Bombay High Court
Shri Chandrahas Narayan Shetty vs Smt.Misribai Ramkuvar Pandit on 20 April, 2009
Author: R.Y. Ganoo
Bench: R.Y. Ganoo
( 1 )
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
USJ
FIRST APPEAL NO.482 OF 1990
Shri Chandrahas Narayan Shetty ..Appellant
V/s.
1. Smt.Misribai Ramkuvar Pandit
2. Shri Moolchand alias Atish Ramkuvar
Pandit alias Sharma (Since deceased
through his Lrs.
2a.Uma w/o Mulchand Sharma
2b.Miss.Manish d/o Mulchand Sharma
2c.Vivek s/o Mulchand Sharma
2d.Amit s/o Mulchand Sharma
all R/o. Ramwadi alias Sharma
Valippi Road, Bale Bazar, Kalyan
Dist.Thane
3. M/s. Thakkar Agency, a partnership
firm thorugh its partner Shri
Kanjibhai Govindji Thakkar
4. Shri Kantilal Premji Thakkar ..Respondents
(Orig.defendants)
......
Mr. C.M. Arjunwadkar with Mr.G.S. Godbole for the
appellant.
Mr.A.A. Kumbhakoni i/by Rajesh S. Datar for
respondent Nos.1 and 2(a) to 2(d).
None for other respondents
......
CORAM : R.Y. GANOO, J.
DATED : 20th April, 2009
ORAL JUDGMENT
1. The appellant herein instituted Special Civil Suit No.86 of 1982 in the Court of 2nd Joint Civil Judge, Senior Division, Thane for seeking specific performance against respondents in regard to 3 shops and a flat (hereinafter referred to as the 'suit ::: Downloaded on - 09/06/2013 14:31:54 ::: ( 2 ) property') situate within the limits of Kalyan Municipal Council to be constructed on land bearing survey Nos. more particularly set out in the plaint.
2. The learned 2nd Joint Civil Judge, Senior Division, Thane (hereinafter referred to as the 'learned trial Judge') decided the suit by judgment and decree dated 24th October, 1981 and rejected the prayer for specific performance. The learned trial Judge however granted money decree against respondent Nos.1, 2 and 3 to the extent of Rs.5,501/- alongwith the interest more particularly set out in the operative part of the judgment and decree dated 24th October, 1989. This judgment and decree dated 24th October, 1989 is challenged in this first appeal. Few facts necessary for the disposal of the first appeal are as under.
3. The appellant original plaintiff claims that he entered into an oral agreement with one Mr. Kanjibhai being partner of the firm M/s. Thakkar i.e. respondent No.3 for purchase of 3 shops and one flat more particularly set out in the plaint. According to the appellant, the said transaction was being carried out by defendant No.3 in its capacity as sole selling agent of defendant Nos.1 and 2 who were the owners in respect of the suit property which was to be sold in ::: Downloaded on - 09/06/2013 14:31:54 ::: ( 3 ) favour of the appellant. According to the appellant the shop Nos.1, 2 and 3 were agreed to be sold and that they were subsequently renumbered as shop Nos.9, 8 and 7 respectively. According to the appellant, the appellant paid to said Kanjibhai in all a sum of Rs.5,501/- and also a sum of Rs.1,38,375/- towards the transaction in question. The appellant claims that as the oral agreement was not specifically performed by respondent Nos.1,2 and 3, the appellant had to institute the suit. Respondent No.4 happens to be a subsequent purchaser in regard to shop Nos. 7 and 8.
4. At trial, the appellant stepped into the witness box as a principal witness and also examined some other witnesses in respect of his stand as regards the transaction in question and payment of monies to said Kanjibhai. The learned trial Judge framed issues on the basis of the pleadings and recorded finding that respondent No.3 was the estate agent of respondent Nos.1 and 2. However, he did not record a finding in favour of the appellant as regards grant of specific performance. The learned trial Judge granted money decree in favour of appellant to the tune of Rs.5,501/- and interest as the said amount was paid to the respondent No.3. The learned trial Judge declined the claim of the appellant as regards Rs.1,38,375/- as the said payment turned out to be the ::: Downloaded on - 09/06/2013 14:31:54 ::: ( 4 ) one made in violation of provisions of Section 23 of the Indian Contract Act.
5. On the basis of the record as aforesaid, following points do arise for my determination.
(i) Whether the acts of defendant No.3 do bind defendant Nos.1 and 2 as regards the sale of suit property ?
Ans. In the negative.
(ii) What orders ?
Ans. As per the operative order.
6. I have heard learned advocate Mr.Arjunwadkar
appearing on behalf of the appellant original
plaintiff and learned advocate Mr. Kumbhakoni
appearing on behalf of respondent Nos.1 and 2 i.e.
the persons who were the owners in respect of the suit property. Nobody appeared on behalf of respondent No.3, the partnership firm.
7. On consideration of the record, it is made out that original respondent No.3 was the estate agent of respondent Nos.1 and 2 and said Kanjibhai was acting ::: Downloaded on - 09/06/2013 14:31:54 ::: ( 5 ) as the partner of respondent No.3 and said respondent No.3 was acting as the estate agent in regard to the suit property, which was being developed by respondent Nos.1 and 2. The fact that said Kanjibhai was partner of respondent No.3 could not be disputed by respondent Nos.1 and 2. A sum of Rs.5,501/- came to be paid to respondent No.3 as and by way of consideration for the suit property is also made out. The appellant in his evidence has stated that a sum of Rs.1,38,375/- was paid to said Kanjibhai and the appellant has stated that the said amount was paid by way of black money i.e. a payment not recognized by the provisions of law.
8. It was argued by learned advocate Mr.Arjunwadkar that respondent No.3 was the agent of respondent Nos.1 and 2 and therefore acts of respondent No.3 through Kanjibhai would bind respondent Nos.1 and 2. It was also argued before this Court that the appellant had a transaction with respondent No.3 on behalf of the respondent No.1 and
2. In so far as this aspect is concerned, nothing was pointed out by the appellant on the basis of the record that respondent No.3 held power of attorney on behalf of respondent Nos.1 and 2 so as to enter into an agreement for sale or to dispose of the suit property. In the absence of proper authority given to ::: Downloaded on - 09/06/2013 14:31:54 ::: ( 6 ) respondent No.3 to negotiate and execute documents on behalf of respondent Nos.1 and 2, respondent No.3 cannot be equated to a status of a vendor and therefore any transaction that the appellant may have had with respondent No.3 in his capacity as the estate agent would not bind respondent Nos.1 and 2. Once respondent No.3 is cited as an agent, his role in the entire transaction was limited and he was obliged to bring two parties together namely vendor i.e. respondent Nos.1 and 2 and purchaser namely the appellant and see that the transaction is entered into and necessary documents are executed by and between the parties.
ig No such transaction is shown to have been executed between the appellant and respondent Nos.1 and 2. In the present case, the appellant could not show to this Court that he ever met respondent Nos.1 and 2 in connection with the suit transaction. If this be so, whatever representation has been made by respondent No.3 in its capacity as an estate agent of respondent Nos.1 and 2, cannot bind respondent Nos.1 and 2.
9. It is true that the learned trial Judge has accepted the case of the appellant that respondent No.3 was the estate agent however that cannot bind respondent Nos.1 and 2. It is in this context, the learned trial Judge has passed a decree simplicitor ::: Downloaded on - 09/06/2013 14:31:54 ::: ( 7 ) against respondent Nos.1 and 2 and respondent No.3 the estate agent to the tune of Rs.5,501/- and interest being the amount paid by the appellant to respondent No.3. This decree is not challenged by respondent Nos.1 to 3. Certainly when the appellant admits in his evidence that certain amount was paid on 3rd December, 1980 by way of black money, the trial Court could not help the appellant. The learned trial Judge was right in not passing the decree against the respondent Nos. 1 to 3 in regard to the appellant namely Rs.1,38,375/- which the appellant has termed as an amount by way of black money. Certainly, no Court will assist ig the person whose acts are not in consonance with the provisions of law.
10. It is the positive case of the appellant that an oral agreement was entered into in regard to the suit transaction. In such a situation, it is required to be noted that in the normal course, grant of specific performance based on oral agreement is always considered with reservations. Assuming that in a peculiar case, the Court would like to grant the relief of specific performance it will be the duty of the Court to ascertain the terms on the basis of which the parties wanted to complete the transaction. In such a case, the terms of oral agreement are required to be placed before the Court in the form of evidence ::: Downloaded on - 09/06/2013 14:31:55 ::: ( 8 ) so as to crystalise the terms on the basis of which specific performance was agreed to be granted. In the present case, the evidence on record no where shows as to on what terms the specific performance was required to be granted. The quality of evidence placed before the Court in the matter of grant of specific performance is absolutely weak. In any case, in the absence of agreement that the owners who could convey the property i.e. in the absence of direct agreement with respondent Nos.1 and 2, the appellant could not get specific performance. Whatever the transaction which he had with respondent No.3 was not binding upon respondent igNos.1 and 2. For the reasons mentioned aforesaid, the learned trial Judge was right in appreciating the evidence against the appellant and that the learned trial Judge rightly declined to grant specific performance.
11. For the reasons mentioned aforesaid, I am inclined to observe that the view taken by learned trial Judge is right on the basis of record and no interference is required in the impugned judgment. Hence, point No.1 will have to be answered in the negative and point No.2 will have to be decided as per the operative part of this order.
12. For the reasons mentioned aforesaid, following ::: Downloaded on - 09/06/2013 14:31:55 ::: ( 9 ) order is passed :-
ORDER . The first appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
. Appeal from Order No.736 of 1990 and Appeal from Order No.737 of 1990 do not survive in view of the dismissal of the first appeal and that the said Appeals from Order are dismissed with no order as to costs.
(R.Y. GANOO, J.) ::: Downloaded on - 09/06/2013 14:31:55 :::