respondents to withdraw the said amount along with interest, if any,
accrued thereon.
There shall be no order as to costs.
If the respondents fail to execute the sale-deed in favour of
the plaintiff within a period of one month from today, the plaintiff shall
be entitled to get sale-deed executed through Court.
The decree passed by the trial Court shall stand modified
accordingly.
JUDGE
NSN
sa329.02.J.odt 10/10
C E R T I F I C A T E
"I certify that this Judgment uploaded is a true and
correct copy of original signed Judgment."
Uploaded by : Uploaded on : 03.08.2016.
N.S. Nikhare,
P.A. to Hon'ble Judge
