Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 238 (PAT)

Ram Kishore Das v. Nand Kumar Pathak

2003-02-27

P.K.DEB

body2003
Judgment 1. This appeal has been preferred against the concurrent findings of both the courts below decreeing the plaintiffs/respondents suit for specific performance of contract basing on a Mahadanama in Title Suit No. 12/1987 (228/88) and M.T.A. No. 10/93 (8/99). 2. An agreement was arrived at on 15.11.1986 in writing between the plaintiff and the defendant/appellant Sukhdeo Das for a consideration of Rs. 12,0007- The large amount of consideration to the tune of Rs. 10,000/- had been paid at the time of making agreement from the side of the plaintiff and then he was put into the possession by the defendant and there was further conditions stipulated that within a period of time as mentioned in the agreement itself the defendant would execute the sale deed in favour of the plaintiff by taking the balance amount of Rs. 2,000/-. When the time became ripen the plaintiff requested the defendant to take the balance amount of Rs. 2,000/- and execute the same but he did not do and started evading. Then a Pleaders notice was sent by the plaintiff to the defendant to execute the sale deed by taking the balance amount of Rs. 2,000/- but such notice was refused on being sent by registered post from the side of the defendant. Hence the suit has been filed. There was specific averment in the plaint that the plaintiff was all along ready to pay the balance amount of Rs. 2,000/- i.e. regarding part performance of the part of contract but the defendant was not doing his part. It appears that the defendant in the meantime, had sold away the suit land to the third parties who were also parties in the suit but those defendants i.e. the subsequent purchasers had not contested the suit. The defendants plea was that he had never entered into the contract/agreement nor there was any payment of money to him and, as such, the suit is liable to be dismissed. The defendants plea was that he had never entered into the contract/agreement nor there was any payment of money to him and, as such, the suit is liable to be dismissed. Both parties adduced evidence and in course of adjudication the signature of the defendant was tallied with that of the agreement (which is generally called in Bihar as Mahadanama) and on scientific examination the handwriting expert found that the defendants singature tallied and after consideration of the evidence of both the parties the suit was decreed by the trial court and on appeal being preferred and on independent scrutiny of the evidence on record the appellate court had also maintained the decree in favour of the plaintiff by dismissing the appeal. 3. Thus the present appeal is against the concurrent finding of both the courts below. Mr. V. Nath learned counsel appearing for and on behalf of defendant/appellant has urged a law point before this court for the purpose of admission of the appeal, although such point of law was never raised before the courts below at any point of time. His only contention is that Mahadnama as it has been construed and the framing of the suit on the basis of Mahadnama are not maintainable legally and hence the decree granted by both the courts below are illegal. His simple contention is that when the Mahadnama has not been signed from the side of the plaintiff then it becomes only an unilateral document and cannot be said to be a bilateral document or the contract as contemplated under the Indian Contract Act and hence suit on the basis of contract under the Specific Relief Act is not maintainable and at best if the suit had been construed or framed construing the Mahadnama as only an undertaking from the side of the defendant then parhaps the suit might have been maintainable but it is not maintainable for part performance under the Specific Relief Act, The main thrust of Mr. Nath learned counsel appearing for and on behalf of the appellant is that unless the Mahadnama is being signed by both the parties to the agreement/contract it cannot be enforceable because the enforcement must be such that it can be done simultaneously by both the parties. Nath learned counsel appearing for and on behalf of the appellant is that unless the Mahadnama is being signed by both the parties to the agreement/contract it cannot be enforceable because the enforcement must be such that it can be done simultaneously by both the parties. His main contention is that as there is nothing in the hands of the defendant if the plaintiff would have been denied to produce then the defendant would not have been in a position to enforce it as the document is not a bilateral one. In support of the contention Mr. Nath has very much relied on decision of the Madras High Court as reported in AIR 1998 Madras 169 (S.M.Gopal Chetty V/s. Raman) wherein it was held that if the agreement restricts only by imposing obligation on the seller alone then it cannot be construed to be a mutual contract and hence not enforceable under the Specific Relief Act. But from paragraph 5 it appears that there were two documents, namely, Exts. A/1 and Ext. A/2. The first one is on blank paper being signed by seller alone. The preamble of that document showed that defendant nos. 1 and 2 had given the said document to the plaintiff and that defendant nos. 1 and 2 agreed to execute the sale deed within a period of three months but there was no agreement regarding payment of balance amount from the side of the plaintiff. In the second document Ext. A/2, also there is no time frame regarding the payment of balance amount from the side of the plaintiff. In that way it was held that such unilateral documents being executed by defendants alone cannot be held maintainable for the purpose of Specific Performance of Contract and as the documents lack in mutuality of the agreement being arrived at but the fact of the present case and the document i.e. Mahadnama in the present case had got duality on the face of it. Here the proposal of selling of the land of the defendant was accepted by the plaintiff on payment of the larger amount towards the consideration and balance of Rs. 2,000/- was agreed to be paid on a subsequent date and on payment of the maximum amount of consideration the plaintiff has been put in possession by the defendant. Here the proposal of selling of the land of the defendant was accepted by the plaintiff on payment of the larger amount towards the consideration and balance of Rs. 2,000/- was agreed to be paid on a subsequent date and on payment of the maximum amount of consideration the plaintiff has been put in possession by the defendant. It is true that the plaintiff had not signed the document but promise or offer which had been made from the side of the defendant had been accepted by the plaintiff from the action being made on his part which definitely comes within the purview of section 3 of the Indian Contract Act. From the action of the plaintiff it is very much clear that he has accepted the offer and also the promise made from the side of the defendant. In that way I find that the present case is totally different from that of the reported case of Madras. Moreover the acceptance of an offer either may be express or implied. If signature would have been there from the side of the plaintiff then it might have been an express one but the position and circumstances show that it has become an acceptance impliedly. Moreover from the action of the plaintiff his promise became totally complete when a part of the contract or promise have been performed by him as per section 10 of the Specific Relief Act and the subsequent sections thereto. When all the conditions of section 10 are found to be included within the agreement arrived at then even if there is no signature from the side of the plaintiff, the agreement is complete and the same remained enforceable. In the present case there remains nothing to be enforced from the side of the defendant. If the plaintiff would have failed to pay the balance amount and take the sale deed from the defendant then he becomes gainer on both the sides. There remained no scope for him to come for any sort of imposition from the side of the plaintiff rather promise remains to deal with the defendant. In that way only because the signature of the plaintiff was not there it cannot be said that the Mahadnama is not a legal document and not enforceable one under the Specific Relief Act. The other judgment as has been referred to by Mr. In that way only because the signature of the plaintiff was not there it cannot be said that the Mahadnama is not a legal document and not enforceable one under the Specific Relief Act. The other judgment as has been referred to by Mr. Nath is 1972(1) Madras Law Journal Reports page 401 (Kandaswami V/s. Venkatachala Kandar and others). That judgment related to the provisions of Section 45 of the Indian Contract Act alongwith Section 23 of the Specific Relief Act. That case related to specific performance by some of the persons and not all who were promisees. That has got nothing to do with the present one. Some of the beneficiaries of the agreement might not have given consent or come up for specific performance and by that way it cannot be said that the suit is not maintainable and the same has been held by the Madras High Court also but as the power of grant of specific performance is discretionary one under the Specific Relief Act then instead of decree for specific performance regarding the immovable property money decree could have also been passed. The other ruling submitted by Mr. Nath is AIR 1971 Patna 253 (Keadar Das V/s. Nand Lal). The fact of that case is totally different from this case. Definitely an agreement is not enforceable at the instance of a person who himself is not bound by it. In that case when reciprocity is not there then the question of enforcement of the agreement does not arise. The facts of the reported case is totally different. There the enforceability remains totally impossible when the previous sale deed did not bind one of the persons to the agreement. The case referred as reported in AIR 1955 S.C. 468 (Thawardas V/s. Union of India) has also got no application rather the principle enunciated regarding the contract with the Government is on different footing. Moreover that related to one sided condition which had never been accepted by other side but here both acceptance and offer are there, although, there may not be signature of the plaintiff in the Mahadnama but from the circumstances it is clear that the plaintiff was actively participant in the offer and acceptance of the agreement itself. Moreover that related to one sided condition which had never been accepted by other side but here both acceptance and offer are there, although, there may not be signature of the plaintiff in the Mahadnama but from the circumstances it is clear that the plaintiff was actively participant in the offer and acceptance of the agreement itself. Moreover such sort of plea is not maintainable in the mouth of the defendant when he has totally been bound by the agreement on the face of it. Similarly the judgment reported in 1969 PLJR 156 (Smt. Gulabrani V/s. J. Chaudhary) has got no application in the present circumstances of the case. That was in respect of applicability of Section 54 read with section 4 of the Transfer of Property Act together with that Section 73 of the Indian Contract Act. In that case the power of attorney had bound the real owner in a promise/agreement to sell. When such power had never been given in the power of attorney itself, in that way it was held that the owner of the property cannot be held bound by such agreement when he was not a party to the agreement itself. The present facts and circumstances are totally different as already expressed earlier. Thus, from the discussion above, I come to the finding that Mahadnama although being signed by the seller alone is perfectly legal document to be enforceable under the Specific Relief Act, Hence when on factual aspect both the courts have given concurrent findings and when on points of law which has been raised for the first time by the second appellate court is also found in favour of the plaintiff, I do not find any force in the second appeal. Hence the same is rejected under Order 41, Rule 11 of the Code of Civil Procedure.