Bombay High Court
Smt. Rekha Wd/O Premnarayan Harode And ... vs Mary Wd/O George Ambrose Monterior ... on 19 December, 2019
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO. 217 OF 2018
1) Smt. Rekha wd/o Premnarayan Harode
aged 59 years, Occ. Household
2) Jitendra s/o Premnarayan Harode
aged 28 years, Occ. Student
3) Prashant s/o Premnarayan Harode
aged 25 years, Occ. Student
4) Ku. Madhuri d/o Premnarayan Harode
aged 25 years, Occ. Student
5) Ku. Sushma d/o Premnarayan Harode
aged 22 years, Occ. Student
6) Suresh s/o Ramkrishana Harode
aged 51 years, Occ. Service
Nos.2 to 6 r/o Kiradpura, Sadar, Nagpur
7) Smt. Shakuntala w/o Amrut Khanwe,
aged 53 years, Occ. Household,
r/o Near Plot No.65, Doye Layout,
Zingabai Takli, Nagpur.
8) Smt. Pramilabai w/o. Narayanrao Dadu (Dead) thr. LRS
8.a) Rajendra s/o Narayanrao Darode,
aged 56 years, Occ. Business
8.b) Ashok s/o Narayanrao Darode
aged 54 years, Occ. Business
8.c) Pradeep s/o Narayanrao Darode
aged 52 years, Occ. Business
8.d) Manoj s/o Narayanrao Darode
aged 48 years, Occ. Business
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8.e) Asha w/o Satish Kirad,
aged 60 years, Occ. Housewife
8.f) Hemlata w/o Ajay Daduriya,
aged 50 years, Occ. Housewife
8.g) Jyoti w/o Shankar Khandait
aged 43 years, Occ. Housewife
All R/o. Subhash Putala, Satrajipura,
Nagpur
9) Smt. Nirmala w/o Bhupendrasingh Chandel
aged 48 years Occ. Household
R/o.Kiradpura, Sadar, Nagpur
10)Smt. Tarabai w/o Manoharrao Zade
aged 66 years, Occ. Household
R/o. Ramtek, Tq. Ramtek, Dist. Nagpur .. Appellants
...V E R S U S...
1) Mary wd/o George Ambrose Monterio (Dead)
aged 47 years, Occ. Business,
2) Ludgar C. P. Monterio
aged 55 years, Occ. Business,
3) Mrs. Maria w/o Ludgar Monterio
aged 47 years, Occ. Business,
4) Mrs. Rose w/o Bosco Monterio
aged 43 years, Occ. Business,
5) Ms. Annie Monterio
aged 54 years, Occ. Nil,
6) Mr. Victor s/o George Monterio
aged 42 years, Occ. Business,
7) John s/o George Monterio
aged 51 years, Occ. Business,
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Respondents No. 1 to 7 R/o. Bosco village,
behind choti masjid, c/o. Build India, Sadar,
Nagpur, Tah. and Dist. Nagpur
8) Wasudeo Ramkrishna Harode (Dead) through LRS
8.i) Smt. Stella wd/o Wasudeo Harode
aged major , Occ.
R/o Flat No.402, Utkarsha Anuradha,
behind Hotel Heritage, Civil Lines Nagpur.
8.ii) Mrs. Nailini w/o Virendra Kaneria
aged major , Occ.
r/o. Flat No.302, above SBI bank
Mankapur, Nagpur
8.iii) Mrs. Shalini Dhirusingh Kaneria
aged major, Occ.
r/o near Jain Milk Dairy, Taliamohalla,
Guna, Madhya Pradhesh
8.iv) Jitendra s/o Wasudeo Harode
aged major Occ. Business
R/o Flat No.402, Utkarsha Anuradha,
behind Hotel Heritage, Civil Lines Nagpur. .. Respondents
AND
SECOND APPEAL NO. 218 OF 2018
1) Smt. Rekha wd/o Premnarayan Harode
aged 59 years, Occ. Household
2) Jitendra s/o Premnarayan Harode
aged 28 years, Occ. Student
3) Prashant s/o Premnarayan Harode
aged 25 years, Occ. Student
4) Ku. Madhuri d/o Premnarayan Harode
aged 25 years, Occ. Student
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5) Ku. Sushma d/o Premnarayan Harode
aged 22 years, Occ. Student
6) Suresh s/o Ramkrishana Harode
aged 51 years, Occ. Service
Nos.2 to 6 r/o Kiradpura, Sadar, Nagpur
7) Smt. Shakuntala w/o Amrut Khanwe,
aged 53 years, Occ. Household,
r/o Near Plot No.65, Doye Layout,
Zingabai Takli, Nagpur.
8) Smt. Pramilabai w/o. Narayanrao Dadu (Dead) thr. LRS
8.a) Rajendra s/o Narayanrao Darode,
aged 56 years, Occ. Business
8.b) Ashok s/o Narayanrao Darode
aged 54 years, Occ. Business
8.c) Pradeep s/o Narayanrao Darode
aged 52 years, Occ. Business
8.d) Manoj s/o Narayanrao Darode
aged 48 years, Occ. Business
8.e) Asha w/o Satish Kirad,
aged 60 years, Occ. Housewife
8.f) Hemlata w/o Ajay Daduriya,
aged 50 years, Occ. Housewife
8.g) Jyoti w/o Shankar Khandait
aged 43 years, Occ. Housewife
All R/o. Subhash Putala, Satrajipura,
Nagpur
9) Smt. Nirmala w/o Bhupendrasingh Chandel
aged 48 years Occ. Household
R/o.Kiradpura, Sadar, Nagpur
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10)Smt. Tarabai w/o Manoharrao Zade
aged 66 years, Occ. Household
R/o. Ramtek, Tq. Ramtek, Dist. Nagpur .. Appellants
...V E R S U S...
1) Mary wd/o George Ambrose Monterio (Dead)
aged 47 years, Occ. Business,
2) Ludgar C. P. Monterio
aged 55 years, Occ. Business,
3) Mrs. Maria w/o Ludgar Monterio
aged 47 years, Occ. Business,
4) Mrs. Rose w/o Bosco Monterio
aged 43 years, Occ. Business,
5) Ms. Annie Monterio
aged 54 years, Occ. Nil,
6) Mr. Victor s/o George Monterio
aged 42 years, Occ. Business,
7) John s/o George Monterio
aged 51 years, Occ. Business,
Respondents No. 1 to 7 R/o. Bosco village,
behind choti masjid, c/o. Build India, Sadar,
Nagpur, Tah. and Dist. Nagpur
8) R. L. Jain
aged 70 years, Occ. Retired
9) Bhim Jindal,
aged 52 years, Occ. Retired
10) Jennifer Carton,
aged 52 years , Occ. Retired
11) R. K. Shrivastava
aged 72 years, Occ. Retired
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12) T. S. Venkatraman
aged 72 years, Occ. Retired
13) Santosh wd/o Varman
aged 57 years, Occ. Household
14) Rita Dalgado,
aged 52 years, Occ. Household
15) S. K.Gupta
aged 72 years, Occ. Retired
16) Azra Pravin Sheikh w/o Ziauddin
aged 42 years, Occ. Household
17) S. Bandopadhyay w/o S. K. Bandopadhyay
aged 60 years, Occ. Household
18) V. I. Limbartia
aged 62 years, Occ. retired
19) S. C. Chakranarayan
aged 62 years, Occ. retired
20) J. C. Pawa
aged 64 years, Occ. retired
21) J. K. Bigharia
aged 64 years, Occ. retired
22) Raymond Dalgado
aged 57 years, Occ. service
Respondents No.8 to 22 r/o. Diprini Enclave
New Mankapur, Nagpur - 30
23) Wasudeo Ramkrishna Harode (Dead) through LRS
23.i) Smt. Stella wd/o Wasudeo Harode
aged major , Occ.
R/o Flat No.402, Utkarsha Anuradha,
behind Hotel Heritage, Civil Lines Nagpur.
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23.ii) Mrs. Nailini w/o Virendra Kaneria
aged major , Occ.
r/o. Flat No.302, above SBI bank
Mankapur, Nagpur
23.iii) Mrs. Shalini Dhirusingh Kaneria
aged major, Occ.
r/o near Jain Milk Dairy, Taliamohalla,
Guna, Madhya Pradhesh
24.iv) Jitendra s/o Wasudeo Harode
aged major Occ. Business
R/o Flat No.402, Utkarsha Anuradha,
behind Hotel Heritage, Civil Lines Nagpur.
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Mr. S. G. Aney, Sr.counsel, Mr. S. D. Harode, and Mr. Rohit
Chougule, counsel on behalf of appellants.
Mr. R. L. Khapre, and Mr. D. R. Khapre counsel for respondents
No.1 to 7.
Mr. S. P. Bhandarkar, counsel for respondents No.23(1) & 23(4).
Mr. Raju Baghel, counsel for respondents No.23(i) to (iv).
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CORAM : MANISH PITALE J.
RESERVED ON : 18/10/2019
PRONOUNCED ON : 19/12/2019
JUDGMENT
The subject matter of challenge in these two appeals is a common judgment passed by the Court of District Judge, Nagpur (Appellate Court), whereby appeals filed by the contesting respondents were allowed and the common judgment and order ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 8 sa217 & 218.18 - Judgment.odt passed by the Court of Joint Civil Judge Senior Division, Nagpur (Trial Court) was reversed. The respondents herein were the defendants in Special Civil Suit No.801/1993 filed by the appellants herein and they were plaintiffs in Special Civil Suit No. 848/1999, wherein the appellants were defendants.
2. The relevant facts leading upto filing of the present appeals are that an agreement dated 11/10/1988 was executed between one Wasudeo Ramkrishna Harode and the respondent No.2 for purchase of property bearing plot No.16 to 37 in a layout admeasuring about 86000 square feet for consideration of Rs.26,00,000/-. The said Wasudeo Harode represented himself as power of attorney holder of his 08 family members who were co- owners. He accepted amount of Rs.1,50,000/- towards part consideration and the respondent No.2 and other respondents, as builders were to carryout construction and development activity in the said plots. It was agreed that the said Wasudeo Harode would help the respondent No.2, as the chief promoter and builder ,in execution of the work and he undertook to release the property from land ceiling within 30 days, clear the electric poles on plot No.16 to 25 and to facilitate construction activity on plot No.16, which was encumbered. It was specifically stipulated in the ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 9 sa217 & 218.18 - Judgment.odt agreement that if the respondent purchaser failed to pay the balance amount of Rs.24,50,000/- by 31/12/1989, interest @6% per annum would have to be paid on the said balance consideration.
3. Despite the said agreement, due to disagreements amongst the appellants as family members of the said Wasudeo Harode, the activity proposed in the said property as per the agreement could not be taken up at the expected pace. In this backdrop, on 25/07/1989, Wasudeo Harode and all the other family members executed an irrevocable power of attorney (Exh.151) in favour of respondent No.2, as the chief promoter and builder, authorizing him to take necessary steps for development of the land and for construction of multi storied buildings, as also to take all necessary steps in that regard including execution of all documents necessary for booking, construction and sale of flats. It was specifically stipulated that the power of attorney would remain in operation till business of the builder comes to an end. This was a registered irrevocable power of attorney. In this backdrop, on 28/07/1989, another agreement was executed between the said Wasudeo Harode and other family members i.e. the appellants and their predecessors with the ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 10 sa217 & 218.18 - Judgment.odt respondents herein, in respect of sale of the plots in the said layout. In this agreement plot No.16 to 38 were agreed to be sold, admeasuring about 1,06,000 square feet for a consideration of Rs.21,50,000/- . It was stipulated that the transaction would be completed on or before 31/12/1990 by payment of balance consideration and further that time was not essence of the contract. It was further stipulated that the agreement could not be rescinded or revoked by either party for any reason whatsoever. It was also stipulated that any default on the part of the respondents, due to which the transaction was not completed by the aforesaid fixed date, they would be liable to pay interest @6% per annum on the balance amount till the date of execution of sale deed.
4. Between the first agreement dated 11/10/1988 and the second agreement dated 28/07/1989, the parties had made allegations against each other and the cheques issued towards balance consideration by the respondents were dishonored. This led the family members of Wasudeo Harode to file Civil Suit No.2533/1990 against the said Wasudeo Harode and Prem Narayan Harode, as also the contesting respondents. The allegations made in the said suit were that the said Wasudeo ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 11 sa217 & 218.18 - Judgment.odt Harode and Prem Narayan Harode were in connivance with the respondents and deprived the plaintiffs therein of their share as the cheques issued by the respondents had been dishonored. As a result of aforesaid litigation and the allegations made by the rival parties against each other regarding failure on their part to perform their respective obligations under the said two agreements, the proposed execution of sale deed and the development and construction activity to be undertaken by the respondents was hampered.
5. In this situation, the parties entered into a third agreement dated 30/04/1992. In this agreement it was stated that same was being executed in continuation of the agreement dated 28/07/1989. It was recorded that due to certain misunderstandings, the respondents did not make payment of amounts as agreed to the appellants, which was also the reason for some of the appellants filing aforesaid suit No.2533/1990. In this agreement, it was recorded that the parties had arrived at a compromise and then certain terms and conditions were laid down in terms of the compromise. It was recorded that appellants had already received Rs.5000/- each on the date of the last agreement dated 28/07/1989 and that the next stage of amount ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 12 sa217 & 218.18 - Judgment.odt was now to be paid in 03 installments ( 02 installments of Rs.35,000/- and 01 installment of Rs.30,000/- ). The first of the said installment was paid on the date of the said agreement dated 30/04/1992 and the next two installments were to be paid on 31/07/1992 and 31/12/1992 respectively. It was agreed between the parties that the final installment of Rs.1,63,750/- would be paid within three months from the date the Nagpur Improvement Trust released the remaining land from reservation, so as to undertake construction and development. This clause was incorporated, because when the respondents sought permission from the Development Authority for carrying out construction, they were told by the Authority that substantial portion of the land was under reservation for public utility. This was in fact one of the major reasons for the discord between the parties.
6. In the said agreement it was also specified that the appellants would withdraw the aforesaid Civil Suit No.2533/1990, and if there was any default or breach of the said compromise terms, they would be at liberty to file a fresh suit. It was further specifically stipulated that all other terms and conditions of the agreement dated 28/07/1989, would remain operative and they shall be binding on both the parties.
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7. The initial payment of the first installment of Rs.35,000/- was made by the respondents to the appellants as per the said third agreement, but thereafter again disputes arose between the parties. It was claimed by the respondents that since the some of the appellants, who had filed the aforesaid Civil suit No.2533/1990, failed to withdraw the same in terms of the compromise, the further payment of installments as per third agreement was withheld. On the other hand, the appellants claimed that the respondents had unreasonably violated the terms of the said agreement.
8. Due to the aforesaid disputes that arose between the parties and apprehending adverse action from the appellants, the respondents filed Regular Civil Suit No. 1297/1993 (later renumbered as Special Civil Suit No.848/1999) against the appellants on 29/06/1993, for declaration and perpetual injunction. The respondents sought a declaration that a notice dated 21/05/1993 issued by the appellants through their counsel cancelling/revoking the aforesaid agreement dated 28/07/1989 and power of attorney dated 25/07/1989 and public notices issued in the local newspapers, were illegal and they could not be acted upon. A similar declaration was sought as against notice ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 14 sa217 & 218.18 - Judgment.odt dated 17/06/1993, whereby some of the appellants through counsel had informed the respondents regarding cancellation of power of attorney. The respondents also sought a perpetual injunction restraining the appellants from acting in pursuance of the said notices and an injunction restraining them from transferring the suit property in favour of another person. Later, by amendment, prayers were added seeking declaration against the power of attorney dated 23/10/1998, executed by the appellant in favour of the newly added defendant in the suit and an injunction to restrain the appellants from interfering with the work of development undertaken by the respondents on the strength of the said agreement.
9. In less than two months of the said suit being filed by the respondents, on 16/08/1993, the appellants filed Special Civil Suit No.801/1993, before the Trial Court for declaration, permanent injunction, rescinding of contract and damages. The appellants claimed that the second agreement dated 28/07/1989 was got executed by the respondents by playing fraud on the appellants since most of them were illiterate. It was claimed that the respondents represented to the appellants that the earlier agreement dated 11/10/1988 was being registered and on that ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 15 sa217 & 218.18 - Judgment.odt pretext the respondents got the second agreement dated 28/07/1989 executed from the appellants. On this basis, declaration was sought that the said agreement dated 28/07/1989 stood rescinded and that the respondent had no subsisting authority under the said agreement. It was also prayed that the Court should hold that the possession of the respondents in the suit property was that of trespassers and to pass a decree of possession in favour of the appellants. They also sought amounts towards damages and a permanent injunction to restrain the appellants from transferring or alienating the properties.
10. Both these suits were taken up for consideration together. The parties led oral and documentary evidence in support of their respective stands. By a common judgment and order dated 27/03/2000, the Trial Court disposed of both the suits by dismissing the suit filed by the respondents and by partly granting decree in the suit filed by the appellants. The Trial Court declared that the agreement dated 11/10/1988, 28/07/1989 and subsequent agreement stood rescinded. The power of attorney was held to have been revoked and the respondents were directed to deliver vacant and peaceful possession of the suit property except plot on which building No.1 was constructed by the ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 16 sa217 & 218.18 - Judgment.odt respondents. The future possession of the property by the respondents was held to be illegal and unauthorized. They were further directed to pay a sum of Rs.6,82,000/-[Rupees Six Lakhs Eighty Two Thousand only] to the appellants towards damages along with interest @18% per annum. The respondents were perpetually restrained from transferring or alienating the suit property except the plot on which building No.1 was situated, while other claims made by the appellants were dismissed. It was further held that the unsold flats in building No.1 would carry lien of decretal amount till its complete realization.
11. Aggrieved by the said judgment and order passed by the Trial Court, the respondents filed two appeals before the Appellate Court bearing Regular Civil Appeal No.564/2015 and 565/2015. By the impugned judgment and order, the Appellate Court allowed both the appeals, thereby dismissing the suit bearing Special Civil Suit No.801/1993 filed by the appellants and partly allowing the suit filed by the respondents i.e. 848/1999. It was declared by the Appellate Court that the notices cancelling the agreement dated 28/07/1989 and power of attorney dated 25/07/1989, were illegal and could not be acted upon. It was declared that the notice for registration of cancellation deed was ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 17 sa217 & 218.18 - Judgment.odt illegal and could not be acted upon and the appellants were further restrained from acting upon the notices issued in daily newspapers informing the respondents about registration of cancellation deed. The appellants were restrained from transferring the suit property and it was further declared that the subsequent power of attorney executed by the appellants in favour of the added defendant was illegal. The Appellate Court held that the suit filed by the appellants for declaration and perpetual injunction in respect of the agreement dated 28/07/1989 was barred by limitation.
12. Aggrieved by the judgment and order passed by the Appellate Court, the appellants have filed these appeals. This Court framed the following substantial questions of law in these appeals :-
(i) Whether the appellate Court was legally justified in coming to the conclusion that S.C.S.No.801 of 1993 was barred by limitation without considering the effect of agreement dated 30th April 1992 ?
(ii) Considering the nature of relief granted by the appellate Court restraining the plaintiffs from transferring the suit property in any manner which relief is relatable to the provisions of Section 53(A) of the Transfer of Property Act, 1882, whether the defendants have proved their willingness and readiness ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 18 sa217 & 218.18 - Judgment.odt for being granted that relief ?
(iii) Whether the finding recorded that there was no breach of contract on the part of the defendants in S.C.S.No.801 of 1993 is after considering the agreement between the parties ?
(iv) What would be effect of sections 52, 62 and 64 of the Indian Contract Act, 1872, on the obligations of the parties in the present case in connection with the agreement, which is subject matter of the dispute and whether the two Courts below ought to have taken into consideration the said provisions while deciding the dispute between the parties ?
13. The learned counsel for the rival parties were heard exhaustively on the aforesaid substantial questions of law framed by this Court.
14. Mr.S.G.Aney, learned senior counsel appearing for the appellants, submitted that the Appellate Court committed a grave error in allowing the appeals of the respondents and reversing the decree passed by the Trial Court. It was submitted that the Appellate Court ought not to have held that the suit filed by the appellants was barred by limitation, without taking into consideration the agreement dated 30/04/1992 executed between the parties. It was submitted that the Appellate Court gave the finding regarding the suit filed by the appellants being barred by ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 19 sa217 & 218.18 - Judgment.odt limitation in a cryptic manner and without adverting to the said agreement dated 30/04/1992. The effect of the said agreement ought to have been taken into consideration to examine as to when the cause of action for the appellants accrued to seek declaration in respect of agreement dated 28/07/1989. Having failed to do so, according to the learned senior counsel, the Appellate Court committed a grave error and the first substantial question deserved to be answered in favour of the appellants.
15. In respect of second substantial question of law, the learned senior counsel submitted that the aspect of readiness and willingness on the part of the respondents was not properly considered by the Appellate Court while restraining the appellants from transferring the suit property in any manner, particularly in the context of Section 53A of the Transfer of Property Act, 1882. According to the learned senior counsel, the oral and documentary evidence on record indicated from the very inception of the interaction between the rival parties i.e. first agreement dated 11/10/1988, the respondents had resiled from their promises and this was obvious from the fact that payments were never made by the respondent in terms of the agreements executed between the parties. It was emphasized that at every stage the cheques issued ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 20 sa217 & 218.18 - Judgment.odt by the respondents had been dishonored and only a very small amount of the consideration was paid by the respondents. It was submitted that even after the parties arrived at a compromise and executed agreement dated 30/04/1992, cheques were dishonored and payments were never made, although the respondents continued to enjoy possession of the suit property. The appellants unilaterally performed their obligations under the said agreement and the respondents repeatedly defaulted, thereby showing that they were never ready and willing to perform their part of the contract. On this basis it was submitted that the Appellate Court ought not to have granted injunction restraining the appellants from transferring the suit property in any manner. It was emphasized that the second agreement dated 28/07/1989 was executed due to the fraud played by the respondents and that they could not be permitted to take advantage of their wrong.
16. In respect of substantial question No.3, the learned senior counsel for the appellants submitted that the Appellate Court erred in holding that the respondents could not be said to have committed breach of the agreement dated 28/07/1989, when sufficient material was placed on record to show that after making initial payments of paltry sums of money, the respondents ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 21 sa217 & 218.18 - Judgment.odt did not honor their commitment of making payments as per schedule to the appellants. Despite such evidence on record, proving breach of the agreement on the part of the respondents, the Appellate Court erroneously held in their favour.
17. The fourth substantial question of law was framed on the basis of the contentions raised by the learned senior counsel on behalf of the appellants that execution of agreement dated 30/04/1992 resulted in substantial changes in the earlier agreement dated 28/07/1989 and that therefore, the present case was a case of novation and sections 52, 62 and 64 of the Indian Contract Act, 1872 came into operation, the effect of which was not taken into consideration by the Courts below. It was submitted that even if specific pleadings and evidence were necessary for raising such contentions, this Court could exercise power under Order 41 Rules 23A and 25 of the Civil Procedure Code (CPC) to remand the matter for proper consideration. On this basis it was submitted that the questions framed by this Court deserved to be answered in favour of the appellants and the appeals deserved to allowed.
18. On the other hand Mr. R. L. Khapre, learned counsel appearing for the contesting respondents No.1 to 7, ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 22 sa217 & 218.18 - Judgment.odt submitted that the Appellate Court had properly appreciated the evidence and material on record, while passing the impugned judgment and order in favour of the respondents. It was submitted that the suit filed by the appellants was correctly held to be barred by limitation, because the plea of fraud raised on behalf of the appellants demonstrated that they claimed that the agreement dated 28/07/1989 was a voidable agreement and that as per settled law, the suit for declaration and injunction ought to have been filed by the appellants within three years from the said agreement. Admittedly, the suit was filed by the appellants beyond the period of limitation of three years and therefore, it was correctly dismissed on that ground by the Appellate Court.
19. On the question of readiness and willingness of the respondents, it was submitted that from initial stage itself the appellants had committed defaults and yet the respondents had made efforts to comply with their obligations under the said agreement. It was submitted that initially the appellants were required to ensure completion of the proceedings under the Ceiling Act and thereafter, when it was discovered by the respondents that reservation on the part of the land was to be removed before the construction and development could be ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 23 sa217 & 218.18 - Judgment.odt undertaken, despite efforts made by the respondents, the appellants did not co-operate in the matter. As a consequence, the respondents had informed the appellants not to deposit cheques towards balance amount as the parties were in the process of sorting out the matter and yet cheques were deposited by the appellants. Dishonor of such cheques could not be said to be a breach on the part of the respondents or any indication of lack of readiness and willingness on their part. It was submitted that some of the appellants who had filed Civil Suit No.2533/1990 had refused to withdraw the same despite specific stipulation in the third agreement dated 30/04/1992. The respondents continued to make efforts for removal of reservation in part of the land despite non-cooperation from the appellants and ultimately such reservation stood removed on 07/01/2000. During this period also the respondents repeatedly made attempts to resolve the dispute created by the appellants and they even entered into a compromise with the appellants in the year 1996 and deposited further amount of Rs.2,00,000/- in pursuance thereof in the suit filed by the appellants and yet the appellants did not perform their part of the contract. On this basis, it was submitted that the appellants could not claim that there was lack of readiness and willingness on the part of the respondents or there was breach of ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 24 sa217 & 218.18 - Judgment.odt contract on their part. It was submitted that a defaulting party like the appellants was not entitled to make such submissions.
20. On the question of novation and effect of sections 52, 62 and 64 of the Indian Contract Act, 1872, it was submitted that there was neither any pleading, nor any evidence led before the Courts below in that regard. It was further submitted that request for remand made on behalf of the appellants in this regard was unsustainable. It was also submitted that in any case, the third agreement dated 30/04/1992, could not be said to have resulted in novation, because only the schedule of payment was altered while there was no material alteration made in the agreement dated 28/07/1989 and as per settled law, the theory of novation could not be invoked by the appellants in the present case at all. On this basis, it was submitted that the appeals deserved to be dismissed.
21. Heard learned counsel of the rival parties and perused the material on record. The first question of law framed by this Court pertains to the question, as to whether the suit filed by the appellants for declaration and permanent injunction was within limitation. There is no dispute about the fact that the agreement in question in the said suit was dated 28/07/1989 and ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 25 sa217 & 218.18 - Judgment.odt that the suit was filed by the appellants on 16/08/1993. The suit was clearly beyond the period of three years from the date of agreement. In this context, the specific contention raised on behalf of the respondents was that the nature of allegations made in respect of said agreement on behalf of the appellants pertained to alleged fraud committed by the respondents with the appellants while executing the agreement dated 28/07/1989. It was alleged that the respondents had taken advantage of the illiteracy of the appellants and it was represented to them that the earlier agreement dated 11/10/1988 was being registered and that under such impression the appellants had agreed to execute the subsequent agreement dated 28/07/1989. The Appellate Court has dealt with in detail regarding the said aspect of alleged fraud and found that the appellants failed to prove that they were illiterate and that they did not understand the agreement executed on 28/07/1989. The said findings of facts are arrived at by the Appellate Court upon appreciation of the oral and documentary evidence on record. Since this Court does not find any error in the said findings, much less perversity, challenge raised to the said finding cannot be accepted.
22. Once such a conclusion is reached, it becomes clear ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 26 sa217 & 218.18 - Judgment.odt that the nature of challenge raised to the said document on behalf of the appellants needs to be examined. The learned counsel for the respondents is justified in contending that the nature of challenge raised on behalf of he appellants in respect the agreement dated 28/07/1989 shows that they have claimed the said document to be a voidable document. In the context of limitation, while such a contention of voidability of the document is raised, Article 59 of the Limitation Act applies. In the present case, the appellants themselves claimed that they became aware about the fraudulent nature of the documents, because the respondents had taken advantage of their illiteracy. In the suit, it was claimed by the appellants that the cause of action arose on 19/07/1993, when the respondents issued a legal notice to them. The said assertion is not believable, because it was not as if the appellants were not aware about the nature of the agreement dated 28/07/1989, because the oral and documentary evidence on record shows that the appellants had acted upon the terms of the said agreement.
23. In fact, in the subsequent agreement dated 30/04/1992, it was recorded that only the payment schedule specified in agreement dated 28/07/1989 was being changed and ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 27 sa217 & 218.18 - Judgment.odt that all other terms of the said agreement dated 28/07/1989 were being re-affirmed. These facts clearly shows that there was no substance in the contention raised on behalf of the appellants that they were not aware about the contents of the agreement dated 28/07/1989 or the terms thereof, because they were under the impression that the document executed on 28/07/1989 was merely to register the earlier agreement dated 11/10/1988. The pleadings on behalf of the appellants and the evidence on record showing their conduct clearly demonstrates that the appellants could not claim that the cause of action for them arose on 19/07/1993. Therefore, the suit was clearly filed beyond the period of limitation.
24. As regards the effect of agreement dated 30/04/1992, on the period of limitation for filing the suit in respect of cancellation of agreement dated 28/07/1989, a perusal of the documents shows that the agreement executed on 30/04/1992 would not delay the starting point of limitation, because in the said agreement also it was specifically stated that all the terms and conditions of the earlier agreement dated 28/07/1989 were re-affirmed. It is not even the case of the appellants that they became aware of the alleged fraud committed ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 28 sa217 & 218.18 - Judgment.odt by the respondents on them, when the said agreement dated 30/04/1992 was executed and therefore, if the appellants had any grievance or cause of action to seek cancellation of the agreement dated 28/07/1989, they could not claim that the period of limitation started when the said agreement dated 30/04/1992 was executed as compromise between the parties. In this context, the learned counsel appearing for the respondents was justified in relying upon the judgment of the Hon'ble Supreme Court in the case of Prem Singh and others vs. Birbal and others reported in (2006) 5 SCC 353, wherein applicability of the limitation Act, particularly Article 59 thereof, has been discussed in the context of allegation that the document was voidable due to the fraud committed on the plaintiffs. The said judgment supports the contention raised on behalf of the respondents. Hence, the first question framed by this Court is answered against the appellants and in favour of the respondents, thereby confirming the finding of the Appellate Court that the suit for declaration and injunction filed by the appellants was barred by limitation.
25. On the second question of law framed by this Court pertaining to readiness and willingness of the respondents in the context of Section 53A of the Transfer of Property Act, 1882, the ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 29 sa217 & 218.18 - Judgment.odt agreements on record, as also the power of attorney need to be appreciated in the context of the oral and documentary evidence on record pertaining to the conduct of the parties. In the present case, it was agreed between the parties that the respondents would undertake the development and construction on the suit property and for that purpose agreement dated 11/10/1988 was executed between the said Wasudeo Harode, as power of attorney holder for other family members. The said family members had disputes interse amongst themselves, as a result of which the agreement dated 11/10/1988 could not be implemented in the manner expected. In this situation, the respondents could bring all the family members together, resulting in execution of the second agreement dated 28/07/1989. In the said agreement payment schedule was specified and the respondents did make payment of the first installment. The registered power of attorney dated 25/07/1989 was also executed, so as to achieve the object of the agreement between the parties. It was when the respondents approached the planning authority to apply for building permission that it was realized that substantial portion of the suit property was under reservation for public utility and that unless such reservation was removed, development and construction activity could not be undertaken by ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 30 sa217 & 218.18 - Judgment.odt the respondents to satisfy the agreement entered into between the parties. It is for the said reason that the respondents approached the appellants to sort out the situation. In this situation, the subsequent payments as per the said agreement were not made by the respondents. At that stage even the suit filed by some of the appellants bearing Civil Suit No.2533/1990, was pending before the Civil Court. This situation was created by the appellants, resulting in the respondents not being able to perform reciprocal obligations.
26. The parties eventually arrived at a compromise, resulting in execution of the agreement dated 30/04/1992. The said agreement clearly states that it was in continuation with the earlier agreement dated 28/07/1989. In the said agreement, which was the result of compromise, it was specifically stipulated that the aforesaid Civil Suit No.2533/1990 would be withdrawn and only the payment schedule was altered in view of the compromise between the parties. It was agreed that amount of Rs.1,00,000/- each would be paid to the appellants in three installments, (i.e. 2 installments of Rs.35,000/- each and one installment of Rs.30,000/- each) and further installment of Rs.1,63,750/- would be paid after the reservation on the land was ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 31 sa217 & 218.18 - Judgment.odt removed. It is undisputed that the respondents indeed paid the first installment of Rs.35,000/- to the appellants, but the appellants failed to withdraw Civil Suit No.2533/1990. As a result, the respondents insisted upon the appellants to abide by their obligation of withdrawal of the civil suit and in absence thereof intimated that further installments were kept in abeyance.
27. It is at this stage that the appellants issued notices purporting to cancel the registered irrevocable power of attorney and the aforesaid agreement dated 28/07/1989. The respondents were then constrained to file the suit for declaration and injunction and within less than a month, the appellants filed the suit claiming that the agreement dated 28/07/1989 was got fraudulently executed by the respondents. Even when the parties were before the Trial Court, a compromise was entered into between the parties and a compromise petition dated 20/01/1996 was filed before the Trial Court in the suit filed by the appellants. As per the terms of the said compromise, it was conceded by the appellants that they had received Rs.10,00,000/- from the respondents from time to time in pursuance of the said agreement. They further agreed that the dispute would be settled on payment of Rs.28,50,000/-. It was further agreed that taking ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 32 sa217 & 218.18 - Judgment.odt into account the said amount of Rs.10,00,000/-, the balance would be paid by the respondents in terms of installments specified in the said compromise petition. It is undisputed that in pursuance of the said compromise petition filed before the Trial Court, on 20/01/1996, the respondents deposited amount of Rs.2,00,000/- before the Trial Court. It was also specified in the said compromise petition that if the respondents defaulted in any manner in payment of installments as specified, the appellants would be at liberty to get the compromise decree executed through Court for the entire balance consideration with interest @24% per annum
28. The material on record shows that even after the respondents deposited amount of Rs.2,00,000/- in the Trial court, the appellants refused to take any steps for passing of decree in terms of the compromise petition. Eventually on 31/07/1997, the appellants filed a pursis before the Trial Court stating that they did not want to proceed with the compromise petition and that the same be treated as withdrawn. This has to be appreciated in the backdrop that in the absence of removal of reservation on substantial portion of the suit property, the respondents were not in a position to carry out construction and development activity. ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 :::
33 sa217 & 218.18 - Judgment.odt A perusal of the compromise petition filed before the Trial Court shows that the appellants themselves conceded to the fact that the respondents had paid amount of Rs.10,00,000/- from time to time to them. The amount of Rs.2,00,000/- was also additionally deposited in the Trial Court by the respondents in pursuance of the said compromise petition and yet the appellants were not proceeding in terms of the compromise petition signed by them. In this situation, it becomes clear that the respondents could not be said to be guilty of not showing readiness and willingness on their part. In such a situation, the respondents cannot be blamed for the agreements not reaching their fruition and the appellants could not put the blame on the respondents for the state of affairs. The Appellate Court appreciated this aspect in the correct perspective and therefore, the second question is answered in favour of the respondents and against the appellants.
29. Much of the same reasons are applicable to answer to the question framed by this Court regarding breach of contract on the part of the respondents, in the facts and circumstances of the present case. As noted above, the material placed on record indicates that the appellants had failed to perform their obligation in the agreements entered into between the parties and the ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 34 sa217 & 218.18 - Judgment.odt attempts made at settling the dispute. It is on record that the respondents did make initial payments in pursuance of agreements dated 28/07/1989 and 30/04/1992, as also in pursuance of the subsequent compromise petition dated 20/01/1996 before the Trial Court but, the appellants failed to perform their reciprocal obligations. The aspect of reservation on substantial part of the suit property was not divulged by the appellants to the respondents when agreement dated 28/07/1989 was executed and it was only when the planning authority refused permission to the respondents on the said ground that the respondents had to take action for removal of reservation and till that time the activity of development and construction was hampered. Some of the appellants had filed Civil Suit No.2533/1990 before the Civil Court, which was also a factor that was creating hurdles in the agreement dated 28/07/1989 and it was for this reason that in the agreement dated 30/04/1992, a specific condition was laid down that on the respondents making payments to the appellants, the aforesaid suit was to be withdrawn by the appellants. It is an admitted position that despite first installment being paid by the respondents, the appellants did not withdraw the said suit. Even in pursuance of the subsequent compromise petition dated 20/01/1996 filed by ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 35 sa217 & 218.18 - Judgment.odt the parties before the Trial Court, while the respondents deposited the amount of Rs.2,00,000/- towards the first installment in the Court, the appellants refused to abide by their obligations under the compromise petition and eventually filed a pursis in the Court stating that they did not wish to press the compromise petition. These facts clearly bring out the factual position that the respondents could not be held guilty of breach of the agreements and that it was the appellants who had brought about the said situation between the parties. In this context, this Court finds that the appellate Court was justified in referring to section 202 of the Indian Contract Act, 1872, to hold that the respondents were entitled to retain possession of the suit property to carry out activities as per agreement dated 28/07/1989 and power of attorney dated 25/07/1989, and further that the appellants could not have unilaterally withdrawn from the agreement and cancelled the power of attorney. Accordingly, the third question is answered in favour of the respondents and against the appellants.
30. Insofar as fourth question is concerned pertaining to novation of agreement by execution of subsequent agreement dated 30/04/1992 and the effect of sections 52, 62 and 64 of the Indian Contract Act, 1872, it is an admitted position that the said ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 36 sa217 & 218.18 - Judgment.odt contention has been raised for the first time in this Court in the Second Appeals. In this regard the learned senior counsel appearing for the appellants very fairly placed before this Court judgment of the Hon'ble Supreme Court in the case of Babu Ram @ Durga Prasad vs. Sri. Indrapal Singh (Dead) by LRS. reported in AIR 1998 SC 3021. It is specifically held in the said judgment as follows :
"15. Novation under section 62 of the Contract Act requires a clear plea, issue and evidence. Such a question cannot be raised or accepted under Section 100, CPC for the first time in Second Appeal. There was no such issue in the Courts below and the defendant's evidence was contrary to such a theory."
31. Thus, the said question cannot be entertained by this Court at the stage of Second Appeal for the first time, in the absence of any pleading, issue or evidence in that regard. In order to get over this situation, the learned senior counsel for the appellants submitted that this Court could remand the matter by exercising power Order 41, Rules 23A and 25 of the C.P.C. But, since in the present case foundational facts for such prayer of remand are not made out, the said request for remand of the matter cannot be accepted.
32. In any case, it is pointed out by the learned counsel ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 37 sa217 & 218.18 - Judgment.odt appearing for the respondents that any and every alteration of an agreement would not qualify as novation under the Contract Act. Attention of this Court was invited to judgments of Hon'ble Supreme Court including judgment in the case of M. S. Anirudhan vs. Thomco's Bank Ltd. reported in AIR 1963 SC 746, laying down that only a substantial alteration of an agreement would result in novation and that unsubstantial alteration would not result in novation. In the present case, under the agreement dated 30/04/1992, only the payment schedule was altered while it was specifically stated at the outset that the said agreement was in continuation of the earlier agreement dated 28/07/1989. It was further specifically stated in Clause (8) of the said agreement that except change in payment schedule none of the terms and conditions of the agreement dated 28/07/1989 were altered by virtue of the said subsequent agreement dated 30/04/1992 and that the terms and conditions of the agreement dated 28/07/1989 would remain in operation as they were and that they would be binding on both the parties. Thus, there is no substance in the contention sought to be raised before this Court for the first time on behalf of the respondents that the present case concerned novation and that the effect of sections 52, 62 and 64 of the Indian Contract Act, 1872, was required to be examined. Therefore, the ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 38 sa217 & 218.18 - Judgment.odt said question is also answered in favour of the respondents and against the appellants.
33. In the ordinary course, having answered the said questions against the appellants, the appeals would have been dismissed, but for the fact that the Appellate Court appears to have committed an error in not realizing that even if the suit filed by the appellants was found to be barred by limitation and the suit filed by the respondents was to be partly decreed by upholding the power of attorney dated 25/07/1989 and agreement dated 28/07/1989, the appellants were entitled to payment in terms of the agreement. A specific stipulation in the said agreement provided that if the respondents failed to pay balance consideration on the date fixed, they would have to pay the balance amount of consideration with interest @6% per annum Even if it was to be held that the respondents could not be blamed entirely because reservation on substantial portion of the land was released as late as on 07/01/2000, the appellants were clearly entitled to payment of balance consideration along with interest, if the respondents were to take the agreement to its logical end and retain the possession to undertake development and construction activities. The order passed by the Appellate Court while partly ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 39 sa217 & 218.18 - Judgment.odt allowing the suit of the respondents restrains the appellants from transferring the suit property and yet gives no direction to the respondents for making payment of balance amount as per the agreements between the parties.
34. The learned counsel appearing for the respondents conceded to this position and submitted that the respondents were ready to make payment alongwith interest to the appellants. In this context, the learned counsel for the respondents invited attention of this Court to the admitted payments made by the respondents to the appellants from time to time. It was pointed out that in the compromise petition filed before the Trial Court on 20/01/1996, the appellants themselves had conceded that they had received Rs.10,00,000/- from time to time from the respondents. The learned counsel for the respondents also pointed out from the record that as per direction of this Court while entertaining the First Appeals filed by the respondents, amount of Rs.14,21,512/- [Rupees Forteen Lakhs Twenty One Thousand Five Hundred and Twelve only] was deposited by the respondents in this Court. This was because the First Appeals were initially filed by the respondents in this Court and later due to change in pecuniary jurisdiction, the appeals were transferred ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 ::: 40 sa217 & 218.18 - Judgment.odt to the District Court. It was pointed out that the appellants had withdrawn the said amount from this Court, initially by furnishing bank guarantee, but later the bank guarantee was not renewed. Taking into account all such payments and deposits made before the Trial Court in pursuance of the aforesaid agreement and compromise petition, as well as in pursuance of the aforesaid direction of this Court, it was submitted on behalf of the respondents that they were ready to make payment of the balance amount along with interest. Although Clause (13) of the agreement dated 28/07/1989 stipulates that the respondents would be obliged to pay interest @6% per annum on the balance amount, taking into consideration the fact that the respondents themselves had agreed in the compromise petition dated 20/01/1996 before the Trial Court to pay balance amount of consideration with interest @24% per annum, this Court finds that it would be in the interest of justice that the respondents are directed to pay the balance amount to the appellants along with interest @ 24% per annum
35. This Court is proceeding on the basis that the appellants had also agreed for total consideration of Rs.28,50,000/- before the Trial Court in the compromise petition. ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 :::
41 sa217 & 218.18 - Judgment.odt As per the said compromise petition, the appellants had already received Rs.10,00,000/- from the respondents. The record shows that the respondents had deposited amount of Rs.2,00,000/- in pursuance of the said compromise petition in the Trial Court. The respondents had further deposited Rs.14,21,512/- [Rupees Forteen Lakhs Twenty One Thousand Five Hundred and Twelve only] before this Court in the appeals and the said amount was admittedly withdrawn by the appellants on 15/06/2001. As per the stipulation in the compromise petition, the appellants were entitled to receive interest @ 24% per annum from the respondents. The total amounts received by the appellants during the course of the litigation comes to Rs.26,21,512/- [Rupees Twenty Six Lakhs Twenty One Thousands Five Hundred and Twelve only] [Rs.10,00,000 + 2,00,000 + 14,21,512]. Since this Court is proceeding on the basis that the respondents were to pay Rs.28,50,000/- as per the compromise petition dated 20/01/1996, the balance amount payable by the respondents comes to Rs.2,28,488/- [Rs.28,50,000 - 26,21,512]. The respondents are liable to pay the said balance amount alongwith interest @ 24% per annum to the appellants from the date of the compromise petition i.e. 20/01/1996 till such payment is made. ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 :::
42 sa217 & 218.18 - Judgment.odt
36. In view of the above, Second Appeal No.218/2018 is dismissed, while Second Appeal No.217/2018 is partly allowed, while answering the substantial questions of law in favour of the respondents. The common judgment and order of the Appellate Court is confirmed only with the modification that the respondent Nos.1 to 7 in Second Appeal No. 217/2018, shall pay the aforesaid balance amount of Rs.2,28,488/- [Rupees Two Lakhs Twenty Eight Thousand Four Hundred and Eighty Eight only] with 24% interest to the appellants from 20/01/1996 till the amount is actually paid. The said amount shall be paid within three months. If the appellants refuse to accept the same, the respondents shall deposit the same in this Court, which the appellants would be at liberty to withdraw. All other clauses of the operative portion of the impugned common judgment and order of the Appellate Court are confirmed.
37. Appeals are disposed of in above terms with no order as to costs.
JUDGE KOLHE/P.A. ::: Uploaded on - 19/12/2019 ::: Downloaded on - 20/12/2019 05:35:17 :::