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2007 DIGILAW 497 (UTT)

SUMAN TEWARI v. SAHDEVA PATHAK

2007-09-28

B.C.KANDPAL

body2007
JUDGMENT Hon’ble B.C. Kandpal, J. This Second Appeal, under Section 100 of the C.P.C., has been preferred against the judgment and decree dated 27.9.1996, passed by II Additional District Judge, Haridwar in Civil Appeal No. 24 of 1991 thereby partly allowing the appeal and setting aside the judgment and decree passed by Additional Civil Judge, Roorkee in O.S. No. 187 of 1989. 2. The brief facts of the case, giving rise to this appeal, are that the plaintiff/respondent No. 1 Sahdev Pathak filed a suit against Smt. Suman Tiwari (appellant/defendant) and Jagannath defendant/ respondent No. 2) for specific performance in the agreement. According to the plaintiff, the defendant Jagannath is the owner of the suit property and he entered into an agreement to sell the said property to the plaintiff on 4.7.1986 for a sale consideration of Rs. 25,000/-. As per the terms of agreement the defendant Jagannath received Rs. 20,000/- as advance from the plaintiff Sahdev Pathak, and the plaintiff had always been ready and willing to purchase the property on payment of balance sale consideration, but the defendant No. 1, as per the agreement, did not execute the sale deed, hence the plaintiff sent notice to the defendant No. 1 to be present before Sub Register on 2.7.1987 for execution of the sale deed but the defendant did not reach there. According to the plaintiff, on 15.4.87 the defendant No. 1 against the terms of the agreement sold out the suit property to defendant No. 2 Smt. Suman Tiwari, whereas Smt. Suman Tiwari had knowledge of the sale agreement of the disputed property between the plaintiff and the defendant No. 1. 3. The defendant No. 1 contested the suit by filing his W.S. denying any sale agreement between him and the plaintiff. According to him in the year 1986 he fell in need of money as marriage of his daughter was to be performed. He took loan from the plaintiff and the plaintiff asked him to write document in lieu of loan amount. The plaintiff deceived him and executed agreement. The contents of the agreement were not read over to him and the defendant put his signatures on the said document in good faith. It is also alleged that the defendant has returned the loan taken by him from the plaintiff. 4. The plaintiff deceived him and executed agreement. The contents of the agreement were not read over to him and the defendant put his signatures on the said document in good faith. It is also alleged that the defendant has returned the loan taken by him from the plaintiff. 4. The defendant No. 2, Smt. Suman Tiwari filed separate written statement and denied the sale agreement between the plaintiff and the defendant No. 1 pertaining to the suit property. She also alleged that she has purchased the suit property from the defendant No. 1 after paying sale consideration in good faith. 5. The Additional Civil Judge, on the basis of pleadings of parties, framed the following issues in the suit:- 1. Whether the defendant No. 1 executed sale agreement of disputed property in favour of the plaintiff and received part payment of sale consideration?. 2. Whether the plaintiff, in terms of agreement, was always ready to execute sale deed in his favour?. 3. Whether the defendant No. 2 has purchased the suit property from defendant No. 1 in good faith and she had no knowledge of earlier sale agreement? If so, its effect?. 4. Whether the defendant No. 1 took loan from the plaintiff and the plaintiff on the pretext of executing loan document deceived the defendant No. 1 by executing forged sale agreement?. 5. Whether the defendant No. 1 has repaid the alleged loan to the plaintiff?. 6. To what relief, the plaintiff is entitled to get?. 6. Thereafter parties adduced evidence in support of their case. The trial Court having considered the entire evidence on record and hearing learned counsel for the parties, was pleased to decree the suit of the plaintiff- respondent No. 1. The trial Court also directed the defendants Jagannath and Smt. Suman Tiwari to execute the sale deed in favour of the plaintiff-respondent No. 1, after obtaining the rest of the amount as per the agreement between the parties, vide judgment and decree dated 22.11.1990. 7. Feeling aggrieved by the aforesaid judgment and decree the defendants Smt. Suman Tiwari and Jagannath preferred appeal and the appellate court vide judgment and decree dated 27.9.1996 dismissed the suit with regard to the execution of the sale deed and set aside the judgment and decree passed by the trial court to this effect. 7. Feeling aggrieved by the aforesaid judgment and decree the defendants Smt. Suman Tiwari and Jagannath preferred appeal and the appellate court vide judgment and decree dated 27.9.1996 dismissed the suit with regard to the execution of the sale deed and set aside the judgment and decree passed by the trial court to this effect. The first appellate court also directed the defendants Suman Tiwari and Jagannath to pay back the amount of Rs. 20,000/- along with an interest @ 15% per annum with effect from 4.7.1986. 8. Feeling aggrieved by the aforesaid judgment and decree passed by the lower appellate court Smt. Suman Tiwari, who claims herself to be the successive purchaser, has preferred this appeal before this Court. 9. This Court has admitted this second appeal on the following substantial question of Law :- “Whether, there being no contract between the appellant (defendant No. 2) and the plaintiff-respondent, decree against the appellant passed by the learned lower appellate court is against the provisions of Section 64 read with section 65 of the Indian Contract Act and also that of Section 6 of the Specific Relief Act, 1963?.” 10. Heard Sri Sidharth Shah, learned counsel for the appellant and Sri Alok Singh, Senior Advocate, assisted by Sri Pankaj Tangwan, Advocate on behalf of the respondent No. 1 and perused the record. 11. Learned counsel for the appellant has confined his argument to the point that the appellant is a bonafide purchaser of the suit property for valuation consideration without notice of agreement in between the respondent No. 1 (plaintiff) and the respondent No. 2 (defendant No. 1) and such decree against the appellant would be against law. It has further been submitted that there was no contract between the appellant and the plaintiff-respondent Sahdev Pathak, therefore, the decree against her, is against the provision of Section 64/65 of the Indian Contract Act. 12. Learned counsel for the plaintiff/respondent has argued that in view of Section 55 (6)(b) of Transfer of Property Act, the charge could be enforced against the subsequent purchase. 12. Learned counsel for the plaintiff/respondent has argued that in view of Section 55 (6)(b) of Transfer of Property Act, the charge could be enforced against the subsequent purchase. He has also submitted that the record clearly indicate that the subsequent purchaser, i.e. the appellant before this Court, had the knowledge with regard to the agreement between the respondent No.1/plaintiff and the respondent No. 2/defendant No.1 and even after the knowledge of the said agreement, she had purchased the property from the defendant No.1, therefore, the charge could be enforced against the appellant being subsequent purchaser. 13. The sole question on the basis of the arguments advanced by the learned counsel for the parties is ‘whether the buyer (respondent No. 1) had statutory charge under Section 55 (6)(b) of the Transfer of Property Act and that the said charge could be enforced against the appellant, who is a subsequent purchaser’. 14. The lower appellate Court has dealt with this point in issue No.3 and this point has been discussed in detail by assessing the entire evidence on record. There is a categorical finding recorded by the lower appellate court that the appellant Suman Tiwari has nowhere pleaded specifically in her written statement that she had no knowledge about the agreement to sell between the plaintiff/respondent No. 1 Sahdev Pathak, and the defendant No.1/respondent No. 2, Jagannath. Absence of any specific plea that the appellant/defendant No.2 had no knowledge about the previous agreement between the plaintiff and the defendant No. 1, clearly indicates that the agreement between the plaintiff and the defendant No.1, was in the knowledge of the appellant. The lower appellate court has also discussed the evidence of Sahdev Pathak plaintiff, who has stated therein that Suman Tiwari and her husband were in the knowledge of the agreement between the plaintiff and the defendant No. 1 as the plaintiff went to the house of the appellant Suman Tiwari, who was the defendant No. 2 in the suit, in order to inform her that there had already been an agreement between him and the plaintiff, even then Suman Tiwari and her husband replied him that they will purchase the property in question. Suman Tiwari also did not appear in the witness box before the trial court, therefore, the lower appellate court has rightly taken the adverse inference in these circumstances by coming to the conclusion that the appellant Suman Tiwari had knowledge of the previous agreement between the plaintiff/respondent No. 1, Sahdev Pathak and defendant No. 1/respondent No. 2, Jagannath, and on the basis of the evidence available on record, it is quite clear that the subsequent purchaser is bound by the decree declaring the charge. 15. In order to clarify the situation the provisions of Section 55 (6) (b) of the Transfer of Property Act would be relevant, which read as follows:- “55. Rights and liabilities of buyer and seller- In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or such of them as are applicable to the property sold:- —————————————————————— —————————————————————— (6)- The buyer is entitled- (a)- —————————————————————— (b)- unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its recission.” 16. The aforesaid provision of Section 55 (6) (b) of the Transfer of Property Act, has been interpreted in a decision Abdul Hamid Khan Mubin Khan Vs. Mohamed Ali Humayun, reported in A.I.R. (39) 1952 Bombay 67, wherein it has been held in paragraph-9 as follows:- “(9) The next point taken on behalf of the appellant is that the appellant is not bound by the decree inasmuch as he was not a party to the suit in which the decree was passed. It is true that the appellant was not made a party to the suit. The suit was filed eight days after the date of the sale in favour of the appellant. It is true that the appellant was not made a party to the suit. The suit was filed eight days after the date of the sale in favour of the appellant. But it appears from an extract from the property register, which is Ex.3, that the appellant’s purchase was mentioned in the property register for the first time on 3.11.1947, which was after the institution of the suit and the respondent-plaintiff had no notice of this purchase at the date when he filed the suit. However, that may be, the question is whether the appellant is not bound by this decree. Mr. Chandrachud argues that since he is a purchaser before the suit, he cannot be said to be a purchaser from a defendant to the suit, much less can he be said to be a representative of the judgment-debtor because his purchase was antecedent to the suit itself, i.e. long before the decree was passed. But the difficulty in the way of the appellant is created by the language of S. 55 (6) (b). The charge is available to a buyer against a seller and all persons claiming under him, so that from the moment the purchase takes place, the purchaser becomes a representative of the seller, and if the charge comes into existence from the date when either part of the purchase price is paid or the amount of the earnest money is paid, it seems to me that the appellant is a representative of the defendants against whom the suit was filed. If a transfer takes place subsequent to the filing of a suit, the transfer is affected by lis pendens. But in this case the transfer has taken place before the date of the suit and that makes no difference because under S. 55 (6) (b) the plaintiff-respondent gets a charge not only against the seller but also against the purchaser from the seller, the charge being in his favour from the seller, the charge being in his favour from the moment part of the purchase money is paid or the amount of the earnest money is paid. I think on a true construction of S.55 (6) (b), the charge which is a statutory charge and which is created by operation of law is enforceable not only against a seller but against all persons claiming under him. I think on a true construction of S.55 (6) (b), the charge which is a statutory charge and which is created by operation of law is enforceable not only against a seller but against all persons claiming under him. It seems to me, therefore, that the second contention urged in support of the appeal must equally fail.” 17. The Hon’ble Apex Court in a decision Delhi Development Authority Vs. Skipper Construction and another, reported in (2000) 2 Supreme Court Cases 357, has taken note of the aforesaid judgment. 18. In view of aforesaid discussion, I do not find any force in the arguments advanced by the learned counsel for the appellant. The lower appellate court has rightly decreed the suit in favour of the plaintiff/respondent No. 1 with regard to the payment of earnest money along with interest of 15% therein with effect from 4.7.86 to be paid by the appellant as well as the defendant No. 1/respondent No. 2. The substantial question of law framed in this appeal, is answered against the appellant. 19. The appeal is dismissed. The judgment and order dated 27.9.1996 passed by the lower appellate court, is affirmed. The interim order dated 10.12.1996, stands vacated.