Punjab-Haryana High Court
Vijay Kumar And Anr. vs Punjab Financial Corporation And Anr. on 17 January, 2002
Author: Bakhshish Kaur
Bench: Bakhshish Kaur
JUDGMENT Bakhshish Kaur, J.
1. This is a petition for issuance of a writ in the nature of mandamus to the respondents to execute sale deeds in favour of the petitioners in respect of the properties known as M/s Sabina International, Bathinda and M/s. Holiday Inn, Bathinda in accordance with the terms and conditions of the sale agreements dated 31.3.2000.
2. A perusal of the record shows that the Punjab Financial Corporation (for short, 'the Corporation') took over the properties in question under Section 29 of the State Financial Corporation Act, 1951 (for short, 'the Act') because their owners failed to repay the loan. Both the properties were put to auction on 16.2.2000. The petitioners gave the highest bid of Rs. 34,46,500/- and 37,89,000/- respectively for M/s Sabina International, Bhatinda and M/s Holiday Inn, Bathinda. The competent authority of the Corporation accepted their bid. Thereafter, agreements of sale (Annexures P-1 and P-2) were executed between the petitioners and the Corporation on 31.3.2000. The petitioners paid the full price specified in Annexures P-1 and P-2 and then submitted representations Annexures P-6 and P-7 for execution of he sale deeds. However, instead of performing their part of agreements, the concerned authorities of Corporation issued letters Annexures P-8 and P-9 dated 24.5.2001 vide which the petitioners were called upon to submit the requisite stamp papers for execution of sale deeds. The petitioners have relied on Clause (vi) of sale agreements Annexure P-1 and P-2 vide which Corporation had agreed to bear all expenses, i.e. stamp duty, registration free and other charges necessary for formal transfer of properties in their favour and, therefore, letters Annexures P-8 and P-9 are liable to be declared as void.
3. In their written statement, the respondents have admitted the execution of agreements Annexures P-1 and P-2, but they have resisted the prayer of the petitioners by stating that Clause (vi) had been in two agreements due to inadvertence oversight and in fact, it is the responsibility of the petitioners to submit the requisite stamp duty for execution of the sale deeds. They have further averred that the writ petition should be dismissed because the petitioners have got effective alternative remedy by filing suit for specific performance.
4. We have heard Shri Binderjit Singh, learned for the petitioners and Shri M.S. Bedi, learned counsel for the respondents.
5. Since the controversy between the parties centres around Clause (vi) of sale agreements Annexures P-1 and P-2, it will be useful to notice to contents thereof. The same reads as under:-
"(vi) All expenses i.e. stamp duty, registration fee and other charges relating to the formal transfer of the property in favour of the purchaser shall be borne by the Corporation."
6. In our opinion, the plea of the respondents that the aforementioned clause has been inserted in Annexure P-l and P-2 due to inadvertence or oversight cannot but be termed as wholly misconceived and deserves to be rejected. Equally meritless is the effort made by their counsel to persuade us to read the word 'purchaser' in place of the word 'Corporation' in the said clause.
7. Section 91 of the Evidence Act lays down that "when the terms of a contract, or a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence, shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself..." Emphasising the words, 'the terms of such contract', in fact, this Section is based upon what is sometimes described as "best evidence rule". The best evidence about the contents of the document is the document itself and it is the production of the document that is required by Section 91 in proof of its contents.
8. In Murray's English Dictionary, the expression "terms" (as appearing in Section 91) has been defined as "limiting condition" to mean conditions or stipulations limiting what is proposed to be granted or done. Thus, the rule laid down under Section 91 is that when the terms of a contract have been reduced into writing, no evidence would be given in proof of the terms of the contract except the conduct itself. Therefore, it cannot be constructed that inadvertently or due to oversight, the word 'Corporation' has been written in place of word 'purchaser' who shall bear all the expenses.
9. It is not the case of the respondents that they came to know about this mistake only after the petitioners had filed the writ petition. In fact, the petitioners vide letters Annexures P-4 and P-5 dated 30.3.2001 made request for execution of sale deeds. The Managing Director of the Corporation was again informed vide Annexure P-6 dated 14.5.2001 that the petitioners had made full and final payment against the sale process. Notwithstanding this, the respondents failed to execute the sale deeds.
10. In our opinion, after having accepted the full payment in respect of the two properties, the respondents cannot sit back and evade the liability of executing the sale deeds in favour of the petitioners on the pretext that due to inadvertence, mistake or oversight, the obligation to meet the expenses of registration of the Corporation has arisen.
11. In Gujarat State Financial Corporation v. Lotus Hotels Pvt. Ltd., A.I.R. 1983 S.C. 848, in a somewhat similar case, it was observed that the principles of promissory estoppel would certainly stop the Corporation from backing out of its obligation arising from a solemn promise made by it to the respondent. It is farther observed as under;-
"Now if appellant entered into a solemn contract in discharge and performance of its statutory duty and the respondent acted upon it, the statutory corporation cannot be allowed to act arbitrarily so as to cause harm and injury, flowing from its unreasonable conduct, to the respondent. In such a situation, the Court is not powerless from holding the appellant to its promise and it can be enforced by a writ of mandamus directing it to perform its statutory duty. A petition under Article 226 of the Constitution would certainly lie to direct performance of a statutory duty by 'other authority' as envisaged by Article 12."
12. The petitioners acting upon the solemn promise made by the respondents, had paid huge amount towards the sale price of the properties auctioned about two years ago. The respondents had made use of the amount and in turn, the petitioners have been deprived of the enjoyment of the property. Thus, act of the respondent in not executing the sale deed as per terms and conditions of the agreements Annexure P-1 and P-2 is unreasonable and arbitrary.
13. For the reasons mentioned above, the writ petition is allowed and the respondents are directed to execute sale deeds in respect of the properties in question in accordance with the terms and conditions set out in Annexure P-1 and P-2. This exercise shall be completed within a period of two months from the date of submission of certified copy of this order. It is, however, made clear that if at all, the respondents are of the view or come to the conclusion that someone had played mischief or fraud by incorporating the word 'Corporation' in place of 'purchaser' in Clause (vi) of the agreement Annexures P-1 and P-2, they will be at liberty to take necessary action and proceed against the person who may be found responsible for this act in accordance with law.