Bombay High Court
Mrs. Pooja W/O. Kiran Katare, Thr. ... vs Keshav S/O. Shravanji Yawalkar on 24 July, 2017
Author: Vasanti A Naik
Bench: Vasanti A Naik
FA 174/17 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL No. 174/2017
Mrs.Pooja s/o Kiran Katare,
Through Power of Attorney Holder
Mr.Kiran s/o Marotrao Katare,
Aged about 49 years, Occ: Business,
R/o 30, Paryavaran Nagar, Nagpur. APPELLANT
.....VERSUS.....
1. Keshav s/o Shravanji Yawalkar,
Aged about 89 years, Occ: Business,
R/o Plot No.52, Bajaj Nagar, Nagpur.
2. Dushyant S/o Anant Deshmukh,
Aged about 22 years, Occ. Student and Agriculture,
R/o Vivekanand Colony, Amravati.
3. Sau.Ranjana W/o Sunil Zombade,
Aged about 43 years, Occ. Business,
R/o 8, Om Colony, Camp, Amravati.
4. Dr.Narendra S/o Sheshraoji Thakre,
Aged about 58 years, Occ. Agriculturist,
R/o New Congress Nagar, Amravati.
5. Ms. Trupti D/o Shivshankar Kokate,
Aged about 26 years, Occ. Student &
Agriculture, R/o Karatwadi,
Tq. Akot, Dist. Akola. RESPONDENTS
Shri A.V. Bhide, counsel for the appellant.
Shri A.S. Jaiswal, Senior Counsel, Assisted by Shri K.P. Mahalle, counsel for the
respondents.
CORAM :SMT.VASANTI A NAIK AND
A.D. UPADHYE, JJ.
DATE : 24 TH JULY, 2017.
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
The first appeal is ADMITTED and heard finally with the consent of the learned counsel for the parties.
2. By this first appeal, the appellant-plaintiff challenges the judgment of the trial Court, dated 14.12.2015 dismissing the suit filed by the appellant for a decree of specific performance of contract. ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:24:25 :::
FA 174/17 2 Judgment
3. Few facts giving rise to the first appeal are stated thus:-
The appellant-plaintiff (hereinafter referred to as 'the plaintiff') and the respondent no.1-original defendant entered into an agreement, dated 16.05.2010, whereby the defendant agreed to sell the suit property to the plaintiff at the rate of Rs.22,51,000/- per acre. It is the case of the plaintiff that a sum of Rs.51,000/- was paid by the plaintiff to the defendant towards earnest amount. As per one of the terms of the agreement, since the suit land was reserved for stadium and some other public purpose, the plaintiff was responsible for ensuring that the land is de-reserved. The agreement further recited that within two years from the release of the land from reservation, the remaining consideration would be paid by the plaintiff as a sum of Rs.51,000/- was paid towards the earnest money. The parties agreed that the agreement would be binding on the plaintiff and the defendant as also their legal heirs. It is pleaded by the plaintiff in the suit filed by her for specific performance of contract that after the execution of the agreement, dated 16.05.2010, the plaintiff took steps for the de-reservation of the land. It is pleaded by the plaintiff that since the defendant did not cooperate with the plaintiff after 02.08.2010 for de-reservation of the land, the husband of the plaintiff requested the defendant to execute a deed of power of attorney in his favour so that the process for de-reservation could be expedited. The plaintiff has pleaded that due to the non-cooperation from the defendant, ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:24:25 ::: FA 174/17 3 Judgment the clearance from the Town Planning Department for de-reservation could not be obtained. According to the plaintiff, the husband of the plaintiff then became aware that for the execution and registration of the sale-deed, it would not be necessary to get the land is de-reserved and hence the plaintiff sent a letter to the defendant dated 12.12.2012 calling upon him to communicate about the date of execution and registration of the sale-deed. The defendant sent a reply to the plaintiff, dated 24.01.2013, that the plaintiff had failed to comply with the terms and conditions of the agreement. The defendant threatened the plaintiff that the agreement, dated 16.05.2010, could be cancelled. The plaintiff served a notice on the defendant, dated 30.01.2013 by Registered Post Acknowledgment Due and requested him to communicate the date, time and place for the execution and registration of the sale-deed. It is pleaded by the plaintiff that the plaintiff was always ready and willing to perform her part of the contract by paying the balance consideration amount of Rs.2,32,60,912/- towards the execution of the sale-deed. It is pleaded that the plaintiff's husband had time and again contacted the defendant for fixing the date for the registration of the sale-deed, however the defendant failed to perform his part of the contract. It is pleaded that the plaintiff again served a legal notice on the defendant, dated 11.03.2013 asking the defendant to inform the plaintiff a suitable date for execution and registration of the sale-deed. According to the plaintiff, since the plaintiff was ready and willing to perform her part of ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:24:25 ::: FA 174/17 4 Judgment the contract, a decree for specific performance of contract could be passed in favour of the plaintiff. Some other ancillary prayers were also made in the suit.
4. The defendant filed the written statement and denied the claim of the plaintiff. The defendant denied that an agreement of sale was executed between the plaintiff and the defendant. It is pleaded that an agreement of sale was never executed and the agreement dated 16.05.2010 clearly recites that after the land would be released from reservation, the agreement of sale could be executed. The defendant denied that he had not cooperated with the plaintiff after 02.08.2010. The defendant denied that the plaintiff's husband requested the defendant to execute a deed of power of attorney in his favour. The defendant pleaded that it is unimaginable that any person owning a property worth more than Rs.2.5 Crores would execute a deed of power of attorney in favour of a proposed vendee after receiving a sum of Rs.51,000/- only. The defendant denied that the plaintiff's husband had approached the defendant for the execution of the sale-deed. The defendant pleaded that the case tried to be made out by the plaintiff in respect of her readiness and willingness to perform her part of contract was false and the same is pleaded only because the prices of the property have escalated to a great extent. It is pleaded that the plaintiff had written the first letter to the defendant on 12.12.2012 and this shows that the plaintiff was not ready ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:24:25 ::: FA 174/17 5 Judgment and willing to perform her part of the contract. The defendant pleaded that the case of the plaintiff was false and the suit for specific performance of contract was liable to be dismissed as an agreement of sale was never executed between the parties and the plaintiff was not ready and willing to perform her part of the contract. The defendant pleaded that earlier also, the plaintiff who is a partner in Shree Developers, had entered into an agreement of development and sale and in that transaction, the defendant was duped.
5. On the aforesaid pleadings of the parties, the trial Court framed the issues and on an appreciation of the evidence on record held that the agreement dated 16.05.2010 was not an agreement of sale or an enforceable or concluded contract. The trial Court held that the plaintiff had not proved that she was ready and willing to perform her part of the contract. It was further held that the plaintiff was not entitled to a decree for specific performance. The alternate prayer made by the plaintiff for refund of the earnest amount of Rs.51,000/- was however, granted by the trial Court. The plaintiff is aggrieved by the part of the judgment of the trial Court that rejects the prayer of the plaintiff for a decree of specific performance of contract. The present appeal is filed by the plaintiff for grant of a decree for specific performance of contract.
6. Shri Bhide, the learned counsel for the plaintiff, submitted ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:24:25 ::: FA 174/17 6 Judgment that the trial Court erred in holding that the plaintiff was not ready and willing to perform her part of the contract. It is submitted that the trial Court was not justified in holding that the agreement dated 16.05.2010, Exhibit 66, was not an agreement of sale. The leaned counsel took this Court through Exhibit 66 to point out that the said agreement was an agreement of sale, whereby the defendant had agreed to sell land admeasuring 9.912 acres for a consideration of Rs.22,51,000/- per acre. It is stated that as per the said agreement, the responsibility to get the land de-reserved from the development plan was fixed on the plaintiff but, the husband of the plaintiff subsequently realized that for the execution and registration of the sale-deed, it would not be necessary to secure an order of de-reservation of the land, from the Town Planning Department. It is submitted that by the agreement of sale, Exhibit 66, the plaintiff was required to pay the balance consideration within a period of two years from the date of de-reservation of the land. It is submitted that the husband of the plaintiff, time and again went to the defendant to ensure that the land is de-reserved and a sale-deed is registered in favour of the plaintiff. It is submitted that after 02.08.2010, the defendant stopped cooperating with the plaintiff and her husband. It is stated that it is clear from the evidence of the plaintiff that thereafter, the plaintiff approached the defendant for seeking the registration of the sale-deed. It is submitted that the plaintiff was ever ready and willing to perform her part of the contract. It is submitted that the trial Court erroneously compared ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:24:25 ::: FA 174/17 7 Judgment previous transaction between the defendant and Shree Developers and the present transaction at Exhibit 66, to hold that Exhibit 66 is not an agreement of sale. The learned counsel relied on the judgment of the Hon'ble Supreme Court, reported in AIR 1968 SC 102 (The Vishnu Pratap Sugar Works (P) Ltd. Versus The Chief Inspector of Stamps, U.P.) to substantiate his submission that an agreement of sale may not invariably specify the mode of payment of the amount that is agreed to be paid to the vendor. The learned counsel then relied on the judgment reported in AIR 1985 SC 1293 (State of Orissa & Others Versus Mangalji Mulji Khara & Others) to substantiate his submission that the nomenclature of a document would not be determinative of the nature of the document executed between the parties and all the terms and clauses of the agreement are required to be looked into while considering the nature of the transaction. It is submitted that the plaintiff had waived the condition pertaining to de-reservation and hence she was entitled to a decree for specific performance of contract. The learned counsel relied on the judgment reported in AIR 1973 SC 559 (Dr.Jiwan Lal & Others Versus Brij Mohan Mehra & Another) to substantiate his submission. It is stated that in the circumstances of the case, a decree for specific performance of contract should be passed in favour of the plaintiff.
7. Shri Jaiswal, the learned Senior Counsel appearing for the respondents supported the judgment of the trial Court. It is submitted ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:24:25 ::: FA 174/17 8 Judgment that the trial Court has rightly held that the agreement dated 16.05.2010 was not an agreement of sale. It is submitted that it could be gathered from the earlier agreement executed between Shree Developers and the defendant to which the plaintiff was also a party being the partner of Shree Developers that the agreement dated 16.05.2010 was not an agreement of sale. It is stated that the agreement dated 16.05.2010 does not refer to the boundaries of the land that was agreed to be sold, the period within which the order of de-reservation was required to be secured and the number of installments in which the consideration could be paid. It is submitted that the trial Court has rightly held by referring to the aforesaid aspects that the transaction dated 16.05.2010 was not an agreement of sale and, hence, the plaintiff could not have sought the specific performance of contract on the basis of the alleged agreement of sale, dated 16.05.2010. It is submitted that the plaintiff was not ready and willing to perform her part of the contract and the trial Court has rightly considered that there was total inaction on the part of the plaintiff in getting the land de-reserved and seeking the execution of the sale-deed till the first communication dated 12.12.2012 was issued by the plaintiff to the defendant. It is submitted that the trial Court has rightly held that the plaintiff was not ready and willing to perform her part of the contract by getting the land de-reserved from the Town Planning Department. It is submitted that the trial Court has considered the evidence of the parties in the right perspective to dismiss the suit filed by the plaintiff for a ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:24:25 ::: FA 174/17 9 Judgment decree of specific performance of contract. It is stated that by paying merely a sum of Rs.51,000/- to the defendant on 16.05.2010, the plaintiff had sought to lock the property of the defendant without taking any steps to ensure that the land was de-reserved and the sale-deed was executed. The learned counsel sought for the dismissal of the appeal.
8. On hearing the learned counsel for the parties and on a perusal of the Record & Proceedings, it appears that the following points arise for determination in this first appeal:-
I) Whether the document dated 16.05.2010 (Exhibit 66) is an agreement of sale?
II) If yes, whether the plaintiff has proved that she was ready and willing to perform her part of the contract?
III) Whether the plaintiff was entitled to a decree of specific performance of contract?
IV) What order?
9. To answer the aforesaid points for determination, it would be necessary to consider the pleadings of the parties and the evidence tendered by them. We have already narrated the pleadings of the parties in the earlier part of the judgment. It would be necessary to consider the nature of Exhibit 66, which is considered to be an agreement of sale by the plaintiff. Exhibit 66 clearly mentions that on 16.05.2010 the parties ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:24:25 ::: FA 174/17 10 Judgment have entered into an agreement of sale by which, the eastern side portion of land admeasuring 9.912 acres, out of total land admeasuring 17.30 acres in Khasra Nos.180/1 and 182, would be sold to the plaintiff by the defendant for a consideration of Rs.22,51,000/- per acre. It is further mentioned in the document at Exhibit 66 that the parties are aware that the land sought to be sold to the plaintiff is reserved in the final development plan for stadium and other public purpose and it would be the responsibility of the plaintiff to get the land de-reserved from the Town Planning Department. It is mentioned in the agreement dated 16.05.2010 that the first installment should be paid by the plaintiff immediately on the de-reservation of the land. At the time of execution of the agreement, dated 16.05.2010, a sum of Rs.51,000/- was paid by the plaintiff to the defendant by Cheque No.515451, dated 16.05.2010 drawn on the I.C.I.C.I. bank. The agreement recites that the entire consideration should be paid by the plaintiff to the defendant within a period of two years from the date of release of the land from reservation.
The agreement also provides that the agreement would be binding on the parties and also their legal heirs and successors. It is apparent from a perusal of Exhibit 66, dated 16.05.2010 that the said document is an agreement of sale, whereby the defendant had agreed to sell 9.912 acres of land situated on the eastern side of the land admeasuring 17.30 acres to the plaintiff at the rate of Rs.22,51,000/- per acre. The extent of the land that is agreed to be sold is mentioned in the agreement and the ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:24:25 ::: FA 174/17 11 Judgment Khasra numbers in which the land is situated are also mentioned. It is further mentioned in the agreement of sale that the land is reserved for stadium and other public purpose and it would be obligatory on the part of the plaintiff to secure an order from the Town Planning Department in regard to the de-reservation of the land. The plaintiff had paid a sum of Rs.51,000/- to the defendant at the time of the execution of the said document and the balance consideration was liable to be paid to the defendant by the plaintiff within two years from the date of the de- reservation of the land. It is clear from a perusal of the document at Exhibit 66 that the defendant had clearly agreed to sell 9.912 acres of land to the plaintiff on the terms and conditions mentioned in the agreement. We have perused the earlier agreement executed between the defendant and Shree Developers. The said agreement is entirely different from the agreement at Exhibit 66. The earlier agreement executed by the defendant and Shree Developers would not determine the nature of the agreement of sale at Exhibit 66. The earlier transaction between Shree Developers and the defendant has no relevance for deciding the question whether the agreement dated 16.05.2010, Exhibit 66, is an agreement of sale. It cannot be said that the agreement dated 16.05.2010 would not be an agreement of sale as the boundaries of the land that is agreed to be sold are not mentioned in the said document. It is clearly mentioned in the agreement that 9.912 acres of land on the eastern side of the land admeasuring 17.30 acres of land in Khasra Nos.180/1 and 182 would be ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:24:25 ::: FA 174/17 12 Judgment sold by the defendant to the plaintiff. If that is so, it was not necessary to mention the boundaries of the land that was sought to be sold. Merely because the period within which the de-reservation order could be sought is not mentioned, the document dated 16.05.2010 cannot be said to be an agreement to enter into an agreement of sale, in future. Only because it is not mentioned in the document as to what would be the installments for payment of the consideration, it cannot be said that the document is not an agreement of sale. It is rightly submitted on behalf of the plaintiff by relying on the judgment reported in AIR 1968 SC 102 (The Vishnu Pratap Sugar Works (P) Ltd. Versus The Chief Inspector of Stamps, U.P.) that the mode of payment need not be specifically provided in the agreement and an agreement of sale cannot be discarded merely because the mode of payment is not mentioned in the same. The trial Court did not consider the document at Exhibit 66 in the right perspective before holding that the said document is not an agreement of sale but is a document providing that the agreement of sale would be executed between the parties in future, after the land stands de-reserved by the order of the Town Planning authorities.
10. After holding that the document at Exhibit 66 is an agreement of sale executed between the plaintiff and the defendant, it would be necessary to consider whether the plaintiff was ready and willing to perform her part of the contract. No doubt, there is a pleading in the ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:24:25 ::: FA 174/17 13 Judgment plaint that the plaintiff was ready and willing to perform her part of the contract. To answer the issue, it would be necessary to consider a few facts and dates. The agreement of sale was executed between the parties on 16.05.2010. There is nothing in the pleadings of the plaintiff to show as to what steps did the plaintiff take for ensuring that the land is de- reserved from the development plan by an order of the Town Planning Department. There is nothing in the plaint to show that the plaintiff had, at any point of time, approached the town planning authorities and had taken steps to ensure that an order of de-reservation of the land was passed in favour of the defendant. The plaint is silent on this aspect of the matter. All that the plaintiff has pleaded is that after 02.08.2010, i.e. within three months from the execution of the agreement of sale, the defendant had stopped cooperating with the plaintiff. If that is so, we fail to gauge as to why the plaintiff kept silent for a period of more than two and half years till she issued a communication to the defendant dated 12.12.2012 asking the defendant to convey a date for the execution of the sale-deed as the husband of the plaintiff had secured the knowledge that it would not be necessary to get the land de-reserved before the execution of the sale-deed. There is absolutely nothing in the pleadings of the plaintiff to show as to what efforts did the plaintiff take, between the period commencing from the date of the execution of the agreement of sale, dated 16.05.2010 till she issued a communication to the defendant, dated 12.12.2012. Except the statement that the defendant had stopped ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:24:25 ::: FA 174/17 14 Judgment cooperating with the plaintiff since 02.08.2010, there is nothing in the plaint to show that the plaintiff was ready and willing to perform her part of the contract. We would reiterate that it was necessary for the plaintiff to point out by the pleadings in the plaint as to what efforts did the plaintiff take after the execution of the agreement of sale on 16.05.2010 to ensure that the land was de-reserved or a sale-deed was executed in favour of the plaintiff. The time gap between 16.05.2010 and 12.12.2012 is very large. The plaintiff was not expected to maintain silence and wait and watch, specially when the plaintiff had paid only a sum of Rs.51,000/- to the defendant, purportedly as the earnest amount while entering into an agreement of sale for purchase of a property worth Rs.2,50,00,000/-. It was necessary for the plaintiff to have not only taken steps during the period between 16.05.2010 till 12.12.2012 to ensure that the land was de-reserved and the sale-deed was executed in favour of the plaintiff. In our view, the plaintiff was never ready and willing to perform her part of the contract and the said fact is depicted from the inaction on the part of the plaintiff for a period of nearly two years and four months. The trial Court has rightly held that the plaintiff was unsuccessful in proving that she was ready and willing to perform her part of the contract. The plaintiff has tried to improve her case by tendering a little evidence on this aspect though the said evidence is sans pleadings. The little evidence that is sought to be tendered is, therefore, liable to be ignored while deciding the issue pertaining to the readiness and ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:24:25 ::: FA 174/17 15 Judgment willingness of the plaintiff to perform her part of the contract. In our view, the trial Court has rightly held that the plaintiff was not ready and willing to perform her part of the contract.
11. Having answered the aforesaid issue against the plaintiff, it would be necessary to hold that the plaintiff is not entitled to a decree for specific performance of contract. A decree for specific performance of contract could be passed in favour of a plaintiff, who invariably proves that he/she was ready and willing to perform his/her part of the contract. Having answered the issue of readiness and willingness against the plaintiff, it would be necessary to consequently hold that the plaintiff would not be entitled to a decree for specific performance of contract.
Since the trial Court has rightly dismissed the suit filed by the plaintiff for specific performance of contract, we dismiss this appeal with no order as to costs.
JUDGE JUDGE
APTE
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