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2022 DIGILAW 1213 (BOM)

Prabhudayal v. Laxman Hiramnji Sawarkar

2022-04-26

ANIL S.KILOR

body2022
JUDGMENT 1. In this appeal a challenge is raised to the judgment and decree dtd. 16/09/2017 passed by the Ad-hoc District Judge-5, Nagpur, in Regular Civil Appeal No.333 of 2015 dismissing the appeal arising out of the judgment and decree dtd. 02/05/2015 passed by 3rd Joint Civil Judge Senior Division, Nagpur in Regular Civil Suit No. 3087 of 2012, dismissing the suit for declaration, Specific Performance of Contract and Injunction. 2. The brief facts of the present case are as follows: (The parties are referred to as per their status before the trial Court.) 3. It is the case of the plaintiff that the suit property was owned by defendant No.1 (The defendant No.1 died during pendency of the suit). The defendant No.1 wanted to sell the suit property and as such, since the plaintiff wanted to purchase the same to settle in Nagpur, they entered into an agreement to sell of the suit property for the total consideration of Rs.4,75,000.00, out of which the plaintiff paid Rs.2,00,000.00 to defendant No.1 on 06/05/2004. The possession was agreed to be delivered on payment of entire consideration amount. 4. It is submitted that the defendant No.1 had told the plaintiff to pay Rs.1,25,000.00, out of balance consideration amount, to Vinod Laxman Sawarkar since he was possessing some portion of the suit property. The plaintiff paid Rs.1,25,000.00 to Vinod on 08/09/2004. On 11/09/2004, the defendant No.1 acknowledged the receipt of entire consideration amount of Rs.4,75,000.00. Since execution of sale-deed would require compliance of some formalities, the defendant No.1 executed irrevocable power of attorney in favour of the plaintiff for that purpose. The possession of the suit property was delivered to the plaintiff. The plaintiff started paying the taxes as owner of the suit property. 5. It is submitted that the defendant No.1 tried to deprive the plaintiff from enjoyment of the suit property. Despite it was duty of the defendant to execute the sale-deed, defendant No.1 failed to do so. With these contentions, the plaintiff had filed the suit. 6. It is submitted that the original defendant No.1 filed written statement at Exh.25. He categorically denied all the contentions of the plaintiff except that the defendant had agreed to sell the suit property to the plaintiff for a total consideration of Rs.4,75,000.00 by accepting earnest money of Rs.2,00,000.00. According to the defendant, the balance consideration amount was to be paid within four months. He categorically denied all the contentions of the plaintiff except that the defendant had agreed to sell the suit property to the plaintiff for a total consideration of Rs.4,75,000.00 by accepting earnest money of Rs.2,00,000.00. According to the defendant, the balance consideration amount was to be paid within four months. On 08/06/2004, the defendant had sent a notice to the plaintiff to pay balance consideration amount. The plaintiff did not pay the same within stipulated time. Thus, the agreement stood cancelled in view of its terms. 7. The plaintiff's suit for declaration, specific performance of contract and permanent injunction came to be dismissed vide judgment and decree dtd. 02/05/2015, passed by the learned Joint Civil Judge Junior Division, Nagpur in Regular Civil Suit No. 3087 of 2012. The plaintiff therefore, carried an appeal vide Regular Civil Appeal No. 333 of 2015 before the learned Ad-hoc District-5, Nagpur, which came to be dismissed vide judgment and decree dtd. 16/09/2017, the same is assailed in the present appeal. 8. This Court, on 15/11/2021 framed the following substantial questions of law : "I) Whether the courts below were justified to have dismissed the suit, though it is recorded that the agreement of sale executed by Defendant No.1 in favour of the plaintiff has been proved, so also that both the court have recorded a finding that there is no dispute about respect of an amount of Rs.2.00 Lakhs being paid by the plaintiff to the original Defendant No.1 and that the learned trial Court has also recorded that the plaintiff has made payment of Rs.1,25,000.00 to the son of Defendant No.1? II) Whether the appellate Court was justified to have held that the possession letter at Exh.46 is not admissible in evidence in absence of its registration, though the said document is proved in cross-examination of the plaintiff by the defendant and as such its admissibility cannot be denied and the plaintiff is entitled to protect his possession. III) Whether the appellate Court was justified to have relied upon the evidence of the original Defendant No.1, though he was not subjected to cross-examination by the plaintiff? IV) Whether the courts below were justified to have disbelieved the case of the plaintiff, though Original Defendant No.1 did not adduce any evidence in rebuttal and that the examination in chief of Defendant No.1 in absence of cross-examination cannot be relied upon?" 9. IV) Whether the courts below were justified to have disbelieved the case of the plaintiff, though Original Defendant No.1 did not adduce any evidence in rebuttal and that the examination in chief of Defendant No.1 in absence of cross-examination cannot be relied upon?" 9. I have heard the learned counsel for the respective parties. 10. The learned counsel for the appellants submits that despite the fact that the learned First Appellate Court has held that Agreement of Sale executed by defendant No.1 in favour of the plaintiff, has been proved and also though it is held in favour of the plaintiff about payment of Rs.2,00,000.00, the decree for specific performance has been denied. 11. It is submitted that once the Court has held that the agreement is proved and amount of Rs.2,00,000.00 is received by the defendant as earnest amount, the learned first appellate Court ought to have decreed the suit. 12. It is further submitted that the learned first appellate Court has discarded possession letter Exh.46 on erroneous grounds, whereas, the said document is proved in cross-examination of the plaintiff. 13. The learned counsel for the appellant further submits that the learned first appellate Court has committed error in relying upon the evidence of the original defendant No.1 in absence of cross-examination by the plaintiff. 14. He further submits that though on readiness and willingness sufficient evidence has been brought on record by the plaintiffs, both the Courts have wrongly held against the plaintiff on the said point. 15. The learned counsel for the respondent Nos. 1 and 2 supports the dismissal of the suit for specific performance filed by the plaintiff, by both the Courts below. It is submitted that there are concurrent findings and unless there is a perversity, this Court cannot interfere with the concurrent findings of facts. 16. The respondent No.4 is a formal party as it is informed that the electric supply which was disconnected, has been restored. 17. To consider the rival contentions of the parties I have perused the record and also the judgments and decrees of both the Courts below. 18. Before considering the case on merit, it would be appropriate to refer to Sec. 16 (a), (b) and (c) of the Specific Relief Act, 1963 (hereinafter referred to as "the Act of 1963"). "16.Personal bars to relief. 18. Before considering the case on merit, it would be appropriate to refer to Sec. 16 (a), (b) and (c) of the Specific Relief Act, 1963 (hereinafter referred to as "the Act of 1963"). "16.Personal bars to relief. - Specific performance of a contract cannot be enforced in favour of a person - (a) who has obtained substituted performance of contract under sec. 20; or (b) who has become incapable of performing, or violates any essential term of the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or (c) who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.-For the purposes of clause (c),- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the court; (ii) the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction." Thus, Sec. 16 provides that the specific performance of the contract cannot be ordered in favour of persons enumerated in sub-clauses (a), (b) and (c) of Sec. 16 of the Act of 1963. Here, in this case, clause (c) is relevant, which lays down that the performance of a contract in favour of a person, who has not averted in the pleadings and who has not proved that he on his part was ready and willing to perform his part of the contract, in its essential terms except only when the plaintiff proves that the defendant himself waived or prevented the performance of the terms of the contract. 19. In this case, there is no dispute that the learned first appellate Court has held that the plaintiff has proved the agreement of sale between himself and defendant No.1 for the consideration of Rs.4,75,000.00. As far as payment of earnest amount is concerned, that has also been held to be proved by the learned first appellate Court. 20. 19. In this case, there is no dispute that the learned first appellate Court has held that the plaintiff has proved the agreement of sale between himself and defendant No.1 for the consideration of Rs.4,75,000.00. As far as payment of earnest amount is concerned, that has also been held to be proved by the learned first appellate Court. 20. However, as far as the subsequent payments are concerned, i.e. the amount of Rs.1,25,000.00 paid to the son of the defendant, namely Vinod Laxman Sawarkar on 11/09/2004, Rs.80,000.00 on 06/09/2004 and Rs.70,000.00 by cheque No. 88562, it is held not to be proved. 21. Thus, to consider whether the findings recorded by first appellate Court while rejecting the case of the plaintiff in respect of above referred payments, except payment of Rs.2,00,000.00 as earnest amount, are perverse and without evidence, it is necessary to consider the evidence brought on record by the plaintiff in that regard. 22. As far as payment of Rs.1,25,000.00, which is alleged have been paid on 11/09/2004 to Vinod Laxman Sawarkar (son of original defendant) is concerned, the document Exh.41 is produced by the plaintiff. At this stage, therefore, I am of the opinion that it would be appropriate to refer to the contents of Exh.41, which reads thus: 23. The contents of this document does not support the case of the plaintiff that Rs.1,25,000.00 was paid to the son of original defendant, as a part of the total consideration of sale i.e. Rs.4,75,000.00. 24. The contents of document Exh. 41 without leaving any doubt, clearly show that the amount was paid to Vinod Laxman Sawarkar while he had handed over the possession to the plaintiff. There is no mention in the document Exh.41 that the son of the original defendant has received Rs.1,25,000.00 towards part consideration of the sale on behalf of his father. 25. The said document also does not bear the signature of original defendant No.1 to acknowledge that his son has received amount of Rs.1,25,000.00 towards part of the remaining consideration of sale on behalf of him. 26. 25. The said document also does not bear the signature of original defendant No.1 to acknowledge that his son has received amount of Rs.1,25,000.00 towards part of the remaining consideration of sale on behalf of him. 26. In the light of above observations and after going through the contents of document Exh.41, I have no hesitation to hold that both the Courts below have not committed any error in holding that the plaintiff failed to prove that he has paid Rs.1,25,000.00 towards part consideration of the sale, to the son of original defendant viz. Vinod Laxman Sawarkar. 27. It is interesting to note that Exh.41 says that Vinod Laxman Sawarkar handed over the possession of the suit property to the plaintiff on 08/09/2004 which in other words depicts that Vinod was in possession of the suit property till 08/09/2004. Thus, the question arises that if the son of the original defendant, Vinod was in possession of the suit property till 08/09/2004 and if the plaintiff was not in possession of the suit property then how the possession letter Exh.46 was executed showing that the original defendant Laxmanrao Hiramanji Sawarkar handed over the possession of the suit property to the plaintiff on 06/05/2004. In the above backdrop, it would be appropriate to refer the relevant contents of Possession Letter Exh.46, which read thus: 28. Possession Letter Exh.64,shows that the original defendant No.1 was in possession of the suit property. There is no mention about the possession of his son Vinod on the suit property or part of the suit property. Even the document Exh.46 was not executed for part of the suit property but it was executed for the complete suit property. 29. Thus, the contents of Exhs.41 and 46 go contrary to each other and both the documents therefore, cannot go hand in hand to prove the case of the plaintiff in respect of payment of Rs.1,25,000.00 as well as handing over of possession by original defendant No.1 on 06/05/2004. 30. Similarly, no evidence has been produced to substantiate the payment of Rs.75,000.00 by cheque. No bank statement has been produced by the plaintiff to establish the said fact. 31. 30. Similarly, no evidence has been produced to substantiate the payment of Rs.75,000.00 by cheque. No bank statement has been produced by the plaintiff to establish the said fact. 31. To show that the plaintiff paid Rs.80,000.00 to the original defendant No.1, P.W. No.2 was examined, who has deposed that in his presence the amount was paid to the defendant No.1 and accordingly the defendant No.1 made such endorsement on the back leaf of Exh.41. However, there is nothing to show that P.W. 2 was present at the time of payment of Rs.80,000.00. Undisputedly, P.W. 2 has not signed the back leaf of Exh.41 as a witness to such payment. Thus, no sufficient evidence has been brought by the plaintiff to show that Rs.80,000.00 was paid, as claimed by the plaintiff. 32. Having considered the evidence brought on record by the plaintiff as regards payment of Rs.1,25,000.00 to Vinod, Rs.80,000.00 in cash and Rs.70,000.00 by cheque, I have no hesitation to hold that the learned first appellate Court has not committed any error in holding that the plaintiff has failed to prove payment of entire consideration within agreed period. 33. Moving further, Exh.65 Deed of Agreement shows that period of four months was fixed for execution of sale deed i.e. 06/05/2004 to 06/09/2004. However, document Exh,46 Possession Letter says that the period for execution of the sale deed was of six months from 06/05/2004 to 05/11/2004. 34. Both the documents Exhs. 65 and 46 were executed on the same day i.e. on 06/05/2004. Thus, two different periods for execution of the sale deed have been mentioned in two documents Exh.65 and 46 executed on the same day. 35. It is the case of the plaintiff that document Exh.65 cannot be relied upon as it was produced and proved by the defendant No.1 in his examination in chief, whereafter he expired before cross-examination, therefore, according to the plaintiff, Exh. 65 cannot be read in evidence. 36. The learned first appellate Court, while considering the said argument has rightly held that deposition of D.W. 1 is relevant under Sec. 32 of the Evidence Act and it can be read in evidence. 37. 65 cannot be read in evidence. 36. The learned first appellate Court, while considering the said argument has rightly held that deposition of D.W. 1 is relevant under Sec. 32 of the Evidence Act and it can be read in evidence. 37. It is settled law that under Sec. 32(7) of the Evidence Act, a statement contained in any Deed, Will or other document which relates to a transaction by which a right or custom in question was created, modified, recognized, asserted or denied is admissible in evidence. 38. Even for a moment, if the document Exh.65 is not taken into consideration, nothing has been brought on record to show that even as per Exh.46 the entire consideration was paid by the plaintiff on or before 05/11/2004 or he was ready and willing to perform his part of contract. In the circumstances, both the Courts below have rightly held against the plaintiff on the point of readiness and willingness. 39. In the light of above referred findings, I have no hesitation to hold that both the Courts below have rightly dismissed the suit of the plaintiff for specific performance. 40. It is further held that no error has been committed by the learned first appellate Court in denying decree of specific performance despite it is held by the first appellate Court that the agreement is proved by the plaintiff. 41. It is further held that in the light of observations made in respect of the contents of Possession Letter (Exh.46) and documentatExh41itcreatesdoubtaboutgenuinenessof Possession Letter (Exh.46) therefore, no error has been committed by the learned first appellate Court in discarding the said evidence as regards possession. 42. It is further held that in view of Sec. 32 of the Evidence Act, the learned first appellate Court has rightly held that Exh.65 agreement can be read in evidence. Moreover, as the plaintiff failed to prove readiness and willingness, rebuttal by the defendant is not required. 43. Accordingly, I have answered the substantial questions of law in above terms and pass the following order: The Second Appeal is dismissed. No order as to costs. Pending Civil Application(s), if any, shall stand disposed of.