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Karnataka High Court · body

2013 DIGILAW 69 (KAR)

Munithayappa v. R. Krishna Murthy

2013-01-15

JAWAD RAHIM

body2013
Judgment 1. The 2nd defendant is in appeal against the judgment and decree in O.S.7350/99 on the file of City Civil Judge, Bangalore City, decreeing the suit for specific performance of an agreement in favour of the 1st respondent herein. 2. Heard learned counsel, Sri Dwarkanath for the appellant and Sri Ramesh P.Kulkarni for the 1st respondent. Perused records in supplementation thereto. It reveals: a) The 1st respondent-R. Krishnamurthy sought decree for specific performance in the suit, O.S.7350/99 on the assertive contention that H.M. Hamsadevi arrayed as 1st defendant in the suit had, as the duty appointed attorney of Munithayappa-2nd defendant, entered into a transaction in the nature of a binding agreement to sell the property bearing No.1236, 3rd Cross, I Block, HAL III Stage, Bangalore, more fully described in the plaint, for a total consideration of Rs. 10,00,000/- (rupees ten lakhs only) and towards part payment of the sale consideration, received Rs.2,00,000/- (rupees two lakhs only). The terms and conditions were incorporated into an agreement of sale dated 5.3 2.1996 and in furtherance of it, parties proceeded further. Despite his willingness and readiness, it is alleged defendants did not complete the sale transaction. b) Plaintiff also averred he was informed a sum of Rs.3,00,000/- was borrowed by the owner-Nanjundaiah in equitable mortgage which was subsisting and all title deeds were deposited with the mortgagee. Permission from the Income Tax authorities as envisaged under Section 23S of the Income Tax Act was to be obtained and then the transaction had to be completed by he paying Rs.8,00,000/- being balance sale consideration and sale deed had to be registered. The time stipulated to redeem the mortgage was 31.7.1997, but they defaulted, it is contended, plaintiff did his best approaching them several times with fervent appeals to complete the sale transaction which was of no avail. The intention of the defendants became obvious and hence, he was compelled to issue a notice on 2.9.1997 calling upon them to complete the transaction which the defendants received and to his shock and surprise, the 2nd defendant sent an untenable reply on 10.9.1997, denying execution and even knowledge of the agreement of sale dated 5.12.1996 in his favour executed by the 1st defendant. c) He further averred, his attempts to reason out with them, was of no avail and it necessitated filing of the suit. c) He further averred, his attempts to reason out with them, was of no avail and it necessitated filing of the suit. d) Thus it could be seen, he based his claim on the agreement of sale executed in his favour by the 1st defendant as duly constituted attorney of the 2nd defendant. e) Responding to summons, both the defendants entered appearance, but 1st defendant-Hamsadevi did not file written statement though she was represented by a counsel. f) The 2nd defendant-owner of the property in question resisted the suit claim traversing all averments in the plaint and vehemently denied he had entered into any transaction of sale through the 1st defendant with the plaintiff. As could be seen from the averments in various paragraphs of the written statement, he admitted having appointed the 1st defendant as his attorney by virtue of the power of attorney dated 12.4.1984, but assertively contended it was only for management, maintenance of the property with no authority to alienate or encumber the property. He also denied he had put the 1st defendant in possession of the property in question or created any interest in her or had permitted her to deal with the property. He denied he had authorized or permitted her to put up construction or to deal with it without fetters. g) As regards the agreement of sale dated 5.12.1996, Ex.PI, he described it as sham, created and concocted by the plaintiff in collusion with the 1st defendant. Besides he would contend, noticing her conduct which was detrimental to his interest, he cancelled her appointment as his attorney. In short, his defence is, he had not entered into any transaction of sale nor conferred any authority on the 1st defendant to do so. Alternatively it was urged even if the agreement is enforceable, the right of the plaintiff was only to seek refund of the amount paid towards sale consideration with interest. h) Based on the material propositions in the pleadings of the parties, the learned judge framed the following issues and parties went on to trial. (1) Whether the plaintiff proves that the defendant no.1 agreed to sell the suit schedule property for Rs.10-00 lakhs on the authorization of the 2nd defendant and executed an agreement of sale dated 5.12.1996 by receiving an advance amount of Rs.2-00 lakhs? (1) Whether the plaintiff proves that the defendant no.1 agreed to sell the suit schedule property for Rs.10-00 lakhs on the authorization of the 2nd defendant and executed an agreement of sale dated 5.12.1996 by receiving an advance amount of Rs.2-00 lakhs? (2) Whether the plaintiff proves that he has always been ready and willing to perform his part of the contract? (3) Whether the plaintiff is entitled to the relief of specific performance of contract? (4) To what order or decree? i) In the trial that ensued, plaintiff tendered evidence as PW1 and examined one H.M. Sathya Sudnar, brother of the 2nd defendant, as PW2. He placed reliance on 11 documents. In negation of such evidence, appellant-2nd defendant examined himself as DW1 and relied on 25 documents. j) Learned trial judge, analyzing the evidence, opined plaintiff's evidence outweighs the defence and decreed the suit by the impugned judgment and decree. k) Assailing it, he is in appeal. 3. Mr. Dwarkanath, learned counsel for the appellant would assail the impugned judgment and the reasons of the learned trial judge on several grounds, legal and factual, to which I shall advert to in the following paragraphs. 4. In negation of all such grounds, the learned counsel for the respondent/plaintiff was at his best in supporting the impugned Judgment. 5. At the outset, as could be seen, the genesis of the dispute is the alleged agreement dated 5.12.1996. While the plaintiff contends the 1st defendant executed an agreement in his favour by virtue of power of attorney of the appellant-2nd defendant; the appellant-2nd defendant on his part denied having conferred such authority on the 1st defendant and in fact denied knowledge of the transaction itself, 6. We cannot ignore the fact that the transaction is based on the alleged representation of the 1st defendant that she was the duly appointed attorney of the appellant- 2nd defendant, but for such authority she would have had no right, title and interest or authority to enter into any transaction. She was brought into the party array as 1st defendant and was served with summons. She entered appearance, but did not contest the proceedings, thereby failed to support plaintiff's contentions that she represents the 2nd defendant (appellant herein). The appellant-2nd defendant alleges collusion between her and the respondent/plaintiff. She was brought into the party array as 1st defendant and was served with summons. She entered appearance, but did not contest the proceedings, thereby failed to support plaintiff's contentions that she represents the 2nd defendant (appellant herein). The appellant-2nd defendant alleges collusion between her and the respondent/plaintiff. Thus she was, undoubtedly, a pivotal witness to establish she had transacted with the plaintiff in the manner known to law and under due authority. 7. The terms of the agreement are in Ex.PI. It could be noticed the sale price is fixed at Rs. 10,00,000/- and the manner of payment is also incorporated therein. But there is no specific claim by 1st defendant, that she had authority to sell the property. 8. Mr. Dwarkanath has referred to the agreement, firstly to show the unusual conduct of the so-called agent of the owner, namely 1st defendant in claiming certain rights of having constructed a building on the property in question on the strength of the power of attorney. Secondly, he drew my attention to the penal clause incorporated in the agreement at paragraph 6 which shows any default on the part of the vendor to discharge the mortgage subsisting, or to execute the sale deed in terms of the agreement, he was liable to pay only Rs.1,00,000/- to the purchaser (plaintiff) as liquidated damages and return the entire sale price with interest thereon at 24% p.a. calculated on the date of payment. By this, he would further contend, there is no clause permitting enforcement of specific performance. 9. It is urged, all that it contemplated is, in case the transferor defaults in completing the sale transaction, he was liable to pay only Rs.1,00,000/- as liquidated damages and return the sale price received with interest thereon. Similarly, a clause is imposed on the purchaser, that, if he defaults he was liable to pay liquidated damages of Rs. 1,00,000/- to the transferor 2nd defendant. 10. Despite such clauses, the plaintiff has sought specific performance. The plaintiff paraded PW2 to prove the agreement of sale. PW2 is cited as the attestor to the agreement and by examining him, plaintiff felt he had discharged the burden of proving the agreement. 1,00,000/- to the transferor 2nd defendant. 10. Despite such clauses, the plaintiff has sought specific performance. The plaintiff paraded PW2 to prove the agreement of sale. PW2 is cited as the attestor to the agreement and by examining him, plaintiff felt he had discharged the burden of proving the agreement. According to the appellant, the evidence so brought out was not sufficient to prove execution of the agreement or its validity or enforceability, as PW2 was shewn to be interested witness won over by the plaintiff, whose interest was in conflict with that of the appellant. To bring home this point, certain admissions in his cross-examination are read out to me to show that though he was genetically related as the brother of the appellant, due to some business transactions between them while doing construction work in partnership in the name and style, M/s Ravi Constructions, they had differences which was un resolved resulting in conflict of interest. Such witness undoubtedly was deposing to facts against the appellant and no credence could be given to such statement. 11. So far as the agreement in question is concerned, it is said to have been executed by the 1st defendant under the authority of the 2nd defendant and reference is made to the deed of general power of attorney dated 12.4.1984. It is admitted that appellant had cancelled it. Cancellation of it is termed as of no consequence by the plaintiff on the plea it is a subsequent event and not or to execution of the agreement. In this regard, learned counsel submits appellant had not conferred any authority on the 1st defendant to sell the property or encumber it and therefore, having found her conduct not in his interest, he had cancelled the power by attorney. Though it is said to be of the year 1997. It is on record the power of attorney was not in force as on the date legal notice was issued by the plaintiff to the defendants. 12. There is plethora of evidence brought in by the parties. But the issue that confronts us is: (1) Whether the agreement dated 5.12.1996- Ex.PI binds the appellant to sell the property in question? (2) Even if it is to be held that the agreement was valid and binding on the parties, was the decree for specific performance justified as passed by the trial court? 13. But the issue that confronts us is: (1) Whether the agreement dated 5.12.1996- Ex.PI binds the appellant to sell the property in question? (2) Even if it is to be held that the agreement was valid and binding on the parties, was the decree for specific performance justified as passed by the trial court? 13. As regards the first point is concerned, I have already referred to the fact that the 1st defendant who is the author of the agreement, despite summons in the suit, neither admitted nor denied it in the plaint, leading to inference that there may be collusion between her and the plaintiff. Even if we presume she did so under the notion that she had authority to sell, it was incumbent on the plaintiff to establish that the sum of Rs.2,00,000/- paid to her was for and on behalf of the appellant. 14. In a case like this where transaction is by the agent, it is not enough if it is shown that the document was executed by the agent. It must be shown that the transaction was under authorization by the principal and to establish it, the best evidence would be that of the executant of the document viz., Ex.PI. In this case, it is the 1st defendant. No doubt plaintiff brought (her) the executant of the agreement into the party array and she was duly served, but she remained inactive without traversing the plaint averments. She neither admitted nor denied the assertions of the plaintiff. Thus the best that could have been done was to summon her. Plaintiff did not summon her or secure her presence nor established through any independent evidence that she transacted with him under authorization of the principal (2nd defendant). 15. Take a case where an agent executes a document under authority but if the transaction exceeds that authority, then there should be either ratification by the principal or proof that, it was done in good faith. In either case, normally what we expect is to have the evidence of the person who authors the document from which rights and liabilities flow. Plaintiff examined PW2 to show it was executed by the 1st defendant. If we accept his evidence, even then the evidence of PW2 only would only show Ex.PI was signed by the 1st defendant. In either case, normally what we expect is to have the evidence of the person who authors the document from which rights and liabilities flow. Plaintiff examined PW2 to show it was executed by the 1st defendant. If we accept his evidence, even then the evidence of PW2 only would only show Ex.PI was signed by the 1st defendant. It goes no further to establish that the terms and conditions incorporated in the document were by the sanction of the 2nd defendant and under his authority. 16. Be that as it may, plaintiff seeks to derive right, title and interest in the property in question on the basis of Ex PI executed by a third person (1st defendant) claiming to be duly constituted attorney of the original owner. Thus her position is only that of an 'agent/ What is 'Agency' is spelled out in Chapter 10 of the Indian Contract Acc. Section 182 of the Act defines 'agent' and 'principal' and spells out that 'an agent is a person to do any act by another, or to represent another to deal with...' The person for whom such act is done, or who is so represented is called the principal. 17. Section 185 of the Act further spells out, the authority of the agent may be express or implied. Authority is said to be express when it is given by words or spoken or written, and authority is said to be implied when it is Inferred' from the circumstances of the case. Things spoken or written or the ordinary course of dealing may be accounted from the circumstances of the case.' Therefore when the question arises as to what was the limit of authority of the agent under a particular document like power of attorney, necessarily the extent of authority conferred on the agent has to be ascertained from the recitals of the deed by virtue of which such authority is conferred. 18. Section 190 of the Contract Act bars the agent from delegating the authority conferred on the agent by the principal except otherwise spelled out in the document itself. 18. Section 190 of the Contract Act bars the agent from delegating the authority conferred on the agent by the principal except otherwise spelled out in the document itself. Having regard to these provisions, we have now to examine whether the act of the 1st defendant-Hamsadevi in agreeing to sell the property in question to the plaintiff was in terms of the authority conferred on her behalf by the deed of power of attorney, or she had done such act of executing such agreement without authority. 19. Undoubtedly Section 196 is attracted which adumbrates, 'where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifies them, the same effects will follow as if they had been performed by his authority.' Therefore, even if the agent has acted bona fide presuming he had authority under the document which otherwise did not expressly or impliedly spell out, then the principal has the option to ratify or disown such acts of the agent. Only if he ratifies such acts of the agent, it will follow as if they had been performed by his authority. 20. In the instant case, the principal, viz., 2nd defendant has seriously disputed conferring upon the 1st defendant authority to transact for sale of immovable property except to maintain the property to safeguard his interest. Therefore, expressly 2nd defendant has not only denied having conferred any authority upon the 1st defendant to enter into the sale transaction but has refused to ratify such act which renders all acts by the agent as acts in personem without authority of the 2nd defendant. It is also not in dispute 2nd defendant has terminated the power of attorney executed by him in favour of the 1st defendant. 21. Apart from all legal propositions referred to above, on facts it could be seen, 1st defendant has proclaimed she has exercised the right of ownership in respect of the schedule property undoubtedly setting up interest and title in herself, but she has failed to substantiate it. 21. Apart from all legal propositions referred to above, on facts it could be seen, 1st defendant has proclaimed she has exercised the right of ownership in respect of the schedule property undoubtedly setting up interest and title in herself, but she has failed to substantiate it. In fact as she has set up right, title and interest in the property in question, burden was on her to establish that she had interest in the property which was the subject matter of power of attorney and 2nd defendant could not have terminated it in view of Section 202 of the Contract Act. 22. Section 202, Contract Act deals with termination of agency when the agent has interest in the subject matter. It envisages, 'where the agent himself has an interest in the property which forms the subject matter of agency, the agent cannot, in the absence of express contract, be terminated to the prejudice of such interest.' Thus Section 202 makes it clear that if the agent has an interest in the property which forms the subject matter of agency, then such agency cannot be terminated in the absence of contract. Undoubtedly, burden was on the 1st defendant to establish she had an interest and if so, she had to establish it was for consideration in the manner known to law. In the absence of it, the agency could be easily terminated by the principal as referred to in Section 201. 23. In the circumstances, the alternate contention advanced on behalf of the appellant-2nd defendant that he had not created any interest in favour of the 1st defendant in respect of the schedule property and that he had terminated the agency noticing her acts were against his interest, is lawful. The right exercised by him under Section 201 cannot be faulted. Besides, we had expected from the appellant-plaintiff sufficient material, at least through the testimony of the 1st defendant-Hamsadevi, that she had authority or interest in the property in question and the source of deriving such interest. 24. In this regard, Sri Ramesh Kulkarni for the respondent would submit, Hamsadevi being 1st defendant in the suit and party to the proceedings, could not have been summoned by the plaintiff as his witness. He relied on the case law reported in 1962 Mys. 24. In this regard, Sri Ramesh Kulkarni for the respondent would submit, Hamsadevi being 1st defendant in the suit and party to the proceedings, could not have been summoned by the plaintiff as his witness. He relied on the case law reported in 1962 Mys. L.J (Supp) 68 (IRPAVVA VS- NAGAPPA) wherein it is held as under: “Above all, the most important person that could have spoken to this illatom in case any such deed had come into existence is his brother Nagappa, the defendant-respondent. Scrupulously he has kept out of the witness- box perhaps realising the weakness of his own contentions. Strangely however, he has examined Irpavva the plaintiff as his witness as D.W.I. Times without number it has bean stated by some of the highest courts that such kind of leading evidence of the opposite party as one's own witness should be deprecated. Now that Nagappa has examined plaintiff Irpavva as his own witness I cannot accept part of the evidence which is favourable to him and reject the rest. Irpavva in clear categorical terms states that no such adoption took place. If any such adoption did take place, she would be the best person to speak to it as she is the only surviving member of the family Hence taking into consideration all the facts and circumstances I accept the findings of the learned Munsiff on this point that the defendant-respondent has failed to prove that Er-appa was the illatom son-in-law of Sharnavva, and that the defendant has failed to prove such adoption either by custom of by conduct. 1 25. Drawing my attention to the proposition extracted above, Mr. Ramesh Kulkarni would submit, plaintiff could not have summoned the 1st defendant as his witness and hence no adverse inference much less any inference could be drawn that non-examination of her was fatal to the case. 26. It is difficult to accept this proposition for the reason, the creditworthiness of a witness depends on his/her veracity tested in cross-examination in the manner known to law. As could be seen from the provisions in the Evidence Act, I do not find any bar in summoning a person to be a witness as long as such person speaks to facts germane or relevant for adjudication, and if such witness is shown to have adverse animus, he could be cross- examined. As could be seen from the provisions in the Evidence Act, I do not find any bar in summoning a person to be a witness as long as such person speaks to facts germane or relevant for adjudication, and if such witness is shown to have adverse animus, he could be cross- examined. There is no legal bar for summoning opponent on a witness. In criminal justice system also, accused is not barred from summoning prosecution witness cited and cross examine him for her defence. 27. In this view, a person who is in the party array in legal proceedings can always be summoned to speak to relevant facts and circumstances necessary for adjudication in the absence of any legal bar in the provisions of the Evidence Act. 28. It is interesting to note, plaintiff did not establish alleged collusion between the defendants inter alia, on the other hand, he alleged the document was executed by the 1st defendant on behalf of the appellants. Therefore, examination of the 1st defendant was certainly necessary and having not done so, the evidence of PW2 renders no substantial benefit to hold that the agreement-Ex.PI was proved to have been executed under the authority of the 2nd defendant. May be, at the most, it would show 1st defendant had executed the agreement in favour of the plaintiff. 29. It must further be noticed, plaintiff was not very consistent with regard to the actual role of the 1st defendant. Was she only acting as the attorney or was she claiming any interest m the property in question? The recital in the agreement shows she had represented to him through the recital in the first paragraph that she had incurred an expenditure of Rs.2,50,000/- to put up the building on the site in pursuance of the power of attorney dated 12.4.1984. It implies that she was not acting only as the agent or attorney of the 2nd defendant, but an interest was created in her favour in the property in question. If that be so, the transaction appears to be virtually between her and the plaintiff and not as the attorney on behalf of the 2nd defendant. If that be so, the nature of right and title she had in the property is not spelled out. 30. As regards payment of Rs.2,00,000/- is concerned, it is pointed out by Mr. If that be so, the transaction appears to be virtually between her and the plaintiff and not as the attorney on behalf of the 2nd defendant. If that be so, the nature of right and title she had in the property is not spelled out. 30. As regards payment of Rs.2,00,000/- is concerned, it is pointed out by Mr. Dwarkanath that in cross-examination plaintiff claimed he had paid the amount by borrowing from his father and admitted he had not accounted for it in his income tax returns, leaving this aspect not fully proved. By this it was submitted payment of Rs.2,00,000/- was not established by the plaintiff and hence when consideration itself was not proved to have been passed, it would not be a binding agreement on the person (appellant) against whom its enforcement is sought. 31. As regards the alternate submission that even if the agreement was proved, decree for specific performance was not justified, Mr. Dwarkanath was right in drawing my attention to the default clause in the agreement which creates a liability on the defaulting party to pay only damages of Rs.1,00,000/-. If the purchaser defaults, he is liable to pay that sum and if the vendor/transferor defaults, he is liable to pay that sum and return the part of sale consideration with interest thereon. The condition that the agreement could be specifically enforced is conspicuous by its absence which we cannot ignore. 32. Let us now test the evidence on record within the ambit contuse of Sections 16C, 10 and 20 of the Specific Relief Act. These provisions cannot be read in isolation, but should be read together. Section 10 specifies cases where specific performance of a contract is enforceable. It envisages 'Except as otherwise provided in the chapter, the specific performance of any contract may, in he discretion of the court, be enforced— (a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or (b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. The Explanation has to be read with clauses (a) and (b) which postulate '(a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or (b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.' If we keep this provision in mind and examine the clauses of the agreement-Ex.PI, i: could be noticed parties by mutual consent, agreed to terminate the contract by incorporating a clause that in case of breach by either party, a sum of Rs. 1,00,000/- shall be the compensation. Thus, when the mode of compensating is already provided under the agreement itself, then Section 10 also in its application saves the party from specific performance. To repeat, the phraseology is very clear. It envisages, (a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or (b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. 33. Keeping this in mind, let us examine Section 20, Specific Relief Act which makes it very clear that the grant of a decree for specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so. The discretion of the court is not arbitrary, or unreasonable, but is guided by judicial principles and capable of corrections. The following cases in which the court may decline to grant a decree for specific performance are: 20. Discretion as to decreeing specific performance.- (1) .. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance. The following cases in which the court may decline to grant a decree for specific performance are: 20. Discretion as to decreeing specific performance.- (1) .. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance. (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (o) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation I: Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not the deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b) ************* Explanation II: The question whether the performance of a contract would involve hardship on the; defendant within the meaning of clause (b) shall, except in cases where the hardsnip has resulted from any act of the plaintiff, subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. 34. If we examine Ex.PI with reference to the evidence on record, it has to be seen appellant-defendant has brought in sale deeds at Exs.P16 to P19 to show the sale of certain properties in the same vicinity as the property in question was either double or more than double the sale consideration incorporated in the agreement Ex.PI. This evidence has not been adverted to by the learned trial judge nor it has been taken into consideration before deciding whether the decree for specific performance could be granted. 35. This evidence has not been adverted to by the learned trial judge nor it has been taken into consideration before deciding whether the decree for specific performance could be granted. 35. On re-appraisal of evidence, it could be noticed that not long ago but in the recent past, when the agreement was executed or when the suit was filed, certain transactions have taken place as documented by Exs.P16 to P19 showing the prices of similarly placed properties was double or more than double, The case price shown in Ex.PI Thus, if not clause (a), clause (c) would be applicable which envisages 'where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.' Even if we hold that clauses (a) and (b) do not apply, it will be totally inequitable to enforce the decree of specific performance. 36. Last but not the least, had the plaintiff examined the 1st defendant, the decree could have been passed against her directing her to refund the amount of Rs.2,00,000/- which even if it was not passed on to the 2nd defendant, could have been taken as liability of the 1st defendant to discharge it. But the plaintiff, on his own volition, did not seek that relief or prove payment. Hence, I restrain to hold that the decree could have been passed against her in her individual capacity. 37. In this view, and for the reasons stated above, I am unable to accept the reasoning of the learned trial judge that the plaintiff has established the agreement at Ex.PI was executed by the 1st defendant by or on behalf of the 2nd defendant or that it binds the 2nd defendant. Similarly I am compelled to record that the evidence on record does not establish Rs.2,00,000/- passed on to the appellant towards sale consideration and he had to account for it. 38. In this view, when execution of the agreement itself has not been proved by acceptable evidence, the question of enforcing it would not arise. 39. The decree of specific performance is unjustified and therefore, the impugned judgment of the trial court in O.S.7350/99 is set aside. The suit of the plaintiff (1st respondent herein) fails. In the circumstances, there is no order as to costs. 39. The decree of specific performance is unjustified and therefore, the impugned judgment of the trial court in O.S.7350/99 is set aside. The suit of the plaintiff (1st respondent herein) fails. In the circumstances, there is no order as to costs. If the 1st respondent has deposited any amount in pursuance of the decree, the same is ordered to be refunded to him. The appeal is allowed. No cost.