Bombay High Court
Shri Vijay Laxmipati Dasari vs Smt. Laxmibai Ramayya Bolabattin ... on 16 September, 2016
Bench: R.D. Dhanuka
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SA383.93
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 383 OF 1993
Vijay Laxmipati Dasari (since deceased) )
through his legal heirs & representatives:-)
1a) Smt.Vanita Vijay Dasari, )
Age 51 years, Occ.Household, )
1b) Pradeep Vijay Dasari, )
Age 33 years, Occ. Business, )
1c) Sandeep Vijay Dasari, )
Age 32 years, Occ. Service, ig )
1d) Anup Vijay Dasari, )
Age 28 years, Occ. Service, )
All residing at 201/1, Plot No.38, )
Geenta Nagar, Kamtam Vasahat, )
New Pachha Peth, Solapur - 413 006 ) ..... Appellants
VERSUS
1. Smt.Laxmibai Ramayya Bolabattin, )
Age about 65 years, occupation : Household)
Residing at 1561, Daji Peth, Solapur )
2. Laxminarayan Ramyya Bolabattin, )
since deceased by his legal heirs and )
representatives )
2a. Laxmibai Ramayya Bolabattin, )
(Respondent No.1) )
2b. Kalavati Laxminarayan Bolabattin, )
Age adult, Occ.Household, )
2c. Radha Shrikant Rachcha, )
Age adult Occ.Household )
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2d. Ramu Laxminarayan Bolabattin, )
Age adult, Occ. )
2e. Prakash Laxminarayan Bolabattin, )
Age adult. Occ. )
2f. Chandrahas Laxminarayan Bolabattin,)
Age adult. Occ. )
All residing at 1561, DajiPeth, Solapur )
3. Shankar Ramayya Bolabattin, )
since deceased by his heirs and legal )
representatives )
3a. Laxmibai Ramayya Bolabattin,
(Respondent No.1)
ig )
)
3b. Anuradha Shankar Bolabattin, )
Age adult, Occ.Household )
3c. Rajani Shriniwas Balla, )
Age adult, Occ.Household )
3d. Ashwini Shankar Bolabattin, )
Age adult, Occ.Household )
3e. Rajesh Shankar Bolabattin, )
Age adult, Occ.Business )
3f. Naresh Shankar Bolabattin, )
Age adult, Occ.Business )
All Residing at 1561, Daji Peth, Solapur ) ..... Respondents
Mr.V.S.Gokhale for the Appellants.
Mr.T.D.Deshmukh for Respondent nos. 1, 2A, 2B, 2D, 2E, 3A, 3B, 3D, 3E and 3F.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 25th AUGUST, 2016
PRONOUNCED ON : 16th SEPTEMBER, 2016
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JUDGMENT :
By this second appeal filed under section 100 of the Code of Civil
Procedure, 1908, the appellants have impugned the order and judgment dated 17 th
March, 1993 passed by the Additional District Judge, Solapur dismissing the Civil
Appeal No.98 of 1990 filed by the appellants (legal heirs and representatives of the
original plaintiff). The appellants had impugned the judgment and decree passed
by the Special Civil Suit No.106 of 1983 dated 30th September, 1989 passed by the
Civil Judge, Senior Division, Solapur dismissing the suit filed by the original
plaintiff inter alia praying for specific performance of the agreement of sale dated
1st February, 1983 and in the alternative for refund of the amount paid by the
appellants to the defendants. Some of the relevant facts for the purpose of
deciding this appeal are as under :-
2. For the sake of convenience, the parties described in this appeal are
described as they were described in the proceedings before the trial court. The
appellants herein were the original plaintiffs whereas the respondents were the
original defendants before the trial court.
3. On or about 1st February, 1983, the plaintiff entered into an agreement
for sale in respect of the structure on the northern portion of F.P.No.20,
M.H.No.1561, Daji Peth, C.T.S.No.10429 for a consideration of Rs.40,000/-. It
was the case of the plaintiff that at the time of execution of the said agreement for
sale, the plaintiff paid a sum of Rs.15,000/- as and by way of earnest money and
thereafter paid a sum of Rs.4,000/- on 22nd February 1983, Rs.4,000/- on 2nd March
1983 and Rs.4,000/- on 18th April 1983 totalling to Rs.27,000/- to the defendants.
On 11th April, 1983, the parties entered into a supplementary agreement. It is the
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case of the plaintiff that the defendants handed over the possession of one of the
shop premises to the plaintiff on 11th April, 1983 in part performance of the said
agreement for sale.
4. It is the case of the plaintiff that on 28th July, 1983 the parties entered
into another writing by which the time to make payment by the plaintiff was
extended upto 13th August, 1983. It is the case of the plaintiff that the defendants
agreed to execute the sale deed before the Registrar on 12 th August, 1983. It is the
case of the plaintiff that since the defendants did not execute the sale deed on 20 th
August, 1983 the plaintiff filed a suit for specific performance of the said
agreement for sale and in the alternate claimed for refund of the said amount paid
by the plaintiff with interest. The defendants filed written statement and resisted
the said suit filed by the plaintiff.
5. It was the case of the defendants that the suit plot was taken on lease
by the deceased Ramayya and his two brothers Irayya and Rajbabbaiyya. There
was a partition between Ramayya and his two brothers. It was the case of the
defendants that the defendant nos. 1 to 3 had formed a joint Hindu family. The
father of the plaintiff Laxmipati Narasayya Dasari was a famous politician from
Eastern Region of Solapur in the Co-operative sector i.e. Dayanand Yantramag
Industrial Weaving Society Ltd. situated at Municipal House No.1550 which was
in existence from the year 1966.
6. The father of the plaintiff Laxmipati Narasayya Dasari was on the
Board of Directors of the said society. He was the chairman or vice-chairman of
the said society for a considerable period. On the date of filing suit by the plaintiff
also his father was the chairman of the said society. The defendant no.2 was
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working as a secretary of the said society from 1974-75. Vasudev Dandi was
working as the accountant of the said society and was having in his custody the
cash amount of the said society. It was the case of the defendants that the said
Mr.Vasudev Dandi while working as the accountant committed misappropriation
of the amount of Rs.7,749.89 of the said society. The chairman and the secretary
of the said society was required to sign the books of accounts as per the provisions
of the society. The father of the plaintiff and the defendant no.2 had accordingly
signed on the kird.
7. It was the case of the defendants that the chairman of the said society
Laxmipati Narasayya Dasari or the defendant no.2 had no concern with such
defalcation committed by Vasudev Dandi. The said Mr.Vasudev Dandi had no
property and thus there was no chances of any recovery of any amount of
defalcation of the said Mr.Vasudev Dandi. The father of the plaintiff and the
defendant no.2 were residing in the same lane opposite to each other. It was the
case of the defendants that the father of the plaintiff had thus knowledge that the
defendant no.2 had possessed immoveable property.
8. According to the defendants, in order to save his own claim, the
father of the plaintiff and other directors of the said society started giving threats to
the defendant no.2 of criminal action and at that time, the father of the plaintiff
took in his custody the partition deed of the partition between Ramayya, Irayya
and Rajababhai. On the basis of the original partition deed, proceedings in the Co-
operative Court bearing Co-operative Case No.519 of 1977 was instituted. In the
said proceedings Mr.Vasudev Dandi and the father of the plaintiff were not joined
as defendants. The defendants herein were joined as the defendants in those
proceedings.
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9. It was the case of the defendants that the father of the plaintiff gave
threats to the defendants to file criminal case and compelled the defendants to
admit the claim in the Co-operative case. An award was passed in the said
proceedings filed by the society against the defendants herein for payment of
Rs.10,000/- with future interest and costs. An encumbrances were created on the
suit property in respect of the said award delivered against the defendants.
10. It was the case of the defendants that the father of the plaintiff had
planned to grab the property of the defendants by paying the nominal price and he
took the undue advantage of the situation. It is the case of the defendants that the
defendants were under tremendous pressure of placing the criminal case in future
as threatened by the father of the plaintiff. The father of the plaintiff represented
that he was a man of the obliging nature and would give to the defendants loan to
enable the defendants to honour the said award in the proceedings filed by the
society. The defendant nos. 1 to 3 were in need of Rs.15,000/- at that time and
agreed to pay interest at the rate of 2% per month on the said amount of
Rs.15,000/-.
11. According to the defendants, the market price of the suit property was
about Rs.1,50,000/- to Rs.1,50,275/-. The father of the plaintiff insisted that the
defendants shall sign an agreement for sale in favour of the plaintiff and the same
shall be kept as a security and was not to be acted upon. The defendants required
money and thus the plaintiff got executed the supplementary agreement for sale of
Rs.27,000/- from the defendants and paid the loan of Rs.27,000/- to the defendants
through his father. It was not possible for the defendants to repay the said loan in
lumpsum and thus the father of the plaintiff got the documents of 'extension of
time' from defendant no2. alone. The defendant nos. 1 and 3 refused to sign on
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such documents seeking extension of time.
12. It was the case of the defendants that the defendant nos. 1 and 3
showed their readiness to repay the amount of Rs.10,000/-. The father of the
plaintiff however refused to accept the said amount of Rs.10,000/- and insisted for
payment of the entire amount of Rs.27,000/-. It was the case of the defendants that
the father of the plaintiff broke open the lock of the premises which was in
possession of the tenant of the defendant i.e. Mohan Consumers Society.
13. It was the case of the defendants that the open plot bearing nos. 181
and 191 were taken on lease by Ramayya Chandrayya Bolabattin, Irayya
Chandrayya Bolabattin from Dnyaneshwar Naran Nirgude. The three brothers
thereafter paid the sum of Rs.26,000/- and constructed a big hall on the said open
plot and installed 20 handlooms. Ramayya and Irayya thereafter expired. The
heirs of Ramayya and Irayya and Rajababbaiyya partitioned the said property. Plot
no.181 was given to Laxmibai Bolabattin. Plot no.191 was given to Rajababhaiya
Bolabattin.
14. It was the case of the defendants that the financial position of the
defendants was deteriorated and thus the defendant no.2 had to accept the
employment in the said society.
15. Dnyaneshwar Naran Nirgude thereafter executed a registered sale
deed on 29th October, 1987 in respect of the said two plots in the name of Tulsidas,
son of Rajababhaiya. The father of the plaintiff in order to surrender the rights of
the defendants got the sale deed of the said open plots in the name of the plaintiff.
It was the case of the defendants that there was no sale transaction in respect of the
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suit property in favour of the plaintiff but the said agreement to sale was executed
in view of the threats given by the father of the plaintiff though the real transaction
between the parties was of a loan.
16. The learned trial judge framed 15 issues. The plaintiff examined
himself and another witness in support of his case and also produced various
documents. The defendants examined defendant no.2 and two more witnesses and
also produced various documents.
17. Learned trial judge passed a judgment and decree dated
ig 30 th
September, 1989 and dismissed the said suit for specific performance filed by the
plaintiff. The learned trial judge however permitted the plaintiff to recover amount
of Rs.27,000/- from the defendant nos. 1 to 3 as refund of the earnest money. The
defendants did not challenge the said judgment and decree. The plaintiff however
impugned the said judgment and decree dated 30 th September, 1989 by filing an
appeal ( Civil Appeal No.98 of 1990) before the learned District Judge.
18. The Additional District Judge, Solapur by an order and judgment
dated 17th March, 1993 partly modified the said decree insofar as payment of
Rs.27,000/- is concerned. The Additional District Judge directed the defendant
nos. 1 to 3 to pay to the plaintiff the said amount of Rs.27,000/- with interest at the
rate of 6% per annum from the date of filing of the suit till filing of the suit till
realization. The said amount was treated as charge on the suit property till
realization of the entire amount. The learned Additional District Judge dismissed
the appeal insofar as claim for specific performance of the agreement for sale is
concerned and confirmed that part of the judgment and decree passed by the
learned trial judge. This judgment dated 17 th March, 1993 passed by the learned
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Additional District Judge, Solapur has been impugned by the plaintiff in this
appeal filed under section 100 of the Code of Civil Procedure, 1908. The
defendants did not challenge the modified decree passed by the appellate court by
filing any second appeal.
19. By an order dated 4th August, 1993, this second appeal was admitted
on the following substantial question of law formulated by this Court :-
1) Whether the approach of the lower Courts was legal and proper to
presume that the suit house was a joint family property ?
2) Whether both the Courts below erred in proceedings on the
footing that the suit house was a joint family property and
therefore the suit failed for non-joinder of necessary parties ?
3) Whether a part delivery of possession in favour of the plaintiff -
appellant was a crucial factor which both the lower Courts failed
to consider resuiting into the perverse finding of fact ?
4) Whether the Appellate Court was right in concluding that no such
agreement to sell was executed on the basis of the fact that the
appellant - plaintiff did not inquire into the fact as to the legal
necessity for sale of the suit house on the part of the defendants ?
5) Whether legal necessity on the part of the defendants had any
relevants when the defendants never proved that the suit house
was a joint family property ?
20. Mr.Gokhale, learned counsel appearing for the plaintiff invited my
attention to the copy of the agreement which was the subject matter of the suit,
supplementary agreements, some of the findings recorded by the learned trial
Judge and by the appellate Court. It is submitted by the learned counsel that
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admittedly the plaintiff had paid a sum of Rs. 27,000/- to the defendants under the
agreement for sale dated 1st February, 1983 as against the consideration of
Rs.40,000/- mentioned in the said agreement. On 19 th April, 1983 the
supplementary agreement was executed between the parties thereby extending the
time for making balance payment. He submits that on 29 th April, 1983, the
defendants handed over possession of the shop premises, which was part of the
suit premises to the plaintiff. On 28th July, 1983, the time to make balance payment
was further extended till 13th August, 1983. He submits that on 12th August, 1983,
the plaintiff called upon the defendants to execute the sale deed before the Sub-
registrar and since the defendants failed to execute the sale deed, the plaintiff filed
a suit for specific performance on 20th August, 1983 and in the alternate prayed for
refund of the amount paid by the plaintiff with interest. He submits that on 3 rd
November, 1983, the plaintiff has already purchased the entire plot by a registered
document from the original owner thereof.
21. It is submitted by the learned counsel that the defendants had
admittedly not disputed the execution of the agreement for sale and the receipt of
payment of Rs.27,000/- from the plaintiff. He submits that the defendant no.2 was
admittedly working with the society and the Co-operative Court had passed an
award in favour of the society and against the defendant no.2. The Co-operative
Court had passed an order of attachment of the suit property in the execution
proceedings. He submits that the defendant no.2 was admittedly in need of money
and thus defendant nos.1 to 3 sold the suit property to the plaintiff. The need of
money of the defendant nos.1 to 3 was proved before the learned trial Judge by the
plaintiff. The relationship of debtor and creditor was not proved by the defendants
before the learned trial Judge. The defendants had also failed to prove that the
plaintiff was doing any money lending business.
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22. It is submitted by the learned counsel for the plaintiff that even if
there were other co-sharers in respect of the suit property other than the
defendants, the learned trial Judge could have passed a decree for specific
performance to the extent of the share of the defendant nos.1 to 3. The other co-
sharers could resist the decree in execution.
23. It is submitted by the learned counsel for the plaintiff that though
there was a charge created on the suit property in view of the award made by the
Co-operative Court in favour of the society, the plaintiff was ready and willing to
purchase the suit property with such an encumbrance. He submits that though the
suit property was put to auction in execution of the decree passed by the Co-
operative Court and the plaintiff had participated in the said auction, as the
plaintiff wanted a clear title in respect of the suit property, there was no bar against
the trial court for passing a decree for specific performance in favour of the
plaintiff.
24. It is submitted that the plaintiff was always ready and willing to
comply with his obligations under the agreement for sale and had actually
complied with his obligations and thus the learned trial Judge ought to have
exercised the discretion under section 20 of the Specific Relief Act, 1963 in favour
of the plaintiff. He submits that the entire approach of the two Courts below in
refusing to grant the relief of specific performance in favour of the plaintiff was
totally wrong. He submits that the findings rendered by the two Courts below are
perverse and thus this Court has ample power to interfere with such perverse
findings of fact in this appeal filed under section 100 of the Code of Civil
Procedure, 1908.
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25. Mr.Deshmukh, learned counsel appearing for the defendants on the
other hand submits that the plaintiff had tried to improve his case in the oral
evidence by alleging that the Estate Agent had introduced the plaintiff with the
defendants though there was no such averment made in the plaint filed by the
plaintiff. He submits that the defendants were not the only owners of the suit
property. He submits that the open plot of land was taken on lease by the deceased
Ramayya, his two brothers Irayya and Rajbabbaiyya. There was a partition
between Ramayya and his two brothers. The defendant nos.1 to 3 formed a joint
Hindu family. The father of the plaintiff was a famous politician and was the
Chairman of Dayanand Yantramanav Industrial Weaving Society Limited. The said
society had filed a dispute against the defendant no.2 and others. An award was
made by the Co-operative Court against the defendant no.2. There was a charge
created in respect of the suit property in the execution proceedings filed in
execution of the said award. The defendant nos.1 to 3 were in need of money to
honour the said award and took a loan from the father of the plaintiff.
26. It is submitted that the father of the plaintiff had got the agreement for
sale executed from the defendants which was executed as a security to secure the
said loan. He submits that the defendants had offered to repay the said loan to the
father of the plaintiff, who refused to accept the said amount. The father of the
plaintiff had also threatened the defendant nos.1 to 3 of dire consequences if the
agreement to sell was not executed. He submits that the market price of the suit
property was at the relevant time in the range of Rs.1,50,000/- to Rs.1,50,275/-. He
submits that the said agreement for sale was not to be acted upon.
27. Learned counsel for the defendants submits that there were seven
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legal heirs and representatives of said Ramayya and each of them having 1/7 th
share. The three daughters and one more son of the said Ramayya had no
knowledge in respect of the said agreement for sale and were admittedly not the
parties to the suit transaction. He submits that the defendants alone had no absolute
right to sell the suit property in any manner to the plaintiff. The suit was thus not
maintainable only against the defendant nos.1 to 3 and was bad for non-joinder of
necessary and proper parties.
28. It is submitted by the learned counsel for the defendants that since the
plaintiff did not disclose the true and correct facts to the defendants and before the
court, the suit for specific performance was fatal and thus no relief of specific
performance could be even otherwise granted by the learned trial Judge. In support
of this submission, the learned counsel for the defendants placed reliance on the
judgment of the Supreme Court in case of Zarina Siddiqui vs. A. Ramlingam @
R. Amarnathan (2015) 1 SCC 705 and in particular paragraphs 33 and 34.
29. Learned counsel for the defendants placed reliance on section 9 of the
Specific Relief Act, 1963 and submits that the defendants could raise all the pleas
by way of defence, which are available to the defendant under any law relating to
the contracts. He submits that since the transaction between the parties was a loan
transaction and not the transaction of sale and was executed in view of the threats
and coercion made by the father of the plaintiff of dire consequences and in any
event with an assurance that the said agreement for sale was to be only kept as a
security and was not to be acted upon, the defendants were entitled to raise such
plea in the written statement.
30. It is submitted by the learned counsel for the defendants that the
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learned trial Judge could not have passed a decree for specific performance in
favour of the plaintiff even otherwise on the ground that the defendants were not
ready and willing to comply with his part of the obligations under the alleged
agreement for sale in view of the plaintiff having participated in the auction of the
suit property. He submits that even if the learned trial Judge would have rendered a
finding that the agreement for sale in respect of the suit property was entered into
and the transaction between the parties was a transaction of sale, the onus was on
the plaintiff to prove that readiness and willingness on the part of the plaintiff was
continuous all through out i.e. from the date of execution of such alleged
agreement for sell till the decree was passed by the learned trial Judge. In support
of this submission, the learned counsel for the defendants placed reliance on the
judgment of the Supreme Court in case of J.P. Builders and Another vs. A.
Ramdas Rao & Another (2011) 1 SCC 429 and more particularly paragraphs 20 to
27 thereof.
31. It is submitted by the learned counsel for the defendants that while
passing a decree for specific performance and while exercising the discretion
under section 20 of the Specific Relief Act, 1963, the Court has to consider the
circumstances in which the agreement for sale came to be executed by the
defendants in favour of the plaintiff. In support of this submission, he placed
reliance on the judgment of the Supreme Court in case of Kallathil Sreedharan &
Another vs. Komath Pandyala Prasanna & Another (1996) 6 SCC 218 and in
particular paragraphs 7 to 9 thereof.
32. Learned counsel for the defendants placed reliance on section 16(b) of
the Specific Relief Act, 1963 and would submit that in view of the plaintiff having
participated in the auction of the suit property, the plaintiff had violated essential
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term of the alleged agreement for sale on his part and had willfully acted in
variance with the relationship intended to be established by the agreement for sale.
33. Learned counsel for the defendants placed reliance on the judgment of
the Supreme Court in case of R. Janakiraman vs. State, Represented by Inspector
of Police, CBI, SPE, Madras (2006) 1 SCC 697 and in particular paragraph 24 in
support of his submission that section 92 of the Indian Evidence Act is
supplementary to section 91 and thus bar under section 92 would not apply since
the defendants who were parties to the agreement for sale had sought to establish
that the said transaction itself was different from what it purported to be and thus
oral evidence to disprove the terms of the agreement for sale or that the evidence
of show that the document was not intended to be acted upon or that the intention
of the parties was totally different could be led by the defendants.
34. Insofar as the submission of the learned counsel for the plaintiff that
even if there were several co-owners of the suit property, the learned trial Judge
could have passed a decree at least to the extent of the shares of the defendant
nos.1 to 3 is concerned, learned counsel placed reliance on section 12 of the
Specific Relief Act, 1963 and would submit that there were seven co-owners of the
suit property and thus even if the said agreement for sale was to be construed as an
intention to sell the suit property, the defendants could not have entered into in the
said transaction for sale of the entire property. He submits that in any event the
defendants having not complied with the ingredients of section 12 of the Specific
Relief Act, 1963, no decree for part of the property could have been passed by the
learned trial Judge. He submits that neither any such plea was raised by the
plaintiff in the plaint not the same was urged before the two Courts below.
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35. It is submitted by the learned counsel for the defendants that the
findings recorded by the two Courts below are recorded after considering oral as
well as documentary evidence and are concurrent findings of fact and the findings
being not perverse, cannot be interfered with by this Court under section 100 of the
Code of Civil Procedure, 1908. In support of this submission, learned counsel
placed reliance on the judgment of the Supreme Court in case of Pakeerappa Rai
vs. Seethamma Hengsu, Dead by L.Rs. & Ors. (2001) 9 SCC 521 and in particular
para 2.
36. Mr.Gokhale, learned counsel appearing for the plaintiff in re-joinder
submits that the defendants had failed to prove before the two Courts below that
the defendants had taken a loan from the plaintiff or his father. He submits that the
defendants had admitted the receipt of Rs.27,000/- from the plaintiff, which was a
consideration amount under the said agreement for sale. He submits that the
defendants also failed to prove any coercion on the part of the father of the
plaintiff or the plaintiff in execution of the agreement for sale. He submits that
merely because the plaintiff had participated in the auction sale, it cannot be urged
that the plaintiff had given up the claim for specific performance of the said
agreement for sale.
REASONS AND CONCLUSIONS :
37. It is not in dispute that the father of the plaintiff was a politician and
was an influential person in the locality and was the Chairman of the society, with
whom the defendant no.2 was working. The said society had filed a dispute in the
Co-operative Court in which the defendant no.2 was also a party. There was an
award made by the Co-operative Court in the said dispute bearing Case No.519 of
1997 and in execution of the said award, there was a charge created on the suit
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property. It was the case of the defendants that the father of the plaintiff who had
adjoining property had pressurized, coerced and threatened the defendant no.2 of
dire consequence of filing criminal cases against him and had compelled to admit
the claim of the society in the Co-operative Court. The father of the plaintiff had
also offered assistance of providing a loan to the defendants who were in need of
money to honour the said award. Though there was a charge created on the suit
property in execution of the award made by the Co-operative Court to the
knowledge of the father of the plaintiff who was the Chairman of the said society,
he got the agreement for sale executed in respect of the said property from the
defendants in favour of his son. In my view, the learned trial Judge has rightly
believed the case of the defendants that the said agreement for sale was not to be
acted upon and that it was not a sale transaction but was a loan transaction.
38. A perusal of the judgment and decree passed by the learned trial Judge
clearly indicates that a finding is rendered that the defendants could at the most
enter upon an agreement for sale of the property only to the extent of their 1/3 rd
share each. The plaintiff had failed to prove that the defendants had agreed to sell
the suit house to the property for Rs.40,000/- The plaintiff also failed to prove that
the defendants had accepted a sum of Rs.15,000/- as an earnest money and on
executing the agreement for sale of the suit property in part performance or that
the defendants had accepted a sum of Rs.4000/- by way of earnest money under
the said agreement for sale. The learned trial Judge has also held that the plaintiff
had failed to prove that the defendants had delivered the possession of the western
side shop premises to the plaintiff by way of part performance. The plaintiff also
failed to prove that the defendant no.2 had agreed to execute the sale deed on 28 th
July, 1983 in favour of the plaintiff in respect of the suit property.
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39. Insofar as the issue as to whether the plaintiff was ready and willing to
perform his part of the alleged agreement or not, the learned trial Judge has
rendered a finding that the plaintiff had failed to prove his alleged readiness and
willingness to perform his part of the alleged agreement. The learned trial Judge
has held that the plaintiff was not entitled to claim a decree for specific
performance. The suit also suffered from non-joinder of necessary parties.
40. The learned trial Judge has held that the witness examined by the
plaintiff admitted in his deposition that he did not make any enquiry with the
defendants as to why and for what purpose the defendants had required money
and as to why they were selling the suit property. It is held that it was difficult to
believe that the plaintiff who had passed 10th standard examination would not
make any enquiry into the legal necessity of the intended seller and would blindly
purchase the property. It is held that admittedly the father of the plaintiff was the
Chairman of the said society and it was difficult to believe that the plaintiff was
not aware of the encumbrance of the said society on the suit property before
entering into the agreement for sale. The award was already passed by the Co-
operative Court in the said proceedings filed by the said society prior to the
execution of the agreement between the parties. There was no mention of the said
encumbrance in the agreement to sell. The learned trial Judge accordingly held that
the said agreement for sell was thus not a real transaction.
41. The learned trial Judge also rightly took cognizance of the fact that
the plaintiff was having in his possession a registered partition deed of the suit
property which clearly indicated that there were seven co-owners of the suit
property and not the defendants alone, had inherited the property from Ramayya.
The plaintiff however, did not join all the legal heirs as parties to the said
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agreement and also parties to the suit though were necessary and proper parties.
The learned trial Judge in my view, has rightly come to the conclusion that it was
not the real transaction of agreement for sale, after considering the entire evidence
and more particularly various admissions made by the witness examined by the
plaintiff.
42. The learned trial Judge has also held that within a short span of six
months from the date of execution of the agreement, four documents came to be
executed between the parties for extension of time for payment and execution of
the sale deed and that there was no necessity for extension of time for execution of
the sale deed. The plaintiff on his own had accorded extension for execution of the
sale deed.
43. The learned trial Judge after perusing the entire evidence has rightly
come to the conclusion that the father of the plaintiff was the Chairman of the said
society and he was insisting for payments from the defendant no.2 as was apparent
from the letters at Exhibits 90 and 91 and he had got the encumbrances created on
the suit property. It is held that date of the payments made by the plaintiff to the
defendants was corresponding to the dates of payment of money by the defendant
no.2 to the society, of the amount of defalcation made by him. The plaintiff had
admitted his participation in the auction fixed in the Regular Darkhast No.193 of
1983 and gave bid of Rs.32,000/- for purchase of the suit property. The learned
trial Judge accordingly held that the plaintiff did not bring to the notice of the
Executing Court that when he participated in the auction, an agreement for sale
was already executed between the plaintiff and the defendants in respect of the
same property. The plaintiff was fully aware of the other legal heirs of Ramayya,
who had share in the suit property.
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44. The learned trial Judge has also rendered a finding that there was no
possibility of the plaintiff possessing the amount as paid by him on the date of
agreement of sale and also on the subsequent dates to the defendants after perusal
of the accounts which were produced by the plaintiff. The learned trial Judge in my
view, rightly held that in such circumstances, the defence of the defendants that the
father of the plaintiff was playing a role behind the curtain and was the person who
wanted to purchase the suit property appeared probable. The learned trial Judge
also rendered a finding that the defendants had proved that the plaintiff had agreed
not to act upon the suit agreement. The father of the plaintiff had asked the society
to file the execution application on the basis of the award and to put the suit
property for sale. The father of the plaintiff also instructed his son to submit his
bid during the sale of the suit property in execution proceedings. It is held that the
said agreement was kept as a security for the amount of Rs.27,000/- given by the
plaintiff to the defendants.
45. The appellate Court also framed various points for determination and
have discussed the oral and documentary evidence and the pleadings of the parties
in great detail in the impugned order and judgment and has rendered various
findings of fact independently and have dismissed the appeal filed by the plaintiff.
46. Insofar as the submission of the learned counsel for the plaintiff that
the defendants had failed to to prove the money lending transaction between the
parties is concerned, the evidence produced by the parties before the learned trial
Judge clearly indicate that the transaction between the parties was a loan
transaction. The father of the plaintiff was admittedly the Chairman of the said
society who had filed a dispute against the defendant no.2 and had obtained an
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award. There was an attachment on the suit property to the knowledge of the father
of the plaintiff. There was no reference to the said attachment in the agreement for
sale.
47. Insofar as the submission of the learned counsel for the plaintiff that
merely because the plaintiff had participated in the auction and the plaintiff had not
given up his right to claim specific performance and that the learned trial Judge
could not have refused to exercise the discretion under section 20 of the Specific
Relief Act, 1963 is concerned, in my view, there is no substance in this submission
of the learned counsel for the plaintiff. A party who seeks specific performance has
to prove his continuous readiness and willingness to perform his part of the
contract all through out i.e. from the date of the execution of the agreement till the
date of decree. The plaintiff has to establish his readiness and willingness in terms
of section 16(c) of the Specific Relief Act, 1963, which is a condition precedent
for obtaining a relief of specific performance.
48. In this case the plaintiff had failed to prove that there was any sale
transaction between the parties in respect of the suit property. It was specific case
of the defendants in the written statement that the transaction between the parties
was a loan transaction and not a sale transaction and the said document was
executed in view of coercion and threat given by the father of the plaintiff, who
was the Chairman in the society, who had obtained an award against the defendant
no.2. The plaintiff however, did not choose to examine his father as a witness
before the learned trial Judge. On the contrary, the plaintiff participated in the
auction of the suit property which was held in execution. The award was made by
the Co-operative Court in favour of the said society of which the father of the
plaintiff was the Chairman. The plaintiff suppressed from the Executing Court that
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the agreement for sell had already been entered into between the plaintiff and the
defendants.
49. Since the plaintiff had participated in the auction of the suit property,
in my view, the plaintiff had given up his claim for specific performance of the
said agreement and was not ready and willing to perform his part of contract. The
plaintiff not having satisfied the condition of section 16(c) of the Specific Relief
Act, 1963, which was a condition precedent for grant of relief of specific
performance, the learned trial Court as well as the appellate Court rightly exercised
their discretion not to grant specific performance of such an agreement for sell.
The judgment of the Supreme Court in case of J.P. Builders & Another (supra)
squarely applies to the facts of this case. I am respectfully bound by this judgment.
50. Insofar as the submission of the learned counsel for the plaintiff that
even if there were other co-owners of the suit property, the learned trial Judge
could not have refused to grant specific performance of the agreement insofar as
the shares of the defendants in the suit property is concerned, it is not in dispute
that the plaintiff had not pleaded for specific performance of the part of the
contract. The plaintiff had neither agreed to pay the entire consideration for part of
the property nor had relinquished all his claims for performance of the remaining
part of the contract. No such submissions were urged by the plaintiff either before
the learned trial Judge or before the appellate Court invoking section 12 of the
Specific Relief Act, 1963. In my view the plaintiff thus cannot be allowed to urge
this submission for consideration of this Court for the first time. Unless conditions
of Section 12 of the Specific Relief Act, 1963 are satisfied, no specific
performance of part of the contract can be granted.
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51. The Supreme Court in case of Zarina Siddiqui (supra) has held that
while exercising equitable discretionary jurisdiction of the Court under section 20
of the Specific Relief Act, 1963, the Court has to consider the conduct of the
parties. The parties must come before a Court with clean hands. It is held that the
remedy for specific performance is an equitable remedy. The Court's discretion to
grant the decree of specific performance is discretionary but not arbitrary and has
to be exercised in accordance with the sound and reasonable judicial principles.
Necessary ingredients has to be proved and established by the plaintiff so that the
discretion shall be exercised judicially in favour of the plaintiff.
52.
In my view, the plaintiff not having approached the Court with clean
hands and the transaction between the parties being not a genuine transaction as
reflected in the agreement for sale, the learned trial Judge has rightly not exercised
the discretion under section 20 of the Specific Relief Act, 1963 in favour of the
plaintiff and has rightly rejected the claim for specific performance. The principles
laid down by the Supreme Court in case of Zarina Siddique (supra) squarely
applies to the facts of this case. I am respectfully bound by the said judgment.
53. The Supreme Court in case of Kallatjhil Sreedharan & Another
(supra) has held that under section 20 of the Specific Relief Act, 1963, the
discretionary jurisdiction of the Court to decree specific performance should be
exercised on sound, reasonable and judicial principles. The Court is not bound to
grant such relief merely because it is lawful to do so but at the same time it enjoins
that the discretion of the Court should not be arbitrary but shall be sound and
reasonable, guided by the judicial principles and capable of correction by a Court
of appeal. The principles laid down by the Supreme Court in case of Kallatjhil
Sreedharan & Another (supra) applies to the facts of this case.
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54. The Supreme Court in case of R. Janakiraman (supra) has construed
section 92 of the Indian Evidence Act, and has held that section 92 is
supplementary to section 91 and corollary to the rule contained in section 91. It is
held that bar under section 92 would apply when a party to the instrument, relying
on the instrument, seeks to prove that the terms of the transaction covered by the
instrument are different from what is contained in the instrument. It will not apply
where anyone, including a party to the instrument, seeks to establish that the
transaction itself is different from what it purports to be. To put it differently, the
bar is to the oral evidence to disprove the terms of a contract, and not to disprove
the contract itself, or to prove that the document was not intended to be acted upon
and that intention was totally different. In my view, the defendants in this case
were entitled to prove that the said agreement to sell was not intended to be acted
upon and that the transaction between the parties was loan transaction and not the
agreement for sale. The defendants had thus made out a case under section 92 of
the Indian Evidence Act and had proved beyond reasonable doubt that the
transaction between the parties was not a transaction of sale. The principles laid
down by the Supreme Court in case of R. Janakiraman (supra) squarely applies
to the facts of this case.
55. Under section 20(2)(a) the Court while exercising discretion not to
decree specific performance can exercise discretion where the conduct of the
parties at the same time entering into contract or circumstance under which the
contract was entered into were such that the contract though not voidable, gives
the plaintiff an unfair advantage over the defendant. In my view, the defendants
had proved beyond reasonable doubt that the father of the plaintiff who was the
Chairman of the society had obtained an award from the Co-operative Court
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against the defendant no.2 and had got an attachment issued on the suit property
and thereafter had offered financial assistance to the defendants to pay the said
amount and had coerced the defendants to execute the agreement for sale. The
trial Court having come to a conclusion that such coercion was made by the father
of the plaintiff upon the defendants was right in not exercising the discretion in
these circumstances to grant specific performance of the agreement for sale in
favour of the plaintiff. In my view, the section 20(c) of the Specific Relief Act,
1963 also has to be considered by the Court while exercising the discretion not to
decree specific performance if it is satisfied that grant of specific performance
would be inequitable to enforce specific performance.
56. A perusal of the record clearly indicates that both the Courts below
have dealt with the evidence led by both the parties, and also the provisions of law
and have rendered various findings of fact in the detailed judgments which in my
view, are not perverse and thus cannot be interfered with by this Court under
section 100 of the Code of Civil Procedure, 1908. The Supreme Court in case of
Pakeerappa Rai (supra) has held that even if the findings recorded by the Courts
are erroneous findings of fact, the same cannot be interfered with by a Court under
section 100 of the Code of Civil Procedure, 1908. The judgment of the Supreme
Court squarely applies to the facts of this case. I am respectfully bound by the said
judgment.
57. For the reasons recorded aforesaid, I answer the substantial questions
of law formulated by this Court as under :
Question No.1 is answered in affirmative. Question No.2 is
answered in negative. Question No.3 is answered in negative.
Question No.4 is answered in affirmative. Question No.5 is
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answered in affirmative.
58. In my view the appeal is devoid of merits. I, therefore, pass the
following order :-
a) Second Appeal No.383 of 1993 is dismissed.
b) No order as to costs.
[R.D. DHANUKA, J.]
