SECOND APPEAL No. 462/2019.

20th March 2020

Petitioner Counsel: Mr. A.C. Dharmadhikari
Respondent Counsel: Mr. P.D. Meghe
Act Name: Specific Relief Act, 1963

Section :
Section 16[c] Specific Relief Act, 1963 Section 20 Specific Relief Act, 1963 Section 20[2] Specific Relief Act, 1963

Cases Cited :
Para 23: Tejram Vs. Patirambhau, (1997) 9 SCC 634
Para 23: Shamsher Singh and others Vs. Rajinder Kumar and others, (2015) 5 SCC 531
Para 23: Parakunnan Veetill Joseph’s son Mathew Vs. Nedumbara Kuruvila’s son and others, 1987 (Supp) SCC 340
Para 23: Mohammadia Cooperative Building Society Ltd. Vs. Lakshmi Srinivasa Cooperative Building Society Ltd and others, (2008) 7 SCC 310

JUDGEMENT

This Court vide order dated 04.12.2019, with consent of parties ordered the matter to be listed for final hearing. Hence, by consent of the parties, the matter is taken up for final disposal. Admit.

2. The appellant / original defendant raised a challenge to the judgment and decree passed in Regular Civil Appeal No.179/2016 dated 16.01.2019, by which the judgment and decree of specific performance passed in Regular Civil Suit No. 751/2008, was confirmed.

3. Initially after hearing the learned counsel for the appellant, notice was issued on following substantial questions of law :
(1) Whether both the Courts below erred in holding that the Agreement of Sale in question was duly proved;
(2) Whether the disputed house constructed on leasehold land can be a subject matter of sale; and
(3) Whether both the Courts below are justified in accpeting the evidence of plaintiff, which is about the date of execution of Agreement, which was not the date, as per the plaintiff’s own case.

4. Respondents have filed Special Civil Suit No.751/2008, seeking specific performance of agreement dated 12.02.2007, relating to immovable property, namely house property. The learned trial Court was pleased to pass a discretionary decree of specific performance directing the appellant to execute sale deed within stipulated period on accepting remaining part consideration. Being aggrieved by the said decision, appellant filed Regular Civil Appeal No.179/2016, challenging the decree of specific performance. However, the Appellate Court on reassessment of evidence has dismissed the appeal, thereby confirmed the decree of specific performance.

5. The brief facts of the case can be stated in narrow compass as below. The parties are referred throughout as per their status before the trial Court.

6. The suit property was comprising of a super structure bearing House No.876 in Ward No.58, ad-measuring 1000 sq. ft. consisting of 4 rooms, which is specifically described in paragraph no.1 of the plaint. The defendant no.1 was exclusive owner of the suit structure which was built on nazul land. Defendant no.1 had executed an irrevocable registered power of attorney dated 06.04.2004, in favour of defendant no.2 empowering him to execute agreement of sale, conveyance deed, transfer deed, sale deed etc. On the basis of said power of attorney, defendant no.2 agreed to sell the suit property to plaintiffs and to that effect executed an agreement of sale dated 12.02.2007. Defendant no.2 had agreed to sale the suit property to plaintiffs for consideration of Rs. 12,50,000/-. On the date of execution of agreement, defendant no.2 on behalf of defendant no.1 accepted part consideration of Rs.3,61,000/-. It was agreed that balance consideration was to be paid at the time of execution of the sale deed, which was to be completed on or before 15.08.2007.

7. It is the case of plaintiffs that on 02.05.2007, defendant no.2 has requested the plaintiff to pay an amount of Rs.1 lakh towards sale transaction. Accordingly, plaintiff had paid further part of consideration of Rs. 1 lakh on 02.05.2007 by issuing account payee cheque. Time to time defendant no.2 approached to plaintiff and got extended the time for execution of sale on the premise that he is making alternate arrangement for his residence. Plaintiffs have realized that defendant no.2 is not interested in executing the sale deed, hence, by issuing legal notice dated 14.11.2007, defendant no.2 was called upon to execute sale deed on accepting balance consideration. However, defendant no.2 has virtually denied to execute the sale deed on one or the other pretext.

8. It is the case of plaintiffs that, plaintiff no.1 was an employee of BSNL, whilst plaintiff no.2 who is husband of plaintiff no.1 was defence serviceman. Both of them have raised fund by taking loan from P.F. Account, LIC and other sources. Plaintiffs were ready and willing to perform part of their contract. Since defendant no.2 refused to execute sale deed, suit for specific performance came to be filed.

9. Defendant no.1 though contested the suit vide written statement, however, she never led evidence. Defendant no.1 admits that she was owner of the suit property as well as she had executed registered irrevocable power of attorney dated 06.04.2004 in favour of defendant no.2. However, she denied that she had authorized defendant no.2 to execute agreement to sell or enter into sale transaction in respect of suit property. It is her stand that she being old aged lady, for doing property related work, she had executed power of attorney in favour of defendant no.2 who in turn took disadvantage of the same. She stated that she never consented for defendant no.2 to enter into an agreement of sale with plaintiffs. She denied execution of agreement of sale dated 12.02.2007 by defendant no.2 in favour of plaintiffs. She also stated that the suit structure was constructed on government land, therefore, without permission of government, sale cannot be effected. With these contentions, she resisted the suit claim.

10. Defendant no.2 equally resisted the suit claim vide Written Statement Exh.22. It is his case that suit property was owned by defendant no.1, who had executed a general power of attorney dated 06.04.2004 in his favour empowering him to enter into an agreement of sale, sale deed, conveyance etc. However, defendant no.2 has specifically denied that he had entered into an agreement of sale dated 12.02.2007, in favour of plaintiffs. He equally denied receipt of part consideration as alleged. It is his case that he was in financial need for business purpose, therefore, he had requested plaintiffs for grant of hand loan. Particularly on 10.02.2007, he had approached to plaintiffs for hand loan on which plaintiffs gave hand loan of Rs. 3 lakhs by issuing account payee cheque. Thereafter again on 02.05.2007, at his request plaintiffs had given another hand loan of Rs. One lakh by account payee cheque, and as such he had borrowed Rs.4 lakhs from plaintiffs.

11. It is the specific case of defendant no.2 that at the time of taking hand loan plaintiffs have obtained his signatures on blank stamp papers and other papers which were misused for converting it into the disputed agreement to sale. Precisely, he has denied the suit transaction and prayed for dismissal of the suit.

12. Having regard to the rival pleadings the learned trial Court framed necessary issues. On the basis of oral and documentary evidence. The trial Court held that the plaintiffs have duly proved that defendant no.2 being power of attorney holder of defendant no.1 had entered into an agreement of sale in respect of suit property on 12.02.2007 in consideration of Rs.12,50,000/-. It is also held that plaintiffs had paid part consideration of Rs.4,61,000/- to defendant no.2. The issue of readiness and willingness in terms of Section 16[c] of the Specific Relief Act was answered in favour of plaintiffs and accordingly discretionary relief of specific performance was granted. The said judgment and decree was challenged by the defendant no.2 in First Appeal, however, it failed.

13. Defendant no.1 who was admittedly owner of the suit property though resisted the suit vide written statement – Exh.23, never gave evidence in support of her stand. Plaintiffs have led evidence of total 4 witnesses. As against this, defendant no.2 entered into the witness box and examined his real brother. Disputed document of agreement of sale dated 12.02.2007 (Exh.30). Photocopy of power of attorney (Exh.43) and certain other documents are produced for evaluation.

14. Shri Dharmadhikari, learned Counsel for appellant/ defendant no.2 straneously argued that the plaintiffs’ evidence is totally contradictory to the document of agreement to sale (Exh.30). He would submit that the agreement to sale (Exh.30), and suit notice bears date of execution as 12.01.2007. He pointed out that the plaintiffs also stated in evidence that agreement was executed on 12.01.2007. According to him, however, plaintiffs have put up a case that the agreement of sale was executed on 12.02.2007, which is totally inconsistent with agreement Exh.30, initial pleadings and suit notice etc. True, the agreement to sale bears date of execution as 12.01.2007, whilst it is the case of plaintiff that it was executed on 12.02.2007. Undoubtly, since beginning plaintiffs have put up a case that suit transaction took place on 12.01.2007, and the same was stated in the evidence. However, during the course of evidence, plaintiffs realized that there was a mistake in date of agreement, since it was executed on 12.02.2007. Therefore, plaintiffs got amended the plaint to cure the defect and accordingly the amendment was carried. Though defendant no.2 challenged the order of amendment by way of Writ Petition No. 6903/2013, however, it was dismissed by this Court vide order dated 25.02.2014. After amending the suit further evidence was led in which plaintiff and his witnesses stated the correct date of agreement to sale as 12.02.2007.

15. The appellant has tried to capitalize said mistake as is apparent from the main line of argument. Admittedly, the stamp paper for agreement to sale – Exh.30, was purchased on 10.02.2007, meaning thereby there cannot be an agreement prior to that date. It has come in the evidence of scribe P.W.2- Dadu Sachdev that parties came to him for drafting agreement in last week of January, 2007, which improbabilises execution of agreement on 12.01.2007. It has come in the evidence of the scribe P.W.2- Dadu, that he had prepared the agreement on the basis of old format of agreement available in the computer by cut-paste mode, therefore, mistakenly the month January remained to be changed, which is a pure mistake. Pertinent to note that defendant no.2 in his evidence itself has stated that he had approached to plaintiffs on 10.02.2007 for obtaining hand loan for business purpose. This itself strongly supports plaintiff’s case that the agreement was executed on 12.02.2007, but, there was a pure typographical error. Moreover, it is not the case of defendant no.2 at all that he had approached to the plaintiff on 10.01.2007, and therefore, the said date was mentioned in the agreement. Apparently it was a typing mistake hence there is no force in appellants said stand.

16. The crucial aspect is about deciding the very nature of transaction. At one hand plaintiffs have stated that it is an agreement of sale, whilst defendant no.2 is coming with a case of hand loan transaction and misuse of signatures on blank papers. Bare perusal of the agreement to sale discloses that it is not a one page agreement to say that signatures on blank paper were misused and converted into an agreement of sale. The agreement runs into 6 pages and on first 5 pages signature of defendant no.2 is at the bottom of typed portion of each page. On last page of the agreement recital ends at the midst of the page and below the recital there is specific word as ‘Vendor’ and below that ‘Purchaser’. The signature of defendant no.2 is above the typed word ‘Vendor’, which is meant for vendors signature, as well as at right side there is typed word ‘Witness’ below which the witnesses have signed. The mode and manner of making signatures by defendant no.2 on each and every page and at the last page above typed words, leaves no manner of doubt that it is an agreement to sale consciously executed by knowing contents. Rather it conveys that the agreement was got typed and thereafter signatures were obtained at the place where it should be. It is difficult to hold that some blank signed papers were used and converted into agreement. The said aspect is properly dealt by both the Courts below in appropriate way while recording their concurrent finding of fact.

17. The agreement discloses that on the date of execution, part consideration of Rs. 3 lakhs was paid by cheque, whilst Rs.61000/- were paid in cash. The defendant no.2 himself has admitted that on 12.02.2007, he has received a cheque of Rs. 3 lakhs, but, he has coloured it as a hand loan. Though the plaintiffs have produced two receipts of payment of Rs.10,000/- and Rs.5,000/- in cash, out of cash amount of Rs.61,000/-, however, the agreement bears reference that amount of Rs.61,000/- was received till the date of agreement. Therefore, though there are no receipts of entire cash payment of Rs.61,000/-, however, the recital about receipt of Rs.61,000/- in the agreement itself supports plaintiffs case against bare denial of the defendant.

18. Plaintiffs case is reaffirmed by the endorsement dated 02.05.2007, put by defendant himself on the back side of first page of the agreement by which he has acknowledged the receipt of cheque of Rs.1 lakh. Had it been the fact that the agreement was a doctored one, then there would not have been such endorsement on the back side of the stamp paper. Therefore, the consistent findings of both the Courts below that defendant no.2 has entered into an agreement of sale on behalf of defendant no.1 of suit property for consideration of Rs. 12,50,000/- and accepted part consideration of Rs.4,61,000/- is well reasoned and maintained.

19. Though the defendant no.2 took some other defences, but, they does not stand to reason. He took defence that the suit house property stands on government land, therefore, it cannot be sold. However, defendant has not brought to the notice any provision of law to prohibit such alienation. The agreement was only in respect of structure constructed over Nazul land which is evident from Clause no.6 of the agreement. Therefore, what is agreed to be sold is whatever rights owner has and nothing more could be transferred. At the most, it would be at the peril of plaintiffs if there happens to be any impediment on that count.

20. The defendant took some other facile defences of misjoinder and non-joinder of parties, which are appropriately dealt with by both the Courts below. It is contended that brother of defendant no.2 who was signatory to the agreement has not been joined in the suit. Infact defendant no.2 was the power of attorney holder of original owner and therefore, there was no reason to seek enforcement against brother of defendant no.2. Moreover, admittedly the brother of defendant no.2 does not have any interest in the suit property hence, he was neither necessary nor proper party to the suit. Both the Courts below have properly repeated the said defence.

21. Plaintiffs have pleaded and proved about their readiness and willingness for performance of their part of the contract. They have issued legal notice calling upon defendants to execute sale deed. Plaintiffs also endeavored to show by producing documents that they were financially capable of paying the balance consideration. Since defendant no.2 has denied the transaction itself, in true sense he can not take defence that plaintiffs were not ready and willing. However, plaintiffs have duly complied with the statutory requirement of Section 16[c] of the Specific Relief Act, by leading cogent evidence.

22. The learned Counsel for the appellant/defendant argued that decree of specific performance is a discretionary relief in terms of Section 20 of the Specific Relief Act. According to him, if decree would grant unfair advantage to plaintiffs or it would involve hardship on the defendant, then decree cannot be passed. No doubt Section 20 of the Specific Relief Act preserves judicial discretion to Courts as to decreeing the specific performance. The Court is not bound to grant specific performance merely because it is lawful to do so. It is expected that Court should meticulously consider all facts and circumstances of the case and to evaluate the claim on the parameters of sub-clause [2] of Section 20 of the Specific Relief Act.

23. The learned Counsel for the defendant in support of his contention has relied on some decisions of the Hon’ble Supreme Court. He has relied on the decision in case of Tejram .vrs. Patirambhau – (1997) 9 SCC 634. In said case on facts it was held that the questioned transaction was a monetary transaction and amount due was towards interest on unpaid loan and therefore, specific performance was refused. In another case of Shamsher Singh and others .vrs. Rajinder Kumar and others – (2015) 5 SCC 531, the Hon’ble Supreme Court has explained the scope as to how judicial discretion is to be used. It was observed that certain clauses of the agreement coupled with compromise were one sided and would give unfair advantage to the plaintiff and in that context the decree was refused. In another decision of Hon’ble Supreme Court in case of Parakunnan Veetill Joseph’s son Mathew .vrs. Nedumbara Kuruvila’s son and others – 1987 (Supp) SCC 340, it was held that the motive of the suit for specific performance should be taken into account while using discretion. There were multiple transactions entered into between the parties and the assignee has filed a suit for specific performance. In those peculiar facts, decree was refused. The last reliance is palced on the decision of Hon’ble Supreme Court in case of Mohammadia Cooperative Building Society Ltd. .vrs. Lakshmi Srinivasa Cooperative Building Society Ltd and others – (2008) 7 SCC 310, where in the Wakf property was subject matter of suit and in that context, the specific performance was refused. All these decisions have no application as the facts in those cases were quite distinct.

24. Plaintiffs have proved that the agreement was consciously executed on 12.02.2007 relating to the immovable property. The suit transaction was purely an agreement to sale in consideration of Rs. 12,50,000/-. On account of said transaction, initially Rs.3,61,000/- was paid and further another amount of Rs.1 lakh was paid. The terms of agreement were meticulously gone into, which does not disclose any unfair advantage to plaintiffs, nor it is an inequitable transaction. After going through the findings and reasons recorded by the First Appellate Court, with reference to the questions of law, as framed, both the Courts have properly exercised judicial discretion. The concurrent findings are well justified and would call for no interference at all. In view of above, the impugned judgment is well sustainable in law, hence, appeal carries no merit and dismissed accordingly. No costs.

Later on :

25. At this stage, Shri S.S. Ahmed, learned Counsel h/f Shri A.C. Dharmadhikari, for the appellant seeks 8 weeks protection to the possession of appellant/defendant over the suit property, since appellant desires to challenge this judgment before the Hon’ble Supreme Court. He makes a statement that initially in this proceeding, the learned counsel for respondents/plaintiffs gave oral undertaking that they will not take physical possession of the suit property till the disposal of this appeal. There is no appearance on behalf of respondents/ plaintiffs to respond to this submission. Accepting the statement made by the learned counsel for the appellant, and having regard to the fact that the appellant is in long standing possession of suit property, which is a dwelling house, his possession is protected for a period of 6 weeks from today, and the said protection shall cease to operate automatically after said period. However, it is made clear that respondents are free to take other steps for execution of document of sale.