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2008 DIGILAW 777 (KAR)

S. K. Ghatak v. S. Prabir Roy

2008-12-16

K.L.MANJUNATH, S.N.SATYANARAYANA

body2008
Judgment :- Manjunath, J The appellants were defendants in O.S. No. 4587/93 on the file of the VIII Additional City Civil Judge and Sessions Judge, Bangalore. The suit was instituted by the 1st respondent herein for the following reliefs: a) To declare that the plaintiff is entitled to purchase the suit Schedule property from defendents-1 and 2; and b) To direct the defendants to execute and register the sale deed in respect of the suit schedule property by receiving the balance sale consideration amounting to Rs. 14 lakhs within four months and in default, requesting the Court to direct the defendants to execute the sale deed and register on behalf of the plaintiff at the cost of the defendants. 2. The suit property is described as a 3 bedroom Apartment (flat) bearing No. 8, situated in the 8th floor with covered car parking space in the ground level at Hoysala Apartments, Cunningham Crescent, Bangalore-560 052. The approximate built area is605 Sq.Ft. 3. According to the plaint averments, the defendants-1 and 2 are the joint owners of flat No. 808 along with car parking place at Hoysala Apartments, Cunningham Road, Bangalore. They had purchased the same from the 4th defendant-M/s. Mukund Constructions Company on 30-8-1991 and since then defendants-1 and 2 are in possession of the property. 4. It is the case of the plaintiff that the 1st defendant through the 3rd defendant entered into an agreement of sale with the plaintiff to sell the aforesaid property with car parking space for a sum of Rs. 15 lakhs. The terms and conditions of the agreement were reduced in to writing on 18-8-94 between plaintiff and the 3rd defendant who acted on behalf of defendants-1. The terms and conditions of the agreement entered into between the plaintiff and the 3rd defendant was confirmed by the 1st defendant through his letter dated 30-8-96 by addressing the same to the 3rd defendant. 5. According to the plaint averments, pursuant to the agreement dated 18-8-94, a sum of Rs. 1 lakh was paid by the plaintiff to the 3rd defendant as directed by the 1st defendant in his letter dated 4-9-94 by means of three separate demand drafts on 16-9-94 and the same has been acknowledged by the 1st defendant through his letter dated 5-10-94. As agreed between the parties, the balance amount of Rs. 1 lakh was paid by the plaintiff to the 3rd defendant as directed by the 1st defendant in his letter dated 4-9-94 by means of three separate demand drafts on 16-9-94 and the same has been acknowledged by the 1st defendant through his letter dated 5-10-94. As agreed between the parties, the balance amount of Rs. 14 lakhs has to be paid at the time of delivering the vacant possession of the suit schedule property and registration of the sale deed. 6. It is stated in the plaint that the 3rd defendant informed the plaintiff that the suit schedule property was in occupation of a tenant by name Girish Nikam and that he would vacate in November 1994 and that the plaintiff would be ready with the balance sale consideration by then in order to obtain possession of the suit schedule property. It is also the case of the plaintiff that he informed the 3rd defendant in November 1994 about his willingness to pay the balance sale consideration and to take possession of the suit property. Though it was informed to the tenant by the 3rd defendant, the tenant had not vacated the suit property. 7. According to the plaintiff, when the 1st defendant visited India, he met the plaintiff on 2-1-95 and 4-1-95 and assured him that he would positively sell the suit schedule property to him after the tenant vacating the premises. It is also his case that case that even though the tenant had vacated the premises in the month of February 1995, defendents-1 to 3 are evading to sell the suit schedule property to the plaintiff with an oblique motive. Since the 1st defendant has failed to execute the sale deed, the suit was filed to declare that he has a right to purchase the suit schedule property from defendants-1 and 2. 8. Later on para 10A was also incorporated by way of amendment to the effect that even though the plaintiff is ready and willing to purchase the suit property by paying the balance consideration of Rs. 14 lakhs since he may not be compensated adequately by payment of money he is entitled to enforce the agreement dated 18-8-94. 8. Later on para 10A was also incorporated by way of amendment to the effect that even though the plaintiff is ready and willing to purchase the suit property by paying the balance consideration of Rs. 14 lakhs since he may not be compensated adequately by payment of money he is entitled to enforce the agreement dated 18-8-94. According to the plaint averments, since the defendants-1 and 3 were evading execution of the sale deed in terms of the agreement the plaintiff called upon the defendants-1 and 3 by issuing legal notice dated 3-5-95 to sell the suit schedule property to him and the defendants-1 and 3 gave evasive reply. Therefore, the suit was filed for the above said reliefs. 9. The defendants-1 and 3 filed a detailed written statement. According to them, the suit filed by the plaintiff for declaration that he is entitled to purchase the suit schedule property from defendants-1 and 2 is not maintainable, since there is no concluded contract and it is per se unenforceable and that the suit is liable to be dismissed as not maintainable. According to them, at no point of time they entered into agreement and that there was only an oral discussion, which was yet to be culminated into a contract and the terms and conditions of the contract were not finalised. The 1st defendant denied that there was an agreement entered into between the plaintiff and the 1st defendant for sale of the flat for a consideration of Rs. 15 lakhs and he has also denied that the terms and conditions were reduced into writing on 18-8-84 and he has further denied the allegation that the 1st defendant through his letter dated 30-8-94 addressed to the 3rd defendant has confirmed the terms and conditions of the agreement dated 18-8-84. According to the 1st defendant, the property in question had not been formally transferred to his name by the builder and discussions were going on in regard to the finalisation of the transaction and there was also a discussion in regard to transfer of the property directly from the builder to the 1st plaintiff in order to reduce the expenditure towards stamp duty and registration. He has also denied that the balance amount of Rs. 14 lakhs is yet to be paid at the time of delivery of vacant possession of the property as mutually agreed to between the parties. He has also denied that the balance amount of Rs. 14 lakhs is yet to be paid at the time of delivery of vacant possession of the property as mutually agreed to between the parties. The defendants have also denied the allegations made in the plaint that the defendants were informed about the plaintiff’s readiness and willingness to pay the balance sale consideration of Rs. 14 lakhs by calling upon the 1st defendant to deliver vacant possession of the house in the month of November-1994. According to the defendants, a tenant was in occupation of the property since inception. 10. According to the defendant Nos. 1 and 3, in order to execute the sale deed in respect of a property worth more than 10 lakhs, the parties had to obtain prior permission from the Income Tax Department under the Chapter XX C of the Income Tax Act (for short ‘Act’) and that the parties were required to file an application in Form No. 37(i); and that only after obtaining such permission the transaction had to be completed. The plaintiff without complying the requirement of law as required under Chapter XX C of the Act and without filing Form No. 37(i) cannot contend that he was ready and willing of perform is part of contract. Since the plaintiff has failed to sign Form No. 37(i) in order to obtain clearance under Chapter XX C of the Act and as the plaintiff has failed to pay the balance sale consideration and finalise the sale consideration after obtaining clearance from the Income Tax Department, the suit filed by the plaintiff was not maintainable. 11. According to the defendant No. 1, he came to India all the way from London by pending huge amount towards air fare, hotel accommodation, etc., only to ensure that the transaction between the 1st defendant and the plaintiff’s is completed as early as possible. Though it was possible for the builder-4th defendant to sell the property directly to the name of the plaintiff and thereby reduce the impact of stamp duty and registration charges on the parties, the plaintiff referred the matter to his Advocates M/s King and Partridge, Bangalore, and that the 1st defendant had to spend many days in .Bangalore waiting for the plaintiff’s proposal as to how and in what manner the transaction should be completed. However, the plaintiff without informing the defendants had left for Bombay calling upon the defendants to interact with his advocates. M/s King and Partridge, Advocates gave legal opinion only on 16-1-95 in regard to the manner in which the transaction has to be completed. Since the 1st defendant who is permanent resident of London could not wait any more in India spending huge sums of money by staying in Five Star Hotel he had to leave India once for all. It is contended the defendants that on account of the failure on the part of the plaintiff in not obtaining the clearance under Chapter XX C of the Act in Form No. 37(i) the suit filed by the plaintiff is not maintainable. Therefore, the defendants-1 and 3 requested the Court to dismiss the suit with exemplary costs. 12. The 2nd defendant has filed the memo adopting the written statement filed by the 1st defendant. 13. Based on the above pleadings, the following issues were framed by the Trial Court for its consideration. 1. Whether the plaintiff proves that the 1st defendant through 3rd defendant entered into an agreement with him on 18-8-1994 in regard to sale of suit schedule property with car parking for a consideration of Rs. 15 lakhs and that he has paid Rs. 1 lakh? 2. Whether the plaintiff proves that he informed 3rd defendant during 1994 that he is ready to pay the balance and take possession of the property, but the defendant did not do that part of contract and committed breach of contract? 3. Whether the plaintiff is entitled to purchase the suit property from first and second defendants? 4. Whether the plaintiff is entitled to declaratory relief? 5. Whether the direction to the defendants is to be issued to execute the sale deed in favour of the plaintiff after receiving remaining amount as prayed for? 6. Whether on default the plaintiff is entitled to get the sale deed registered through Court at the cost of the defendants? 7. Whether the plaintiff is entitled to cost of this suit? 8. To what relief the plaintiff is entitled? 9. What order or decree? 14. In order to prove the respective contentions, on behalf of the plaintiff the plaintiff alone was examined as PW1. He has relied upon Exs. P1 to P17. 7. Whether the plaintiff is entitled to cost of this suit? 8. To what relief the plaintiff is entitled? 9. What order or decree? 14. In order to prove the respective contentions, on behalf of the plaintiff the plaintiff alone was examined as PW1. He has relied upon Exs. P1 to P17. He has been cross-examined by the Learned Counsel for the 1st defendant and on behalf of the defendants, no oral evidence was let in. The Trial Court appreciating the evidence let in by the parties, held issues No. 1 and 2 in the affirmative. In view of the memo filed by the plaintiff’s Counsel dated 27-2-2003, the Court has not answered issues No. 3 and 4. Issues No. 5 and 6 are held in affirmative. Issue No. 7 is answered partly in affirmative and ultimately the suit of the plaintiff is decreed with proportionate costs by its judgment and decree dated 24-6-2003 directing the appellants/defendants to execute the registered sale deed in the name of the plaintiff by receiving the balance consideration of Rs. 14 lakhs within four months from the date of judgment and decree in terms and conditions of Ex.P1, failing which the Court granted decree to the plaintiff to obtain the sale deed registered in his favour through Court at the cost of the defendants. The relief of declaration is dismissed in view of the memo filed by the respondent/plaintiff dated 27-2-2003. This judgment and decree is called in question by the appellants in this appeal. 15. We have heard the Learned Counsel appearing for the appellants and the Learned Counsel for the 1st respondent-plaintiff. 16. The relief of declaration is dismissed in view of the memo filed by the respondent/plaintiff dated 27-2-2003. This judgment and decree is called in question by the appellants in this appeal. 15. We have heard the Learned Counsel appearing for the appellants and the Learned Counsel for the 1st respondent-plaintiff. 16. Though several grounds are urged by the appellants’ Counsel in the appeal memo at the time of arguments the following grounds alone are urged before us: i That the defendants-1 and 2 are the joint owners of the suit property, that the 2nd defendant has not participated in any of the proceedings and that the 2nd defendant has not agreed to sell the suit schedule property in favour of the plaintiff and that no averments of whatsoever nature is averred against the 2nd defendant in agreeing to sell the property in favour of the plaintiff and that the Court below has committed a serious error in decreeing the suit when there are no averments against the 2nd defendant either in the plaint or in the evidence to show that she had agreed and consented to sell the property along with the 1st defendant to the plaintiff for a sum of Rs. 15 lakhs. The Learned Counsel vehemently contends that either in the plaint of in the evidence or in the alleged agreement, the plaintiff has not stated that the 1st defendant has agreed to sell the property on behalf of the 2nd defendant. He also contends that there is no privity of contract between the plaintiff and the 2nd defendant. The grant of decree against 2nd defendant is not justified and is liable to reversed. ii The Learned Counsel for the appellants further contends that even if the case of the 1st respondent/plaintiff is accepted for the sake of arguments, no Court can grant decree in favour of the plaintiff/1st respondent since the 1st respondent/plaintiff has failed to prove his case. According to the plaint averments, in order to sell the property worth more than Rs. 10 lakhs as on the date of transaction, permission under Chapter XX C of the Income-Tax Act had to obtained, without which no document could be registered. According to the plaint averments, in order to sell the property worth more than Rs. 10 lakhs as on the date of transaction, permission under Chapter XX C of the Income-Tax Act had to obtained, without which no document could be registered. According to the appellant’s Counsel, the plaintiff has admitted that the plaintiff did not send any papers to complete the formalities to enable the 1st defendant to obtain permission under Chapter 20 XX C of the Act. When the plaintiff has not sent papers to enable the 1st appellant/1st defendant to obtain permission from the Income Tax Department, question of directing the appellants/defendants to execute the sale deed by receiving balance sale consideration of Rs. 14 lakhs does not arise for consideration. According to the appellant’s Counsel the Trial Court did not consider that it was for the plaintiff to prove that there is concluded contract between the parties and that the plaintiff was ready and willing to perform his part of the contract and that the 1st defendant has evaded to execute the sale deed even after the plaintiff performs his obligations under the contract. When the plaintiff has failed to prove his part of the contract, granting of decree in respect of the suit schedule property is bad in law and is liable to be set aside. In other words, he contends that appreciation of the evidence and the pleadings by the Trial Court is perverse and the findings of the Court below are to be reversed. iii To support his arguments, the Learned Counsel for the appellants has relied upon the following judgments of the Hon’ble Supreme Court: .(i) Ganesh Shet Vs. Dr. C.S.G.K. Shetty (JT 1998 (4) SC 181) .(ii) 1987 (2) KLJ (Short Notes) 179 (DB) (iii) Punjab Urban Planning and Dev. Authority vs M/s Shiv Saraswati Iron and Steel Re-rolling Mills ( AIR 1998 SC 2352 ) (iv) Slarapuria Properties Private Limited, Kolkata vs M.S. Ramaiah Developers and Builders (Private) Limited, Bangalore (2006 (6) KLJ 23 (DB)) 17. Sri Naik, the Learned Counsel appearing for the 1st respondent/1st plaintiff by way of reply contends that the Trial Court was justified in granting a decree in favour of the plaintiff since a sum of Rs. 1 lakh was paid by the plaintiff to the 1st defendant through the 3rd defendant by means of three demand drafts which were accepted by the 1st defendant. 1 lakh was paid by the plaintiff to the 1st defendant through the 3rd defendant by means of three demand drafts which were accepted by the 1st defendant. According to him, there is a concluded contract to sell the property in favour of the plaintiff for a sum of Rs. 15 lakhs. It is also contended that the plaintiff was ready and willing to pay the balance consideration of Rs. 14 lakhs but on account of the tenant being in possession of the property the defendants-1 to 3 could not deliver vacant possession to the plaintiff. He further contends that obtaining of permission from the Income Tax Department under Chapter 20 XX C in Form No. 37(i) is only an empty formality; that too when the plaintiff was ready and willing to pay the balance sale consideration to the defendants. Therefore, he contends that the arguments advanced by the Learned Counsel for the appellants are not tenable. He lastly contends that the 2nd defendant has not stepped into witness box and has not denied the averments made in the plaint against her. Therefore, she is also bound by the decree granted by the Trial Court. In the circumstances, he requests the Court to dismiss the appeal. 18. To support his arguments, he has relied upon the judgments of Delhi. i) Rajesh Aggarwal vs Balbir Singh and Another (AIR 1994 Delhi 345) ii) Surinder Grover vs Sheela Sahni and Others ( 1995 (33) DRJ 576 -O.S. No. 789/88 dated 1-5-1995 and the judgments of the Hon’ble Supreme Court. i) DLF Universal Limited vs Appropriate Authority and Another ( (2000) 5 SCC 552 ) ii) Shrivishwanath Sharma vs Shyam Shankar Goela and Another (2007 (3) SCALE 569 (C.A. No. 6700/2004), dated 26-2-2007) 19. Having heard the Learned Counsel for the parties, we are of the opinion that the following points would arise for consideration of this Court in this appeal: 1. Whether there is any concluded contract between the plaintiff and defendants-1 and 2? 2. Whether the plaintiff proves that he was ready and willing to perform his part of contract? 3. Whether the Trial Court was justified in directing defendants-1 and 2 to execute the sale deed in favour of the plaintiff? 4. Whether the judgment and decree of the Trial Court requires to be reversed or confirmed or modified? 20. 2. Whether the plaintiff proves that he was ready and willing to perform his part of contract? 3. Whether the Trial Court was justified in directing defendants-1 and 2 to execute the sale deed in favour of the plaintiff? 4. Whether the judgment and decree of the Trial Court requires to be reversed or confirmed or modified? 20. It is not in dispute that the plaintiff in the pleadings has averred the defendants-1 and 2 are the absolute owners of the plaint schedule property. It is also his case that the 1st defendant has permitted the 3rd defendant to sell the schedule property in favour of the plaintiff. It is also his case that the plaintiff has agreed to purchase the property through the 3rd defendant who was acting on behalf of the 1st defendant. It is also the specific case of the plaintiff that the 3rd defendant has agreed to sell the property on behalf of the 1st defendant. It is also the specific case of the plaintiff that the 3rd defendant has agreed to sell the property on behalf of the 1st defendant for a sum of Rs. 15 lakhs and a sum of Rs. 1 lakh was received in three demand drafts and the balance has to be paid at the time of delivering possession/at the time of registration of the sale deed. Ex.P1 is the minutes of the meeting held on 18-9-94, which contains the terms and conditions of the sale transaction between the plaintiff and the 3rd defendant- S.K. Seshadri on behalf of the 1st defendant-S.K. Ghatak, which is termed as suit document. 21. We have perused Ex.P1. On perusal of Ex.P1 it discloses that the plaintiff has indicated his desire to buy the property from the 1st defendant and the 1st defendant in principle agreed to sell the schedule property to the plaintiff. The plaintiff has offered a sum of Rs. 15 lakhs from an out right sale inclusive of all expenses along with car parking space and the plaintiff shall bear expenses such as legal, cost of registration, handling charges etc., and that the documents are to be examined by a legal expert and such legal expert shall also assist in smooth transfer of the property. 15 lakhs from an out right sale inclusive of all expenses along with car parking space and the plaintiff shall bear expenses such as legal, cost of registration, handling charges etc., and that the documents are to be examined by a legal expert and such legal expert shall also assist in smooth transfer of the property. It further reads that if the flat is not yet formally transferred in the name of the 1st defendant by the 4th defendant-builder, the matter has to be examined whether the flat can be directly transferred in the name of the plaintiff in order to avoid stamp duty and registration charges on the second sale. In the event of direct sale to the plaintiff, the registration charges amounting to Rs. 75,000/-has to be borne by the plaintiff since the 1st defendant has already paid the same to the 4th defendant-builder and the said amount to be returned to the 1st defendant by the plaintiff. Further, it reads that the plaintiff has suggested to share the expenses and in such an event commission of 2% has to be paid to Madhusudan and if any unforeseen expenses for the smooth transfer and registration of the flat has to be borne by both the parties and the 1st defendant has to clear all the arrears of tax payable to the property in question. The document further reads that on receipt of concurrence from the 1st defendant, the plaintiff has to pay Rs. 1,00,000/- as advance and the balance of the agreed amount shall be paid on or before the Registration of the flat in favour of the plaintiff. This discussion was subject to the finalisation of the draft agreement by the 1st defendant and rest of the formalities are to be followed. 22. From the very reading of Ex.P1, it is clear that it is only a discussion held of 18-8-1994 between the plaintiff and the 3rd defendant who was acting on behalf of the 1st defendant. There is no concluding contract in terms of Ex.P1. Subject to the approval of draft agreement, the parties have agreed to sell the property for a sum of Rs. 15,00,000/- and when and how the entire sale consideration of Rs. 15,00,000/-has to be paid is not forthcoming. There is no concluding contract in terms of Ex.P1. Subject to the approval of draft agreement, the parties have agreed to sell the property for a sum of Rs. 15,00,000/- and when and how the entire sale consideration of Rs. 15,00,000/-has to be paid is not forthcoming. It has to be observed by this Court at this stage itself that in Ex.P1 there is no mention about the right of 2nd defendant or her consent to sell the property in favour of the plaintiff through the 3rd defendant as her agent. 23. Ex.P2 is a letter addressed by the 1st defendant to the 3rd defendant wherein it is stated that he is agreeable for all the points from 1 to 5 under Ex.P1 and that he was coming to India in the first week of November and all the details can be finalised in his presence in India. Therefore, Ex.P1 has been accepted by the 1st defendant subject to finalisation in India in regard to other details. 24. Ex.P3 is a letter address to the plaintiff by the 3rd defendant which is dated 22-8-94. Ex.P3 is prior to Ex.P2. Therefore, Ex.P3 is not relevant to the point in question as the 3rd defendant has only intimated the plaintiff that he is yet to send the fax to the 1st defendant in regard to the proposal in terms of Ex.P1. 25. Ex.P4 is a copy of the agreement for sale of property in question dated 20-8-1981 between M/s Mukund Construction Company and defendant Nos. 1 and 2. This document would only show that defendant-1 and 2 have agreed to purchase the flat in question and they are the absolute owners of the property. 26. Ex.P5 is a Certificate issued by M/s Mukund Construction Company granting liberty to the 1st defendant to authorise his nominee in whose name the property has to be registered. 27. Ex.P6 is a letter addressed by the 1st defendant to the plaintiff dated 4-9-94. In the letter, the 1st defendant has mentioned that the sale has to be completed in the month of November or December 1994, preferably in November 1994. It is also mentioned in the said letter that he is intending to come to India in November and that he would intimate the final date. 28. Ex.P7 is a reply by the plaintiff to the letter of the 1st defendant dated 4-9-94. It is also mentioned in the said letter that he is intending to come to India in November and that he would intimate the final date. 28. Ex.P7 is a reply by the plaintiff to the letter of the 1st defendant dated 4-9-94. In the said reply, the plaintiff has stated that it would be better to fix the date for registration in the third week of December 1994 and before that date the tenant has to vacate the premises and in the said reply it is clearly mentioned in para-1 that the amount of Rs. 1 lakh paid as advance by the plaintiff to the 3rd defendant-S.K. Seshadri would be subject to the Income Tax clearance under Section 37(1) of the Act. 29. Ex.P8 is a letter addressed by the plaintiff to Sri Madhusudan who is the son of 3rd defendant-S.K. Seshadri for having delivered three demand drafts amounting to Rs. 1 lakh. 30. Ex.P9 is an acknowledgment issued by the said Madhusudan for having received the demand drafts for Rs. 1 lakh. 31. Ex.P10 is a letter of the 1st defendant dated 5-10-94 addressed to the plaintiff stating that he would prefer to go over to Bangalore either in 3rd or 4th week of November and he has expressed his difficulty to travel after 3rd week of December to secure the ticket on account of school holidays. In the said letter, it is specifically mentioned that the plaintiff would hopefully get the income tax clearance within a week or so. 32. Ex.P12 is a letter addressed by the plaintiff to the 1st defendant on 28-10-94 expressing his inability to send a reply forthwith as he was out of Bangalore. He has also mentioned that he is ready with the amount for getting sale deed registered by the end of November 1994 and he has requested the 1st defendant to delay his arrival from London to Bangalore. 33. Ex.P14 is the letter addressed by the plaintiff to the 1st defendant on 7-4-94 wherein he has mentioned how permission under Chapter 20 XX C in Form No. 37(i) has to be obtained in India under the Act. He has narrated the formalities to be observed by the parties therein. 34. 33. Ex.P14 is the letter addressed by the plaintiff to the 1st defendant on 7-4-94 wherein he has mentioned how permission under Chapter 20 XX C in Form No. 37(i) has to be obtained in India under the Act. He has narrated the formalities to be observed by the parties therein. 34. Ex.P15 is a letter addressed by the plaintiff to Sri Madhusudan, son of the 3rd defendant in regard to the Income Tax Clearance to be obtained in Form No. 37(i) of the Act. Then, ultimately, a legal notice has been got issued Ex.P16 dated 3rd May 1995. 35. Ex.P17 is the reply sent by the 1st defendant through his advocate. For the first time, as per Ex.P16, the plaintiff has called upon the 1st defendant to obtain Income Tax clearance and to execute the sale deed on 3-5-95. The last correspondence as could be seen from the documents produced by the plaintiff has come to an end in the month of November 1994. As per Exs.P-14 and 15 as noticed by us the plaintiff alone has been examined as PW1 and on behalf of the defendants no oral evidence has been let in except cross-examined. 36. The plaintiff in his evidence reiterating the averments made in the plaint has deposed that the 3rd defendant on behalf of 1st defendant has materialised agreement. In the second line of his examination-in-chief he admits that defendant-1 and 2 are the husband and wife and are residents of London and the case is filed against defendant-1 and 2. According to him, he was ready and willing to perform his part of his contract. In the examination-in-chief he has deposed that he had to get vacant possession of the schedule property and that he had also insisted the defendants to obtain clearance from Income Tax by applying Form No. 37(i) and the defendants did not do their part of the contract. In the cross-examination, he further deposes that he had written a letter to the 1st defendant on 7-11-84 but not received any reply. According to him, the 1st defendant had come to Calcutta from London and from there he contracted the plaintiff over telephone and requested him to meet him on 2-1-95 and that he met the 1st defendant at Windsor Manner Hotel in Bangalore. According to him, the 1st defendant had come to Calcutta from London and from there he contracted the plaintiff over telephone and requested him to meet him on 2-1-95 and that he met the 1st defendant at Windsor Manner Hotel in Bangalore. In the cross-examination dated 15-3-2002, he has admitted that he was ready and willing to pay the balance amount of Rs. 14,00,000/- and that he had capacity to pay the balance sale consideration. According to him, he had liquid assets worth Rs. 30 to 35 lakhs in his Bank accounts and that he had shares worth Rs. 50 lakhs and that he has one bungalow in Delhi worth rupees more than 5 crores and a flat in Ahmedabad having worth Rs. 20 lakhs. But he has not produced any Bank Accounts to show that he had balance of Rs. 30 to 35 lakhs in his Bank prior to 15-3-2002. He was cross-examined on 14-3-2002. On which date, he has admitted that he has shares worth Rs. 50 lakhs and he was about to sell and generate the funds for purchasing the suit schedule property. From this, it is clear that, he did not had liquid cash and he wanted to sell his shares and convert them into cash. But no document is produced to show that he had shares of Rs. 50 lakhs. He has also admitted in the cross-examination that one has to file an application in Form No. 37(i) to obtain the Income Tax clearance and in the cross-examination he also admits that he was not aware of the stamp duty payable on the sale deed to be obtained from the defendant. In the cross-examination held on 15-4-2002, he admits that he did not foreseen any legal complications. Therefore, he wanted to get the documents scrutinised through legal experts. In this background, he admits that clause (3) (d) in Ex.P1 is introduced. In the cross-examination held on 16-4-2002, he admits that as per Ex.P7 an application has to be submitted to Income Tax Department mentioning total amount of sale consideration and he does not know who has to sign the application and what documents should be Annexed to that application. As per Ex.P7, the 3rd defendant-Seshadri wanted to disclose lessor amount in Form No. 37(i) and that he had offered to reduce to Rs. 1 lakh in Form No. 37(i). As per Ex.P7, the 3rd defendant-Seshadri wanted to disclose lessor amount in Form No. 37(i) and that he had offered to reduce to Rs. 1 lakh in Form No. 37(i). He further admitted in the cross-examination that as on 16-9-94 he had shares of Reliance Company but he does not remember the total number of shares pertaining to that Company held by him and he also admitted that as on 16-9-94 full amount was not ready with him in liquid cash and do not remember what was the amount available with him as on that day. He further admitted in the cross-examination that he had liquid cash of Rs. 30 to 35 lakhs in the Bank account and he stated that he can produce the pass book of United Bank of India, Bank of Saurashtra, Kalupur Bank standing jointly n the name of his wife and him and he further stated that he had Fixed Deposit of Rs. 16 lakhs in United Bank of India in Ahmedabad Branch. But, no documents are produced by him to show that he had liquid cash either on the date of the agreement or subsequent to agreement or till the end of December 1994 to show that he was ready and willing to pay the balance sale of consideration. 37. From the evidence let in by the plaintiff it is not in dispute that the defendants-1 had agreed to sell the property for Rs. 15 lakhs subject to finalisation of the draft agreement, there is no regular agreement drawn by the parties. The receipt of Rs. 1 lakh advance is not in dispute. The plaintiff has taken time to complete transaction till the end of November 1994 since he has to mobilise the funds. It has been admitted by the plaintiff that in terms of understanding the parties for obtained Income Tax clearance in Form No. 37(i). The plaintiff has addressed a letter to the 1st defendant what are the formalities to be observed by the parties in order to secure the permission under 37(i). As could be seen from Ex.P7 and Ex.P14, which are the letters dated 16-9-94 and 7-11-94 addressed by the plaintiff to the 1st defendant, where in he has stated about the formalities to be completed by the defendant before executing a deal of Rs. 10 lakhs and over. As could be seen from Ex.P7 and Ex.P14, which are the letters dated 16-9-94 and 7-11-94 addressed by the plaintiff to the 1st defendant, where in he has stated about the formalities to be completed by the defendant before executing a deal of Rs. 10 lakhs and over. After Ex.P14 dated 7-11-94, the plaintiff has not contracted the 1st defendant. Thereafter, as per Ex.P16 dated 3-5-1995, he got issued a legal notice to the defendants-1 to 3 stating that the plaintiff has to liquidate his assets and other properties and keep ready the balance sale consideration of Rs. 14 lakhs and he has completed the formalities after obtaining permission from the Income Tax Department. Hence, the 1st defendant was called upon to complete the formalities required under the Income Tax Act. Admittedly, the 1st defendant alone cannot obtain permission in Form No. 37 as the said form has to be signed by both the parties, it is not the case of the plaintiff that to enable the 1st defendant he had sent required signed papers to the 1st defendant to secure permission from the Department of Income Tax in the required forms. Admittedly, he has not signed such documents. In the absence of documents signed by the plaintiff, the 1st defendant cannot seek permission from the Income Tax Department in Form No. 37. The Learned Trial Judge without considering these factual aspects namely ready and willingness on the part of the plaintiff to secure the sale deed by paying the balance sale consideration of Rs. 14 lakhs by the end of November 1994 or first week of December 1994 and without considering that the documents were not made available to the 1st defendant to enable to him to obtain permission in Form No. 37, has granted the decree. 38. In addition to the above, it is to be observed that in the entire pleadings or in the evidence of PW1, the plaintiff has not whispered anything about the privity of contract between and 2nd defendant and him. Admittedly, the plaintiff contends that the defendants-1 and 2 are the owners of the suit property jointly. To evidence the same, he has produced Ex.P4 which is an agreement of sale dated 20-8-94 entered into between M/s Mukund Constructions Co., and the defendants-1 and 2. Admittedly, the plaintiff contends that the defendants-1 and 2 are the owners of the suit property jointly. To evidence the same, he has produced Ex.P4 which is an agreement of sale dated 20-8-94 entered into between M/s Mukund Constructions Co., and the defendants-1 and 2. If defendants-1 and 2 are the joint owners of the property and if there is no privity of contract between the plaintiff and the defendants-1 and 2 together, if the 1st defendant alone has agreed to sell the property through the 3rd defendant and if the 3rd defendant has not been authorised by the 2nd defendant to sell her share in the property to the plaintiff, if the 2nd defendant has not agreed to sell her property to the plaintiff, we are of the opinion that no Court can grant decree against the 2nd defendant who is not a party to any contract. But, unfortunately the Trial Court has not noticed this fact. .39. The Learned Counsel appearing for the respondent mainly contends that since the 2nd defendant has not stepped into the witness box and has denied the transaction between the plaintiff and the 1st defendant, the same is binding on her and that the Trial Court is justified in granting decree in favour of the plaintiff but we are unable to accept the aforesaid contention since the suit is filed by the plaintiff for specific performance of the contract as if there is contract between the plaintiff and defendants-1 and 2. When there is no contract between the plaintiff and defendant No. 2 and when the plaintiff has not pleaded that the 1st defendant on behalf of his wife had also agreed to sell the property and that the 2nd defendant had authorised her husband to negotiate the property with the plaintiff through the 3rd defendant, no Court can grant decree in favour of the plaintiff on the ground that the 2nd defendant has not stepped into the witness box or has not denied the agreement between the 1st defendant and the plaintiff. It is no doubt true that the 2nd defendant has not filed any separate written statement. When no allegation of whatsoever nature are made in the plaint against the 2nd defendant, a Court cannot expect the 2nd defendant to deny the allegations, which are not made against her. It is no doubt true that the 2nd defendant has not filed any separate written statement. When no allegation of whatsoever nature are made in the plaint against the 2nd defendant, a Court cannot expect the 2nd defendant to deny the allegations, which are not made against her. It is for the plaintiff to plead his case properly and to let in evidence and secure the decree on the strength of his documents and evidence. In the entire correspondence taken place between the plaintiff and 1st defendant there is no mention about the consent of 2nd defendant to sell the property in favour of the plaintiff and it is also not the case of the plaintiff. So, in this background, we are of the opinion that there is no privity of contract between the plaintiff and 2nd defendant and even we are of the opinion that there is no concluded contract between the plaintiff and 1st defendant also. For the sake of arguments even if we hold that there is concluded contract between the plaintiff and 1st defendant, the plaintiff has not proved his case. Since he has failed to prove that he was ready and willing to pay the balance sale consideration at the end of November or first week of December 1994 in terms of his letter correspondences and also on the ground no admission has been made by him to secure permission in Form No. 37(i) of the Act. In view of his specific admission that he had no liquid cash in the month of November 1994 or December 1994 and no documentary evidence is produced to show his capacity to purchase the property by paying balance sale consideration on the relevant date, we have to reverse the findings of the Trial Court. In the circumstances, since there is no agreement between the 2nd defendant and the plaintiff, no decree can be passed against 2nd defendant in respect of a property jointly held by defendant-1 and 2, decree for specific performance of the contract cannot be passed. Accordingly, we answer point Nos. 1 and 3 in negative. 40. We have no quarrel over the legal proposition relied upon by the Counsel for both the parties considering the facts and circumstances of this case, we are of the opinion that there is no necessity for us to refer to the citations relied upon by both the parties. Accordingly, we answer point Nos. 1 and 3 in negative. 40. We have no quarrel over the legal proposition relied upon by the Counsel for both the parties considering the facts and circumstances of this case, we are of the opinion that there is no necessity for us to refer to the citations relied upon by both the parties. Since there is no privity of contract between the plaintiff and 2nd defendant and on facts plaintiff has failed to prove his case. 41. In regard to point No. 4, the plaintiff is not entitled for decree for specific performance of the contract as the advance amount of Rs. 1 lakh paid by the plaintiff through defendant No. 3 is not in dispute, we are of the opinion that even though the plaintiff has not sought for alternative prayer for refund of advance amount, the Court exercising its discretion by moulding relief has to grant some relief to the plaintiff-1st respondent. Considering that a sum of Rs. 1 lakh was paid as advance in the year 1994 since the value of the property has been increased by many fold, we are of the opinion that the 1st defendant has to pay the compensation to the plaintiff adequately. 42. In the result, the judgment and decree passed by VIII Additional City Civil Judge, Bangalore City, dated 24-6-2003 in O.S.No. 4587/95 is hereby reversed. 43. The suit filed by the plaintiff for enforcement of contract dated 18-8-94 is hereby dismissed. The 1st defendant is directed to pay a sum of Rs. 1 lakh with interest at 24% per annum from 16-9-94. Three months time is granted for the 1st defendant to pay the said amount to the plaintiff. In addition to that, 1st defendant shall also pay liquid damages of Rs. 1 lakh. Accordingly, the appeal is allowed. Parties to bear their costs.