Bombay High Court
Mrs.Indubai W/O Mahadeorao ... vs Mrs.Anusayabai Namdeorao Khode & ... on 31 October, 2017
Bench: A.S. Chandurkar
SA248.03.odtn247.03.odt 1/16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.248 OF 2003
APPELLANT: Mrs. Indubai w/o Mahadeorao
Deshmukh, Aged about 50 years, Occ:
(Original
Household work, Resident of
Plaintiff)
Nawabpura, Mahal, Nagpur (On R.A.)
-VERSUS-
RESPONDENTS: 1. Mrs. Anusayabai w/o Namdeorao Khode
(Original (Dead) through Legal Representatives:
Defendants)
(i) Dattatraya Namdeorao Khode, Aged 52
years, Legal Practitioner, (Already on
record as respondent no.2.).
(ii) Sanjay Namdeorao Khode, Aged 53
years, Occupation:Business,
(iii) Vijay S/o Namdeorao Khode, Aged 35
years, Occ: Business, Residing near
Zenda Chowk, Dharampeth, Nagpur.
(iv) Ku. Lata D/o Namdeorao Khode, Aged
37 years, Occ:Household,
(v) Ku. Mukta D/o Namdeorao Khode, Aged
35 years, Occ: Housewife,
::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 :::
SA248.03.odtn247.03.odt 2/16
Nos. (iv) and (v) residing C/o
Namdeorao T. Khode, near Zenda
Chowk, Dharampeth, Nagpur.
(vi) Smt. Mira W/o Suryabhan Dhoble, Aged
52 years, (Daughter of Anusayabai
Khode R/o Zingabai Takli, Koradi Road,
Nagpur.
(vii) Smt. Mala W/o Shamrao Falke, Aged 49
years, (daughter of Anusayabai Khode)
R/o Manewada Chowk, Ring Road,
Nagpur
2. Shri Dattatreya s/o Namdeorao Khode,
aged about 44 years, Occ: Legal
practitioner,
3. Shri Namdeorao T. Khode, aged about
72 years, Occ: Legal Practitioner
(Deleted).
All residents of Zenda Chowk,
Dharampeth, Nagpur (All on R.As)
Shri A. Z. Jibhkate, Advocate for the appellant.
Shri P. Dharaskar, Advocate for the respondents.
AND
SECOND APPEAL NO.247 OF 2003
APPELLANT: Mrs. Shubhangi W/o Ram Lambat, aged
about 54 years, Occupation-Household
(Original
work, resident of Ring Road, Trimurty
Plaintiff)
Nagar, Nagpur 440 022 (On R.A.).
::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 :::
SA248.03.odtn247.03.odt 3/16
-VERSUS-
RESPONDENTS: 1. Mrs. Anusayabai w/o Namdeorao Khode
(Original (Dead) through Legal Representatives:
Defendants)
(a) Sanjay S/o Namdeo Khode, Aged 53
years,
(b) Vijay S/o Namdeo Khode, Aged 35
years,
(c) Ku. Lata D/o Namdeo Khode, Aged 37
years,
(d) Mukta D/o Namdeorao Khode, Aged
major,
All (a) to (d) are R/o C/o Namdeo T.
Khode, Near Zhenda Chowk,
Dharampeth, Nagpur.
(e) Smt. Meera Suryabhan Dhobale, Aged
52 years, R/o Zingabai Takli, Koradi
Road, Nagpur.
(f) Sau. Mala Shyamrao Falke, Aged Major,
R/o Manewada Chowk, Ring road,
Nagpure.
2. Shri Dattatraya s/o Namdeorao Khode,
aged about 41 years, Occupation: Legal
Practitioner,
3. Shri Namdeorao T. Khode, aged about
69 years, Occ: Legal Practitioner
::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:43 :::
SA248.03.odtn247.03.odt 4/16
All residents of Zenda Chowk,
Dharampeth, Nagpur 440 010
(All on R.As)
Shri V. G. Bhamburkar, Advocate for the appellant.
Shri P. Dharaskar, Advocate for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 29-09-2017
DATE ON WHICH JUDGMENT IS PRONOUNCED: 31-10-2017
ORAL JUDGMENT :
1. Since both these appeals arise out of the common
judgment of the first appellate Court, they are being decided by
this common judgment.
2. The facts in brief are that defendant no.1 - Anusayabai
received land admeasuring 3 acres from her father. In proceedings
under provisions of the Urban Land Ceiling Act, 1984, land
admeasuring 9000 square meters was released as surplus land.
The plaintiff in Special Civil Suit No.649/1993 and her husband
desired to purchase some property and therefore on 16-11-1984 an
agreement was entered into by the plaintiff with the defendant
nos.2 and 3. A plot admeasuring 5250 square feet from the
aforesaid surplus land was agreed to be purchased for Rs.53,750/-.
SA248.03.odtn247.03.odt 5/16
On the same day, the defendant no.1 also entered into a similar
agreement with the plaintiff in Special Civil Suit No.1316/1993.
Both the plaintiffs paid an amount of Rs.12,500/- each to the
defendant no.1. Thereafter on 21-12-1984, a further amount of
Rs.12,500/- each was paid by both the plaintiffs to defendant no.1.
According to the plaintiffs, the defendants were to obtain
necessary permission for selling the suit property and they had
agreed to inform the plaintiffs about the same. In November, 1992
the plaintiffs and their husbands got knowledge that the defendant
no.1 agreed to sell some land to one Nagbhumi Society. It was
gathered that the defendants did not intend to complete the earlier
transaction in favour of the plaintiffs. Therefore, a notice came to
be issued to the defendant no.1 to have the sale deed executed.
Though the plaintiffs were ready and willing to perform their part
of the agreement, the defendant no.1 refused to do so. On the
contrary, the defendant no.2 issued an advertisement on 6-1-1993
for selling some part of the surplus land. On that basis, suit came
to be filed seeking specific performance of the agreement of sale
with an alternate prayer for refund of the earnest amount.
3. The defendants filed their written statement and took
the stand that the agreement entered into on 16-11-1984 was to
be completed within a period of three months by having the sale
SA248.03.odtn247.03.odt 6/16
deed executed. The plaintiffs did not take any steps to complete
the transaction within that period. After the expiry of the period of
three months, it was orally agreed that after cancelling the
agreement dated 16-11-1984, one plot each be given to the
plaintiffs from Nagbhumi Housing Society. Accordingly, on 27-6-
1988, the defendant no.1 through said Society got executed two
sale deeds of plot nos.76 and 77 in favour of the husbands of the
plaintiffs in lieu of the earlier agreement. It was therefore pleaded
that the plaintiffs were not entitled for any relief whatsoever.
4. After the parties led evidence, the trial Court held that
the execution of the agreement dated 16-11-1984 had been duly
proved. It was further held that the execution of the both the
plaintiffs through their husbands were sold separate plots in
Nagbhumi Society by cancelling the earlier agreement of sale. On
that basis, the relief of specific performance was refused and
instead each plaintiff was held entitled for refund of earnest
amount.
5. While the plaintiffs were aggrieved by the refusal of
grant of the decree for specific performance, the defendants were
aggrieved by the decree for refund of earnest amount. Both parties
challenged the judgment of the trial Court. The first appellate
Court on considering the entire evidence on record confirmed the
SA248.03.odtn247.03.odt 7/16
dismissal of the suit for specific performance. It further allowed the
appeal of the defendant no.1 and set aside the decree for refund of
earnest amount. Being aggrieved both the plaintiffs have filed the
aforesaid second appeals.
6. While admitting the appeals, the following substantial
questions of law were framed:
(1) Whether the first appellate Court
erred in applying the provisions of Section 62 of
the Indian Contract Act?
(2) Whether the first appellate Court
was wrong in observing that original agreement
to modify a contract is admissible under proviso
4 to Section 92 of the Indian Evidence Act?
7. Shri A. Z. Jibhkate, learned Counsel for the appellant
in Second Appeal No.248/2003 in support of the appeal made the
following submissions:
(a) The first appellate Court committed an error in
applying the provisions of Section 62 of the Contract Act, 1872
(for short, the said Act) while coming to the conclusion that the
original agreement dated 16-11-1984 stood replaced by the
transaction of sale in favour of the plaintiff. It was submitted that
the original agreement dated 16-11-1984 was independent of the
subsequent transaction and the plaintiff was seeking specific
SA248.03.odtn247.03.odt 8/16
performance of the earlier agreement. Merely because a
subsequent sale deed in respect of a different property came to be
executed with regard to the land that was originally owned by the
defendants, it could not be said that agreement dated 16-11-1984
stood substituted by the subsequent transaction. He referred to the
evidence on record to indicate that both transactions were
separate. The earlier agreement was never cancelled and hence,
the plaintiff was entitled for its specific performance. Moreover,
the parties to the transaction were different and hence, the
requirements of Section 62 of the said Act were not satisfied. In
that regard the learned Counsel placed reliance on the decisions
in H. B. Basavaraj vs. Canara Bank & Ors. 2010 SAR (Civil) 57,
Ganpat v. Mahadeo and others AIR 1925 Nagpur 26, Kedar Nath
Pandey and another vs. Kripal AIR 1944 Audh 63 and Todarmal
Tejmal and another v. Chironjilal, Gopilal and another AIR 1956 MB
25.
(b) That the first appellate Court committed an error in
relying upon the provisions of Section 92 proviso IV of the Indian
Evidence Act while considering the evidence led by the parties and
coming to the conclusion that the original agreement was
substituted by the subsequent sale transaction. It was submitted
that such exercise was not permissible and that oral evidence could
SA248.03.odtn247.03.odt 9/16
not be taken into consideration for modifying the written terms of
the earlier agreement. It was submitted that the entire evidence
on record was required to be taken into consideration and the
written agreement dated 16-11-1984 could not be held to be
substituted by another transaction on the basis of oral evidence.
For said purpose the learned Counsel placed reliance on the
decisions in Shankarlal Ganulal Khandelwal vs. Balmukund
Surajmal Bharuka 1999(2) Mh.L.J. 569, Roop Kumar vs Mohan
Thedani 2003 SAR (Civil) 566 and Vimalchand Ghevarchand Jain
vs. Ramakant Eknath Jadoo 2009(5) Mh.L.J. 597.
It was thus submitted that the judgment of the
appellate Court was liable to be reversed and decree for specific
performance deserves to be passed.
8. Shri V. G. Bhamburkar, learned Counsel for the
appellant in Second Appeal No.247/2003 adopted the arguments
of the learned Counsel for the appellant in Second Appeal
No.248/2003.
9. Shri P. Dharaskar, learned Counsel for the respondents
supported the impugned judgment and made the following
submissions:
(a) The appellate Court was justified in relying upon the
provisions of Section 62 of the said Act for coming to the
SA248.03.odtn247.03.odt 10/16
conclusion that the initial agreement dated 16-11-1984 stood
substituted by the transaction of sale. According to him, instead of
the plots agreed to be sold, plots from Nagbhumi Housing Society
were sold to the husbands of the plaintiffs at the behest of
defendant no.1. The entire evidence led by the parties including
the exchange of legal notices indicated that the parties had
consciously agreed to substitute the earlier agreement with the
subsequent sale transaction. Though the initial agreement was
dated 16-11-1984, no steps were taken by the plaintiffs to have the
said agreement specifically enforced. The suit was filed after
almost nine years from the date of the agreement. Only after the
sale deeds were executed the present suits came to be filed. The
appellate Court was justified in relying upon the provisions of
Section 62 of the said Act while dismissing the suits. The learned
Counsel placed reliance on the decisions of Privy Council in Vol. VII
345 Benjamin Scarf Vs Alfred George Jardine, G. Jayashree and Ors.
vs. Bhagwandas S. Patel and Ors. (2009) 3 SCC 141 and Sasan
Power Limited vs. North American Coal Corporation Ltd. (2016) 10
SCC 813.
(b) The appellate Court rightly relied upon the proviso IV
to Section 92 of the Indian Evidence Act while coming to the
conclusion that the original agreement was substituted by the
SA248.03.odtn247.03.odt 11/16
subsequent transaction of sale. It was permissible to lead oral
evidence to indicate that the original agreement was in fact agreed
to be substituted by the transaction for sale. He therefore
submitted that the appellate Court after considering the entire
evidence on record had rightly found that the plaintiff was not
entitled for any relief whatsoever. The appeals were therefore
liable to be dismissed.
10. I have heard the learned Counsel for the parties at
length and I have perused the impugned judgment. After
appreciating the evidence on record, the first appellate Court took
into consideration various circumstances for concluding that the
initial agreement dated 16-11-1984 stood substituted by the
transaction of sale. The circumstances taken into consideration
are:-
(a) The original copies of the agreement dated 16-11-1984
were not produced by the plaintiffs.
(b) Except the suit notice, no other steps were taken by
the plaintiffs to have the initial agreement enforced. The suit for
specific performance was filed after a period of more than eight
years from entering into the agreement.
(c) The suit land which was agreed to be purchased as per
agreement dated 16-11-1984 was the subject matter of
SA248.03.odtn247.03.odt 12/16
proceedings under the Urban Land Ceiling Act, 1984 and the same
had not been released for being sold.
(d) Letter dated 11-8-1988 sent on behalf of Nagbhumi
Housing Society to the plaintiffs alongwith deposition of Shri V. K.
Bagde and DW-3.
(e) The exchange of notices between the parties.
(f) Payment of part consideration by the defendant no. 1
when the two plots were purchased from the Society.
(g) The sale deeds executed in favour of the husbands of
the plaintiffs were produced by the defendants in Court.
11. Under Section 62 of the said Act, an earlier contract
which is in existence can be substituted by new contract either
between the same parties or between the different parties, the
consideration being discharge of the earlier contract. If the rights
under the earlier contract are kept alive then there would be no
question of substitution of that agreement by a subsequent
agreement. It would depend upon the facts of the case and the
evidence on record to conclude that the original agreement was
sought to be substituted by a different contract. This is the legal
position that can be gathered from the decisions relied upon by the
parties.
12. On a consideration of the entire evidence on record, it
SA248.03.odtn247.03.odt 13/16
can be seen that though the initial agreement was entered into on
16-11-1984, the plaintiffs did not take any steps whatsoever for a
period of almost eight years to have the said transaction
completed. The earnest amount of Rs.25,000/- was paid in two
installments by January 1985. The sale deed was to be executed
within three months of the defendants obtaining permission from
the Competent Authority. It is not in dispute that at that point of
time proceedings under the Urban Land Ceiling Act, 1984 were
pending and the plots agreed to be sold were not available for such
transfer. The first notice issued by the plaintiffs for having the sale
deed executed pursuant to agreement dated 16-11-1984 is in
December, 1993. The subsequent purchase of plots from
Nagbhumi Housing Society in favour of the plaintiff's husband
along with the fact that the plaintiffs were not in possession of the
original agreement dated 16-11-1984 is a relevant factor. The
deposition of the Secretary of Society Shri V. K. Bagde supports the
stand of the defendants that the defendants had paid part of the
consideration while transferring the plots of the Society in favour
of the plaintiff's husband. This part consideration was received by
the defendant no.1 pursuant to the earlier agreement dated 16-11-
1984. The defendants in their reply dated 26-12-1992 to the
notice issued by the plaintiff at Exhibit-74 had taken a stand that
SA248.03.odtn247.03.odt 14/16
the earlier agreement was not to be acted upon and it was
substituted by the transaction of sale in favour of the plaintiff's
husband. In fact, the plaintiffs first issued a notice on 10-12-1992
and thereafter gave a public notice on 6-1-1993 expressing
intention to purchase the suit property.
13. I find that the appellate Court after considering the
entire evidence on record rightly found that the plaintiffs having
noticed that it was not possible to complete the initial transaction
dated 16-11-1984 were satisfied by the purchase of plots in the
name of their husbands in Nagbhumi Housing Society. It has been
rightly found that there was no other reason for not taking any
steps whatsoever to have the initial agreement enforced. I find the
appreciation of evidence by the first appellate Court to be
reasonable and such appreciation of evidence cannot be said to be
perverse. After considering the entire material on record, the
appellate Court has found that the initial agreement dated
16-11-1984 stood substituted by the subsequent transaction of
sale. I do not find any reason whatsoever to take a different view
from one taken by the first appellate Court even after applying the
ratio of the decisions relied upon by learned Counsel for the
parties. Substantial question of law no.1 is answered by holding
that the first appellate Court did not commit any error in applying
SA248.03.odtn247.03.odt 15/16
the provisions of Section 62 of the said Act in the facts of the case.
14. Under proviso IV to Section 92 of the Indian Evidence
Act, the existence of a distinct subsequent oral agreement to
rescind or modify any such contract can be proved. In the present
case, the defendants have led evidence in support of their stand
that the initial agreement dated 16-11-1984 stood substituted by
the subsequent transaction of sale. The defence of the defendants
being based on the provisions of Section 62 of the said Act, it was
permissible for them to lead such evidence in support of that
defence. Having found that the initial agreement was agreed to be
substituted by the subsequent transaction of sale, I find that the
first appellate Court was justified in relying upon the proviso IV to
Section 92 of the Indian Evidence Act. It was permissible for the
defendants to lead evidence to prove that instead of the written
agreement dated 16-11-1984 being acted upon, a separate
property was sold in favour of the plaintiffs' husband. As observed
in Roop Kumar (supra), Sections 91 and 92 of the Evidence Act are
based on "best evidence rule". The defendants have succeeded in
establishing their defence. The appreciation of evidence in that
regard cannot be said to be perverse for being interfered in
exercise of jurisdiction under Section 100 of the Code of Civil
Procedure, 1908. The substantial question of law No.2 stands
SA248.03.odtn247.03.odt 16/16
answered accordingly.
15. As a result of the foregoing discussion and in view of
the answers given to the aforesaid substantial questions of law, I
do not find any case made out to interfere with the impugned
judgment. The second appeals stand dismissed with no order as to
costs.
JUDGE
/MU5LEY/
