Mrs. Pooja W/O. Kiran Katare, Thr. ... vs Keshav S/O. Shravanji Yawalkar
2017 Latest Caselaw 4928 Bom

FA  174/17                                                 1                              Judgment

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.
                           FIRST APPEAL No. 174/2017
Mrs.Pooja s/o Kiran Katare,
Through Power of Attorney Holder
Mr.Kiran s/o Marotrao Katare,
Aged about 49 years, Occ: Business,
R/o 30, Paryavaran Nagar, Nagpur.                                                      APPELLANT

                                        .....VERSUS.....
1.     Keshav s/o Shravanji Yawalkar,
       Aged about 89 years, Occ: Business,
       R/o Plot No.52, Bajaj Nagar, Nagpur.
2.     Dushyant S/o Anant Deshmukh,
       Aged about 22 years, Occ. Student and Agriculture,
       R/o Vivekanand Colony, Amravati.
3.     Sau.Ranjana W/o Sunil Zombade,
       Aged about 43 years, Occ. Business,
       R/o 8, Om Colony, Camp, Amravati.
4.     Dr.Narendra S/o Sheshraoji Thakre,
       Aged about 58 years, Occ. Agriculturist,
       R/o New Congress Nagar, Amravati.
5.     Ms. Trupti D/o Shivshankar Kokate,
       Aged about 26 years, Occ. Student &
       Agriculture, R/o Karatwadi,
       Tq. Akot, Dist. Akola.                                                             RESPONDENTS

                         Shri A.V. Bhide, counsel for the appellant.
     Shri A.S. Jaiswal, Senior Counsel, Assisted by Shri K.P. Mahalle, counsel for the
                                       respondents.

                                           CORAM :SMT.VASANTI  A  NAIK AND
                                                          A.D. UPADHYE, JJ.                  

DATE : 24 TH JULY, 2017.

ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.) The first appeal is ADMITTED and heard finally with the consent of the learned counsel for the parties.

2. By this first appeal, the appellant-plaintiff challenges the

judgment of the trial Court, dated 14.12.2015 dismissing the suit filed by

the appellant for a decree of specific performance of contract.

FA 174/17 2 Judgment

3. Few facts giving rise to the first appeal are stated thus:-

The appellant-plaintiff (hereinafter referred to as 'the

plaintiff') and the respondent no.1-original defendant entered into an

agreement, dated 16.05.2010, whereby the defendant agreed to sell the

suit property to the plaintiff at the rate of Rs.22,51,000/- per acre. It is

the case of the plaintiff that a sum of Rs.51,000/- was paid by the plaintiff

to the defendant towards earnest amount. As per one of the terms of the

agreement, since the suit land was reserved for stadium and some other

public purpose, the plaintiff was responsible for ensuring that the land is

de-reserved. The agreement further recited that within two years from

the release of the land from reservation, the remaining consideration

would be paid by the plaintiff as a sum of Rs.51,000/- was paid towards

the earnest money. The parties agreed that the agreement would be

binding on the plaintiff and the defendant as also their legal heirs. It is

pleaded by the plaintiff in the suit filed by her for specific performance of

contract that after the execution of the agreement, dated 16.05.2010, the

plaintiff took steps for the de-reservation of the land. It is pleaded by the

plaintiff that since the defendant did not cooperate with the plaintiff after

02.08.2010 for de-reservation of the land, the husband of the plaintiff

requested the defendant to execute a deed of power of attorney in his

favour so that the process for de-reservation could be expedited. The

plaintiff has pleaded that due to the non-cooperation from the defendant,

FA 174/17 3 Judgment

the clearance from the Town Planning Department for de-reservation

could not be obtained. According to the plaintiff, the husband of the

plaintiff then became aware that for the execution and registration of the

sale-deed, it would not be necessary to get the land is de-reserved and

hence the plaintiff sent a letter to the defendant dated 12.12.2012 calling

upon him to communicate about the date of execution and registration of

the sale-deed. The defendant sent a reply to the plaintiff, dated

24.01.2013, that the plaintiff had failed to comply with the terms and

conditions of the agreement. The defendant threatened the plaintiff that

the agreement, dated 16.05.2010, could be cancelled. The plaintiff

served a notice on the defendant, dated 30.01.2013 by Registered Post

Acknowledgment Due and requested him to communicate the date, time

and place for the execution and registration of the sale-deed. It is

pleaded by the plaintiff that the plaintiff was always ready and willing to

perform her part of the contract by paying the balance consideration

amount of Rs.2,32,60,912/- towards the execution of the sale-deed. It is

pleaded that the plaintiff's husband had time and again contacted the

defendant for fixing the date for the registration of the sale-deed,

however the defendant failed to perform his part of the contract. It is

pleaded that the plaintiff again served a legal notice on the defendant,

dated 11.03.2013 asking the defendant to inform the plaintiff a suitable

date for execution and registration of the sale-deed. According to the

plaintiff, since the plaintiff was ready and willing to perform her part of

FA 174/17 4 Judgment

the contract, a decree for specific performance of contract could be passed

in favour of the plaintiff. Some other ancillary prayers were also made in

the suit.

4. The defendant filed the written statement and denied the

claim of the plaintiff. The defendant denied that an agreement of sale

was executed between the plaintiff and the defendant. It is pleaded that

an agreement of sale was never executed and the agreement dated

16.05.2010 clearly recites that after the land would be released from

reservation, the agreement of sale could be executed. The defendant

denied that he had not cooperated with the plaintiff after 02.08.2010.

The defendant denied that the plaintiff's husband requested the defendant

to execute a deed of power of attorney in his favour. The defendant

pleaded that it is unimaginable that any person owning a property worth

more than Rs.2.5 Crores would execute a deed of power of attorney in

favour of a proposed vendee after receiving a sum of Rs.51,000/- only.

The defendant denied that the plaintiff's husband had approached the

defendant for the execution of the sale-deed. The defendant pleaded that

the case tried to be made out by the plaintiff in respect of her readiness

and willingness to perform her part of contract was false and the same is

pleaded only because the prices of the property have escalated to a great

extent. It is pleaded that the plaintiff had written the first letter to the

defendant on 12.12.2012 and this shows that the plaintiff was not ready

FA 174/17 5 Judgment

and willing to perform her part of the contract. The defendant pleaded

that the case of the plaintiff was false and the suit for specific

performance of contract was liable to be dismissed as an agreement of

sale was never executed between the parties and the plaintiff was not

ready and willing to perform her part of the contract. The defendant

pleaded that earlier also, the plaintiff who is a partner in Shree

Developers, had entered into an agreement of development and sale and

in that transaction, the defendant was duped.

5. On the aforesaid pleadings of the parties, the trial Court

framed the issues and on an appreciation of the evidence on record held

that the agreement dated 16.05.2010 was not an agreement of sale or an

enforceable or concluded contract. The trial Court held that the plaintiff

had not proved that she was ready and willing to perform her part of the

contract. It was further held that the plaintiff was not entitled to a decree

for specific performance. The alternate prayer made by the plaintiff for

refund of the earnest amount of Rs.51,000/- was however, granted by the

trial Court. The plaintiff is aggrieved by the part of the judgment of the

trial Court that rejects the prayer of the plaintiff for a decree of specific

performance of contract. The present appeal is filed by the plaintiff for

grant of a decree for specific performance of contract.

6. Shri Bhide, the learned counsel for the plaintiff, submitted

FA 174/17 6 Judgment

that the trial Court erred in holding that the plaintiff was not ready and

willing to perform her part of the contract. It is submitted that the trial

Court was not justified in holding that the agreement dated 16.05.2010,

Exhibit 66, was not an agreement of sale. The leaned counsel took this

Court through Exhibit 66 to point out that the said agreement was an

agreement of sale, whereby the defendant had agreed to sell land

admeasuring 9.912 acres for a consideration of Rs.22,51,000/- per acre. It

is stated that as per the said agreement, the responsibility to get the land

de-reserved from the development plan was fixed on the plaintiff but, the

husband of the plaintiff subsequently realized that for the execution and

registration of the sale-deed, it would not be necessary to secure an order

of de-reservation of the land, from the Town Planning Department. It is

submitted that by the agreement of sale, Exhibit 66, the plaintiff was

required to pay the balance consideration within a period of two years

from the date of de-reservation of the land. It is submitted that the

husband of the plaintiff, time and again went to the defendant to ensure

that the land is de-reserved and a sale-deed is registered in favour of the

plaintiff. It is submitted that after 02.08.2010, the defendant stopped

cooperating with the plaintiff and her husband. It is stated that it is clear

from the evidence of the plaintiff that thereafter, the plaintiff approached

the defendant for seeking the registration of the sale-deed. It is submitted

that the plaintiff was ever ready and willing to perform her part of the

contract. It is submitted that the trial Court erroneously compared

FA 174/17 7 Judgment

previous transaction between the defendant and Shree Developers and

the present transaction at Exhibit 66, to hold that Exhibit 66 is not an

agreement of sale. The learned counsel relied on the judgment of the

Hon'ble Supreme Court, reported in AIR 1968 SC 102 (The Vishnu Pratap

Sugar Works (P) Ltd. Versus The Chief Inspector of Stamps, U.P.) to

substantiate his submission that an agreement of sale may not invariably

specify the mode of payment of the amount that is agreed to be paid to

the vendor. The learned counsel then relied on the judgment reported in

AIR 1985 SC 1293 (State of Orissa & Others Versus Mangalji Mulji Khara

& Others) to substantiate his submission that the nomenclature of a

document would not be determinative of the nature of the document

executed between the parties and all the terms and clauses of the

agreement are required to be looked into while considering the nature of

the transaction. It is submitted that the plaintiff had waived the condition

pertaining to de-reservation and hence she was entitled to a decree for

specific performance of contract. The learned counsel relied on the

judgment reported in AIR 1973 SC 559 (Dr.Jiwan Lal & Others Versus

Brij Mohan Mehra & Another) to substantiate his submission. It is stated

that in the circumstances of the case, a decree for specific performance of

contract should be passed in favour of the plaintiff.

7. Shri Jaiswal, the learned Senior Counsel appearing for the

respondents supported the judgment of the trial Court. It is submitted

FA 174/17 8 Judgment

that the trial Court has rightly held that the agreement dated 16.05.2010

was not an agreement of sale. It is submitted that it could be gathered

from the earlier agreement executed between Shree Developers and the

defendant to which the plaintiff was also a party being the partner of

Shree Developers that the agreement dated 16.05.2010 was not an

agreement of sale. It is stated that the agreement dated 16.05.2010 does

not refer to the boundaries of the land that was agreed to be sold, the

period within which the order of de-reservation was required to be

secured and the number of installments in which the consideration could

be paid. It is submitted that the trial Court has rightly held by referring to

the aforesaid aspects that the transaction dated 16.05.2010 was not an

agreement of sale and, hence, the plaintiff could not have sought the

specific performance of contract on the basis of the alleged agreement of

sale, dated 16.05.2010. It is submitted that the plaintiff was not ready

and willing to perform her part of the contract and the trial Court has

rightly considered that there was total inaction on the part of the plaintiff

in getting the land de-reserved and seeking the execution of the sale-deed

till the first communication dated 12.12.2012 was issued by the plaintiff

to the defendant. It is submitted that the trial Court has rightly held that

the plaintiff was not ready and willing to perform her part of the contract

by getting the land de-reserved from the Town Planning Department. It is

submitted that the trial Court has considered the evidence of the parties

in the right perspective to dismiss the suit filed by the plaintiff for a

FA 174/17 9 Judgment

decree of specific performance of contract. It is stated that by paying

merely a sum of Rs.51,000/- to the defendant on 16.05.2010, the plaintiff

had sought to lock the property of the defendant without taking any steps

to ensure that the land was de-reserved and the sale-deed was executed.

The learned counsel sought for the dismissal of the appeal.

8. On hearing the learned counsel for the parties and on a

perusal of the Record & Proceedings, it appears that the following points

arise for determination in this first appeal:-

I) Whether the document dated 16.05.2010 (Exhibit 66) is an

agreement of sale?

II) If yes, whether the plaintiff has proved that she was ready

and willing to perform her part of the contract?

III) Whether the plaintiff was entitled to a decree of specific

performance of contract?

IV) What order?

9. To answer the aforesaid points for determination, it would be

necessary to consider the pleadings of the parties and the evidence

tendered by them. We have already narrated the pleadings of the parties

in the earlier part of the judgment. It would be necessary to consider the

nature of Exhibit 66, which is considered to be an agreement of sale by

the plaintiff. Exhibit 66 clearly mentions that on 16.05.2010 the parties

FA 174/17 10 Judgment

have entered into an agreement of sale by which, the eastern side portion

of land admeasuring 9.912 acres, out of total land admeasuring 17.30

acres in Khasra Nos.180/1 and 182, would be sold to the plaintiff by the

defendant for a consideration of Rs.22,51,000/- per acre. It is further

mentioned in the document at Exhibit 66 that the parties are aware that

the land sought to be sold to the plaintiff is reserved in the final

development plan for stadium and other public purpose and it would be

the responsibility of the plaintiff to get the land de-reserved from the

Town Planning Department. It is mentioned in the agreement dated

16.05.2010 that the first installment should be paid by the plaintiff

immediately on the de-reservation of the land. At the time of execution

of the agreement, dated 16.05.2010, a sum of Rs.51,000/- was paid by

the plaintiff to the defendant by Cheque No.515451, dated 16.05.2010

drawn on the I.C.I.C.I. bank. The agreement recites that the entire

consideration should be paid by the plaintiff to the defendant within a

period of two years from the date of release of the land from reservation.

The agreement also provides that the agreement would be binding on the

parties and also their legal heirs and successors. It is apparent from a

perusal of Exhibit 66, dated 16.05.2010 that the said document is an

agreement of sale, whereby the defendant had agreed to sell 9.912 acres

of land situated on the eastern side of the land admeasuring 17.30 acres

to the plaintiff at the rate of Rs.22,51,000/- per acre. The extent of the

land that is agreed to be sold is mentioned in the agreement and the

FA 174/17 11 Judgment

Khasra numbers in which the land is situated are also mentioned. It is

further mentioned in the agreement of sale that the land is reserved for

stadium and other public purpose and it would be obligatory on the part

of the plaintiff to secure an order from the Town Planning Department in

regard to the de-reservation of the land. The plaintiff had paid a sum of

Rs.51,000/- to the defendant at the time of the execution of the said

document and the balance consideration was liable to be paid to the

defendant by the plaintiff within two years from the date of the de-

reservation of the land. It is clear from a perusal of the document at

Exhibit 66 that the defendant had clearly agreed to sell 9.912 acres of

land to the plaintiff on the terms and conditions mentioned in the

agreement. We have perused the earlier agreement executed between the

defendant and Shree Developers. The said agreement is entirely different

from the agreement at Exhibit 66. The earlier agreement executed by the

defendant and Shree Developers would not determine the nature of the

agreement of sale at Exhibit 66. The earlier transaction between Shree

Developers and the defendant has no relevance for deciding the question

whether the agreement dated 16.05.2010, Exhibit 66, is an agreement of

sale. It cannot be said that the agreement dated 16.05.2010 would not be

an agreement of sale as the boundaries of the land that is agreed to be

sold are not mentioned in the said document. It is clearly mentioned in

the agreement that 9.912 acres of land on the eastern side of the land

admeasuring 17.30 acres of land in Khasra Nos.180/1 and 182 would be

FA 174/17 12 Judgment

sold by the defendant to the plaintiff. If that is so, it was not necessary to

mention the boundaries of the land that was sought to be sold. Merely

because the period within which the de-reservation order could be sought

is not mentioned, the document dated 16.05.2010 cannot be said to be an

agreement to enter into an agreement of sale, in future. Only because it

is not mentioned in the document as to what would be the installments

for payment of the consideration, it cannot be said that the document is

not an agreement of sale. It is rightly submitted on behalf of the plaintiff

by relying on the judgment reported in AIR 1968 SC 102 (The Vishnu

Pratap Sugar Works (P) Ltd. Versus The Chief Inspector of Stamps, U.P.)

that the mode of payment need not be specifically provided in the

agreement and an agreement of sale cannot be discarded merely because

the mode of payment is not mentioned in the same. The trial Court did

not consider the document at Exhibit 66 in the right perspective before

holding that the said document is not an agreement of sale but is a

document providing that the agreement of sale would be executed

between the parties in future, after the land stands de-reserved by the

order of the Town Planning authorities.

10. After holding that the document at Exhibit 66 is an agreement

of sale executed between the plaintiff and the defendant, it would be

necessary to consider whether the plaintiff was ready and willing to

perform her part of the contract. No doubt, there is a pleading in the

FA 174/17 13 Judgment

plaint that the plaintiff was ready and willing to perform her part of the

contract. To answer the issue, it would be necessary to consider a few

facts and dates. The agreement of sale was executed between the parties

on 16.05.2010. There is nothing in the pleadings of the plaintiff to show

as to what steps did the plaintiff take for ensuring that the land is de-

reserved from the development plan by an order of the Town Planning

Department. There is nothing in the plaint to show that the plaintiff had,

at any point of time, approached the town planning authorities and had

taken steps to ensure that an order of de-reservation of the land was

passed in favour of the defendant. The plaint is silent on this aspect of

the matter. All that the plaintiff has pleaded is that after 02.08.2010, i.e.

within three months from the execution of the agreement of sale, the

defendant had stopped cooperating with the plaintiff. If that is so, we fail

to gauge as to why the plaintiff kept silent for a period of more than two

and half years till she issued a communication to the defendant dated

12.12.2012 asking the defendant to convey a date for the execution of the

sale-deed as the husband of the plaintiff had secured the knowledge that

it would not be necessary to get the land de-reserved before the execution

of the sale-deed. There is absolutely nothing in the pleadings of the

plaintiff to show as to what efforts did the plaintiff take, between the

period commencing from the date of the execution of the agreement of

sale, dated 16.05.2010 till she issued a communication to the defendant,

dated 12.12.2012. Except the statement that the defendant had stopped

FA 174/17 14 Judgment

cooperating with the plaintiff since 02.08.2010, there is nothing in the

plaint to show that the plaintiff was ready and willing to perform her part

of the contract. We would reiterate that it was necessary for the plaintiff

to point out by the pleadings in the plaint as to what efforts did the

plaintiff take after the execution of the agreement of sale on 16.05.2010

to ensure that the land was de-reserved or a sale-deed was executed in

favour of the plaintiff. The time gap between 16.05.2010 and 12.12.2012

is very large. The plaintiff was not expected to maintain silence and wait

and watch, specially when the plaintiff had paid only a sum of

Rs.51,000/- to the defendant, purportedly as the earnest amount while

entering into an agreement of sale for purchase of a property worth

Rs.2,50,00,000/-. It was necessary for the plaintiff to have not only taken

steps during the period between 16.05.2010 till 12.12.2012 to ensure that

the land was de-reserved and the sale-deed was executed in favour of the

plaintiff. In our view, the plaintiff was never ready and willing to perform

her part of the contract and the said fact is depicted from the inaction on

the part of the plaintiff for a period of nearly two years and four months.

The trial Court has rightly held that the plaintiff was unsuccessful in

proving that she was ready and willing to perform her part of the

contract. The plaintiff has tried to improve her case by tendering a little

evidence on this aspect though the said evidence is sans pleadings. The

little evidence that is sought to be tendered is, therefore, liable to be

ignored while deciding the issue pertaining to the readiness and

FA 174/17 15 Judgment

willingness of the plaintiff to perform her part of the contract. In our

view, the trial Court has rightly held that the plaintiff was not ready and

willing to perform her part of the contract.

11. Having answered the aforesaid issue against the plaintiff, it

would be necessary to hold that the plaintiff is not entitled to a decree for

specific performance of contract. A decree for specific performance of

contract could be passed in favour of a plaintiff, who invariably proves

that he/she was ready and willing to perform his/her part of the contract.

Having answered the issue of readiness and willingness against the

plaintiff, it would be necessary to consequently hold that the plaintiff

would not be entitled to a decree for specific performance of contract.

Since the trial Court has rightly dismissed the suit filed by the

plaintiff for specific performance of contract, we dismiss this appeal with

no order as to costs.

              JUDGE                                             JUDGE



APTE