Chattisgarh High Court
M/S Gautamchand Tikam Chand vs Shri Sampatlal Jain on 2 December, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 126 of 2018
Judgment Reserved on 05.09.2022
Judgment Delivered on 02.12.2022
M/s Gautamchand Tikam Chand, Through Proprietor Shri
Mangalchand Jain, S/o Shri Amarchand Jain, Shop No. J-3, Textile
Market, Pandari, Raipur, Chhattisgarh.
----Appellant
Versus
1. Shri Sampatlal Jain, S/o Shri Hiralal Jain, R/o Jain Bhawan Road,
Bhilai-3, Durg, Chhattisgarh.
2. Dipchand Deshlahra, S/o Shri Hiralal Jain, R/o Jain Bhawan Road,
Bhilai-3, Durg, Chhattisgarh.
---- Respondents
For Appellant Shri B.P. Sharma, Senior Advocate with Shri
Nitesh Jain, Advocate.
For Respondents Shri Manoj Paranjape & Shri Anshul Tiwari,
Advocates.
Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Shri Justice Radhakishan Agrawal
C A V Judgment
Per Radhakishan Agrawal, J.
1. Challenge in this appeal under Section 96 of CPC by the
appellant/plaintiff is to the judgment and decree dated 29.11.2017
passed by the 2nd Additional District Judge, Raipur, C.G. in Civil Suit
No.55A/2009, whereby the suit for specific performance of oral
agreement to sell dated 13.10.1997 has been dismissed.
2. As per averments in the plaint, the plaintiff was doing his business as
a tenant in the shop owned by defendant No.1 (Sampatlal Jain) i.e.
shop No. J-3 situated at Textile Market Pandri, Raipur (hereinafter
referred to as " the suit property"). According to the plaintiff, he entered
into oral agreement with defendant No.2 (Dipchand Deshlahra), who is
brother of defendant No.1, on 13th October, 1997 for sale of the suit
property for a consideration of Rs.11.50 lacs and out of which Rs.11
thousand was paid as advance and thereafter till 14th April, 1998, a
total sum of Rs.4 lacs were paid towards part of sale consideration to
defendant No.2 but the defendants instead of executing sale deed in
favour of the plaintiff sent a notice on 10 th March, 2000 for eviction
from the suit premises. Therefore, the present suit for passing a
decree of specific performance was filed.
3. In their joint statement, the defendants while admitting the tenancy of
the plaintiff in the suit property, denied oral agreement to sell the suit
property between defendant No.2 and the plaintiff on the ground that
defendant No.1 is owner of the suit property and there is no general or
special power of attorney executed by him in favour of defendant No.2
for sale of the suit property.
4. Learned trial Court based on the pleadings of the respective parties
framed following issues:-
Whether the present suit is barred by period of
limitation?
Whether there was any oral agreement dated 13 th
October, 1997 between the plaintiff and defendant in
respect of the suit property for total sale consideration of
Rs.11,50,000/-?
Whether in compliance of the said agreement plaintiff
paid to the defendant No.2, a sum of Rs.4 lacs towards
part consideration?
Relief and cost?
After appreciation of the evidence placed on record, the trial
Court held that neither the facts nor equities are in favour of the
plaintiff and accordingly dismissed the suit by the impugned judgment
and decree. Hence, this appeal.
5. Learned counsel for the appellant submits that the impugned
judgment and decree of the Court below is perverse and not
sustainable in law. The trial Court failed to see that the plaintiff was
ever ready and willing to perform his part of contractual obligation but
the defendants miserably failed to perform their part of contract
despite several demands made by the plaintiff for execution of the
sale deed in his favour. In view of the oral and documentary evidence
adduced by the plaintiff in support of his contention, the trial Court was
not justified in dismissing the suit. Therefore, the impugned judgment
and decree are liable to be set aside.
Reliance has been placed on the decision of Hon'ble Supreme
Court in the matter of Central Bureau of Investigation vs. V.C.
Shukla and others reported in (1998) 3 SCC 410 and the judgments
of this Court in the matters of Bhagirathi Dewangan vs. Jhaduram
(Dead) Through LRS. reported in 2021 Law Suit (Chh) 31 & Habeeb
Bhai vs. K.K. Choudhari reported in 2006 SCC Online Chh 82.
6. On the other hand, learned counsel for the respondents supporting the
impugned judgment and decree contended that the trial Court having
considered all the relevant aspects of the matter, the nature and
quality of evidence adduced by the plaintiff, rightly arrived at the
conclusion that the plaintiff could not prove either existence of oral
agreement dated 13th October, 1997 or payment of any advance
amount or further sum totaling to Rs.4 lacs to the defendants. Being
so, there is no need to interfere with the impugned judgment and
decree and the instant appeal is liable to be dismissed.
Reliance has been placed on the decisions of Hon'ble Supreme
Court in the matter of Brij Mohan and others vs. Sugra Begum and
others reported in (1990) 4 SCC 147 and the judgment of High Court
of Madras in T. Jayaram Naidu and D Rajaram vs. Yasodha and
ors. reported in 2007 LawSuit (Mad) 1050.
7. We have heard learned counsel appearing for the parties, perused the
pleadings and the evidence available on record.
8. PW-1 Mangalchand Jain admits in his deposition that defendant No.1
Sampatlal Jain is owner of the suit property, he was running a shop
there as a tenant since 1982-83 and that on 10.03.2000, defendant
No.1 sent a notice to him for eviction (Ex.P-25) which was replied by
him on 10.05.2000 in which for the first time he mentioned about oral
agreement for sale of the said shop and receipt of the sale
consideration. He also admits that he did not see any document
whereby defendant No.1 authorized defendant No.2 for entering into
such agreement to sell the suit property. He volunteers that the entire
agreement was oral and the entire transaction was being done by
defendant No.2 Dipchand Deshlahra. However, he admits that
defendant No.2 was not the owner of the said shop. In para 21, he
admitted that no advance amount was personally given to defendant
No.1 (Sampatlal Jain) by him. He has also admitted that an exparte
judgment and decree of eviction dated 08.11.2010 was passed
against him by 10th Additional District Judge, Raipur which is
challenged in appeal by him. He has exhibited the balance sheets of
his firm M/s Gautamchand Tikam Chand as Ex.P-6 & Ex.P-8 and
admits that there is no seal of Income Tax Department on Ex.P-6 and
also there is no reference of Ex.P-6 in Income Tax Return Ex.P-7. It is
also admitted by this witness that there is no mention of any
acknowledgment / receipt of the amount given to defendant No.2 in
the documents of Ex.P-6 and Ex.P-8 and further clarified that the
amount was given to defendant No.2 through one Suresh Barariya
before him. He has admitted the fact that his ledger book does not
bear any seal of Income Tax Department or his C.A. and the same is
not certified by any competent authority.
9. PW-2 Dhanpatchand Vaidya, brother of the plaintiff, has admitted in
cross-examination that he did not see or read the documents
executed regarding M/s Gautamchand Tikam Chand firm. In para 16,
he admits that his brother (plaintiff) had told him about payment of
Rs.4 lacs towards purchase of the shop. He admits that whatever his
brother (plaintiff) told him, he is making this statement on that basis.
10. PW-3 Nathmal Mangilal, relative of the plaintiff, has stated in his
affidavit that the plaintiff had given Rs.11 thousand as advance to
defendant No.2 Dipchand before him out of total sale consideration of
Rs.11.50 lacs of the said shop. In para 13 of his cross-examination, he
admits that the said affidavit was not got typed by him but further
volunteers that it was typed at his instance. He states that he is living in
Mumbai since 1960 and visits Raipur only once a year. He states that
plaintiff- Mangalchand Jain is his real brother-in-law (saala), he is not in
a position to tell the date and month of the said agreement, he did not
see any document of Dipchand Ji Deshlahra pertaining to sale of the
suit property and that the said agreement was between the partner of
plaintiff's firm Gautamchand and defendant No.2. In para 17, he admits
that information regarding payment of Rs.4 lacs was given to him by
Suresh Barariya and Mangalchand Jain and that Dipchand informed
him about receipt of the said amount. According to this witness, the
discussion regarding agreement was done at the house of
Gautamchand and Rs.11 thousand was given to Dipchand Ji at the
house of Suresh Barariya.
11. DW-1 Dipchand Deshlahra (defendant No.2) in his cross-examination
vehemently denied the suggestion of receipt of any amount from the
plaintiff towards the said agreement to sell of the suit property. He has
stated that defendant No.1 never authorized him or executed any power
of attorney in his favour for receiving any money on his behalf and that
since 1991 he and his brothers have been living separately and doing
their respective business.
12. It is not in dispute as stated above that the suit property is owned by
defendant No.1 and there is nothing on record to show that the
defendant No.1 ever executed any general or special power of attorney
in favour of defendant No.2 to obtain money on his behalf or to sell the
suit property on his behalf to anyone. The plaintiff admits that the
agreement to sell was oral but has nowhere stated in the plaint or in his
evidence as to why sale deed could not be executed immediately when,
according to him, he was ever ready and willing to perform his part of
the contract. Even there is no receipt of any amount allegedly given by
him to the defendant No.2 except his own ledger book which is also
admittedly not certified by any competent authority. True it is that
Section 34 of the Evidence Act provides for relevancy of entries in
books of account including those maintained in an electronic form,
regularly kept in the course of business but it is a trite law that such
entries by themselves cannot create any liability on the other party
without there being any evidence to prove the same. Plaintiff also
admits in para 22 of his cross-examination that the ledger book is
stitched with rope, it can be opened and its pages can be changed. It is
also important to mention here that the plaintiff has been conducting
business since long, as such is expected to be well conversant with the
mode of dealing and its consequences and, therefore, in the totality of
facts and circumstances of the case, the conduct of the plaintiff appears
to be highly uncommon that initially he paid a sum of Rs.11,000/- to
defendant No.2 as advance towards sale consideration and thereafter
from time to time till 14 th April, 1998 paid a total sum of Rs.4 lacs to him
but did not obtain any receipt of the said amount from him.
13. Having gone through the judgments relied upon by learned counsel for
the appellant and the principles of law laid down therein, in the given
facts and circumstances of the present case, the aforesaid judgments
being distinguishable on facts are of no help to the appellant.
14. It is a well settled position of law as has been held in the matter of Brij
Mohan (supra) that there is no requirement of law that an agreement
or contract of sale of immovable property should only be in writing.
However, where such contract or agreement is oral, the party seeking
decree for specific performance of such contract has to satisfactorily
discharge the heavy burden lying on him that there was consensus
ad-idem between the parties for a concluded oral agreement, the vital
and fundamental terms were orally concluded between the parties for
sale of the immovable property which were to be subsequently
incorporated in the written agreement, if any, to be executed. However,
in the present case, the plaintiff has miserably failed to discharge the
said burden. Looking to the nature and quality of evidence, oral as well
as documentary available on record, this Court is of the opinion that the
plaintiff neither could prove that there was oral agreement on
13.10.1997 between the parties for sale of the disputed property nor
could prove payment of any advance or further sum totaling to Rs. 4
lacs to defendants towards such sale and hence, the trial Court was
fully justified in dismissing the suit for specific performance of contract
in exercise of its discretionary jurisdiction.
15. On the basis of aforesaid discussions, the instant appeal being sans
merits is liable to be dismissed and is, accordingly, dismissed. No order
as to costs.
16. A decree be drawn up accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
Akhilesh
