Himachal Pradesh High Court
Arjan Singh vs Dr. S.R. Bawa And Others on 9 September, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.S. No. 27 of 2008 a/w C.S. No. 116 of 2009 and CR No. 19 of 2011.
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Judgment reserved on: 6.8.2015 Date of Decision: September 9, 2015
1. C.S. No. 27 of 2008 Arjan Singh ....Plaintiff of Versus Dr. S.R. Bawa and others ...Defendants For the Plaintiff : Mr. J.S. Bhogal, Senior Advocate, rt with Mr. B.C.Rajput, Advocate.
For the Defendants : Defendant No.1 ex-parte.
Mr. Suneet Goel, Advocate, for defendant No.2.
Mr. Bhupender Gupta, Senior Advocate, with Mr. Neeraj Gupta, Advocate, for defendant No.3.
2. C.S. No.116 of 2009:
Sanjeev Sharma ....Plaintiff.
Versus
Dr. S.R. Bawa and others ....Defendants.
For the Plaintiff : Mr. Suneet Goel, Advocate, for
the plaintiff.
For the Defendants : Defendant No.1 ex-parte.
Mr. J.S. Bhogal, Senior Advocate,
with Mr. B.C.Rajput, Advocate, for
defendant No.2.
Mr. Bhupender Gupta, Senior
Advocate, with Mr. Neeraj Gupta,
Advocate, for defendant No.3.
3. C.R.No. 19 of 2011:
Arjan Singh . ...Petitioner
Versus
Punit Ahluwalia and another ....Respondents
For the petitioner : Mr. J.S.Bhogal, Senior Advocate,
with Mr. B.C. Rajput, Advocate.
For the respondents:
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 Yes 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 2 Tarlok Singh Chauhan, Judge.
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The plaintiff has filed the instant suit for possession of property bearing No. 169, Sector 11-A, Chandigarh by way of specific performance of agreement to sell dated 20th June, 1995 and in the alternative for recovery of Rs.10,00,000/- (Rupees Ten of Lacs) as damages and refund of Rs. 3,20,000/- (Rupees Three Lacs and Twenty Thousand) deposited as earnest money and for special costs.
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2. The suit was initially filed at Chandigarh but was transferred to this Court by the orders of the Hon'ble Supreme Court.
The facts of the case of the plaintiff as set out in the plaint may be noticed:
A. The plaintiff is a resident of Chandigarh and had in the first week of June, 1995 appointed Sh. Amarjit S. Sethi, Property Dealer, SCO No. 345-46, Sector 35-B, Chandigarh as his broker and agent for the purchase of property in Chandigarh.
B. The plaintiff was informed by Sh. Amarjit Singh Sethi that property bearing House No. 169, Sector 11-A, Chandigarh under the ownership of defendant No.1, who is a non-resident Indian and has permanently settled in USA and in which property, the ground floor along with annexe are in the possession of a tenant, had been advertised for sale. The plaintiff directed his agent and broker Sh. Amarjit Singh Sethi to contact defendant No.1 and negotiate the sale of the suit property to the plaintiff.::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 3
The plaintiff was a member of the Punjab University Faculty from 1967-1972 and knew of defendant No.1, who was Professor and .
Head of Department of Bio-Physics in the said University till 1993.
C. Sh. Amarjit Singh Sethi contacted defendant No.1 and commenced negotiations with him and finally on June 20, 1995 an agreement was concluded between the plaintiff and defendant of No.1 through telephone call from Chandigarh in the presence of the plaintiff. Sh. Sethi communicated the plaintiff's offer of Rs.
rt 30,00,000/-, but the defendant No.1 made a counter offer of Rs.
32,00,000/-. This conversation was heard by the plaintiff on the extension and he authorized his broker to accept the offer which was communicated and accepted by defendant No.1 in absolute and unqualified terms.
D. It was further agreed between the plaintiff and defendant No.1 during the same telephone call that the plaintiff shall deposit a sum of Rs. 3,20,000/- which is 10% of the sale price as earnest money liable to forfeiture in case the agreement failed on account of the plaintiff's default. Defendant No.1 conveyed his saving bank account number and the name of the bank. It was also agreed that the plaintiff would pay the cost of stamp duty and registration charges and the defendant No.1 in turn shall obtain income tax clearance certificate and permission to sell from the Estate Officer, Chandigarh and then deliver actual possession of the first floor and annexe to the plaintiff upon execution of the sale deed and that the sale shall be completed within 15 days of the arrival of defendant No.1 in India, but in any ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 4 case not later than August 31, 1995. Both the parties agreed to pay 2% commission to the broker i.e. Sh. Sethi. It was also agreed .
and clearly understood that the agreement shall become binding and enforceable from the very outset and that subsequently a more formal agreement would be prepared which would incorporate all the terms and conditions agreed upon.
of E. On June 21, 1995 the plaintiff obtained a banker's cheque for a sum of Rs.3,20,000/- and wanted to deposit the rt same in the defendant No.1 account, which account number appeared to be wrong, constraining the broker to call defendant No.1, who asked him to call later and thereafter gave him the correct account number.
F. On June 22, 1995 the plaintiff deposited a draft of Rs.
3,20,000/- in the said defendant's account and thereafter the broker Sh. Amarjit Singh Sethi vide letter dated June 26, 1995 sent to the defendant enclosing therewith agreement to sell (in duplicate) bearing the plaintiff's signatures, the original deposit receipt, a photocopy of the draft, an application for the permission of the Estate Officer, U.T. Chandigarh.
G. On July 21, 1995 Sh. Amarjit Singh Sethi contacted the defendant No.1, who confirmed the receipt of the papers and informed that he would finalise his programme to visit India to complete the sale formalities in the end of July 1995 and would bring alongwith all the papers.
H. On July 29, 1995 Sh. Amarjit Singh Sethi again contacted defendant No.1, who informed him that his programme ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 5 had not been finalised and that he would call him on August 16, 1995. The defendant No.1 was accordingly contacted on telephone .
on August 16, 1995 but was informed by defendant's wife that the defendant No.1 was away and Sh. Amarjit Singh Sethi should call him on August 20, 1995. On 20th August, 1995 Sh. Amarjit Singh Sethi called defendant No.1, who confirmed that he had received of the earnest money alongwith the papers but regretted that he could not come to India as he was unable to obtain leave. Shri rt Sethi informed defendant No.1 that the plaintiff had balance amount of sale consideration ready with him and plaintiff was ready and willing to deposit more money in the defendant's account as the money was lying idle with the plaintiff. The defendant No.1 replied that the plaintiff may use the money as he would still take 2-3 months to come to India. When Sh. Sethi asked the defendant No.1 to send written receipt of earnest money, the defendant No.1 said his word was enough.
I. The plaintiff thereafter sent a letter dated September 5, 1995 to the defendant to confirm that he was in a position to complete the sale formalities within a week of the said defendant's arrival in India and alongwith the letter, a covering letter of Sh.
Sethi also dated September 5, 1995 was enclosed and posted under registered cover on September 19, 1995. Sh. Sethi again contacted defendant No.1 on October 7, 1995 over telephone but he was not available and a message to this effect was left on the defendant's answering machine. Thereafter, one more call was ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 6 placed at the said defendant's residential telephone number but there was response only from the answering machine.
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J. On October 17, 1995 Sh. Sethi received a letter from defendant No.1 dated September 18, 1995 purporting to be written from Schenectady, U.S.A. to the effect that the earnest money of Rs. 3,20,000/- had been deposited without the of defendant's authorization and without the execution of any agreement. Defendant No.1 also enclosed a cheque of Rs.
rt 3,20,000/- in favour of Sh. Sethi.
K. On October 20, 1995 Sh. Sethi replied to the defendant's letter and sent a copy of the same to the plaintiff alongwith defendant's letter dated September 18, 1995. In reply, Sh. Sethi stated that an amount of Rs. 3,20,000/- had been deposited in the defendant's account as per his express instructions and its receipt had also been acknowledged by defendant No.1. Defendant No.1 was again informed that the sale would be completed within a week of his arrival in India and he should intimate his programme in advance. Defendant No.1 was further informed that the cheque was not being presented to the banker's for collection and was being kept in safe custody. This letter was returned with remarks "refused".
L. On October 29, 1995, the plaintiff came to know from his broker that defendant No.1 had arrived in India and was negotiating the sale of his house with some parties in Chandigarh.
The plaintiff and his broker tried to meet defendant No.1 on October 30, 1995, but without success.::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 7
M. On October 31, 1995, the plaintiff and his broker again went to the defendant's residence at about 8.25 a.m. and met him.
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The plaintiff called upon defendant No.1 to perform his part of the contract, but he flatly refused to do so and stated that he was not interested in selling the house. It is pleaded that defendant No.1 had however, during the course of any conversation, affirmed the of agreement to sell and receipt of earnest money. The conversation between the plaintiff and defendant No.1 and the broker was tape recorded.
rt N. It is alleged that the plaintiff has at all times been continuously ready and willing to perform his part of the agreement to sell and is possessed of funds to pay the balance of the purchase price to defendant No.1 and is still ready and willing to perform his part of the agreement.
O. On November 5, 1995 the defendant No.1 left India without completing his part of the contract and the plaintiff had come to know that the defendant No.1 was negotiating the sale of the property with some other party which clearly proved that the defendant No.1 did not intend to perform the agreement to sell by completing his part of the contract.
3. During the pendency of the suit, defendant No.2 filed an application stating therein that defendant No.1 had also agreed to sell his house to him and had accepted the earnest money.
Defendnt No.2 was impleaded as a party defendant. It was pleaded that defendant No.2 had no right to get specific performance and it appeared that he was hand in glove with defendant No.1 and ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 8 filed a separate suit in order to defeat the claim of the plaintiff in collusion with defendant No.1. In the meanwhile the defendant .
No.1 sold his property to defendant No.3 and the sale deed between defendant No.1 and defendant No.3 dated 25.3.2003 was illegal, null and void and did not affect the rights of the plaintiff.
This sale deed was illegal and non est in the eyes of law and of plaintiff was entitled to the possession of the property by way of specific performance of agreement to sell dated 20.6.1995 and it rt was accordingly prayed that a decree be passed in favour of plaintiff as had been prayed for.
4. The defendant No.1 filed written statement wherein preliminary objections regarding maintainability, privity of contract between the parties, absence of cause of action, suit being an abuse of process of law, suit having rendered infructuous with passage of time and estoppel amongst other objections were raised. On merits, the defendant No.1 denied that he wanted to sell the house in question. It was further pleaded that no contract was concluded between the plaintiff and the defendant on 20.6.1995. No talk took place between the plaintiff and the defendant on the said date, therefore, the question of any contract or settlement did not arise. It was also denied that any terms and conditions were settled for sale of the house with Amarjit Singh Sethi. The broker was trying to prevail upon the defendant to sell the house but no final decision and terms were settled at any point of time. The defendant never accepted any offer nor there was any occasion for the same which was clear from the conduct ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 9 of the defendant that he did not sign the agreement which was sent to him in USA. It was alleged that the broker Amarjit Singh .
Sethi and the plaintiff in connivance with each other tried to trap the defendant for the sale of the house while he was sitting abroad and know anything about the prevalent conditions in India. The defendant also denied having supplied or instructed the plaintiff of to deposit the amount in his account and has levelled allegation of connivance between the broker and the plaintiff whereby they rt connived to locate the account number of the defendant and deposited the amount without any authority with a view to trap him. It was specifically mentioned that the plaintiff was not even aware of the correct name of the father of the defendant, therefore, he had mentioned wrong parentage of the defendant in the suit as well as in the documents which further proved that no talk with regard to the sale of the house took place between the parties. The defendant for the first time came to know about the deposit of the amount when he received draft agreement to sell for signatures.
The defendant was astonished by the conduct of the broker as well as the plaintiff. The defendant never confirmed the deal nor at any point of time was having any intention to execute the deal with the plaintiff and for this reason the defendant neither sent the receipt nor accepted the alleged earnest money. The defendant No.1 did not deny the letter dated 18.9.1995 written by him to the broker wherein the cheque was also returned on the pretext that there was no concluded contract between the parties. The defendant further did not deny the fact that the broker Sh.
::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 10Amarjit Singh Sethi had though come to his house in the morning of 31.10.1995 but with a malafide intention and wanted to get .
commitment and confirmation of offer of purchase and it was with this background that he had tape recorded the version so that the defendant would be trapped but to the contrary, the defendant had nowhere committed to sell the house to the plaintiff. It was of further claimed that the tape recorded version was not correct version.
5. rt Insofar as the amended paras of the plaint are concerned, the defendant No.1 admitted that the property in question was sold by him on 25.3.2003 as per the orders of the Court and therefore, he denied the sale deed or decree being null and void. It is alleged that the plaintiff was aware of the passing of the decree as he was party to the proceedings and plaintiff had never objected or challenged the decree till date. On these pleadings, the defendant No.1 prayed for dismissal of the suit.
6. The defendant No.2 filed a separate written statement wherein preliminary objection had been taken to the effect that the suit was required to be stayed on the allegation that prior to entering into an agreement to sell dated 20.6.1995, the defendant No.1 had agreed to sell the house in question to this defendant for a sum of ` 27,50,000/- and towards the part performance of the agreement, he had even deposited a sum of ` 2, 75,000/- as earnest money on 21.6.1995 and 22.6.1995, respectively and since the defendant No.1 had failed to get the sale deed executed, therefore, the defendant No.2 had filed a separate suit for specific ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 11 performance against defendant No.1 which was pending adjudication in the Court of Sub Judge 1st Class, Chandigarh. It .
was further contended that since the suit filed by defendant No.2 for specific performance had already been decreed on 19.2.2003, the suit was no longer maintainable and rendered infructuous.
7. On merits, it was averred that defendant No.1 had of agreed to sell the house in question to defendant No.2 and had also received the earnest money much prior to the claim sought to rt be put forth by the plaintiff. He accordingly prayed for dismissal of the suit.
8. The defendant No.3 filed separate written statement wherein apart from raising number of preliminary objections, the suit was also contested on merits. Since the defence of defendant No.3 has been curtailed by the judgment of the Hon'ble Supreme Court only the relevant portions of the written statement are being taken note of.
9. The defendant No.3 in his preliminary objection averred that there was no privity of contract between the plaintiff and defendant No.1, so on this ground alone, the suit deserved to be dismissed as not only the suit was not maintainable but even the plaintiff had no locus standi to file the same and was therefore, not entitled to the relief against the defendant. It was claimed that the plaintiff has no cause of action and that his conduct was totally malicious and dishonest as he wanted to usurp and grab the property of defendant No.1 for someone else.
It is claimed that the plaintiff had filed the suit at the instance of ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 12 Sh. K.S. Grewal and his wife Dr. Gurjeewan Grewal, who wanted to grab the property by hook and crook. The plaintiff had been put .
up by the above mentioned two persons and totally false, fabricated and concocted allegations had been made by the plaintiff in the suit which was liable to be dismissed on this ground alone. It was further claimed that the suit filed by the of plaintiff was without any basis and the same did not disclose any cause of action. It is further claimed that even the banker cheque rt dated 21.6.1995 for a sum of ` 3,20,000/- was issued by Punjab and Sind Bank, Sector-11, Chandigarh in favour of defendant No.1 after this amount had been transferred from the saving bank account No. 10142 (HUF) of Sh. K.S. Grewal which proved that he was the real plaintiff in this case. This amount according to the defendant was sought to be deposited by Sh. K.S.Grewal in the account of defendant No.1 without the consent or his knowledge and by putting a fake and fictitious person (Arjan Singh), who was a close associate and friend of Sh. K.S. Grewal.
On the same grounds, the plea of benami transaction was also taken. It was claimed that Smt. and Sh. K. S. Grewal are already tenants in the premises and therefore, were aware of the bank account of the defendant No.1 and so the amount of ` 3,20,000/-
was deposited by them in the account of defendant No.1 to show that the earnest money was being deposited which was without the consent and knowledge of the defendant No.1. It was not denied that this defendant had purchased the house in question ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 13 being the nominee of Sh. Sanjeev Sharma i.e. defendant No.2 and claimed that the sale in his favour was perfectly legal and valid.
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10. The plaintiff filed replication to the written statement filed by defendants No. 1 and 2 and controverted the allegations levelled in the written statement and reiterated the averments made in the plaint. Insofar as the replication to the written of statement of defendant No.3 is concerned, it was for the first time that the plaintiff admitted that banker's cheque for a sum of rt `3,20,000/- dated 21.6.1995 had been prepared after transferring the amount from the account of Sh. K.S. Grewal, but denied that the amount was sought to be deposited in the account of defendant No.1 by Sh. K.S. Grewal without the consent of defendant No.1 or that the plaintiff was a fake and fictitious person.
11. On 10.12.2005 the following issues came to be framed:
(1) Whether the defendant No.1 had entered into agreement to sell house in question with the plaintiff, as alleged? If so, when and to what effect? OPP (2) Whether the plaintiff had deposited an amount of Rs.3,20,000/- in pursuance of the agreement to sell with the defendant No.1 with the specific permission, consent and authority of Dr. S.R. Bawa, defendant No.1? If so, to what effect? OPP (3) Whether in alternative the plaintiff is entitled to recover the sum of Rs.10 lacs as damages and the sum of Rs.3,20,000/-
allegedly deposited by him in the account of defendant No.1 alongwith interest @ 12% P.A. as prayed for? OPP (4) Whether the plaintiff was ready and willing to perform his part of the said agreement to sell? If so, to what effect? OPP ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 14 (5) Whether the defendant No.1 S.R. Bawa was not competent to repudiate the agreement to sell, as alleged? OPP (6) Whether the defendant No.1 had already agreed to sell the .
house in question to defendant No.2 prior to the said agreement in favour of plaintiff, as alleged? If so, to what effect? OPD-2.
(7) Whether the defendant No.2 had obtained the decree for specific performance of the agreement to sell in his favour of against the defendant No.1 on 19.2.2003? If so, to what effect? OPD-2.
(8) Whether the plaintiff has no cause of action? OPD (9) rt Whether the plaintiff is estopped by his own acts and conduct from challenging the validity and legality of the decree passed in civil suit titled as Sanjeev Sharma vs. S.R. Bawa on 19.2.2003, as alleged? OPD (10) Whether the plaintiff has no locus standi to file the present suit? OPD (11) Whether the present suit is barred by the principle of resjudicata? OPD-3.
(12) Whether the defendant No.3 is bonafide purchaser for consideration and without notice of the oral agreement to sell between defendant No.1 and plaintiff? OPD-3. (13) Whether the plaintiff has entered into Benami transaction, as alleged? OPD-3 (14) Whether the suit is liable to be dismissed with specific cost?
OPD-3.
(15) Relief.
12. However, before proceeding further, it may be relevant to observe that at one stage the proceedings were carried out to the Hon'ble Supreme Court and in light of the decision rendered by it only issues Nos. 1, 2, 3, 4, 5, 8, 13, 14 and 15 alone as per the joint representation of the parties survive for adjudication.
::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 15Issues No. 1, 2, 3, 4 & 5:
13. These issues are being clubbed as they are not only .
interconnected but are otherwise closely related and would otherwise dispose of the suit in terms of mandate of Order 20 Rule 5 CPC.
14. The plaintiff appeared as PW-1 and has in his of statement virtually reiterated the contents of the plaint and the same is not being reproduced in order to avoid repetition and rt duplication. In addition, the plaintiff exhibited the following documents in his statement:
(i) Carbon copy of the letter dated 23.6.1995 Ex.P-1 (objected to).
(ii) Photocopy of the agreement Ex.P-2 (objected to).
(iii) Courier receipt Ex.P-3.
(iv) Carbon copy of the letter written by Mr. Sethi to defendant No.1 Ex.P-4(objected to).
(v) Postal receipt Ex.P-5 (objected to) and accompanying his letter written to defendant No.1 Ex.P-6(objected to).
(vi) Reply received from defendant No.1 vide letter Ex.P-7.
(vii) Cheque accompanying Ex.P-7 for an amount of ` 3,20,000/- Ex.P-8.
(viii) Letter sent by the plaintiff through Mr. Sethi Ex.P-9 (objected to).::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 16
(ix) Letter alleged to be refused by defendant No.1 Ex.P-10 (objected to).
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(x) Alleged original of Ex.P-9 as Ex.P-11 (objected to).
(xi) Sealed envelope containing the cassette Ex.P-12.
(xii) Transcript of the tape recorded conversation as of Ex.P-13 (objected to).14.
15. Before proceeding any further, it would be worthwhile rt to notice that while the plaintiff was being examined as PW-1, the letter alleged to have been sent by him vide Ex.P-9 to the defendant No.1, which he refused and was alleged to be contained in the envelope containing the endorsement of refusal was Ex.P-10, was infact found to be opened and the learned counsel representing the defendant at that time had objected to the same and had pointed out that the original letter had been taken out without tearing the envelope.
16. Now, certain facts which have come out in the cross-
examination of PW-1 may be noticed. The plaintiff in the opening Line of his cross-examination has admitted that he had never met the defendant No.1 during the period he had been working in the Punjab University and saw him for the first time about 20-25 years back. He did not recollect whether he had any talk with him at that time. He stated that he for the first time had a talk with defendant No.1 on 30.10.1995 at his residence in Sector-11, Chandigarh. Thereafter, he had no meeting or sitting with defendant No.1. He further stated that he did not remember when ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 17 for the first time he had asked Mr. Sethi to find a house for him in Chandigarh. He further stated that it was few weeks prior to .
20.6.1995 that he got in touch with Mr. Sethi regarding the house in dispute and did not know as to whether Mr. Sethi had already talked to Bawa when he informed him that the negotiations could be done for the house in question. He has further stated that of defendant No.1 was to execute the sale deed by August, 1995 on his coming to India for the purpose and during that period the rt other formalities were to be completed by him. He, however, states that it was not decided at that time whether the said formalities for the execution of the sale deed in August, 1995 were to be completed by him or by appointing some attorney. He volunteered that the defendant No.1 had committed to come to India. He also stated that Mr. Grewal was already known to Mr. Sethi and the calls as mentioned in the plaint and in examination in chief were made from the house of Mr. Grewal.
17. He however made a very vital admission to the effect that the interest of Mr. Grewal in the deal was that since he himself could not arrive at an agreement with defendant No.1 for purchasing the house so he asked the plaintiff to arrive at an agreement with him. He further states that his agreement with Mr. Grewal was that in case he succeeds in purchasing the house, then the plaintiff would be entitled to the top storey and he (Grewal) would purchase the ground floor. This agreement with Mr. Grewal had taken place few days prior to the telephonic conversation with defendant No.1 on 20.6.1995. He further states ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 18 that the settlement between him and Mr. Grewal of the respective portions was in the ratio of 60: 40. Mr. Grewal was to contribute .
60% of the sale price. He further goes on to state that Mr. Grewal had in fact tried to purchase the house from the defendant No.1 but failed and he did not know as to what was the offer given by him. He further states that no limit was fixed between PW-1 and of Mr. Grewal for the purchase of the said house, but it was to be a reasonable extent.
18. rt When PW-1 was called for his further cross-
examination on 4.5.2002, he stated that after the settlement on 20.6.1995 the agreement in writing was to be prepared which till date had not been written and finalised. Though, he volunteered to state that he had signed the same and sent it to defendant No.1, who did not return the same. He clearly stated that he had never talked to defendant No.1 regarding the execution of the documents and the whole conversation was with the broker Sh.
Sethi (PW-2).
19. In his further cross-examination on 31.5.2002, the plaintiff admitted that as soon as the defendant No.1 came to know that the amount had been deposited, he thereafter returned the money by issuing a cheque of ` 3,20,000/- in the name of broker Sh. Amarjeet Singh Sethi (PW-2) and volunteered to state that the cheque was sent after four months. He further claimed to be alone in the investment of the property and claimed that PW-2 Mr. Sethi had no interest in this regard. He also goes on to state that when defendant No.1 did not come for the execution of the ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 19 sale deed upto 31.8.1995 he did not try to write any letter to him and volunteered to state that the broker might have written some .
letter.
20. The plaintiff after the impleadment of defendant No.3 was called for further cross-examination on 10.11.2010 wherein he admitted that Mr. Grewal was residing in the ground floor of of the property and he did not know as to whether his wife was the tenant of the suit property. He however, clearly admitted that rt banker's cheque of `3,20,000/-had been given by Mr. Grewal. He clearly admits that defendant No.1 had declined the request of Mr. and Dr.(Mrs.) Grewal to sell the property to them. He further goes to state that he of his own decided to record the conversation between himself and the defendant No.1.
21. Now, coming to the evidence of Mr. Sethi, he appeared as PW-2 and in his evidence by way of affidavit has reiterated the contents of the plaint insofar as they relate to him and, therefore, the same need not be referred to in view of the pleadings of the parties extracted in extenso above. However, certain facts which have now come out in the cross-examination of PW-2 may also be noticed.
22. PW-2 has clearly stated that he is no longer doing the business of property dealer after November, 1995 and has joined the legal profession. He worked as a property dealer from 1979 to 1995 and used to receive the clients, who intended to purchase and sell properties. He used to maintain the register/ diary for the said prospective purchasers and sellers. Arjan Singh, PW-1 had ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 20 contacted him in the first week of June, 1995 for the purchase of the property, but then states that he did not know whether he .
made an entry of his being an intending purchaser of the said property. Further he goes to state that in March/April, 1995 there was an advertisement in the newspaper for the sale of the suit property wherein there was a reference of the contact person.
of There was a reference of friend of defendant No.1 who used to reside in Sector 16 Chandigarh whose name or address he did not rt remember though he met the said contact person in March/April 1995 just after the advertisement. He further states that he did not keep any record of the same. In June, 1995 when PW-
1contacted him and also told him that the house in question was for sale, he in turn told him that he already knew about this fact.
The contact man according to PW-2 informed him that the demand of defendant No.1 was of Rs. 30,00,000/-. The ground floor was on rent while the first floor was in occupation of defendant No.1. He did not show this house to any other person.
He admitted that he had staff in his office at that time. His employee B.D. Sharma, who was working at the relevant time, has since died. He admitted that he could not produce any record of the said advertisement. He further admitted that he knew Mr. K.S. Grewal prior to the meeting held on 20.6.2015. According to this witness, the plaintiff had intimated in the first week of June, 1995 that he has surplus funds and therefore, he wanted to invest the same in some property. Neither he nor the plaintiff checked the rate of rent of the ground floor portion of the house in question ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 21 which was under the occupation of the tenant. He did not check either from the owner or from the tenant whether any litigation is .
going on between them. He also did not check what was the rate of rent of the tenant on the ground floor.
23. In the cross-examination conducted subsequently on 3.1.2003, PW-2 has clearly stated that he was not able to recollect of the name of the contact person whom he had contacted after the advertisement of the sale of the house nor could he recollect the rt house number. He further admitted that he had made no entry regarding the telephone calls made to defendant No.1 and remembered the same orally. He volunteered to state that the written record may have been maintained by the plaintiff PW-1 but he did not check this with the plaintiff. He specifically stated that he had never called the defendant No.1 from his office phone.
He specifically states that though he knew Mr. Grewal since long but he did not remember when for the first time he had met him, but states that he knew him prior to 1995, though he had not visited his house prior to 20.6.1995. He further states that he did not know what interest Mr. Grewal had in the deal in question. He goes on to state that neither the plaintiff nor Mr. Grewal, informed him about the same. With respect to the agreement, he had claimed that though he had signed the copy of the agreement and copy thereof but admits that agreement Ex.P-2 does not bear his signatures. He admits that he has no proof of delivery of letter dated 5.2.1995 to defendant No.1 and further states that he did ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 22 not even try to seek confirmation regarding the delivery of this letter.
.
24. In his further cross-examination conducted on 11.1.2003, it is specifically stated that the plaintiff neither tried to contact the defendant No.1 in person individually nor wrote any letter to him. He further states that he did not know for how long of the recording on the tape recorder was conducted. Further states that the translation of the conversation was done by PW-1 but not rt in his presence. He has specifically stated that he did not compare the translation filed in the Court with the conversation in the tape recorder. He admits that the parties to the transaction i.e. plaintiff and defendant No.1 came face to face for the first time only on 31.10.1995 and no talk ever took place between the parties before 31.10.1995. He further states that he did not submit the audio tape in the Court nor could he say whether it was the same tape which was alleged to have been recorded on 31.10.1995. He thereafter specifically states that no agreement was finalized between the parties on 31.10.1995 and on the said date he had gone to defendant No.1 to tell him to get NOC for the sale of the house but the defendant No.1 neither gave anything in writing nor confirmed his intention to sell the house.
25. This witness was thereafter cross-examined by defendant No.3 on 10.11.2010 wherein he states that he visited the suit property only after the issuance of advertisement. He further stated that he did not inquire as to in what capacity Mr. Grewal was occupying the part of the suit property. He further ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 23 states that plaintiff had brought the pay order and deposited the same on 22.6.1995, but today he knows that pay order was in fact .
prepared from the account of Mr. Grewal. He feigned ignorance regarding the offer made by Mr. Grewal having been turned down by defendant No.1 and also feigned ignorance regarding another banker's cheque amounting to Rs.3,70,000/-having been of prepared by Mr. Grewal from the same bank on the same date. He further states that he did not make any inquiry from the market rt as to whether the property was free from encumbrances or whether any negotiations for sale of the property were going on earlier or not.
This is the entire evidence led on behalf of the plaintiff.
26. Insofar as the case of defendant No.3 is concerned, he would only succeed if the plaintiff fails to establish his claim. This observation is made on the basis of the decision rendered in this case by the Hon'ble Supreme Court whereby it not only set aside the compromise entered between the defendants herein but further held that defendant No.3 would also not be entitled to the plea of bonafide purchaser for consideration.
27. At this stage, it may be noticed that defendant No.1 has though filed his written statement and has also allegedly filed an amended written statement to the amended plaint, but the same is only signed by the Advocate. However, the defendant No.1 has failed to step into the witness box and subject himself to cross-examination and having been failed to do so, I am left with no other option but to draw an adverse inference against him ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 24 because it is more than settled that where a party to the suit does not appear into the witness box and states his own case on oath .
and does not offer himself to be cross-examined by other side, a presumption would arise that the case set up by him is not correct. (Refer: Vidhya Dhar vs. Manikrao, (1999) 3 SCC 573, Janki vs. IndusInd Bank (2005) 2 SCC 217, Man Kaur vs. of Hartar Singh Sangha, (2010) 10 SCC 512).
28. Despite an adverse inference having been drawn rt against defendant No.1, the plaintiff will still have to prove his case and cannot otherwise rely upon the weakness of the defendants. It is more than settled that the plaintiff is bound to prove his case to the satisfaction of the Court and his burden is not lightened merely because the defendant is either absent or does not step into the witness box for stating his case on oath and thereafter affording himself for cross-examination.
29. Here, I may also observe that the onus of proof is on the plaintiff to prove that there was an oral agreement between the plaintiff and the first defendant, which fact cannot be lost sight of while scrutinizing the evidence on record.
30. Mr. Bhogal, learned Senior Counsel assisted by Mr. B.C. Rajput, Advocate, has vehemently argued that the plaintiff has been able to establish on record that there was a concluded contract between the plaintiff and defendant No.1 which was concluded on 20.6.1995 through telephonic (oral) agreement between the broker PW-2 who was acting on behalf of PW-1 and defendant No.1 to accept the plaintiff's offer of Rs.32,00,000/-.
::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 25This agreement was settled between the parties and in furtherance thereto the terms of the agreement were duly recorded in the .
written agreement to sell. The earnest money of Rs.3,20,000/-
(10%) was deposited in the account of defendant No.1, the number whereof was given over the telephone.
31. According to learned counsel for the plaintiff, the of provisions of Sections 3 to 8 of the Indian Contract Act, 1872 establish that the contract was complete on 20.6.1995 when the rt defendant No.1 accepted the offer/proposal of the plaintiff which was communicated by his agent PW-2 during the telephonic conversation and thereafter the terms as stated above were settled and all these facts have been duly proved not only in the statements of PW-1 and PW-2 but are duly established by a perusal of the letter dated 23.6.1995 Ex.P-1, agreement to sell dated 23.6.1995 Ex.P-2, tape recoding dated 31.10.1995 Ex.P-12, transcript of tape recording Ex. P-13 and admissions made by defendant No.2 in his replication dated 28.5.1998 Ex.PG.
32. At this juncture, it is worthwhile to observe that in order to constitute a valid agreement there should be consensus ad-idem so to say meeting of mind between the contracting parties
- plaintiff and the first defendant herein. The core question, therefore, arise as to whether oral agreement between the plaintiff and the first defendant is established by the so called correspondence and telephonic conversation, as canvassed by the plaintiff in this case.
::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 2633. In this connection, the cardinal principle to be remembered is that it is the duty of the Court to construe .
correspondence with a view to arrive at a conclusion whether there was any meeting of mind between the parties, which would create a binding contract between them. But, the Court is not empowered to create a contract for the parties, unless from the of correspondence it unequivocally and clearly emerges that the parties were ad idem to bring into existence a mutually binding rt contract. The intention of the parties is to be gathered from the expressions used in the correspondence and the meaning it conveys and in case it shows that there had been meeting of mind between the parties and they had actually reached an agreement, upon all material terms, then and then alone can it be said that a binding contract was capable of being spelt out from the correspondence or the telephonic conversation.
34. In Mayawanti vs. Kaushalya Devi (1990) 3 SCC 1 the Hon'ble Supreme Court observed that the burden of proof was on the plaintiff seeking specific performance of the contract that there was a valid and binding contract between the parties in respect of which the party should be consensus ad idem and the opposite party may take any defence available under the law. It is apt to reproduce paras 8 and 19 of the judgment, which reads thus:
"8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 27 which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a con- tract for them. Specific performance will not be .
ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and of enforceable contract and then to see the nature and obligation arising out of it. The con- tract being the foundation of the obligation the order of specific performance is to enforce that rt obligation.
19. The jurisdiction of the court in specific performance is discretionary. Fry in his Specific Performance, 6th Edn. P. 19, said:
"There is an observation often made with regard to the jurisdiction in specific performance which remains to be noticed. It is said to be in the discretion of the Court. The meaning of this proposition is not that the Court may arbitrarily or capriciously perform one contract and refuse to perform another, but that the Court has regard to the conduct of the plaintiff and to circumstances outside the contract itself, and that the mere fact of the existence of a valid contract is not conclusive in the plaintiff's favour. 'If the defendant', said Plumer V.C., can show any circum-
stances dehors, independent of the writing, making it ineq- uitable to interpose for the purpose of a specific perform- ance, a Court of Equity, having satisfactory information upon that subject, will not interpose."
The author goes on to say that of 'the circumstances calling for the exercise of this discretion, "the Court judges by settled and fixed rules; hence the discretion is said to be not arbitrary or capricious but judicial; hence, also, if the contract has been entered into by a competent party, and is unobjectionable in its nature and circumstances, specific performance is as much a matter of course, and therefore of right, as are damages. The mere hardship of the results will not affect the discretion of the court."
35. Similarly, in Rickmers Verwaltung GMBH vs. Indian Oil Corporation Ltd. (1999) 1 SCC 1 the Hon'ble Supreme Court held that even if an agreement was not signed by the parties, but ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 28 the consensus ad idem could be spelt out from contemporaneous correspondence exchanged between the parties, the Court can .
construe the correspondence to gather the intention of the parties that emerged unequivocally and clearly from the expressions used therein, meaning the expressions conveyed and how the parties acted. But the Court cannot make out a contract of by going beyond the clear language used in the correspondence. It is apt to reproduce paras 13 and 14 of the judgment, which reads thus:
rt "13. In this connection the cardinal principle to remember is that it is the duty of the court to construe correspondence with a view to arrive at a conclusion whether there was any meeting of mind between the parties, which could create a binding contract between them but the Court is not empowered to create a contract for the parties by going outside the clear language used in the correspondence, except insofar as there are some appropriate implications of law to be drawn. Unless from the correspondence it can unequivocally and clearly emerge that the parties were ad idem from that material to infer whether the intention as expressed in the correspondence was to bring into existence a mutually binding contract. The intention of the parties is to be gathered only from the expressions used in the correspondence and the meaning it conveys and in case it shows that there had been meeting of mind between the parties and they had actually reached an agreement, upon all material terms, then and then alone can it be said that a binding contract was capable of being spelt out from the correspondence.
14. From a careful perusal of the entire correspondence on the record, we are of the opinion that no concluded bargain had been reached between the parties as the terms of the standby letter of credit and performance guarantee were not accepted by the respective parties. In the absence of acceptance of the standby letter of credit and performance guarantee by the parties, no enforceable agreement could be said to have come into existence.::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 29
The correspondence exchanged between the parties shows that there is nothing expressly agreed between the parties shows that there is nothing expressly agreed between them and no concluded .
enforceable and binding agreement come into existence between them. Apart from the correspondence relied upon by the learned single Judge of the High Court, the fax messages exchanged between the parties, referred to above go to show that the parties were only negotiating and had not arrived at any agreement. There is a vast difference between negotiating a bargain and of entering into a binding contract. After negotiation of bargain in the present case, the stage never reached when the negotiations were completed giving rise to a binding contract. The learned single rt Judge of the High Court was, therefore, perfectly justified in holding that Clause 53 of the Charter Party relating to Arbitration had no existence in the eye of law, because no concluded and binding contract ever came into existence between the parties. The finding recorded by the learned single Judge is based on a proper appreciation of evidence on the record and a correct application of the legal principles. We find no merit in this appeal. It fails and is dismissed with costs."
36. From the evidence available on record, it is clearly established that insofar as the plaintiff is concerned, he never ever even had a talk with defendant No.1 over the telephone despite the fact that he was supposedly the intending purchaser and was also hearing the conversation on the parallel line when the alleged deal was struck.
37. Further, it has come in evidence that the so called earnest money was in fact paid from the account of Mr. Grewal, who in fact was interested in the transaction. The entire evidence goes to show that there was no privity of contract either oral or documentary because even the documentary evidence by way of agreement retained by PW-1 and PW-2, which is alleged to be the photocopy of the agreement sent to defendant No.1 for signatures ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 30 does not bear any signature of PW-2 though he had claimed to have signed the same.
.
38. It is also clear that the plaintiff never even talked to defendant No.1 over the telephone prior to 31.10.1995 and, therefore, there was no such meeting of mind between the plaintiff and first defendant at any point of time relating to any oral of agreement to sell. The incontrovertible and indubitable fact is that there was no concluded contract of oral agreement to sell between rt the plaintiff and the first defendant.
39. Another intriguing fact which cannot be ignored is that in case there was a privity of contract between the plaintiff and defendant No.1, then why the defendant No.1 did not appoint a power of attorney to execute the sale deed. That apart, what prevented the plaintiff from contacting the defendant No.1 directly is also not forthcoming.
40. Learned counsel for the plaintiff, at this stage, would seek to invoke the provisions of Section 15 (2) of the Specific Relief Act, to claim that even if Mr. Grewal was interested in the deal, the suit in his absence was still maintainable under Section 15 (2) of the Specific Relief Act, which reads thus:
"15. Who may obtain specific performance.--Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by--
(a) any party thereto;
(b) the representative in interest or the principal, of any party thereto: Provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 31 be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his .
principal, has been accepted by the other party;
(c) where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder;
(d) where the contract has been entered into by a tenant for life in due exercise of a power, the reminderman;
of
(e) a reversioner in possession, where the agreement is a covenant entered into with his predecessor in title and the reversioner is entitled to the benefit of such covenant; rt
(f) a reversioner in remainder, where the agreement is such a covenant, and the reversioner is entitled to the benefit thereof and will sustain material injury by reason of its breach;
(g) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;
(h) when the promoters of a company have, before its incorporation, entered into a contract for the purposes of the company, and such contract is warranted by the terms of the incorporation, the company:
Provided that the company has accepted the contract and has communicated such acceptance to the other party to the contract."
I am afraid that this contention of the plaintiff cannot be accepted for the simple reason that there is no pleading whatsoever to this effect and moreover Mr. Grewal was perforce introduced in this lis after the defendant No. 3 filed his written statement giving details and mentioning in detail his role in the entire deal.
41. It has also come in evidence that defendant No.1 had returned the so called earnest money to PW-2 and not PW-1. This fact in itself is a clear indicator that there was no concluded contract between the plaintiff and defendant No.1 or else there ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 32 was no occasion for defendant No.1 to have returned the money, that too, to PW-2.
.
42. That apart, there are major contradictions in the statements of PW-1 and PW-2 insofar as they relate to their conversation regarding the defendant No.1 coming to India. PW-1 states that he went to PW-2 to enquire when defendant No.1 of would be coming to India, whereas PW-2 states that he went to contact PW-1 in order to ascertain when defendant No.1 would be rt coming to India.
43. At this stage, I may take notice of a very important fact which goes to the root of the case and casts a serious doubt on the plaintiff's case and the same is regarding the letter alleged to have been sent by PW-1 vide Ex.P-9 to defendant No.1 and the envelope containing the endorsement of refusal Ex.P-10, was found to be opened. In such circumstances, I have no doubt in my mind that the letter inside the envelope had been tampered with only to create evidence in support of the plaintiff's case.
44. Once from the correspondence exchanged between the parties, it can be concluded that there was no meeting of mind between them so as to create a binding contract between them, the plaintiff then on the basis of the telephonic conversation is required to establish his case as per the parameters laid down by the Hon'ble Supreme Court in Bhagwandas Goverdhandas Kedia vs. M/s Girdharlal Parshottamdas and Co., and others, AIR 1966 SC 543, wherein it was held as under:
"5. By a long and uniform course of decisions the rule is well- settled that mere making of an offer does not form part of the ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 33 cause of action for damages for breach of contract which has resulted from acceptance of the offer: see Baroda Oil Cakes Traders v. Purshottam Narayandas Bagulia and Anr(1). The view .
to the contrary expressed by a single Judge of the Madras High Court in Sepulchre Brothers v. Sait Khushal Das Jagjivan Das Mehta ( 2 ) cannot be accepted as correct.
14. Obviously the draftsman of the Indian Contract Act did not envisage use of the telephone as a means of personal conversation of between parties separated in space, and could not have :intended to make any rule in that behalf. The question then is -whether the ordinary rule which regards a contract as completed ,only when acceptance is intimated should apply, or whether the exception rt engrafted upon the rule in respect of offers and acceptances by post and by telegrams is to be accepted. If regard be had to the essential nature of conversation by telephone, it would be reasonable to hold that the parties being in a sense in the presence of each other, and negotiations are concluded by instantaneous communication of speech, communication of acceptance is a necessary part of the formation of contract, and the exception to the rule imposed on grounds of commercial expediency is inapplicable.
31. It will be seen from the above discussion that there are four
-classes of cases which may occur when contracts are made by telephone : (1) where the acceptance is fully heard and understood; (2) where the telephone fails as a machine and the proposer does not hear the acceptor and the acceptor knows that his acceptance has not been transmitted; (3) where owing to some fault at the proposer's end the acceptance is not heard by him and he does not ask the acceptor to repeat his acceptance and the acceptor believes that the acceptance has been communicated; and (4) where the acceptance has not been heard by the proposer and he informs the acceptor about this and asks him to repeat his words. I shall take them one by one.
32. Where the speech is fully heard and understood there is a binding contract and in such a case the only question is as to the place where the contract can be said to be completed. Ours is that kind of a case. When the communication fails and the -acceptance is not heard, and the acceptor knows about it, there (1) (1787) 102 E.R. 1192. (2) G.F. (2nd) 109 C.C.A. 8. (3) 275 S.W. 70 (Tex Civ.::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 34
App.) 6 7 9 is no contract between the parties at all because communication means an effective communication or a communication reasonable in the circumstances, Parties are not ad .
idem at all. If a man shouts his acceptance from such a long distance that it cannot possibly be heard by the proposer he cannot claim that he accepted the offer and communicated it to the proposer as required by s. 3 oil our Contract Act. In the third case, the acceptor transmits his acceptance but the same does not reach the, proposer and the proposer does not ask the acceptor to repeat of his message. According to Lord Denning the proposer is bound because of his default. As there is no reception at the proposer's end, logically the contract must be held to be complete at the rt proposer's end. Bringing in considerations of estopped do not solve the problem for us. Under the terms of s. 3 of our Act such communication is good because the acceptor intends to communicate his acceptance and follows a usual and reasonable manner and puts his acceptance in the course of transmission to the proposer. He does not know that it has not reached. The contract then results in much the same way as in the case of acceptance by letter when the letter is lost and in the place where the acceptance was put in course of transmission. In the fourth case if the acceptor is told by the offeror that his speech cannot be heard there will be no contract because communication must be effective communication and the act of acceptor has not the effect of communication it -and he cannot claim that he acted reasonably.
33. We are really not concerned with the case of a defective machine because the facts here are that the contract was made with the machine working perfectly between the two parties. As it is the proposer who is claimigi that the was complete hi.-, end, s. 4 of our Act must be read because it creates t special rule. It is "a rather peculiar modification of the rule applicable to acceptance by post under the English Comnion law Fortunately the language of s. 4 covers acceptance telephone wireless etc. The section may be quoted at this stage:
"4. Communication when complete. The communication of a proposal is complete when it comes to ,he knowledge of the person to whom it is made.
The communication of an acceptance is complete, -::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 35
as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor;
.
as against the acceptor, when it comes to the knowledge of the proposer.
** ** ** ** ** It will be seen that the communication of a proposal is complete when it comes to the knowledge of the person to whom it is made but a different rule is made about acceptance. Communication of of an acceptance is complete in two ways-(1) against the proposer when it is put in the course of transmission to him so as to be out of the Power of the acceptor; and (2) as against the acceptor when rt it comes to the knowledge of the proposer. The theory of expedition which was explained above has been accepted. Section 5 of the Contract Act next lays down that a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards and an acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards. In the third case in my above analysis this section is bound to furnish difficulties, if we were to accept that the contract Is only complete at the proposer's end.
34. The present is a case in which the proposer is claiming the benefit of the completion of the contract at Ahmedabad. To him the acceptor may say that the communication of the acceptance in so far as he was concerned was complete when he (the acceptor) put his acceptance in the course of transmission to (the proposer) so as to be out of his (the acceptor's) power to recall. It is obvious that the, word of acceptance was spoken at Khamgaon and the moment the acceptor spoke his acceptance hi, put it in course of transmission to the proposer beyond his recall. He could not revoke his acceptance thereafter. It may be that the gap of time was so short that one can say that the speech was heard instantaneously, but if we are to put new inventions into the frame of our statutory law we are bound to say that the acceptor by speaking into the telephone put his acceptance in the course of transmission to the proposer, however quick the transmission. What may be said in the English Common law, which is capable of being moulded by judicial dicta, we cannot always say under our statutory law because we have to guide ourselves by the language ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 36 of the statute. It is contended that the communication of an acceptance is complete as against the acceptor when it comes to the knowledge of the proposer but that clause governs cases of .
acceptance lost through the fault of the acceptor. For example, the acceptor cannot be allowed to say that he shouted his acceptance and communication was complete where noise from an aircraft overhead drowned his words. As against him the communication can only be complete when it comes to the knowledge of the proposer. He must communicate his acceptance reasonably. Such of is not the case here. Both sides admit that the acceptance was clearly heard at Ahmedabad. The acceptance was put in the course of transmission at Khamgaon and under the words of our rt statute I find it difficult to say that the contract was made at Ahmedabad where the acceptance was heard and not at Khamgaon where it was spoken. It is plain that the law was framed at a time when telephones, wireless, Telstar and Early Bird were not contemplated. If time has marched and inventions have made it easy to communicate instantaneously over long distance and the language of our law does not fit the new conditions it can be modified to reject the old principles. But we cannot go against the language by accepting an interpretation given without considering the language of our Act."
45. As observed earlier, the plaintiff himself had never talked to defendant No.1 and till that stage even the earnest money had been paid by Mr. Grewal and not the plaintiff.
Furthermore, there is no document to prove on record that PW-2 was in fact the broker acting on behalf of the plaintiff. That apart, even the telephonic conversations no where establishes that there was a meeting of mind between the parties so as to create a binding contract between them. As observed by the Hon'ble Supreme Court, this Court cannot create a contract when none-exist.
46. Now, adverting to the conversation recorded and its transcript, it may be observed that insofar as the transcript of the ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 37 conversation is concerned, there is no legal proof of the same.
PW-1 in his cross-examination has clearly stated that all the .
documents which he had placed on record as Ex.P-1 to Ex.P-13 were in the file of PW-2 which he had obtained prior to filing of the suit. Insofar as the transcript Ex.P-13 is concerned, none of the witnesses has proved the same. PW-1 claims to have obtained the of same from PW-2, whereas PW-2 categorically states in his cross-
examination that the translation appearing in Ex.P-13 was done rt by Arjan Singh but not in his presence.
47. Now, coming to the tape recorded conversation, the same can be discarded on the sole ground that there is no sample recording of the voice of defendant No.1 and in absence thereof, this Court cannot presume that the voice of the so called seller in this case is that of defendant No.1.
48. That apart, the conversation itself leads nowhere as the same does not establish that there was a meeting of mind whereby the parties were ad idem to bring into existence a mutually binding contract.
49. In Ram Singh vs. Col. Ram Singh 1985 Supp SCC 611, the Hon'ble Supreme Court laid down that a tape-recorded statement would be admissible in evidence subject to the following conditions:
"(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 38 determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape-recorded statement has to be .
proved by the maker of the record by satisfactory evidence
- direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
of (4) The statement must be relevant according to the rules of the Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in (6) rt a safe or official custody.
The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
Judged in light of the aforesaid principles, it would be seen that the so called tape-recordings and the transcripts have not been duly proved as per the conditions laid down in the aforesaid case and can therefore be safely discarded.
50. In addition to the aforesaid, once the defendant No.1 has returned the cheque, the contract, if any, would stand repudiated and in such circumstances, the suit seeking specific performance would not be maintainable and it was incumbent upon the plaintiff to have sought declaration to this effect as per the judgment passed by the Hon'ble Supreme Court in I.S. Sikandar (dead) by LRs vs. K. Subramani and others (2013) 15 SCC 27 wherein it was held as under:
"17. The said legal contention was seriously contested on behalf of the 5th defendant justifying the finding and reasons recorded by the trial court on the above contentious issue No.3 contending that the trial court on proper appreciation of pleadings and evidence on record has rightly answered in his favour and against the plaintiff. He has further contended that the reply notice dated ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 39
16.03.1985 which was issued by the plaintiff shows the delay and inconvenience caused by the plaintiff to the vendors of the 5th defendant. The vendors waited patiently by extending time for .
registration of the sale deed in respect of the suit schedule property and the plaintiff was called upon by them to get the sale deed executed in his favour by paying the balance sale consideration, but he had avoided the same on one pretext or the other leading to the conclusion that he was not ready and willing to perform his part of contract and therefore they rescinded the of contract and executed the sale deed dated 30.05.1985 in favour of the 5th defendant in respect of the suit schedule property.
28. In another decision in A. Maria Angelena v. A.G. Balkis Bee rt (2002) 9 SCC 597, this Court has made observations with reference to the plea that for grant of a decree for specific performance would result in serious hardship to the vendor or the subsequent purchaser and that the plaintiff should be compensated in terms of money must be taken at the earliest stage."
Since there is no concluded contract between the plaintiff and defendant No.1, therefore, he cannot be held entitled to recover a sum of `10,00,000/- as damages as claimed.
Moreover, a sum of `3,20,000/- has already been returned to him, therefore, he cannot claim any interest on the same. Accordingly, issues No. 1, 2, 3, 4 and 5 are decided against the plaintiff.
Issue No. 8:
51. In view of the discussion on the aforesaid issues i.e. issues No. 1, 2, 3, 4 and 5, it can conveniently be held that since there was no concluded contract between the plaintiff and defendant No.1, the plaintiff has no locus standi to file the present suit. Accordingly, this issue is answered in favour of the defendants and against the plaintiff.::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 40
Issue No. 13:
52. There is no evidence led by defendant No.3 to prove .
that the plaintiff had entered into a benami transaction as alleged.
Accordingly, this issue is decided against defendant No.3.
Issue No.14:
53. The defendant No.3 has not been able to establish that of the instant was a case where special costs ought to be imposed.
The mere fact that there is no merit in the claim as set out by the rt plaintiff would not ipso-facto attract the imposition of special costs as envisaged under Sections 35 and 35-A of the Code of Civil Procedure. Therefore, this issue is answered against defendant No.3.
In view of the issue-wise findings recorded hereinabove, the suit of the plaintiff is dismissed leaving the parties to bear their own costs. Decree sheet be prepared accordingly.
C.S. No. 116 of 200954. It is fairly submitted by learned counsel for the plaintiff that he has no subsisting interest in the property and, therefore, in light of the aforesaid submission, the suit is dismissed as not pressed, leaving the parties to bear their own costs. Decree sheet be prepared accordingly.
Civil Revision No. 19 of 201155. This revision is directed against the order dated 10.1.2011 passed by the learned Appellate Authority, Shimla under Section 15 (5) of the East Punjab Urban Rent Restriction ::: Downloaded on - 15/04/2017 18:54:28 :::HCHP 41 Act. As the suit filed by the plaintiff being Civil Suit No. 27 of 2008 has been dismissed by the order of the even date, the instant .
revision petition at his instance is therefore, not maintainable and is accordingly dismissed, leaving the parties to bear their own costs.
of
September 9, 2015 ( Tarlok Singh Chauhan ),
(GR) Judge
rt
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