Karnataka High Court
M I Ahamed vs Prasun Banerjee on 12 June, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.G.PANDIT
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
R.F.A. No.1413 OF 2012 (SP)
BETWEEN
1. M I AHAMED
SINCE DEAD BY HIS LRs
1(A) SMT AMTUSALAM LUBNA AKTHAR
AGED ABOUT 40 YEARS
D/O LATE M I AHMEDI
1(B) MOHAMMED FURQANULLAH AHMEDI
AGED ABOUT 39 YEARS
S/O LATE M.I. AHMEDI
1(C) LUQMAN AHMEDI
AGED ABOUT 36 YEARS
S/O LATE M. I. AHMEDI
1(A) TO (C) ARE RESIDING AT
NO.26, ALFRED STREET,
RICHMOND TOWN,
BANGALORE-25
2. H. HASMATHULLA
AGED ABOUT 55 YEARS
S/O LATE M.S AHAMEDI
3. M. BARKATHULLA AHAMEDI
AGED ABOUT 52 YEARS
2
S/O LATE M.S AHAMEDI
4. M. SHOUKATHULLA
AGED ABOUT 50 YEARS
S/O LATE M.S AHAMEDI
5. M. NARSRATHULLA
AGED ABOUT 42 YEARS
S/O LATE M.S AHAMEDI
6. SMT. ZAINABI BEGUM JAVEEDA
AGED ABOUT 60 YEARS
S/O LATE M.S AHAMEDI
ALL ARE R/AT NO.88, 6TH
" E " MAIN, 4TH BLOCK,
KORAMANGALA BANGALORE-34
AND PRESENTLY RESIDING AT NO.26,
ALFRED STREET, RICHMOND TOWN,
BANGALORE-25
...APPELLANTS
(BY SRI B N ANANTHA NARAYANA AND
SRI D G CHINNAPPA GOWDA, ADVOCATE)
AND
1 . PRASUN BANERJEE
AGED ABOUT 56 YEARS
S/O M. BANERJEE
NO.26/1A, I CROSS,
MILLERS ROAD,
BANGALORE-16
2 . RAJENDRA SETHIA
AGED ABOUT 57 YEARS
S/O K.M. SETHIA
OFFICE AT NO.6
NEW MISSION COMPOUND
BANGALORE-27
3 . SAUD AHAMED
3
MAJOR,
S/O LATE SYED ABDUL KHADER
M/S S.T. 7TH DEFENDANTS
R/O NO.562, 8TH MAIN,
4TH BLOCK, KORAMANGALA
BANGALORE
....RESPONDENTS
(BY SRI ABHINAV R, ADVOCATE FOR R2 AND
PROPOSED R1 ON IA 2/25
SRI SAILESH S K, ADVOCATE FOR R1
NOTICE TO R3 IS DISPENSED WITH
V/O DTD 30.11.2015 AND 8.12.2021)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 21.5.2012 PASSED IN
O.S.NO.4625/2003 ON THE FILE OF THE V ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT FOR
SPECIFIC PERFORMANCE AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGEMENT ON 23.04.2024, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, POONACHA. J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The present First Appeal is filed under Section 96 of Code of Civil Procedure, 19081 by defendant Nos.1 to 62 challenging the judgment and decree dated 21.5.2012 passed in O.S. No.4625/2003 by the V Addl. City Civil 1 Hereinafter referred to as 'CPC' 2 Hereinafter referred to as the 'owners' 4 Judge, Bangalore City3, whereunder the suit for specific performance filed by the plaintiffs has been decreed.
2. For the sake of convenience, the parties herein are referred to as per their rank before the Trial Court.
3. It is the case of the plaintiffs that defendant Nos.1 to 6 were the absolute owners of suit property bearing No.26, Alfred Street, Richmond Town, Civil Station, Bangalore measuring East to West: 100 feet, North to South 60 feet4, the same having been acquired by their father late Sri M.S.Ahmedi. That M.S.Ahmedi along with defendant Nos.1 to 6 had entered into an Agreement with the 7th defendant5 on 30.05.1988 to develop the suit property whereunder the 7th defendant was required to put up construction in the suit property as per the terms agreed to between the parties under the said Agreement. That on the same day i.e., on 30.5.1988, late M.S.Ahmedi executed a General Power of Attorney 3 Hereinafter referred to as the 'Trial Court' 4 Hereinafter referred to as the 'suit property' 5 Hereinafter referred to as 'Builder/7th defendant' 5 empowering the 7th defendant to take possession of the suit property, to demolish the same and put up construction in terms of the Agreement dated 30.05.1988. That as per the contract agreed to between the parties, the builder was entitled to the 2nd and 3rd floor of the building constructed in the suit property and the owners who are entitled to the ground and first floor.
3.1 It is the further case of the plaintiffs that the 7th defendant having acquired a right to put up construction in the suit property, approached the plaintiffs to sell the apartments on the 2nd and 3rd floors and accordingly, the 1st plaintiff entered into an Agreement of Sale dated 10.11.1988 with late M.S.Ahmedi and defendants No.1 to 6 who were represented by their Power of Attorney holder the 7th defendant. He also contemporaneously entered into an Agreement for construction with the 7th defendant. Vide the said agreements, the 1st plaintiff agreed to purchase apartment bearing No.9 of the second floor in the south western 6 corner side together with corresponding undivided area in the land for a total sale consideration of ₹3,15,000/- and that the first plaintiff paid a total sum of ₹2,67,600/- on various dates.
3.2 That similarly, 2nd plaintiff entered into an Agreement of Sale dated 03.01.1989 with late M.S.Ahmedi and defendants No.1 to 6 who were represented by their PA holder the 7th defendant. The 2nd plaintiff also contemporaneously entered into a construction agreement with 7th defendant. Vide the said agreements the 2nd plaintiff agreed to purchase apartment bearing No.10 in the second floor in the north western corner of the building together with corresponding undivided area in the land for a total sale consideration of ₹3,00,000/- and the 2nd plaintiff paid a total sum of Rs.2,75,985/- on various dates.
3.3 It is the further case of the plaintiffs that differences arose between the land owners and the builder as a result of which a suit in O.S. No.10063/1991 was filed 7 by the builder to restrain the owners from interfering with the construction work to be carried out in the schedule property. However, the said dispute was compromised between the parties and the suit was dismissed as settled out of the Court. That subsequent to the disposal of the suit, the owners and builder appear to have colluded with each other to defraud the purchasers viz., the plaintiffs herein. That the builder virtually abandoned the project and therefore, the plaintiffs were constrained to file a suit in O.S. No.2562/1992 against the defendants for permanent injunction. That an order of temporary injunction was granted against the owners from putting up any construction or proceeding with the construction on the building and thereafter no construction was put up by the owners in the suit property. That on 04.06.1997, the said suit was dismissed for non-prosecution and the Misc. Petition filed for restoration of the above said suit was also dismissed.
8
3.4 It is the further case of the plaintiffs that during the pendency of the suit, there were negotiations between the plaintiffs, land owners and the builder and that the owners i.e., the defendants and late M.S.Ahmedi had assured and promised that the construction would be put up in the 2nd and 3rd floors and the same would be handed over to the Agreement Holders including the plaintiffs. In that regard, they sought for sometime to complete the construction. However, after dismissal of the suit, the defendants did not fulfill their promise and taking undue advantage of the fact that there was no interim order and on that pretext, the owners delayed in putting up and completing the construction. That after the builder abandoned the project and after the death of late M.S.Ahmedi, the owners started putting up construction. That the construction has been put up from the funds provided by the plaintiffs and other Agreement holders and that the plaintiffs were ready to pay the balance amount provided the construction is completed by the builder as agreed to between the parties. That since the builder 9 permitted the owners to put up construction and the said defendants being the land owners, had no right to put up construction or alter the nature of the schedule property, the plaintiffs and other Agreement holders are entitled to complete the construction out of the remaining amount payable by them to the builder.
3.5 It is the further case of the plaintiff that owners have put up construction of 2nd and 3rd floors and intend to sell the apartments to third parties in contravention of various Agreements entered into between the parties. That the plaintiffs are ready and willing to perform their part of contract. That the plaintiffs are entitled to complete the construction as per the sanctioned plan and occupy the apartments. Hence, the suit was initially filed seeking for the following reliefs:
a. A decree of permanent injunction restraining the defendants 1 to 6 from interfering with the construction of building on the schedule property by the plaintiffs.10
b. For permanent injunction restraining the defendants 1 to 6 from putting up any construction or proceeding with further construction of the building on the schedule property.
3.6 During pendency of the suit, the plaintiffs filed an application for amendment seeking to insert various averments in the plaint as also seeking for the relief of specific performance. The said amendment was allowed by the trial Court vide its order dated 03.04.2008.
Consequent to amendment, the reliefs sought for by the plaintiffs are as follows:
(cc) A decree directing the defendants to execute a registered sale deed in respect of the Item No.1 of the suit schedule property in favour of plaintiff No.1 and deliver vacant possession of the same. In the event the defendants refused to execute a registered sale deed then permit the Court to register the sale deed through Court of law, and deliver vacant possession to the plaintiff No.1.
(ccc) A decree directing the defendants to execute a registered Sale deed in respect of the Item No. 2 the suit schedule property in favour of plaintiff No.2 and deliver vacant possession of the same. In the event the defendants refuses to execute a registered sale deed then permit the court register the Sale deed through Court of law and deliver vacant possession to the plaintiff No.2.
(cccc) A decree directing the defendants jointly and 11 Severally to pay a sum of Rs. 9,06,495/- along with the current and future interests at 15%. Per annum from 6.10.2006 till the date a realisation to the Plaintiff No.1.
(ccccc) A decree directing the defendants jointly and severally to pay a sum of Rs. 9,34,179/- along with the current and future interest at 15% per annum from 6.10.2006 till the date of realisation to the plaintiff No.2.
OR IN THE ALTERNATIVE (cc.1) In the event the court not granting a decreeing of specific performance direct the defendants to refund a sum of Rs. 2,67,600/- with interest at the rate of 18% per annum from the date of filing the suit till actual realization. (cc.2) In the event the court not granting a decree of specific performance, direct the defendants to refund a sum of Rs. 2,75,985/- with interest at the rate of 18% per annum from the date of filing of the suit till actual realization.
4. The defendant Nos.1 to 6 entered appearance and contested the suit of the plaintiffs by filing their written statement. The 7th defendant remained ex-parte and did not contest the suit.
5. Defendant Nos.1 to 6 in their written statement have denied the case of the plaintiffs. It is specifically contended that the plaintiffs were never in possession of 12 the suit property or any portion thereof and hence, the suit for injunction was not maintainable. Further, it was contended that a mere suit for injunction without seeking any declaration of title in the suit property was also not maintainable.
5.1 It was further contended by the defendant Nos.1 to 6 that their father had entered into an agreement dated 30.5.1988, wherein the builder was required to put up a multi storied building, but he miserably failed to put up construction as agreed and that the said Agreement dated 30.5.1988 has expired more than 10 years prior to the filing of the suit and any action by the builder or his agent is hopelessly barred by time. It is further contended that there is no privity of contract between the plaintiffs and the defendant Nos.1 to 6 and the plaintiffs have no cause of action to file the suit against the said defendants. That the power of attorney executed by M.S.Ahmedi in favour of the builder is not in force as M.S.Ahmedi is deceased and there was no consideration paid by the 13 builder under the said GPA to late M.S.Ahmedi. Hence, the said power of attorney is no longer in force and no right can be passed on by virtue of the said GPA.
5.2 It is further contended that under the Agreement dated 30.5.1988, the builder was required to put up construction of the ground and first floors at his own cost and the owners agreed to sell the property in the second and third floors only after the construction of the ground and first floors is completed in all respects as per the sanctioned plan. That the owners will be in possession of the suit property and the builder was required to put up construction of the ground and first floors and only after the said construction is complete in all respects, the builder was to be put in possession for construction of the second and third floors. The builder having failed to complete the construction of the ground and first floors in all respects as per the sanctioned plan, he could not have agreed to sell or convey the apartments in the second and third floors without the consent of the owners. Hence, it is 14 contended that the plaintiffs have no semblance of right, title or interest in respect of the suit property.
5.3 It is further contended that the interim order granted in OS No.2582/1992 ceased to operate in view of the said suit being dismissed on 4.6.1997. It is further contended that the builder filed OS No.10063/1991 against the owners and when the temporary injunction was refused, the builder abandoned the said suit and the same was ultimately dismissed. That there was no collusion between the builder and the owners. That the builder failed to complete the construction of the ground and first floors and abandoned the project. It was specifically contended that there was no cause of action for the plaintiffs to file the suit. The case of the plaintiffs has been denied in detail and the defendant Nos.1 to 6 sought for dismissal of the suit.
5.4 Subsequent to the amendment, defendant Nos.1 to 6 also filed additional written statement specifically contending that the suit reliefs sought are 15 barred by time and that the amounts paid by the plaintiffs were to the builder and that the builder was solely responsible/liable to pay the said amounts.
6. Consequent to the pleadings of the parties, the Trial Court framed the following issues and additional issues:
ISSUES
1. Whether the plaintiffs prove their lawful possession over suit schedule property?
2. Whether the plaintiffs further prove the unlawful interference by the defendants?
3. What order or decree ?
Addl.Issues:
1. Whether the plaintiffs prove that they have right to enforce the defendants 1 to 7 for Specific Performance of the contract?
2. Whether the plaintiffs prove that they are entitled to recover the amount paid to the 7th defendant from the defendants 1 to 6?
3. Whether the plaintiffs are entitled for Specific Performance of the contract?
4. Whether the plaintiffs are entitled to recover the amount claimed in this suit?
5. Whether the relief claimed by the plaintiff is in time?16
б. Whether defendants 1 to 6 prove that there is no privity of contract between themselves and the plaintiffs?
7. Whether the defendants prove that the contract entered between plaintiffs and defendant No.7 is not binding on them ?
8. Whether the court fee paid is sufficient?
7. The GPA holder of the 2nd plaintiff was examined as PW.1. Exs.P1 to P24 were marked in evidence. The 1st Defendant examined himself as DW.1 and marked Ex.D1. The Trial Court by its judgment and decree dated 21.5.2012 decreed the suit of the plaintiffs and passed the following order:
"The suit of the plaintiffs is hereby decreed with cost, on the following terms.
It is ordered and decreed that defendant No.1 to 7 are directed to execute proper conveyance in favour of the plaintiffs No. 1 and 2 in respect of suit schedule item No.1 and 2 by receiving balance sale consideration of Rs.47,400/- and Rs.24,025/- respectively, within 90 days from the date of this decree.
It is further ordered that if the defedents No.1 to 7 fail to execute proper sale deed in favour of plaintiff No.1 and 2, the plaintiffs are at liberty to execute this decree and get the sale deeds registered in their favour through court agency in accordance with law.17
The plaintiffs are directed to deposit balance sale consideration within one month from the date of this decree.
It is further ordered and decreed that the plaintiffs are entitled for possession of suit schedule item No.1 and 2 of schedule property after getting sale deeds in their favour in accordance with law.
Draw decree accordingly."
8. Being aggrieved, defendant Nos.1 to 6 have filed the above appeal.
9. Sri B.N.Anantha Narayana, learned counsel appearing for the appellants/defendant Nos.1 to 6 contends that the 1st plaintiff has not examined himself and has not adduced any evidence on his behalf. That only the GPA holder of the 2nd plaintiff examined himself as PW.1. That the said Special Power of Attorney (Ex.P1) was executed on 9.6.2011, whereas the suit is filed on 2.3.2003. That the GPA holder had no personal knowledge of the case of the plaintiffs and hence, the Trial Court ought not to have accepted the testimony of PW.1 while considering the case of the plaintiffs. He further contends that the suit of the plaintiffs is barred by limitation, 18 inasmuch as the Agreements of Sale and Construction Agreements entered into between the plaintiffs and the 7th defendant were on 10.11.1988 and 23.1.1989 and the suit was filed on 2.3.2003. That the application for amendment was filed on 18.11.2006 which was allowed on 3.4.2008. Hence, he contends that the suit of the plaintiffs as well as the application for amendment are barred by time and ought to have been rejected. He further contends that there is no privity of contract between the plaintiffs and defendant Nos.1 to 6. He further contends that the Trial Court has not properly appreciated and considered the case of the parties and that the judgment of the Trial Court is erroneous and liable to be set aside. Hence, he seeks for allowing of the above appeal and setting aside of the judgment and decree passed by the Trial Court.
10. Per contra, Sri Sailesh, learned counsel for the respondent No.1/plaintiff No.1 and Sri Abhinav Ramanand, learned counsel for respondent No.2/plaintiff No.2 justifies 19 the judgment and decree passed by the Trial Court and contends that consequent to the Agreement of Sale dated 30.5.1988 executed by defendant Nos.1 to 6 and their father in favour of 7th defendant, GPA dated 30.5.1988 was also executed authorizing defendant No.7 to act on their behalf. That the Agreements of Sale dated 10.11.1988 and 23.1.1989 were entered into by the 7th defendant as GPA holder of defendant Nos.1 to 6 and their father. Hence, it is contended that there was a privity of contract between the parties. It is further contended that the aspect regarding limitation and privity of contract have been adequately considered by the Trial Court. It is also contended that the plaintiffs have paid more than 90% of the sale consideration and that defendant Nos.1 to 6 were bound to honour the Agreements of Sale executed in favour of the plaintiffs since admittedly the ground and first floor construction have been put up. Hence, they seek for dismissal of the above appeal.
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11. Learned counsel for the parties have referred to various judgments which shall be considered during the course of this judgment to the extent it is necessary for adjudication of the issue that arises for consideration in this appeal.
12. The submissions of both the learned counsel have been considered and the material on record including the records of the Trial Court have been perused. The questions that arise for consideration are:
i) Whether the Trial Court was justified in holding that the plaintiffs have the right to enforce specific performance of the contract against defendant Nos.1 to 7 and are entitled to specific performance?
ii) Whether the judgment and decree passed by the Trial Court is erroneous and liable to be interfered with?
13. Before the questions are taken up for consideration, it is relevant to notice the admitted fact situation.
14. Defendant Nos.1 to 6 and their father M.S.Ahmedi entered into an Agreement dated 30.5.1988 21 (Ex.P4) with the 7th defendant/builder, whereunder it was agreed that the builder shall put up construction of a residential building consisting of basement, ground, first, second and third floors. That the basement floor would be used for parking of the vehicles and residential apartments would be constructed in the ground, first, second and third floors as per the sanctioned plan. Upon the builder putting up construction of the basement (for parking), ground and first floors (for residences), defendant No.1 to 6 agreed to relinquish their right, title and interest in the second and third floors to be put up by the 7th defendant. Defendant Nos.1 to 6 were to vacate the schedule property within three months and demolish the existing building within two months thereafter. The entire expenses of the construction including the cost towards sanction plan, etc., were required to be borne by the builder. The ground and first floors were required to be completed in all respects within 18 months from the date of making available the vacant property subject to availability of materials like cement, steel, etc. That upon completion of the ground and first 22 floors, the builder shall have absolute ownership over the second and third floors and shall be entitled to dispose of the second and third floors to any purchaser. Late M.S.Ahmedi also executed the GPA dated 30.5.1988 (Ex.P5) in favour of the builder authorizing him to do all the acts in furtherance of the Agreement dated 30.5.1988 (Ex.P4).
15. M.S.Ahmedi and defendant Nos.1 to 6 represented through their GPA holder the 7th defendant executed an Agreement of Sale dated 10.11.1988 (Ex.P2) in favour of the 1st plaintiff for a total sale consideration of ₹50,000/- agreeing to convey undivided 1/12th share to convey apartment bearing No.9 in the second floor measuring 1000 sq.ft. The 7th defendant also executed a Construction Agreement dated 10.11.1988 (Ex.P3) for a total sale consideration of ₹3,15,000/-, the schedule of payment of which has been stipulated in the said agreement.
23
16. The agreement of sale dated 23.01.1989 (Ex.P.6) has been executed by late M.S.Ahmedi and defendants No.1 to 6 represented by their GPA holder the 7th defendant in favour of 2nd plaintiff agreeing to convey 1/12th undivided share in the land so as to convey apartment bearing No.10 measuring 1,000 sq.ft. in the second floor for a total sale consideration of ₹1,00,000/-. The 7th defendant also entered into a construction agreement dated 23.01.1989 (Ex.P.7) with the 2nd plaintiff agreeing to convey the said apartment bearing No.10 for a total sale consideration of ₹3,00,000/-. The schedule for payment of the said sum of ₹3,00,000/- is also mentioned in the said agreement.
17. At this juncture it is relevant to notice that the GPA dated 30.05.1988 (Ex.P.5) has been executed only by late M.S.Ahmedi in favour of the 7th defendant. The defendants No.1 to 6 who are the children of late M.S.Ahmedi have not executed the said GPA (Ex.P.5). 24
18. As noticed above, the plaintiffs had initially filed a suit for injunction and subsequently filed an application for amendment also seeking the relief of specific performance, which application has been allowed on 3.4.2008.
19. In support of the case of the plaintiffs one V.Krishna Murthy, the GPA holder of plaintiff No.2 was examined. The Special Power of Attorney (Ex.P1) dated 9.6.2011 authorizes the said Power of Attorney holder to represent the plaintiff No.2 in the suit since plaintiff No.2 was a resident of Calcutta.
20. It is relevant to note that none of the plaintiffs have examined themselves personally in the present case. Plaintiff No.2 had executed the Special Power of Attorney (Ex.P1) only on 9.6.2011. PW.1 in his affidavit by way of examination-in-chief has not stated as to how he is aware of the facts deposed in the said affidavit by way of examination-in-chief vis-à-vis the transactions between 25 the plaintiffs and 7th defendant as also the transactions between defendant Nos.1 to 6 and 7th defendant.
21. At this juncture, it is relevant to notice certain judgments so as to note the legal position with regard to the entitlement of a Power of Attorney holder to act/depose on behalf of his principal:
21.1 The Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani and Another vs. Indusind Bank Limited and Others6 has held as follows:
"12. ......The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross- examined on those facts which are to the personal knowledge of the principal.
13. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts"
employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include 6 ILR 2005 KAR 729 26 deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri Vs. State of Rajasthan [1986 (2) WLL 713], it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
18. The aforesaid judgment was quoted with the approval in the case of Ram Prasad Vs. Hari Narain & Ors. [AIR 1998 Raj. 185]. It was held that the word "acts" used in Rule 2 of Order III of 27 the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC.
21. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (supra) followed and reiterated in the case of Ram Prasad (supra) is the correct view............."
(emphasis supplied) 21.2 The Hon'ble Supreme Court in the case of Vidhyadhar vs. Mankikrao and Another7 has held as follows:
"15. It was defendant No. 1 who contended that the sale deed, executed by defendant No. 2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction as only Rs.500/- were paid as sale consideration to defendant No. 2. He further claimed that payment of Rs.4,500/- to defendant No.2 at his home before 28 the registration of the deed was wholly incorrect. This plea was not supported by defendant No. 1 as he did not enter into the witness box. He did not State the facts pleaded in the written statement on oath in the trial Court and avoided the witness box so that he may not be cross examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No.2 and the plaintiff was a bogus transaction.
16. 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 the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from..................that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box."
(emphasis supplied) 7 AIR 1999 SC 1441 29 21.3 The Hon'ble Supreme Court in the case of Mohinder Kaur vs. Sant Paul Singh8 has held as follows:
"6. In Janki Vashdeo (AIR 2005 SC 439) (supra), it was held that a power of attorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power of attorney holder. Likewise, the power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption against him.........."
(emphasis supplied) 21.4 The Hon'ble Supreme Court in the case of Manisha Mahendra Gala and Others vs. Shalini Bhagwan Avatramani and Others9 has held as follows: 8
AIR 2019 SC 4780 9 2024 SCC Online SC 530 30 "28. The law as understood earlier was that a General Power of Attorney holder though can appear, plead and act on behalf of a party he represents but he cannot become a witness on behalf of the party represented by him as no one can delegate his power to appear in the witness box to another party. However, subsequently in Janki Vashdeo Bhojwani v. Indusind Bank Ltd., this Court held that the Power of Attorney holder can maintain a plaint on behalf of the person he represents provided he has personal knowledge of the transaction in question. It was opined that the Power of Attorney holder or the legal representative should have knowledge about the transaction in question so as to bring on record the truth in relation to the grievance or the offence.
However, to resolve the controversy with regard to the powers of the General Power of Attorney holder to depose on behalf of the person he represents, this Court upon consideration of all previous relevant decisions on the aspect including that of Janki Vashdeo Bhojwani (supra) in A.C Narayan v. State of Maharashtra concluded by upholding the principle of law laid down in Janki Vashdeo Bhojwani (supra) and clarified that Power of Attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it. The Power of Attorney holder 31 who has no knowledge regarding the transaction cannot be examined as a witness. The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the Power of Attorney; meaning thereby ordinarily there cannot be any sub-delegation.
29. It is, therefore, settled in law that Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much before he entered the scene. The aforesaid Power of Attorney holder PW-1 had clearly deposed that he is giving evidence on behalf of plaintiff Nos. 2 to 4 i.e. the Gala's. He was not having any authority to act as the Power of Attorney of the Gala's at the time his statement was recorded. He was granted Power of Attorney subsequently as submitted and accepted by the parties. Therefore, his evidence is completely meaningless to establish that Gala's have acquired or perfected any easementary right over the disputed rasta in 1994 when the suit was instituted."
(emphasis supplied) 32
22. In view of the settled proposition of law, as noticed above, it is clear that, the power of attorney holder can only depose about the facts which are within his personal knowledge and not about those which are not within his knowledge or which are within the personal knowledge of the person who he represents. In the present case, as noticed above, the suit was filed on 03.07.2003 and the Special Power of Attorney dated 09.06.2003 (Ex.P.1) has been executed by the second plaintiff in favour of one Krishnamurthy, who examined himself as P.W.1. In his affidavit by way of examination-in-chief, P.W.1 has not stated as to how he is aware of the facts enumerated in the said affidavit. Even in Ex.P.1 it is not stated as to how P.W.1 is aware as to the facts of the present case. In Ex.P.1, it is merely stated that, since the plaintiff No.2 is a resident of Calcutta, it is not possible for him to personally be present before the Court on every date of hearing and hence, authorised P.W.1 to do various acts as mentioned in Ex.P.1.
33
23. Neither the plaintiff No.1, nor plaintiff No.2 have examined themselves in the present suit. Apart from examining P.W.1, the plaintiffs have not examined anybody else in support of their case.
24. Having regard to the aforementioned fact situation and in view of the settled proposition of law, as noticed above, the evidence adduced by the plaintiffs cannot be construed as an evidence in support of the case put forth by them in the suit. Further the fact that the plaintiffs did not enter the witness box would raise an adverse presumption against them.
25. It is clear from the powers granted under the General Power of Attorney - Ex.P.5 that, the defendant No.7 - builder was only entitled to do acts mentioned therein, for due performance of the agreement Ex.P.4.
26. At this juncture, it is relevant to notice certain clauses of the agreement dated 30.05.1998 (Ex.P.4), which are extracted herein below for ready reference: 34
"7. That the entire expenses of preparation of the blue-prints, processing the application for sanction of the plan, the fees payable for licence, legal charges of drafting of the agreements and the expenses such as stamp duty, registration charges, expenses for drafting deed or deeds of sale in respect of the Second and Third floors put up on the schedule immovable property shall be borne by he Builder/Purchaser.
9. That the owners/vendors shall always be in possession of and deemed to be in possession of the schedule immovable property with the construction in progress and also when completed excluding second and third floors and that the builder/purchaser shall be in possession of the Second and Third floors of the Schedule property with the construction in progress and also when completed.
10. That only when the construction of Ground and First floor are completed in all respects as per the plan, the Owners/Vendors shall be liable and bound to execute the deed or deeds of sale in respect of the proportionate ground in respect of the Second and Third Floors either fully constructed or when the construction is in progress in the nominee or nominees of the Builders/Purchaser on such consideration or considerations the 35 Builder/Purchaser may stipulate at this discretion at the risk and cost of the Builder/Purchaser or his nominee or nominees and that all the expenses incidental to such shall entirely be borne by the Builder/Purchaser or his nomine or nominees. However, the consideration so stipulated for transferring the right, title and interest of the Owner/Vendors in the proportionate granted to the nominee or nominees is only for the purpose of payment of Stamp duty and no consideration shall be paid to the Owners/Vendors as the Builders/Purchaser is putting up the ground and first floor for the Owners/Vendors for their use and occupation as Owners thereof.
15. That the Builder/Purchaser shall complete the construction of Ground and First floor on the schedule property as per the following time schedule:-
That the entire construction of ground and first floor on the schedule property shall be completed within eighteen months (18 months) from the date of making available the vacant schedule property. However, subject to availability of cement, steel, Government restriction, Civil Comotions, Vismojor and for other reasons beyond the control of the Builder/Purchaser, the time may be extended reasonably by the agreements.36
However, in case the builder/purchaser committee any of this clauses, the Builder/Purchaser shall be liable to ....... at the rate of the market value of the entire plot of the land from the expiry of the period of eighteen months aforesaid till the completion of the construction of ground and first floor on the schedule property.
17. That the Builder/Purchaser, on completion of the construction of ground and first floors on the schedule property shall have all such rates of absolute ownership on the Second and Third floors put up or to be put up on the schedule property and that the said Builder/Purchaser shall be entitled to dispose of the said Second and Third floors to any purchaser or purchasers of his choice along with proportionate, right, title, interest on the land of the schedule property.
24. That the Builder/Purchaser or their transferee or transferees shall not have any right, title or interest on the terrace of the fourth floor to be put up constructions and that the owner/vendor shall have right, title and interest to put up such constructions. The builder/purchaser shall also make this clear by including suitable clauses in the sale Deeds of same of flats in the Fourth floor."
(Emphasis supplied) 37
27. It is clear that, only upon the builder completing construction of the ground and first floor, he will have the right of absolute ownership on the second and third floors and the builder was entitled to dispose of the said second and third floors. In the present case, there is no material on record to indicate that, the ground and first floors were complete in all respects as per the specifications stipulated in the agreement at Ex.P.4, so as to entitle the builder to dispose of the apartments in the second and third floors.
28. Further, it is relevant to note that the Agreements entered into by the 1st plaintiff i.e. Exs.P2 and P3 and by 2nd plaintiff i.e., Exs.P6 and P7 are with the 7th defendant and not with defendant Nos.1 to 6. Since the Agreements of Sale (Exs.P2 and P6) have been executed by 7th defendant as a General Power of Attorney Holder of late M.S.Ahmadi and defendant Nos.1 to 6, it is necessary to consider as to whether defendant No.7 was entitled to sell any portion of construction put up in the suit property by virtue of the powers granted under the General Power 38 of Attorney dated 30.05.1988 (Ex.P5) which was executed by M.S.Ahmadi in favour of 7th defendant.
29. It is forthcoming from the said General Power of Attorney (Ex.P5) that 7th defendant was merely authorized to apply for requisite permissions for putting up construction of the building in the suit property as also to represent the principal before statutory and other authorities. In this context, it is relevant to note clause 11 and 13 of Ex.P5 which are extracted herein below for ready reference:
"11. To make propagandas of the development scheme of the said schedule immovable property and for the sale of the flats constructed on the 2nd and 3rd floors of the said Schedule immovable property putting up sign boards on the 2nd and 3rd floors of the schedule immovable property or making publications in news papers.
13. To do generally all such acts, deeds and things by my said Attorney may think necessary in respect of the schedule immovable property for the due performance of the above said agreement dated: 30.05.1988 by M/s. S.T. Builders provided always that my Attorney shall not have any powers relating to the following matters:-
i) To part with the possession of the construction put up on the schedule immovable property without my consent in writing.39
ii) To do any acts, deeds or things which are injurious to my right, title and interest in the schedule immovable property.
iii) To do any acts, deeds or things which would cause damage to the schedule immovable property and reduce its value."
30. It is clear and forthcoming that 7th defendant did not have any power to convey any portion of the property that was constructed in the suit property. In the absence of 7th defendant having any entitlement to sell the suit property or any portion thereof under Ex.P5, plaintiffs will not be entitled to any right, title or interest in the suit property by virtue of the Agreements entered into by them with 7th defendant i.e., Exs.P2 and P3 or Exs.P6 and P7.
31. As noticed above, the plaintiffs have paid consideration under the documents executed by them only to 7th defendant and no consideration have been paid to defendant Nos.1 to 6. 7th defendant was not authorized to receive any consideration on behalf of defendant Nos.1 to 6 by virtue of General Power of Attorney (Ex.P5). 40
32. Also, as noticed above, the defendant Nos.1 to 6 are not a signatory to the GPA - Ex.P.5 and only late M.S.Ahmadi has executed the said document. Hence, it cannot be stated that the 7th defendant builder was entitled to represent defendant Nos.1 to 6 also.
33. It is further relevant to note that in the amendment carried out by the plaintiffs, the other relief sought was for a direction to defendants to execute a registered Sale Deed in respect of item Nos.1 and 2 of the suit properties. In this context, the plaintiffs have not specifically sought for specific performance of any particular or specific agreement.
34. The agreements for purchase of the property entered into by the 1st plaintiff is on 10.11.1988 (Exs.P.2 and P.3) and the agreements entered into by the 2nd plaintiff is on 23.01.1989 (Exs.P.6 and P.7). The basis for the 7th defendant to enter into the said agreements dated 10.11.1988 and 23.01.1989 with the plaintiffs was the agreement of sale dated 30.05.1988 (Ex.P.4) and the GPA 41 dated 30.05.1988 (Ex.P.5) which it had entered into for development of the suit property. As per the terms of the agreement dated 30.05.1988 (Ex.P.4), the builder was required to complete the construction of building consisting of residential apartments in the suit property within 18 months from the date of making available the vacant schedule property and in the event of delay the builder was liable to pay interest.
35. In the agreement of sale entered into by the first plaintiff (Ex.P.2), it is stated at clause 3 that, the developers or their nominees are required to hand over the possession of the construction to the purchasers or their nominees within 20 days after the completion and receipt by the developers of the entire payment. In the construction agreement (Ex.P.3), it is stipulated at clause 3 that the builder has agreed to construct the apartment as per the terms specified in the said agreement within 18 months from the date of the agreement. Similarly, in the agreement entered into by the second plaintiffs (Ex.P.6 42 and Ex.P.7), similar stipulations regarding time/period for completion are mentioned.
36. Article 54 of the Limitation Act states as follows:
Description of suit Period of Time from which limitation period begins to run
54. For specific Three years The date fixed for the performance of performance, or, if no contract such date is fixed, when the plaintiff has notice that performance is refused.
37. It is clear that, the plaintiffs were required to file the suit within three years from the date fixed for performance. Having regard to the date of the agreement entered into by the plaintiffs, the plaintiff No.1 was required to file the suit on or before 10.05.1993 and the plaintiff No.2 was required to file the suit on or before 23.07.1993. The present suit is filed on 03.07.2003. Hence, it is clear that, the suits filed by the plaintiffs are barred by time.
43
38. The Trial Court framed additional issue No.5 as to whether the relief claimed by the plaintiffs is within time. While answering the said issue in the affirmative, the Trial Court has noticed the plaint averments and the admission of D.W.1 that the construction was not completed by defendant No.7 and it was incomplete up to 2003. That thereafter, the defendant Nos.1 to 6 took up further construction and completed the building after 2003 and that the cause of action arose for the plaintiff only after completion of the second and third floors, when the building was completed and the suit was filed in the year 2003. That the pendency of the injunction suit does not take away the right of the plaintiffs to file suit for specific performance. Hence, the trial Court has recorded a finding that the suit is within the time.
39. It is forthcoming that, the trial Court has not noticed the time for completion stipulated in the agreements nor the relevant provision of the Limitation Act, 1956 while recording the finding on additional issue 44 No.5, regarding limitation. Hence, the finding of the trial Court on additional issue No.5 is erroneous and liable to be set aside.
40. In view of the discussions made above, it is clearly forthcoming that, the trial Court did not appreciate the aspect with regard to the plaintiff No.2 having adduced evidence through his Power of Attorney holder and that the plaintiff Nos.1 and 2 did not adduce any evidence by examining themselves or any other witnesses who are competent to depose regarding facts during the period of the transaction that the plaintiffs have entered into an agreement with defendant No.7. In the absence of the same, the finding recorded by the trial Court answering the issues in favour of the plaintiffs are erroneous and liable to be interfered with.
41. It is further necessary to notice that, the trial Court has appreciated the relevant facts situation regarding the transaction between the parties, but it has not noticed the fact that the entitlement of the defendant 45 No.7- builder to sell any portion of the property in the second and third floor would arise only after the construction in the ground and first floor is complete in all respects. Without any finding recorded with regard to the extent of completion of the construction in the ground and first floors, the trial Court has gravely erred in answering issues framed by it in favour of the plaintiff and directing for specific performance.
42. Having regard to the discussions made above, the question No.1 framed for consideration is answered in the negative and question No.2 framed for consideration is answered in the affirmative.
43. Hence, the following order is passed:
ORDER
(i) The above appeal is allowed.
(ii) The Judgment and decree dated 21.05.2012 passed in O.S.No.4625/2003 by the V Additional City Civil Judge, at Bengaluru City, is set aside.46
(iii) The suit in O.S.No.4625/2003 on the file of the V Additional City Civil Judge, Bengaluru is dismissed.
(iv) Modified decree to be drawn accordingly.
Sd/-
JUDGE Sd/-
JUDGE Bs/nd