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2007 DIGILAW 234 (KAR)

BHASKER S. KATTEMAR v. P. E. IIAMEED

2007-03-30

C.R.KUMARASWAMY, R.GURURAJAN

body2007
R. GURURAJAN, J. ( 1 ) THIS appeal is filed by the defendant Bhasker S. Kattemar challenging the judgment and decree dated 28-2-2000 passed in Original Suit No. 521 of 1988 on the file of the First Additional Civil judge (Senior Division), Mangalore, D. K. The facts narrated in the appeal memo are as under : ( 2 ) RANK of the parties in this appeal are referred to as per the ranking before the trial court. Respondent plaintiff filed a suit for refund of advance purchase price and for damages. According to the plaint averments, defendant is the owner of the suit schedule property. It is a commercial plot. Defendant sought for eviction of his tenant in HRC No. 93 of 1976 on the file of the Munsiff, Mangalore. He was in urgent financial need, and thus he was intending to sell and dispose of the suit properties. Defendant appellant approached the plaintiff and by mutual agreement, defendant appellant agreed to sell the suit property for Rs. 10,83,000/. Defendant entered into an agreement in this behalf with the plaintiff on 17-5-1983. Plaintiff paid an advance of Rs. 2,00,000/- on the date of agreement. Separate receipt was passed by the defendant in that regard, apart from mentioning the same in the agreement of sale itself. As per the said agreement, defendant had to execute a sale deed within two years and deliver actual possession of the property on the date of sale deed. Parties thought that the eviction proceedings would be finalised within two years. Delivery of actual possession of the property on the date of the sale deed was a condition precedent. In the event of the plaintiff securing actual possession on negotiation with the tenant who is in possession, lesser consideration amount was to be paid. An option was provided to extend time to the plaintiff to take the sale deed or to seek specific performance by one more year. If the defendant is unable to give vacant possession, plaintiff may at his option treat the agreement as repudiated and cancelled, in which event defendant should refund advance amount of Rs. 2 lakhs with interest at 18 per cent from the date of agreement. ( 3 ) DEFENDANT succeeded in the eviction proceedings. If the defendant is unable to give vacant possession, plaintiff may at his option treat the agreement as repudiated and cancelled, in which event defendant should refund advance amount of Rs. 2 lakhs with interest at 18 per cent from the date of agreement. ( 3 ) DEFENDANT succeeded in the eviction proceedings. Plaintiff was ready and willing to do his part of performance in terms of the agreement and take the sale deed by paying the balance consideration amount. This was made known to the defendant also. Plaintiff waited for due performance of the agreement by the defendant. Plaintiff has exercised his option for one more year. Defendant did not execute the sale deed. Defendant did not get possession of the property of the tenant after disposal of the eviction proceedings. Plaintiff issued a legal notice dated 3-5-1986 seeking for specific performance of the agreement. There were exchange of notices. Thereafter, plaintiff came to know that even prior to entering into the agreement of sale with the plaintiff, defendant had entered into an agreement of sale with another person, which was subsequently cancelled by mutual consent. Subsequent to the agreement of sale with the plaintiff, defendant had entered into an agreement to sell the suit property to one Mr. Alwyn veigas by receiving an advance consideration of Rs. 4,41,000/- by cheque, suppressing the agreement with the plaintiff. Plaintiff in these circumstances sought for refund of the advance amount of Rs. 2,00,000/- with interest thereon at 18 per cent from the date of agreement till realisation. Plaintiff also sought for damages by reason of breach committed by the defendant and estimated it at Rs. 2 lakhs. However, he restricted the claim to Rs. 1,00,000/- as pre-estimated damages arising out of breach of contract. ( 4 ) ON receipt of notice, defendant filed a written statement denying execution of agreement. He states that he never agreed to sell the suit property. Property is situated in a prominent locality of Mangalore city. Defendant wanted to run a hotel business. He filed an eviction petition. He had no intention to sell the property as he needs the property for a reasonable and bona fide occupation. The suit was filed by the plaintiff in collusion with the tenant, as the tenant xxxxxxxx has lost upto the High Court. Market value of the property would exceed Rs. He filed an eviction petition. He had no intention to sell the property as he needs the property for a reasonable and bona fide occupation. The suit was filed by the plaintiff in collusion with the tenant, as the tenant xxxxxxxx has lost upto the High Court. Market value of the property would exceed Rs. 30 lakhs, He denied execution of an agreement of sale. He stated that the plaintiff is a total stranger to the defendant. He contended that the signature on the stamp paper is a rank forgery. He denied receipt of Rs. 2 lakhs from the plaintiff as alleged in the plaint. He also denied execution of separate receipt in that regard, He states that the receipt is a forged document. He also would contend that the plaintiff has close relationship with tenant; that by paying money to the tenant plaintiff might thought of getting possession of the property directly from the tenant; that therefore, probably he thought of investing for the purpose of the suit to enable him to get the sale of the property for a lesser price from the defendant, and, thus by blackmailing the xxxxxxxx defendant in the form of the suit plaintiff has filed the present suit. It is also stated that the plaintiff is not entitled for any damages. He wanted the suit to be dismissed. He would also contend that since the plaintiff has not opted for extension of the period, the time of two years stipulated for selling of the property with vacant possession ended on 16-5-1985, and the agreement itself lapsed on that day. According to the defendant, the suit is therefore beyond the period of limitation. ( 5 ) LEARNED trial judge has framed as many as 11 issues. He has answered the same in paragraph 16 of his judgment. Ultimately, learned trial Judge has decreed the suit with costs of Rs. 4,92,000/ -. He has also ordered interest at 6 per cent from the date of suit till realisation. ( 6 ) HEARD the learned counsel for the parties. ( 7 ) SRI Sanath Kumar Shetty, learned counsel for the appellant would take us through the material on record to say that the suit is not maintainable against the appellant defendant and that it was a collusive suit. He would reiterate the contentions in the written statement. ( 6 ) HEARD the learned counsel for the parties. ( 7 ) SRI Sanath Kumar Shetty, learned counsel for the appellant would take us through the material on record to say that the suit is not maintainable against the appellant defendant and that it was a collusive suit. He would reiterate the contentions in the written statement. He would also say that a fraud is played on his client. He strongly denied the documents in the matter. He would say that his client is not a party for the documents. He would also say that even otherwise the suit is barred by time. He would refer to the material documents to contend that a clause of the agreement provides for a period and that period has not been adhered to by the plaintiff, and that therefore, present suit is barred by law of limitation. So far as damages is concerned, he would say that without repudiating the agreement no damages can be levied. He would rely on case laws. ( 8 ) PER contra, Sri Balakrishna Shastry, learned counsel for the respondent plaintiff with equal vehemence would plead before us that the learned trial Judge is right in holding in favour of the plaintiff. Documentary evidence and oral evidence support the case of the plaintiff respondent. Appellant defendant is a practising lawyer and he has not chosen to initiate any action by way of a complaint or by way of any other proceedings known to law and therefore plea of fraud or collusion, as rightly ruled by the Court, is not proved in a manner known to law. He would say that in the light of the defendant unable to provide a sale deed, plaintiff rightly sought for refund of the amount paid in terms of the documentary evidence available on record. In so far as limitation is concerned, he would refer to us the material documents to say that if all clauses of the agreement are read together, suit is within time. In so far as damages is concerned, he would say that in terms of Sections 73 and 74 of the Contract Act, his client is entitled for damages. He wants the appeal to be dismissed. ( 9 ) AFTER hearing, we have carefully perused the material on record. ( 10 ) PLAINTIFF respondent has chosen to file a suit seeking total sum of Rs. 4,92,000/ -. He wants the appeal to be dismissed. ( 9 ) AFTER hearing, we have carefully perused the material on record. ( 10 ) PLAINTIFF respondent has chosen to file a suit seeking total sum of Rs. 4,92,000/ -. His claim is for refund of advance purchase price paid under the agreement dated 17-5-1983 amounting to Rs. 2 lakhs. He sought for interest thereon at 18 per cent from 18-5-1983 till 17-9-1988 at Rs. 1,92,000/ -. He sought for damages amounting to Rs. 1,00,000/ -. His case is that the defendant appellant entered into agreement with the plaintiff for sale of the property for an agreed price of Rs. 10,83,000/- on 17-5-1983. Plaintiff has made over a sum of Rs. 2 lakhs. Since the defendant not executed a sale deed, he has sought for refund of the same. As against this, the defence is of total denial of execution of the agreement and the receipt in terms of the pleadings. He would also say that a forgery is played in the case on hand. He would deny of any payment of Rs. 2 lakhs in the absence of any agreement between the appellant defendant and the respondent plaintiff. He would also attribute collusion with the tenant in the matter of knocking off the valuable property by resorting to blackmailing the defendant. ( 11 ) PARTIES have entered into witnesses box before the trial Court. Plaintiff has examined two witnesses and defendant has examined himself. Plaintiff got marked as many as 15 documents and the defendant has got marked three documents. Learned trial Judge, as mentioned earlier, has chosen to frame 11 issues. First four issues are with regard to advance payment of Rs. 2 lakhs. He has answered them in favour of the plaintiff. To come to that conclusion, learned trial Judge has noticed Exhibits P1 and P2 and also the evidence on record. After noticing the same, he has come to the conclusion that there exists an agreement and also a receipt in the matter of Rs. 2 lakhs. He has also disbelieved the defence of forgery/ collusion on the facts of this case. In short, he has accepted the case of the plaintiff. ( 12 ) IN the light of the arguments placed before us, we have carefully seen the material on record. The entire claim is based on exhibits P1 and P2. Evidence is available on record. He has also disbelieved the defence of forgery/ collusion on the facts of this case. In short, he has accepted the case of the plaintiff. ( 12 ) IN the light of the arguments placed before us, we have carefully seen the material on record. The entire claim is based on exhibits P1 and P2. Evidence is available on record. Plaintiff has chosen to say in his evidence that he had agreed to purchase the suit property for a consideration of Rs. 10,83,000/ -. Proof of agreement to sell was provided in the case. Agreement to sell was executed on 17-5-1983. It is marked as Exhibit P-1 in the case on hand. He has also identified the signature of the defendant in his evidence. He has also produced Exhibit P-2 a receipt of defendant with regard to receipt of Rs. 2 lakhs. He was cross examined in a great length by the defendant. The way in which cross-examination was conducted would show that the defendant was trying to get over in the matter of entering into an agreement. There is total denial of agreement in the case on hand. So also the receipt. We have seen the agreement dated 17-3-1983. Same has been signed by the defendant, whose signature is identified by the plaintiff and the same has been accepted by the learned trial Judge. Lot of arguments were adduced with regard to non-submission of the agreement to a handwriting expert in the case on hand. Learned counsel for the appellant would rely on a judgment of State (Delhi Administration) v. Pali Ram, AIR 1979 sc 14 . He would strongly rely on paragraph 29 of the said judgment, reading as follows : "29. The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any hand-writing expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert. " He would rely on a judgment of the calcutta High Court reported in AIR 1998 calcutta 31. The Calcutta High Court has observed in paragraphs 41 and 42 reading as follows : "41. A question also arose as to whether the learned trial Judge ought to have compared the disputed signature of the appellant with his admitted signature. 42. Although there appears to be divergent views on the subject, there cannot be any doubt that although Court is said to be expert of all experts, in such matter it should be slow to undertake such a task upon itself. Ordinarily, the Court should examine a disputed signature with the aid and assistance of a handwriting expert. But the Court should also satisfy itself that the demand for sending the disputed signature is not frivolous and for that purpose it may also examine the same with his naked eye. In the instant case, even no such application has been filed. " He would further rely on a judgment reported in AIR 1995 Orissa 131, Laxmi Bai v. A. Chandravati with regard to handwriting expert. ( 13 ) IT is no doubt true that in the case on hand no handwriting expert was examined. That by itself would not be a ground not to believe the documents in the case on hand. In fact, learned trial Judge has noticed this aspect of the matter and observed that though it may be desirable to get the evidence of handwriting expert, there is no legal bar to the court to consider the documents for the purpose of acceptance or otherwise of the said document. Learned trial Judge in the circumstances and in the light of the evidence has noticed the signature of the defendant. Learned trial Judge, after noticing the signature, has come to a right conclusion that the documents in question are acceptable in the case on hand. In fact, at this stage, we must notice various allegations made by the defendant appellant with regard to the documents. The allegation of rank forgery, collusion in knocking off the property, etc. Learned trial Judge, after noticing the signature, has come to a right conclusion that the documents in question are acceptable in the case on hand. In fact, at this stage, we must notice various allegations made by the defendant appellant with regard to the documents. The allegation of rank forgery, collusion in knocking off the property, etc. are made in the written statement. But surprisingly no proceedings were initiated at any point of time as against the plaintiff either before or after filing of the suit. Learned trial Judge noticing the conduct of the defendant has rightly ruled against the defendant in paragraph 38 of the judgment in question. We cannot but notice that the defendant is a practising lawyer. If there is really any forgery, he would have certainly taken action against the plaintiff. Non taking of any action by the defendant in the case on hand would go to against the defence placed by the defendant appellant. Learned trial Judge, in our view, is right in this regard in decreeing the suit. ( 14 ) IN fact, we have seen exchange of notices between the parties. First notice is dated 3-5-1986 in the matter seeking refund of Rs. 2 lakhs. In reply, defendant would say that he has not entered into any agreement with the plaintiff and therein he had requested for a xerox copy of the agreement. Without even having a copy, it is un-understandable to us as to how fraud or blackmailing could be made by the defendant in his reply. It is also seen that in the subsequent reply, he has chosen to say that there is a conspiracy to cause damage, etc. We notice that the defendant somehow wants to avoid the liability in terms of the agreement and the defence is only an attempt not to pay the said sum of money as rightly observed by the learned trial Judge. We are in agreement with the findings of the learned trial Judge. We have also seen the signatures to satisfy ourselves in terms of the original proceedings, and, we are satisfied that exhibits P-1 and P-2 were signed by the Defendant in the case on hand. ( 15 ) AT this stage, we must also notice that the evidence of PW-2. PW-2, by name Belma, is a Branch Manager of Insurance Company. He has chosen to identify Exhibit P-2. ( 15 ) AT this stage, we must also notice that the evidence of PW-2. PW-2, by name Belma, is a Branch Manager of Insurance Company. He has chosen to identify Exhibit P-2. Though an attempt was made to discredit this witness, the witness has withstood the same in his cross-examination. In the light of evidence of pws. 1 and 2 and in the light of Exhibits P1 and P2, and in the absence of proof with regard to fraud, cheat, etc. by the defendant, learned trial Judge is right in answering these issues in the case on hand. We accept his findings. Argument of Sri Shetty, learned counsel for the appellant is rejected by us in this appeal. ( 16 ) IN so far as Issue No. 8 is concerned, with regard to limitation, lot of arguments have been advanced by the appellant. It is the contention of the appellant that the suit is barred by time in the light of clauses 7 and 8 of the agreement. This is an alternative argument. Defendant also relies on various judgments with regard to limitation. AIR 1993 SC 1245 - Binod Bihari Singh v. Union of India would show that the plea of limitation is always available to the defendant. There can be no quarrel with regard to consideration of the plea of limitation by a Court. Court is bound to consider such plea if raised by the parties in terms of the material evidence and material documents. There can be no quarrel over such propositions. In fact, plea of limitation is raised and an issue has been framed and that has been answered as against the defendant. Argument is that Clauses 7 and 8 of the agreement would provide for time schedule and the time would be over after three years. e. on 17-5-1983. Suit is admittedly filed in 1988. Therefore, in terms of clauses 7 and 8, the suit is barred by time. Reliance is placed on AIR 1959 Bombay 468 - rayagonda Anna Patil v. Janakibai and another with regard to specific performance or in alternative for refund of money. Appellant has also relied on a judgment of this Court in rachappa Mudakappa v. Tippanna Almappa and others, 1981 (2) KLJ 3, with regard to refund of purchase money. Reliance is placed on AIR 1959 Bombay 468 - rayagonda Anna Patil v. Janakibai and another with regard to specific performance or in alternative for refund of money. Appellant has also relied on a judgment of this Court in rachappa Mudakappa v. Tippanna Almappa and others, 1981 (2) KLJ 3, with regard to refund of purchase money. ( 17 ) WE have seen carefully the clauses 7 and 8 of the agreement in the light of the argument advanced before us. Clause 7 would provide an option to buy at reduced rates in the event of surrender of possession within one and a half years. It further provides that even if the seller is unable to obtain Khass possession of the property in question from his tenant within a period of two years, still the buyer may at his option extend such time by one year for securing possession of the premises or seek for specific performance. Clause 8 would provide that if at the expiry of the period of two years from May 1983, the seller is unable to give vacant possession of the premises, the buyer may at his option treat the agreement as repudiated and cancelled; and that in such an event, the seller shall be bound to refund the sum of Rs. 2 lakhs paid as advance with interest at 18 per cent from May 1983. The agreement also provided for forfeiture in the event of the buyer committing default. Law is fairly well settled that for understanding a document, entire document has to be read as a whole and it cannot be read in isolation. The Supreme Court in provash Chandra Dalui and another v. Biswanath Banerjeee and another. AIR 1989 sc 1834 , has ruled in its paragraph-9 reading as under : "9. 'ex praecedentibus at consequentibus optima fit interpretatio'. The best interpretation is made from the context. Every contract is to be construed with reference to its object and the whole of its terms. The whole contest must be considered to ascertain the intention of the parties. It is an accepted principle of construction that the sense and meaning of the parties in any part of instrument may be collected 'ex antecedentibus et consequentibus' ; every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if it is possible. It is an accepted principle of construction that the sense and meaning of the parties in any part of instrument may be collected 'ex antecedentibus et consequentibus' ; every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if it is possible. As Lord davey said in N. E. Railway v. Hastings (1900) AC 260 (267), "the deed must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible". In construing a contract the court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the Court can do about it. In the construction of a written instrument it is legitimate in order to ascertain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject-matter to which it was designed and intended they should apply. ( 18 ) A combined reading of clauses 7 and 8 would show that Clause 7 would provide for an option of seeking extension of time by one year for possession or for seeking specific performance, and clause 8 would provide that in the event of seller being unable to give vacant possession, the buyer may at his option treat the agreement as having been repudiated and cancelled. In such an event, the seller shall be bound to refund Rs. 2 lakhs. Therefore, what is provided for in clauses 7 and 8 is only an option to the seller and these two clauses cannot come to the aid of the defendant for the purpose of denying refund of the said amount. In fact, the only right available to the defendant is with regard to forfeiture, and such forfeiture is not pleaded in the case on hand. In fact, the only right available to the defendant is with regard to forfeiture, and such forfeiture is not pleaded in the case on hand. Learned trial Judge after noticing all these aspects of the matter has come to a right conclusion, in our view, that Article 47 of the Limitation Act would be applicable in the case on hand. In fact a learned Judge of this Court in 1981 (2) KLJ 3 - Rachappa mudakappa v. Tippanna Almappa and others (supra), has considered a similar question and has answered the same in para-10 of the said judgment, reading as under : "10. Now coming to the second argument that the claim for the return of the advance amount was barred by time. I see little substance in this contention. The amount was advanced on 16-6-1963 the date of execution of Ex. P-8. Three months' time was provided for the completion of the transaction under the agreement. The plaintiff could have brought the suit for the refund of the advance amount on the ground of failure of the contract only after the expiry of three months, the time fixed for the due performance of the contract under Ex. P-8. The suit was filed on 16-6-1966 which was well within three years from the date the cause of action accrued in favour of the plaintiff for claiming return of the advance amount. In that view, the suit was well within time". ( 19 ) IN the case on hand, we are not impressed with regard to the plea of limitation on the facts of the case. Learned trial Judge is right in our view in answering this issue in favour of the plaintiff. ( 20 ) LEARNED trial Judge has also granted 6 per cent interest. Not much of argument is placed before us with regard to interest. Finding on this issue also is accepted. ( 21 ) LAST argument of the learned counsel for the appellant is with regard to grant of damages of Rs. 1,00. 000/- in the case on hand. Learned trial Judge has framed Issues 5 and 6 in this regard. He has answered them in favour of the plaintiff in his judgment. It is no doubt true that damages are available in terms of the contract Act. Damages are nothing but a compensatory measure available to an aggrieved party. 1,00. 000/- in the case on hand. Learned trial Judge has framed Issues 5 and 6 in this regard. He has answered them in favour of the plaintiff in his judgment. It is no doubt true that damages are available in terms of the contract Act. Damages are nothing but a compensatory measure available to an aggrieved party. Law is fairly well settled that damages would be available only in the event of breach of an agreement. ( 22 ) LEARNED counsel for the appellant places reliance on a judgment of Calcutta High court in Indian Iron and Steel Company Ltd. v. M/s. C. G. Engineering Private Limited, air 1983 Calcutta 6. We have carefully seen the said judgment. The Court has considered grant of damages for breach of contract in para-5 of the judgment. The Court notices in para-5 an earlier judgment of the very Court reported in AIR 1949 Cal 128. In AIR 1949 cal 128, a suit was filed for specific performance. But, the defendant in the meantime sold the land to a third party. The Calcutta high Court in AIR 1949 Cal 128 noticed as under : "when in a suit for specific performance of an agreement to sell land, the plaintiff is content with compensation in lieu of specific performance under Section 19, the land having been found to have been sold to third person, the suit is still a suit for specific performance. In such a case the decree will award compensation as specific relief on the footing that the agreement is subsisting and not damage as for breach of contract. " ( 23 ) IN the case on hand, it is seen that the agreement deed provided for requisite damages at Rs. 2 lakhs. Facts would reveal that the defendant prior to agreement with the plaintiff had entered into another agreement which was cancelled by mutual consent. Even after agreement to sell the property to the plaintiff, defendant has chosen to enter into another agreement without knowledge of the plaintiff and received advance amount of Rs. 4 lakhs and odd. Despite willingness to perform his part of the obligation of paying balance sale consideration, defendant has failed to come forward to execute the contract in favour of the defendant. 4 lakhs and odd. Despite willingness to perform his part of the obligation of paying balance sale consideration, defendant has failed to come forward to execute the contract in favour of the defendant. ( 24 ) IN the circumstances, in terms of the calcutta High Court judgment in AIR 1949 cal 128, the Court can grant compensation as a specific relief. ( 25 ) THE principle in AIR 1983 Cal 6 , Indian Iron and Steel Company Limited v. M/s. C. G. Engineering Private Limited, has to be read in the light of the earlier judgment in AIR 1949 Cal 128. Learned trial Judge, noticing the same, has chosen to grant a sum of Rs. 1,00,000/- as liquidated damages though the grant may not strictly fall under 'damages', and, still it can be considered as compensation in the case on hand. Facts of the case on hand would compel us to grant a sum of Rs. 1,00,000/- as compensation to the plaintiff. Finding on this issue is accepted though for slightly different reasons. ( 26 ) IN so far as issues 9 and 10 are concerned, not much of arguments have been advanced and they have been rightly answered against the defendant by the learned trial judge. ( 27 ) IN the light of our findings, we are of the view that this appeal has to be dismissed with costs. Ordered accordingly. Appeal dismissed.