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Madhya Pradesh High Court · body

2009 DIGILAW 19 (MP)

ANOKHILAL v. SEEMA CHORDIA

2009-01-06

SHANTANU KEMKAR

body2009
Judgment ( 1. ) BOTH these appeals have been filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 17. 01. 1996 passed by the IV Additional District Judge, Ratlam in Civil Suit No. 69-A/1992. For the sake of convenience, the brief facts necessary for disposal of both the appeals are taken from First Appeal No. 89/1996. ( 2. ) A suit for specific performance was filed by the appellant Anokhilal on the basis of an agreement for sale dated 12. 11. 1986 under which first respondent Ku. Seema Chordiya through her father and General Power of Attorney holder Shantilal chordiya contracted with him to sale a piece of land Survey No. 35/3 area 0. 200 hectares situated at Village Dosigaon. As per the said agreement the price of land was fixed at Rs. 28,000/- out of which Rs. 5,000/- was paid to the appellant as advance and remaining amount of Rs. 23,000/- was to be paid at the time of the registration of the sale deed which was to be executed before 31. 3. 1987. However, the remaining amount of Rs. 23,000/- was not paid and the registration of the sale deed was not executed between the parties till 31. 3. 1987. In the circumstances, the first respondent (defendant No. 1) vide registered sale deed dated 12. 5. 1987 sold the suit land to the second respondent (defendant No. 2) Jayant Vitamins Ltd. Therefore, the plaintiff (appellant) filed the suit against the defendants (respondents)for specific performance of contract, permanent injunction, possession and to declare the sale deed executed by respondent No. l in favour of respondent No. 2 to be null and void. ( 3. ) AS per the averments of plaint, the plaintiff was always ready and willing to comply with the conditions of agreement dated 12. 11. 1986. . He several times made oral and written requests to the first respondent (first defendant) but the first respondent always avoided execution of contract and registration of the sale deed. The first respondent instead of executing the registration of sale deed in favour for the plaintiff, executed the same in favour of the second respondent. In the circumstances, after serving a notice, the suit has been filed. ( 4. ) THE first respondent filed written statement and denied the plaint averments. The first respondent instead of executing the registration of sale deed in favour for the plaintiff, executed the same in favour of the second respondent. In the circumstances, after serving a notice, the suit has been filed. ( 4. ) THE first respondent filed written statement and denied the plaint averments. It is stated by her that she was always ready and willing to execute the sale deed in favour of the appellant but the appellant himself failed to get the sale deed registered after paving the balance amount of the price of the land. Thereafter, on expiry of the period fixed in the agreement she sold the land to the second respondent by a registered sale deed. ( 5. ) THE second respondent defendant No. 2 company filed a separate written statement and averred that it had no knowledge of existence of any agreement between the appellant and the first respondent. It is further averred by it that the second respondent company being bonafide purchaser of the suit land, the decree as prayed for by the appellant cannot be granted to declare the sale deed dated 12. 5. 1987 executed in its favour by the first respondent, to be null and void. ( 6. ) THE Trial Court, on the basis of the aforesaid pleadings framed eleven issues. After recording the evidence led by the parties, it held that the plaintiff was not ready and willing to execute the registration of the sale deed as per agreement dated 12. 11. 1986 (Ex. P/1 ). The Trial Court further held that the first respondent was on the other hand always ready and willing to execute the registration of sale deed in favour of the appellant. Accordingly the Trial Court did not pass decree as claimed by the appellant. However, it granted a decree in favour of the appellant only to the extent of recovery of Rs. 5,000/- from the first respondent paid by the appellant to the first respondent towards advance money for price of the land, with interest @ 12 % per annum. Feeling aggrieved the plaintiff and the first respondent have come up in these two appeals,. ( 7. 5,000/- from the first respondent paid by the appellant to the first respondent towards advance money for price of the land, with interest @ 12 % per annum. Feeling aggrieved the plaintiff and the first respondent have come up in these two appeals,. ( 7. ) SHRI S. C. Agrawal learned Counsel for the appellant plaintiff argued that the Trial Court having disbelieved the version of the first respondent that she through her power of attorney served notices on the appellant as per the documents ex. D/1 to Ex. D/4, prior to expiry of period fixed in the agreement and also immediately after expiry of the period, erred in believing her other version that she was ready and willing to execute the registration of the sale deed in favour of the appellant but inspite of sending a telegram the appellant did not turn up. He argued that the appellant having not cross examined by the first defendant, the appellants version which remained unchallenged ought to have been relied upon by the Trial Court. In support he placed reliance on a Division Bench judgment of this Court in Ramlal Vs. State of M. P. ( 1993 JLJ 125 ). He also argued that the first respondent herself having not stepped into the witness box, the evidence of her power of attorney cannot be taken into consideration in view of the law laid down in the case of Janki Vs Indusind Bank Ltd. ( AIR 2005 SC. 439 ) and in case of Ajay Kiritakant Ghelani Vs. Mathureshnagar Coop. Housing Society (AIR 2008 Gujarat 44 ). ( 8. ) SHRI S. C. Bagadiya learned Senior Counsel for the first respondent (defendant no. 1) on the other hand argued that merely because the first respondents version about documents Ex. D/1 to Ex. D/4 was held by the Trial Court to be unreliable. the whole testimony of her power of attorney holder cannot be discarded. He argued that the plaintiff having failed to prove that he was always ready and willing to get the sale deed registered by paying the balance price of the land, and the Trial Court having held the first respondent was always ready and willing to execute the registration of sale deed, it has rightly refused to grant decree to the plaintiff to that extent. He also argued that the plaintiff was cross examined not only by the first defendant but also by the second defendant and the entire cross examination has to be read as a whole. He submitted that all the acts being done on behalf of the first respondent by the power of attorney of the first defendant the examination of the first defendant herself was not necessary. He further submitted that the Trial Court has committed gross error in granting decree in favour of the plaintiff for recovery of Rs. 5,000/- with interest @ 12% per annum from the first defendant. ( 9. ) IN order to prove his case the plaintiff examined himself as P. W. 1 defendant no. l examined her Power of Attorney Shantilal (D. W. 1 ). ( 10. ) BEFORE considering the oral evidence led by the parties it would be appropriate to state the undisputed facts of the case which are that an agreement dated 12. 11. 1986 (Ex. P-1) was executed between the plaintiff Anokhilal and first defendant through her power of attorney for the sale of the aforementioned land for a consideration of Rs. 28,000/ -. As per the agreement the registration of the sale deed was to be carried out before 31. 03. 1987. Advance amount of Rs. 5,000/-out of the total sale consideration was paid by the plaintiff. The agreement contains a recital that in the event of failure on the part of the plaintiff to get the sale deed registered after paying the balance amount before 31. 03. 1987 the agreement would come to an end. In case the first defendant seller fails to register the sale deed upto 31. 3. 1987 the plaintiff purchaser would be entitled to get the sale deed registered through Court by filing a suit for specific performance of contract. ( 11. ) ANOKHILAL (P. W. 1) in his deposition stated that the agreement to sale (Ex. P/1)was executed between himself and defendant No. 1 through Shantilal Chordia power of Attorney Holder of the defendant No. 1 At the time of execution of the said document, he paid Rs. 5,000. /- to Shantilal Chordia. He stated that he was and is ready to purchase the land by paying the balance amount as per agreement (Ex. P/1 ). He stated that he had issued a notice dated 18. 4. 1987 (Ex. P/2) by registered post (Ex. 5,000. /- to Shantilal Chordia. He stated that he was and is ready to purchase the land by paying the balance amount as per agreement (Ex. P/1 ). He stated that he had issued a notice dated 18. 4. 1987 (Ex. P/2) by registered post (Ex. P/3) which was received by the first respondent defendant no. 1 vide postal receipt (Ex. P/4 ). Through the said notice (Ex. P/2) the defendant no. 1 was asked to execute the sale deed of the suit land. He also deposed that he sent a telegram (Ex. P/7) to the Shantilal General Power of Attorney of the first defendant as also to the defendant No. 2. He further deposed that he sent a telegram on 25. 4. 1987 (Ex. P/25) asking the defendant No. 1 to execute the sale deed. He alleged that the first defendant executed agreement to sell (Ex. P/1) with him but sold the said land to defendant No. 2 on higher price. He stated that initially the sale deed which was executed between the first and the second defendant was of survey No. 33/3 but it was subsequently corrected as Survey No. 35/3. In his cross-examination he admitted that as per the agreement (Ex. P/1) he was required to get the sale deed registered before 31. 3. 1987. He also admitted that Ex. P/1 contains a stipulation that if he fails to get the sale deed executed, in the prescribed period, the agreement shall come to an end. He further admitted that before 31. 3. 1987 he did not give any notice to the defendant No. 1 for executing the registration of the sale deed in his favour. He also admitted that he did not obtain the No-Objection Certificate from the Income Tax Department and also he did not get ready the proforma of sale deed before 31. 3. 1987. According to him, he was not required to get the NOC from the Income Tax Department. He stated that after receiving the telegram (Ex. P/8) from Shantilal he visited the house of shantilal but he refused to give the papers to him and as such, on the same day, he sent a telegram (Ex. /p/25) to him. He admitted that after sending a telegram (Ex. P/25) he received a letter (Ex. P/10) sent by Shantilal to him. P/8) from Shantilal he visited the house of shantilal but he refused to give the papers to him and as such, on the same day, he sent a telegram (Ex. /p/25) to him. He admitted that after sending a telegram (Ex. P/25) he received a letter (Ex. P/10) sent by Shantilal to him. He denied his knowledge as to at what time the sale deed dated 12. 5. 1987 was executed by first defendant in favour of the second defendant. He also stated that he is not aware if the sale deed was executed before 12. 30 PM on 12. 5. 1987. ( 12. ) SHANTILAL D. W. 1 has stated that he executed the agreement (Ex. P/1) on behalf of his daughter Seema who is holding agricultural land at Village Dosigaon in the capacity of her power of Attorney Holder. He also stated that the sale deed was to be executed before 31. 3. 1987 after receiving the balance amount from the plaintiff. He further stated that within the time prescribed for registration of the sale deed, the plaintiff did not take any step to pay the balance amount and to get the sale deed registered, though five days prior to expiry of period he issued a notice (Ex. D/1) under Postal Certificate (Ex. D/2) and thereafter a notice was issued immediately on 1. 4. 1987 (Ex. D/3) vide postal receipt (Ex. D/4) to the plaintiff. However, inspite of this since the plaintiff failed to get the sale deed executed, the suit land was sold to second defendant vide registered sale deed dated 12. 5. 1987 for Rs. 33,000/ -. Though in his cross-examination he stated that the telegram (Ex. P-8) was not in respect of the suit land, but was in respect of other land. However, from the recital of the telegram which contains a reference of the plaintiffs notice dated 18. 4. 1987 (Ex. P/2) it is clear that this part of the statement of Shantilal is not correct, in view of the plaintiffs own version that he received the telegram dated 25. 4. 1987 (Ex. P/8) and in pursuance of which he immediately visited the residence of Shantilal along with a witness for getting the sale deed registered and when Shantilal refused to hand over the papers regarding the suit land he (plaintiff) again sent a telegram (Ex. P/25) to Shantilal in regard to his non-cooperation. 4. 1987 (Ex. P/8) and in pursuance of which he immediately visited the residence of Shantilal along with a witness for getting the sale deed registered and when Shantilal refused to hand over the papers regarding the suit land he (plaintiff) again sent a telegram (Ex. P/25) to Shantilal in regard to his non-cooperation. ( 13. ) ON a close scrutiny of the documentary as well as the oral evidence led by the parties, it is revealed that the plaintiff took no steps to get the sale deed executed in his favour either during the period fixed for it in the contract or even on receipt of the telegram (Ex. P/8) sent by Shantilal to him. According to him, though he visited the house of Shantilal but he was not handed over the required papers and as such, he sent telegram (Ex. P/25) on the same day informing therein to Shantilal that though he visited his house along with a witness but he was not handed over the required papers. However, he in his deposition did not state the name of the witness along with whom he visited the residence of Shantilal. The non-disclosure of name and non-examination of the said witness who accompanied him to the house of Shantilal, in the Court, clearly indicates that inspite of receiving the telegram (Ex. P/8), the plaintiff failed to comply the same and visit the residence of Shantilal and also failed to visit the Office of the Sub-Registrar in terms of the telegram (Ex. P/8) for getting the, sale deed executed in his favour. This lapse on the part of the plaintiff, indicates that even after expiry of the period, the first defendant attempted for executing the sale deed in favour of the plaintiff but the plaintiff failed to get the same executed in his favour. Thus in my considered view the Trial Court after scanning the evidence has correctly recorded the finding that the plaintiff was not ready and willing to perform his part of the contract during the subsistence of the contract or even after receiving the telegram (Ex. F/8)from the first defendant. This shows that the plaintiff was not ready and willing to perform the contract, but the defendant No. 1 was ready and willing to perform the contract. ( 14. F/8)from the first defendant. This shows that the plaintiff was not ready and willing to perform the contract, but the defendant No. 1 was ready and willing to perform the contract. ( 14. ) THE contention of the learned Counsel for the appellant that the Trial Court having disbelieved Shantilal (D. W. 1) in regard to the documents (Ex. D/1 to Ex. D/4), it should not have dismissed the plaintiffs suit in regard to the main reliefs claimed by him. In this regard, suffice it to say, that merely because Shantilal has not been believed in regard to his version about the documents (Ex. D/1 to Ex. D/4), his whole testimony cannot be discarded. In the light of plaintiffs evidence and the evidence of Shantilal coupled with the documentary evidence it is clear that the plaintiff failed to get registration of the sale deed before 31. 3. 1987 and also even after receiving the telegram Ex. P/8 sent by Shantilal. In the circumstances, if the trial Court recorded a finding that the plaintiff was not ready and willing to perform his part of contract, the said finding cannot be said to be illegal or perverse. The contention of the learned Counsel for the plaintiff that since the first defendant has not stepped into the witness box to substantiate her defence, the statement given by her Power of Attorney cannot be considered is not tenable. The Supreme court in case of Janki Vs. Indusind Bank Ltd. (supra) and the Gujarat High court in the case of Ajay Kiritikant Ghelani Vs. Mathitreshnagar Co-Operative housing Society (supra) has laid down that:- "order. 3 Rr. 1 and 2 empowers the holder of power of attorney to act on behalf of the principal. The word acts employed in o. 3, Rr. 1 and 2, confines only in respect of acts done by the power of attorney holder in exercise of power granted by the instrument. The term acts would not include deposing in place and instead of the principal. If the power of attorney holder has rendered some acts in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. The term acts would not include deposing in place and instead of the principal. If the power of attorney holder has rendered some acts in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. " ( 15. ) IN the light of the aforesaid law laid down by the Supreme Court and the high Court of Gujarat, it is clear that the power of attorney cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined. If the power of attorney holder has rendered some acts in pursuance to the power of attorney he may depose for the principal in respect of such acts. In the present case, as is clear, from the plaintiffs own version as also the documentary as well as oral evidence all the acts were done for the first defendant seller by her Power of Attorney Shantilal. No act independently was done by the first defendant which can be said to be in her personal knowledge. Therefore Shantilals, deposition being fas the acts done by him in pursuance of the power of attorney the same can very well be considered. ( 16. ) THE next contention of the plaintiff in the light of Ramlal Vs. State of M. P. (supra) that the plaintiff has not been cross examined by the defendant No. 1 but was cross examined by defendant No. 2 and, therefore, the plaintiffs version remained unchallenged and as such has to be accepted, has not merit. The plaintiff was cross examined by both the defendants. The plaintiff allowed the second defendant to cross examine him on all the issues and, therefore, if he has not been cross examined in details by the first defendant, the plaintiff cannot ask for ignoring that part of cross examination which has been done by the second defendant. The entire cross examination has to be considered as a whole and has rightly been considered by the Trial Court. ( 17. The entire cross examination has to be considered as a whole and has rightly been considered by the Trial Court. ( 17. ) THUS, having regard to the aforesaid evidence on record, I find that the trial Court has correctly appreciated the evidence on record and has not committed any error in dismissing the plaintiffs suit to the extent as mentioned above. It has also rightly been held that the second respondent is a bonafide purchaser of the suit land. In the circumstances, and for the reasons stated above, the sale deed executed in its favour need not to be declared null and void. However, in my view, the Trial Court has committed error in decreeing the suit in favour of the plaintiff for Rs. 5,000/- which was paid by him to the first defendant towards the advance money for the price of the land. The said amount was in form of earnest money and as per the stipulation contained in the agreement (Ex. P/1) in case of not getting the sale deed executed by the purchaser before 31. 3. 1987, the amount so paid was liable to be forfeited by the seller. In the light of this stipulation, the first defendant was entitled to forfeit that amount and in the circumstances, the Trial court ought not to have held the plaintiff to be entitled to recover the said amount from the first respondent. ( 18. ) ACCORDINGLY, for the reasons stated, the First Appeal No. 89/1996 deserves to be and is dismissed with costs. First Appeal No. 98/1996 deserves to be and is allowed with costs. The judgment and decree of the Trial Court holding the plaintiff to be entitled to recover the amount of Rs. 5,000/- with interest @ 12% per annum from the first defendant is set-aside. The suit is dismissed. Counsels fee Rs. 2,000/- if certified, for both the appeals. Appeal dismissed.