2011(5) ALL MR 156
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.K. DESHMUKH AND A.V. MOHTA, JJ.

Imageads And Communications Pvt. Ltd.Vs.Bajaj Leathers Private Ltd. & Anr.

Appeal No. 168 of 2009,Suit No. 697 of 1981

9th June, 2011

Petitioner Counsel: Mr. A.Y. BOOKWALA,Mr. P.G. LAD
Respondent Counsel: Mr. PRADIP SANCHETI,Mr. PRANAV DESAI, PARVATHY KAUSHIK,B. S. CHANDANI

(A) Evidence Act (1872) Ss.62, 101 - Appreciation of evidence - Written document - Burden of Proof - Written documents and contents therein, if proved, need to be respected - The heavy burden lies upon the other side to disprove and /or to clarify the contents of the written documents by leading substantial and cogent oral evidence. (Para 9)

(B) Contract Act (1872) S.7 - Transfer of Property Act (1882) S.54 - Contract for sale of property - Incorrect drafting of agreement - Effect - Held, the wrong and/or incorrect drafting of the agreement and/or vagueness in the agreement even if any, with regard to the transfer of share and/or payment or non-payment of TDS that itself cannot be the reason to overlook the other clear terms of the contract for sale of the property. (Para 19)

JUDGMENT

ANOOP V. MOHTA, J. :- The Appellant, original Plaintiff, has challenged the judgment and order dated 12 January 2009 passed by a learned Single Judge, thereby, dismissed the Suit for specific performance, based upon agreement dated 22 April 1977 ("The Agreement") between the Appellant and Respondent no.1.

2. The basic case is that the agreement is an agreement for sale, whereby Respondent no.1 agreed to sell the suit premises at and for a consideration of Rs.3,55,250/. The Appellant paid the earnest money of Rs. 71,500/at the time of execution of the agreement and took the possession of the premises i.e. No.103, admeasuring 1421 sq.ft., Mittal Chambers, 10th floor, Nariman Point, Mumbai 400021. The Appellant since then has been in possession of the premises till this date. The balance consideration was Rs.2,84,200/, as agreed to be paid before the end of three years. The Appellant paid the monthly society maintenance charges of Rs.5,684/per month regularly. Respondent no.1's specific case is that the agreement in question is sham and bogus document and it is a Leave and Licence Agreement and not the agreement for sale.

3. The Appellant forwarded with a letter on 18 April 1980, a cheque towards the balance of the final purchase price of the premises. Respondent no.1 encashed the cheque without any objection.

4. The Suit was filed for specific performance by Appellant on 2 April 1981, as Respondent no.1 did not transfer the suit premises. A written statement was filed on 5 February 1982. The issues were framed. The parties led their respective evidence.

5. After hearing both the parties, the learned Single Judge dismissed the Suit by holding that the Plaintiff failed to prove that they have carried out the obligations as per the agreement and, therefore, is not entitled for the specific performance as prayed. It is also held that the Plaintiff is not entitled for transfer of right, title and interest in the premises and, therefore, not entitled for any permanent injunction as prayed. It is also held that Respondent no.1 has proved that the agreement is camouflage document and did not disclose the correct transaction between the parties. Respondent no.1 has also proved that the possession of the premises was given to the Plaintiff on the Leave and licence basis.

6. The important contents and the clauses of the undisputed agreement dated 22 April 1977, are as under :

"Clauses 1 : The Vendors are seized and possessed of or other wise well and sufficiently entitled to the office premises No.103 admeasuring about 1421 square feet (hereinafter referred to as "the said premises") on the 10th floor of the building known as Mittal Chambers situate at Plot No.228, Nariman Point, Bombay - 400 021.

Clauses 2 : The Vendors have agreed to sell and the purchasers have agreed to purchase the said premises on the terms and conditions hereinafter appearing NOW IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:

1 The Vendors shall sell and the purchasers shall purchase the office premises no.103 admeasuring about 1421 square feet on the 10th floor of the building known as Mittal Chambers situate at Flat No.228, Nariman Point, Bombay 400 021 at or for the price calculated at the rate of Rs.250/per square foot.

a) Rs.71,050/as earnest money calculated at the rate of Rs.50/per square foot on or before the execution of these presents.

b) Rs.284,200/being the balance consideration price at the end of three years from the date of the execution of these presents.

Clause 3 : On payment of the earnest money of Rs. 71,050/as stated (1) of clause 2 hereinabove the Vendors shall put the purchases in vacant possession of the said premises.

Clause 4 : The purchasers shall be liable to pay from the 1st day of April, 1977 the outgoings in respect of the said flat to the Vendors amounting to Rs.2,486.75 calculated at the rate of Rs.1.75 per sq.ft. Increases or decrease in the said flat the said amount of Rs.2,486.75 shall stand increased or decreased as the case may be. The said amount of outgoings shall be payable by the purchasers to the vendors in advance on or before the 10th day of each every month till the completion of the transaction herein.

Clause 5 : The purchasers hereby agree to pay interest at the rate of Rs. 13.5% per annum to the vendors by equal monthly installments of Rs.3,197.25 first of such installment to be paid on the 10th day of April, 1977 and subsequent installments by the 10th day of each and every succeeding months thereafter till the balance consideration of Rs.2,84,200/is paid by the purchasers to the Vendors.

Clause 9 : It is hereby agreed by the vendors that on the payment by the purchasers of the balance consideration of Rs.2,84,200/on or before the expiry of the period of three years from the date hereof the vendors shall execute such documents writing transfer forms as may be necessary or required by the purchasers for effective transfer of the said premises alongwith the shares if any to the vendors as the members of the society of the premises holders to the name of the purchasers in the records of the society and such other records as may be necessary."

7. Admittedly, the Appellant has been occupying the premises based upon the agreement since 1977 and doing the business in the same; the fixed monthly amount towards the interest and outgoings have been paid since then. Both the parties have acted upon the agreement.

8. Admittedly, by letter dated 18 April 1980 the Appellant forwarded the cheque for the balance consideration of Rs.2,84,200/and requested to complete all the formalities. By another letter dated 18 April 1980 the Appellant recorded the discussion and the purpose of sending the balance amount. The Appellant, on 10 May 1980, reminded Respondent No.1 to take steps for the transfer of the premises so that from 18 April 1980 all future bills could be paid to the society directly. The reminder was again sent on 16 September 1980. The society had also made enquiry about the same from Respondent no.1. All these relevant letters and the documents, as the contents of the same have been proved by the Appellant, are exhibited. There is no contra material produced by Respondent no.1, except oral evidence. The Appellant has proved in support of their pleading that they have complied with their obligations and expressed that they are always ready and willing to complete the transaction. Both the parties, in fact, substantially acted upon the same. However, Respondent No.1 failed to perform its part of the agreement.

9. The Appellant has proved that Respondent no.1 admittedly encashed the cheque of Rs.2,84,200/forwarded with the covering letter dated 18 April 1980 with clear reference to the agreement and the balance payment towards the final purchase consideration. The contents of the letters were never disputed at any point even till the filing of the suit by the Appellant. There is no denial on the record that Respondent no.1 encashed the said cheque though after reminders, but not executed the final document as agreed. Therefore, the Suit was filed by the Appellant. The Respondents thereafter raised the defence of sham and bogus agreement/document and resisted to execute the final document. On the contrary, the defence was raised that the contract was nothing but a leave and licence agreement. Respondent no.1 accordingly tried to lead oral evidence contrary to the specific written documents. It is settled that written documents and contents therein, if proved, need to be respected. The heavy burden lies upon the Respondents and/or on other side to disprove and/or to clarify the contents of the written documents by leading substantial and cogent oral evidence which, in the present case, is totally missing.

10. The Appellant's case based upon the contract and the fact of possession since 1977 and the regular payment made and accepted by the Respondents, including the final consideration which was paid through covering letters within three years and as accepted, without any protest, at the relevant time, just cannot be overlooked. All ingredients which are necessary for a grant of the decree for specific performance, in the present facts and circumstances, are fulfilled by the Appellant.

11. The learned Single Judge, in our view, though dealt with all other aspects including the background of the agreement in question and subsequent evidence/correspondences led by Respondent No.1 to justify their defence of sham and bogus document and transaction being the leave and licence agreement, in no way sufficient to overlook the proved contents of the basic written document and the conduct of Respondent No.1, who acted upon the same, without any objection/protest at the relevant time, goes to the root of the matter, and thereby misread the agreement and the supporting evidence on the record.

12. Normally, the judgment passed by the learned Single judge in a Suit for specific performance, the Appellate Court, should be slow in interfering with the discretion so exercised, but in view of the above written agreements and the conduct of the Respondents, we have no option but to set aside the impugned judgment, also for the following reasons.

13. The learned Single Judge failed to consider the evidence and the crossexamination of Respondent no.1, who confirmed the execution of the agreement (P3), receipt of the earnest money, the Appellant's possession of the premises and the receipt of balance consideration of Rs.2,84,200/as per clause 6 and Exhibit P67 (audited annual report). In view of plain reading of clauses 4 and 5 of the agreement, the payment of outgoings and interest on monthly installments cannot be treated as a payment for the compensation as contended. Considering the overall clauses of the agreement, the word "deposit" mentioned in clause 7 of the agreement, cannot be the reason to overlook the intended agreement of sale.

14. The parking garage though not part of the agreement, in the present facts and circumstances, that itself cannot be the reason to overlook the agreement between the parties, for the sale of the premises. The owner of the property can sell full and/or part of the premises. The purchasing party also can accept or purchase the part of the property. In view of the clear signed document and the proved contents thereof and as supported by the Appellant, merely because the party unable to explain the purchase of the stamp paper, and the place where the document was signed, and further that the agreement was not registered, and that there was nothing mentioned about the transfer of the share certificate and, the document cannot be treated as sham and bogus and not for sale, and further that the premises were taken by the Appellant for temporary basis and therefore, paid compensation for the occupation of the same.

15. The Appellant's nonproduction of 30 years old account, as there was no dispute about the acceptance of the amount till the stage of balance consideration, as admitted even by Respondent no.1, also no reason to overlook the established case of the Appellant.

16. The aspect of Sections 91 and 92 of the Evidence Act is also material consideration, in the facts and circumstances of the case, to disbelieve the defences of sham and bogus agreement and the case of receipt of payment towards the compensation. The unproved defence so raised of sham and bogus and/or of leave and licence agreement and the supporting oral evidence cannot prevail over the written agreement and the correspondences read with the conduct of the parties at the relevant time. There is no question of presumption and assumption merely because the parties have agreed to execute the final documents within three years. The Appellant, therefore, in our view, is entitled to transfer the right, title and interest in the suit property and necessary protection.

17. The importance was given by the learned Judge to Question No. 44 to indicate that the Plaintiff was fully aware that the transaction was not that of sale, but of the leave and licence, but taking into consideration the overall written agreement and the supporting material on record, such one statement made in the cross-examination that itself should not be sufficient to deny the claim of specific performance as pleaded and proved by the Appellant.

18. We have gone through the relevant pleadings, documents and supporting evidence including the reasoning given by the learned Single Judge. In the present case, in our view, the Appellant/plaintiff has made out his case for grant of decree as prayed.

19. There is no material and/or evidence on record to support the case of the Respondents and the reason for execution of the agreement that Government could take over the suit premises if it remained vacant, as emergency was declared during that era under the Bombay Land Acquisition Act, and that there was an amendment in the Rent Control Act in the year 1973, according to which there was a protection given to the licensee. The wrong and/or incorrect drafting of the agreement and/or vagueness in the agreement even if any, with regard to the transfer of share and/or payment or nonpayment of TDS that itself cannot be the reason to overlook the other clear terms of the contract for sale of the property.

20. The less consideration or insufficient consideration and/or payment towards the consideration of such property and/or now change in market rates, in the present facts and circumstances, in no way sufficient to overlook the clinching evidence and the material documents on record.

21. The background, discussion or even correspondences looses its importance once the parties have executed the written documents. The written contents, therefore, unless explained with cogent material and evidence, cannot be overlooked merely on the pleadings of denial. The specific case though pleaded, Respondent no.1 unable to prove the same. This further supports the case of the Appellant.

22. The authorities so relied, therefore by the Respondents on the facts as distinct and distinguishable, are of no assistance. The proposition of law laid down in those judgments need no elaboration. We are convinced on the facts and circumstances of the case and therefore, inclined to interfere with the order passed by the learned Single Judge.

23. Respondent No.1, failed to place on record the overwhelming and cogent evidence contrary to the written documents on record and to justify their case of sham and bogus document and/or leave and licence agreement. The plain reading of these documents and the supporting evidence read with the conduct of the Respondents show that basic intention of the agreement was for sale of the property. The agreement needs to be considered in all respects basically when, at every stage, as the Appellant has performed its part and always expressed his readiness and willingness to perform the property and in fact paid the balance consideration within three years which was also accepted/encashed by the Respondents at the appropriate time. Therefore, the Appellant has made out its case for grant of a decree of specific performance as prayed.

24. In the result, the Appeal is allowed. The impugned judgment and order dated 12 January, 2009, is quashed and set aside. The suit is decreed in terms of prayer clause (a). There shall be no order as to costs.

Appeal allowed.