Karnataka High Court
H R Subramanya Shastry vs Sri K Mohan Kumar on 6 January, 2021
Equivalent citations: AIR 2021 (NOC) 370 (KAR.), AIRONLINE 2021 KAR 9, 2021 (1) AKR 778
Bench: B.Veerappa, K.Natarajan
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6th DAY OF JANUARY, 2021
PRESENT
THE HON' BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL No.666/2013
BETWEEN:
1. H. R. SUBRAMANYA SHASTRY
S/O LATE H. S. RAMASHASTRY,
AGED ABOUT 73 YEARS,
AGRICULTURIST,
RESIDENT OF OLD POST OFFICE ROAD,
SHIMOGA CITY-577201.
2. H. R. SHANKARA NARAYANA SHASTRY
S/O LATE H. S. RAMASHASTRY,
AGED ABOUT 69 YEARS,
R/O ABHIRAMA, 5TH CROSS,
SHIMOGA CITY-577201.
3. SRI H. R. NAGABUSHANA SHASTRY,
S/O LATE H. S. RAMASHASTRY,
AGED ABOUT 57 YEARS,
R/O SIRI GOWRI,
SOMAIAH LAYOUT,
SHIMOGA CITY-577201.
4. SRI H. R. SRIPADHA SHASTRY
S/O LATE H. S. RAMASHASTRY,
2
AGED ABOUT 54 YEARS,
R/O NISHANTH, 1ST FLOOR,
RAILWAY STATION ROAD,
UDUPI-576101. ...APPELLANTS
(BY SRI S. V. PRAKASH, ADVOCATE)
AND:
SRI K. MOHAN KUMAR
S/O KAITHMAL JAIN
AGED ABOUT 52 YEARS
OCCUPATION:BUSINESS
R/O THIMMAPPANA KOTTHALLU
SHIMOGA CITY-577201. ...RESPONDENT
(BY SRI P. N. HARISH, ADVOCATE)
...
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF THE CODE OF CIVIL PROCEDURE, 1973, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 11.02.2013 PASSED BY THE
COURT OF FIRST ADDITIONAL SENIOR CIVIL JUDGE, SHIMOGA, IN
O.S. NO.80/2010, DECREEING THE SUIT FOR SPECIFIC
PERFORMANCE.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, IS COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:
3
JUDGMENT
The defendants have filed the present regular first appeal against the impugned judgment and decree dated 11.2.2013 made in O.S.No.80/2010 on the file of the I Additional Senior Civil Judge and CJM., Shivamogga decreeing the suit of the plaintiff with cost and directing the defendant to execute the registered Sale Deed in favour of the plaintiff by receiving the balance sale consideration within two months time from the date of the impugned judgment and decree, failing which, the plaintiff would be at liberty to take steps in accordance with law.
2. The parties herein are referred to as per their rankings before the trial Court.
I The brief facts of the case
3. The respondent-plaintiff filed a suit for specific performance for enforcement of oral agreement dated 10.4.2010 contending that the defendants are joint owners of the suit property morefully described in the schedule to the plaint. After negotiation, the defendants entered into an oral agreement dated 10.4.2010 4 agreeing to sell the schedule property for sale consideration of Rs.40,11,000/- (Rupees Forty Lakhs Eleven Thousand Only) to the plaintiff and in pursuance of the same, the plaintiff paid a sum of Rs.5,11,000/- (Rupees Five Lakhs Eleven Thousand Only) as earnest money to the defendants and the defendants promised to complete the sale transaction by executing the registered Sale Deed in his favour after acknowledgement of the balance sale consideration of Rs.35,00,000/- (Rupees Thirty lakhs only). It was further contended that the plaintiff had paid the said amount to the defendants by way of cash as well as through the cheque bearing No.600969 dated 10.4.2010 for a sum of Rs.2,00,000/- drawn on Canara Bank, Main Branch, Nehru Road, Shivamogga in favour of defendant No.1 which was acknowledged by him and also on behalf of defendant Nos.2 to 4. In turn, the defendants had also promised to execute the registered Sale Deed within 30.4.2010 in favour of the plaintiff by receiving the balance sale consideration.
4. It was further contended that in view of the terms and conditions of the oral Agreement, the defendants were supposed to deliver all the Title Deeds and other relevant documents to the 5 plaintiff, but they did not deliver any of the required original documents pertaining to the suit schedule property. Later the defendants requested the plaintiff to provide some more time for delivery of the required original documents and for execution of the registered Sale Deed. However, while entering into the oral Sale Agreement, the defendants had delivered photostat copies of some of the documents to the plaintiff. Inspite of repeated requests and demand by the plaintiff to the defendants to deliver all the necessary documents and to execute the registered Sale Deed in his favour after receiving the balance sale consideration of Rs.35,00,000/- (Rupees Thirty Five Lakhs), the defendants failed to comply with their contractual obligations. Therefore, the plaintiff issued legal notice, dated 7.6.2010, calling upon the defendants to execute the registered Sale Deed after receiving the balance sale consideration. The said notice was duly served on defendant No.1 on 26.6.2010, but instead of complying with the terms of the legal notice, defendant No.1 issued a reply notice dated 30.6.2010 with vague, untenable and false averments. Though defendant No.1 has admitted the acknowledgement of the amount under the cheque 6 issued by the plaintiffs, falsely contended that it is towards the sale of the dismantled building materials, which cannot even be imagined considering the position of the plaintiff. Defendant Nos.2 to 4 have tactfully avoided the service of the legal notice. The cause of action arose on 10.4.2010 and subsequently, when the plaintiff issued legal notice to the defendants and on failure of the defendants to execute the registered Sale Deed, the plaintiff filed the suit for specific performance.
II Written statement filed by the defendants
5. The defendants filed the written statement denying all the plaint averments, except the ownership of the suit schedule property by them and contended that the plaintiff is falsely making an attempt to link the payment through cheque dated 10.4.2010 for a sum of Rs.2 lakhs drawn on Canara Bank, Main Branch, Nehru Road, Shivamogga issued in favour of defendant No.1, was given for a different transaction and nothing to do with the suit. Infact, there was an existing old building on the plaint schedule site premises earlier. On getting the tenant vacated from that premises 7 through order of the Court, the existing building was intended to be demolished. The plaintiff through his agent came forward to purchase the building material offering Rs.2 lakhs for demolition of the building and to take the building materials which was accepted by defendant No.1-D.W.1 for which the said cheque came to be issued and not otherwise. It was the only transaction which was made in that regard and the plaintiff was making a false claim and there was no cause of action which arose for the plaintiff to file the suit or for issue of legal notice to the defendants for the suit claim. Therefore, the suit filed by the plaintiff for specific performance is not maintainable and the plaint was not properly verified with an affidavit. Hence, sought to dismiss the suit.
III Issues framed by the Trial Court
6. Based on the aforesaid pleadings, the trial Court framed the following issues:
1. Whether plaintiff proves that the defendants entered into an oral agreement to sell the suit property in his favour for Rs.40,11,000/- on 10.04.2010?8
2. Whether the plaintiff proves that besides issuing cheque for Rs.2,00,000/- he had paid a sum of Rs.3,11,000/- by way of cash towards part payment of sale consideration?
3. Whether the defendants prove that plaintiff issued cheque for Rs.2,00,000/- to purchase he materials of their demolished building?
4. Whether the plaintiff proves that he has always been ready and willing to perform his part of the agreement?
5. Whether the plaintiff is entitled for relief as prayed?
6. What Decree or Order?
IV Witnesses examined and documents
produced by the parties
7. In order to prove his case, the plaintiff examined himself as P.W.1, his auditor as P.W.2 and Members of his own Community as P.Ws.3 to 6 and got marked the documents Exs.P.1 to P.22. The defendants examined defendant No.1 as D.W.1, but did not mark any document.9
V Findings recorded by the Trial Court
8. The trial Court considering both oral and documentary evidence on record, recorded a finding that the plaintiff has proved that the defendants had entered into an oral agreement to sell the suit schedule property in his favour for the sale consideration of Rs.40,11,000/- on 10.4.2010; Besides issuing a cheque for a sum of Rs.2 lakhs, he had paid a sum of Rs.3,11,000/- by way of cash towards part payment of sale consideration; defendants have failed to prove that the plaintiff issued a cheque for a sum of Rs.2 lakhs to purchase the materials of their demolished building. It was further held that the plaintiff has proved that he was always ready and willing to perform his part of the agreement and was entitled for the relief as prayed for. Accordingly, the trial Court by the impugned judgment and decree dated 11.2.2013 decreed the suit and directed the defendants to execute the registered Sale Deed in favour of the plaintiff after receiving the balance Sale Consideration within two months from the date of the impugned judgment, failing which, the plaintiff would be at liberty to take steps in accordance 10 with law. Hence, the present regular first appeal is filed by the defendants.
9. We have heard the learned Counsel for the parties to the lis.
VI Arguments advanced by the learned Counsel for the appellants
10. Sri S.V. Prakash, learned Counsel for the appellants- defendants contended that the impugned judgment and decree passed by the trial Court decreeing the suit in favour of the plaintiff is erroneous and contrary to the material on record and is liable to be set aside. He would further contend that the trial Court has failed to frame proper issues on the pleadings urged by the parties and the impugned judgment and decree passed by the trial Court is mainly based on the assumptions and presumptions, which cannot be sustained. He would further contend that with regard to oral agreement, there must be clear terms and conditions which are neither pleaded in the plaint nor in the evidence of P.W.1. He would further contend that there is no concluded contract between the plaintiff and defendants to prove the alleged oral agreement 11 entered into between the plaintiff and defendant No.1 dated 10.4.2010 and on that ground alone, the impugned judgment and decree passed by the trial Court cannot be sustained. He would further contend that the trial Court has not framed any issue with regard to the hardship as contemplated under the provisions of Section 20 of the Specific Relief Act though a reference is made in respect of the provisions of the said section, without there being any basis and therefore, on that ground also, the impugned judgment and decree passed by the trial Court is liable to be set aside.
11. The learned Counsel for the appellants-defendants further contended that the defendant No.1 alone is not the absolute owner as contended by the plaintiff. All the defendants are joint owners of the property in question. Admittedly, the plaintiff has not produced any authorization of the other defendants to agree with the alleged oral agreement between the plaintiff and defendant No.1. He would further contend that the plaintiff has not produced any material document to prove his payment of advance amount of Rs.5,11,000/- including the cheque. Defendant No.1 in his 12 evidence has categorically denied all the plaint averments except the ownership and has contended that the alleged payment of Rs.2 lakhs through a cheque dated 10.4.2010 was in respect of transaction between the plaintiff and defendants for demolition of the building and for taking away all the materials, but nothing to do with the alleged oral agreement. The same has been reiterated in the evidence of defendant No.1 and nothing has been elicited in his cross-examination. Therefore, the very suit filed by the plaintiff against the defendants on the alleged oral agreement is not maintainable.
12. The learned Counsel for the appellants-defendants further contended that P.Ws.2 to 6 are Members of the Community of the plaintiff and also the Members of the Committee of the Jain Hospital as admitted by P.W.1. Exs.P.16 to 20 are the General Power of Attorneys issued by the children of the defendants in favour of defendant No.1 in the year 2009, but nothing to do either with the transaction or it is helpful to the case of the plaintiff. He would further contend that the parties negotiated for demolition of the building for the first time earlier and they were not knowing 13 each other in view of the oral evidence adduced on behalf of the plaintiff.
13. In support of his contentions, the learned Counsel for the appellant-defendants relied upon the following decisions of the Hon'ble Supreme Court:
i) Brij Mohan and Others -vs- Sugra Begum and Others Reported in (1990) 4 SCC 147, paragraphs 20 and 22;
ii) V.R. Sudhakara Rao and Others -vs- T.V. Kameswari Reported in (2007) 6 SCC 650 paragraphs 12 and 16;
iii) Ganesh Shet -vs- Dr.C.S.G.K. Setty and Others reported in 1998 SC 2216, paragraphs-8, 10, 16, 23, 36 and 38 Therefore, he sought to allow the regular first appeal.
VII Arguments advanced by the learned Counsel for respondent
14. Per contra, Sri P.N. Harish, learned Counsel for the plaintiff-respondent while justifying the impugned judgment and decree contended that since P.Ws.2 to 6 in categorical terms have stated the terms and conditions of the oral agreement between the 14 plaintiff and defendant No.1 and in their cross-examination conducted were on different dates, their evidence is more believable. He would further contend that as the plaintiff had the confidence on the defendants, he did not insist for receipt of the advance amount paid in pursuance of the oral agreement dated 10.4.2010. He would further contend that by conjoint reading of the written statement and the evidence of the defendants, it is clear that there was an oral Agreement of Sale of the suit schedule property between the parties and not for demolition of the building and therefore, the impugned judgment and decree passed by the trial Court is just and proper. He would further contend that P.W.4
- Hansraj Kawad - who was the tenant under the defendants and examined on behalf of the plaintiff, has supported the case of the plaintiff and that the parties were known to each other. The impugned judgment and decree passed by the trial Court is based on the oral and documentary evidence on record and is in accordance with law and hence, this Court cannot interfere with the same in exercise of powers under the provisions of Section 96 of 15 the Code of Civil Procedure (for short, hereinafter referred to as 'CPC').
15. The learned Counsel for the plaintiff-respondent further contended that in view of the provisions of Section 20 of the Specific Relief Act, the discretion has to be exercised in favour of the plaintiff as more hardship would be caused to him, if specific performance is refused by the defendants. He would further contend that the intention of selling the suit schedule property is not in dispute since many attempts were being made to sell the suit schedule property as admitted by D.W.1. If there was no oral agreement, then question of handing over the documents by the 1st defendant to the plaintiff would not arise. He further drawing attention of the Court to the evidence of P.Ws.2 to 6 contended that they have deposed that there was an oral agreement between the plaintiff and defendants, in pursuance of which, the plaintiff had handed over the advance amount to the 1st defendant. If that was so, even question of framing an issue under the provisions of Section 20 of the Specific Relief Act by the trial Court, would not 16 arise. Therefore, he sought to dismiss the regular first appeal filed by the defendants.
VIII Points for determination
16. In view of the aforesaid rival contentions urged by the learned Counsel for both parties, the points that arise for consideration in the present regular first appeal are:
i) Whether the appellants-defendants have made out any case to interfere with the impugned judgment and decree passed by the trial Court decreeing the suit of the plaintiff for specific performance of the oral agreement in the facts and circumstances of the present case?
ii) Whether the suit filed by the plaintiff for specific performance based on the oral agreement was maintainable in the facts and circumstances of the present case?
17. We have given our thoughtful consideration to the arguements advanced by the learned Counsel for the parties and 17 perused the entire material on record including the original records carefully.
IX Consideration
18. The substance of the case of the respondent-plaintiff is that the appellants-defendants are the joint owners of the suit schedule property. The 1st defendant had entered into an oral Sale Agreement dated 10.4.2010 with him agreeing to sell the suit schedule property for Sale Consideration of Rs.40,11,000/- to him as the 1st defendant was authorized on behalf of the defendants. Accordingly, on the date of the oral Agreement, the plaintiff had paid a sum of Rs.3,11,000/- as earnest money to the 1st defendant, who in turn had promised to execute the registered Sale Deeds after receipt of the balance Sale Consideration of Rs.35,00,000/-. Inspite of repeated requests, the defendants did not fulfill their contractual obligation. Therefore, the plaintiff was constrained to issue legal notice on 7.6.2010. However, the 1st defendant instead of complying with the demand made in the notice, got issued an untenable reply that he had received the cheque for a sum of Rs.2 lakhs towards sale of dismantled building material and the plaintiff 18 was trying to alienate the suit schedule property in order to deceive him. Therefore, the plaintiff had filed the suit.
19. It is the specific case of the defendants that they are not disputing the joint ownership of the property in question. They have filed the written statement admitting the joint ownership of the suit schedule property, and denying the other plaint averments. They have contended that neither the 1st defendant or any of the defendants entered into oral Agreement of Sale as alleged, but the plaintiff is making a false claim to link the cheque of Rs.2 lakhs dated 10.4.2010 of Canara Bank, Main Branch, Nehru road, Shivamogga issued in favour of the 1st defendant which was given for a different transaction and has nothing to do with the suit as alleged by the plaintiff. Infact there was an existing old building on the plaint schedule site premises earlier. On getting the tenant vacated from the said premises through the process of Court, the existing building was intended to be demolished and the plaintiff through his agents had come forward to purchase the building materials offering Rs.2 lakhs after demolition of the building and to take away all the building materials which was accepted by 19 defendant No.1. Accordingly, the cheque was issued only for taking all building materials and there was no cause of action. Therefore, the defendants sought to dismiss the suit.
20. In order to prove his case, the plaintiff examined himself as P.W.1. In his examination-in-chief, he has deposed on par with the plaint averments. In the cross-examination, he has admitted that he and all witnesses belong to the Jain Community. P.W.4 - Hansraj Kawad, who was his Auditor and President of the said Community and some of the witnesses, who were also the Members of Committee of the Jain Community Hospital, were in search of the place for construction of their own hospital and the defendants were never known to him or he had seen them earlier to the transaction and he came to know the defendants only on the date of the transaction and on the same day. He has denied that, the cheque issued, was only for taking away the building materials after demolition and has admitted that after demolition of the old building, the suit schedule property was vacant at the time of giving evidence. He has further denied that within one month from 10.4.2010, the building was demolished and the building materials 20 were removed. In his cross-examination, he has deposed that he had paid a sum of Rs.2 lakhs by way of cheque and a sum of Rs.3,11,000/- by way of cash as requested by defendant No.1, in turn of which, he did not demand receipt for having paid the said amount since P.W.4-Hansraj assured him that, there would be no difficulty in giving the said amount as he was the tenant. Further as to why there was no document of agreement in writing, he has deposed that as the defendants agreed to execute the Sale Deed within twenty days and on the said assurance given by P.W.4- Hansraj as well as having confidence on 1st defendant, he did not demand for written document. He has admitted that the negotiation took place between 12.30 noon to 1.00 p.m. and information was sent through P.W.4 asking him to be present for the negotiation.
21. P.W.1 further deposed that, P.W.2 - Pradeep Kumar is the Chartered Account and all other remaining witnesses i.e., P.W.1- Mohan Kumar, P.W.3 - Javerilal Jirwala, P.W.4 - Hansraj Kawad, P.W.5 - Gautham Chand Lunawath, P.W.6 - Gautham Chand K., are all business man and were present on the date of 21 negotiation. P.W.1 has further deposed that P.W.2 is his auditor. He asked him to accompany him to give advise regarding mode of payment of earnest money. All the witnesses in the list viz., P.W.2 to 6, who were friends for so many years had accompanied him and they were all speaking Rajasthani Language. Except Serial Nos.7 and 8, all other witnesses mentioned in the witnesses list, were the Members of the Hospital Committee belonging to Jain Community.
22. P.W.2 - Pradeep Kumar, who is the Chartered Accountant has deposed that he knew the plaintiff and the defendants. There was a negotiation between the plaintiff and the defendants in respect of the schedule property on 10.4.2010 which had taken place at the residence of defendant No.1 and he, plaintiff and defendants were all present there. After negotiation, the defendants entered into an Oral Agreement dated 10.4.2010 agreeing to sell the suit schedule property for a Sale Consideration of Rs.40,11,000/- to the plaintiff. Accordingly, the plaintiff paid a sum of Rs.5,11,000/- as earnest money to the defendants and the defendants promised to complete the Sale transaction by executing the Registered Sale Deed in favour of the plaintiff after 22 acknowledging the balance Sale Consideration of Rs.35,00,000/-. The plaintiff also paid the said earnest amount by way of cash, a sum of Rs.3,11,000/- as well as through a cheque a sum of Rs.2 lakhs in favour of the defendants which was acknowledged by the 1st defendant and also on behalf of defendant Nos.2 to 4. At the time of entering into oral Agreement of Sale, the defendants were supposed to deliver all the original title deeds and other relevant documents in respect of the suit schedule property to the plaintiff, but only photostat copies of the said documents were delivered. In his cross-examination, he has admitted that he is running his Office in Gandhi Bazaar since 1997; he and other witnesses belong to the Jain Community; he is the Auditor of the witnesses - Mohan Kumar, Hansraj, Javerilal Jirwala, who without consulting him will not enter into any transaction. On the date of the agreement, when he went to his house to have the lunch which was in S.P.M. road, plaintiff came to him and took him for the negotiation. Though defendant No.1 told that the value of the suit property is worth for about Rs.60,00,000/-, plaintiff told that he is willing to give only a sum of Rs.35,00,000/- and the negotiation took place for about half an 23 hour. Atlast, the plaintiff agreed for Rs.40,11,000/- and paid a sum of Rs.3,11,000/- by way of cash and a sum of Rs.2 lakhs by way of cheque as advance. As there was friendship between the plaintiff and defendant No.1, the plaintiff did not demand receipt for having paid the said amount and thereafter, he did not know what happened. He has denied the suggestion that the defendants had not received any amount.
23. P.W.3-Javerilal Jirwala also has deposed on par with P.Ws.1 and 2 stating that he was also present on the date of transaction and there was oral agreement between the plaintiff and the defendants. In his cross-examination, he has admitted that earlier to the transaction, he was not knowing either of the defendants and his house is situated just in the opposite row of defendant No.1's house, where he is residing. There was no transaction between himself and defendant No.1. He has admitted that the plaintiff is running a shop in the place owned by him. Since plaintiff had invited him before one week for the negotiation that had taken place on 10.4.2010 with regard to purchase of some property, he had been to the house of defendant No.1 at about 24 12.30 noon on 10.4.2010. He has further deposed that the Sale Deed would be executed within twenty days from the date of transaction; Usually there should have been Agreement in writing, but the said Agreement was not put in writing, since the defendants had agreed to execute the Sale Deed within 20 days and the date of registration was nearer and therefore, they did not demand for any receipt for payment of said amount; Normally in the Jain Community, people would transact only through brokers; He does not know who informed the plaintiff about the sale of the suit property. After negotiation, the value of the property was reduced from Rs.60 lakhs to Rs.40,11,000/-. He has denied the suggestion that the advance amount was paid only for demolition of building materials and not for purchase of land. The evidence of P.W.3 is contrary to the evidence of P.Ws.1 and 2 stated supra.
24. P.W.4 - Hansraj Kawad, who is businessman as well as tenant of defendant No.1 has deposed that he had good acquaintance with defendant No.1. As defendants had informed that they are going to sell the property in question, he was asked to look for prospective buyers. Accordingly, he informed the plaintiff 25 to buy the suit schedule property and then the negotiation took place between the plaintiff and defendant No.1 in respect of the property in question. On 10.4.2010, he was present and apart from plaintiff and defendants, Pradeep Kumar, Dinesh Kumar Kothari, Javerialal Jirwala, Gouthamchand Lunawath, Gouthamchand K. and some other persons were also present. After negotiation, the defendants entered into a oral Sale Agreement on 10.4.2010 agreeing to sell the schedule property for a Sale Consideration of Rs.40,11,000/- to the plaintiff. In terms of the said agreement, the plaintiff paid a sum of Rs.5,11,000/- as earnest amount to the defendants and the defendants promised to execute the registered Sale Deed in favour of the plaintiff after acknowledging the balance Sale Consideration of Rs.35,00,000/-. The plaintiff paid the said earnest amount by way of cash a sum of Rs.3,11,000/- as well as through cheque, dated 10.4.2010 for a sum of Rs.2 lakhs to the defendants and defendant No.1 acknowledged the same for himself and on behalf of defendant Nos.2 to 4, and the defendants had promised to execute the Registered Sale Deed in favour of the plaintiff by receiving the balance Sale consideration within 26 30.4.2010. However, the defendants were supposed to deliver all the Title Deeds and other relevant documents in originals in respect of the property in question, but only photostat copies of some of the documents were delivered to the plaintiff. In his cross- examination, P.W.4 has admitted that he had taken the car shed for the balance rent which is measuring to an extent of 10 x 15 ft. for godown purpose; He knew the plaintiff for about 8 to 10 years and there was no transaction between them. They all belonged to the Jain Community and their language is Kannada. In the year 2010, he came to know defendant No.1, who informed him about selling of the property. Accordingly, on 10.4.2010, the plaintiff came to his house and he and plaintiff went to the house of defendant No.1. He has not enquired about the transaction with defendant No.1 and he had volunteered to say that as he knew that defendant No.1 would be therein in his house. He had also not informed him about they going to the house of defendant No.1. May be Mohan Kumar- plaintiff had informed the other witnesses to come there. There were three people on behalf of defendant No.1 and all the witnesses were there on behalf of the plaintiff. There was negotiation 27 between defendant No.1 and plaintiff. We do not know the amount of Sale Consideration. After negotiation, the sale consideration was finalized and they all participated for terms and conditions. Except payment of token advance, no other terms and conditions were there. He only demanded for advance amount. In order to give advance amount, plaintiff had brought a blank cheque, but defendant No.1 demanded some cash. Therefore, a cheque for a sum of Rs.2 lakhs was given and remaining sum of Rs.3,11,000/- was paid in cash which he had brought from his house to the defendant No.1. Since plaintiff and defendant No.1 were known to him, he did not demand any receipt for having paid the advance amount. The said statement made by P.W.4 is contrary to the evidence of P.Ws.1 and 2. He also has admitted that when the negotiation took place, there was an old building in that place and on behalf of the Jain Community, they wanted to construct a hospital. He was the Chairman of the Jain Community and other witnesses were also the Members of the said Community. 28
25. P.W.5 - Goutham Chand Lunawath, who is another businessman, has deposed that he knew the plaintiff and the defendants. He was a tenant under the 1st defendant and was having good acquaintance with him. The defendants had informed him that they are intending to sell the schedule property and had asked him to look for prospective buyers. Accordingly, he informed the plaintiff, who had expressed his desire to buy the schedule property. After negotiation between the plaintiff and the defendants in respect of the schedule property in the house of defendant No.1 in presence of other defendants and witnesses, the defendants entered into an oral Sale Agreement on 10.4.2010 agreeing to sell the suit property for a Sale Consideration of Rs.40,11,000/- to the plaintiff, in terms of which, the plaintiff paid a sum of Rs.5,11,000/- as earnest amount to the defendants and defendants promised to complete the sale transaction by excecuting the registered Sale Deed in favour of the plaintiff after acknowledgment of the balance Sale Consideration of Rs.35,00,000/-. In his cross-examination, he has admitted that prior to 10.4.2010, he was not knowing defendant No.1 or other 29 defendants and even he had not met the brothers of the 1st defendant. The plaintiff invited him one day prior to the negotiation of the transaction of the suit schedule property. He has admitted the suggestion that generally in respect of big amount of transaction, the Agreement will be in writing. Since there was a discussion between the plaintiff and defendant No.1 that the Sale Deed would be executed within 20 days, they decided that not to make an agreement in writing. The plaintiff had paid only a sum of Rs.3 lakhs and he was not aware of the reason for non-payment of entire amount through cheque. He has also admitted that with regard to negotiation of big amount, usually receipt will be demanded. There was no obligation for the 1st defendant to give the receipt and even the plaintiff did not demand the receipt. He has further admitted that there was an old house existing in the suit schedule property and he was not aware for what purpose, the plaintiff had given a sum of Rs.2 lakhs through cheque to defendant No.1 whether for demolition of the old building and for taking away the building materials; there was a discussion for construction of 30 Jain Community Hospital in the SPM Road; he is the Member of the Jain Community; the said hospital is being run in a rented building.
26. P.W.6 - Goutham Chand K., another businessman has deposed that he knew the plaintiff and the defendants. He was tenant under the 1st defendant and was having good acquaintance with him. He was informed that the defendants were intending to sell the schedule property and he was asked to look for prospective buyers. As such, he had informed the plaintiff, who had expressed his desire to buy the schedule property. Then there was negotiation between the plaintiff and the defendants in respect of the schedule property on 10.4.2010 which took place at the residence of the 1st defendant. He has further deposed that on the date of negotiation, apart from plaintiff and defendants, all witnesses on behalf of the plaintiff were present. After oral agreement for the Sale Consideration of Rs.40,11,000/-, the plaintiff paid a sum of Rs.5,11,000 to the defendants, who promised to complete the Sale transaction by execution of the registered Sale Deed after payment of balance Sale Consideration of Rs.35 lakhs. He has further deposed that defendants delivered the Photostat 31 copies of some of the documents to the plaintiff though they were supposed to deliver all the Title Deeds and other relevant documents in originals in respect of the suit schedule property. In the cross-examination, he has admitted that he knew the plaintiff for more than 10 to 12 years and they were friends belonging to the same Jain Community. He was involved in all the activities of the Community; His mother tongue was Hindi; plaintiff has got his own house and shop. He has denied the suggestion that there was no necessity for plaintiff to buy the property. He has admitted that he never had met earlier the 1st defendant or his brothers; there was no transaction between him and the defendants and till then he never knew where the house of defendant No.1 was situated. After negotiation, the price was fixed at Rs.40,11,000/-. The plaintiff had brought the cheque for payment of advance amount, but since the 1st defendant demanded the advance amount by way of cash, a sum of Rs.3,11,000/- was paid by way of cash and the remaining sum of Rs.2 lakhs by way of cheque. Defendants had agreed to execute the Sale Deed within 20 days from the date of negotiation in favour of the plaintiff and after acknowledgement of balance Sale 32 Consideration of Rs.35 lakhs, the plaintiff did not demand the receipt for having paid the amount and at that time, the remaining defendants were not present. Before going to the negotiation, he had no idea about the rate of the property and what would be advance amount they would demand. With regard to the suggestion that without any idea, why the plaintiff had brought the advance amount, he has replied that the plaintiff had brought only the cheque and when the 1st defendant demanded for cash, Sri Hansraj went to his house and brought the cash and gave it to the plaintiff which was given to the 1st defendant. But the plaintiff did not demand any acknowledgment for payment of the said amount. He has further deposed that the Jain Community was running the Hospital in the SPM road which was taken on rental basis. In order to construct the hospital in the place owned by the Jain Community, they were searching for a property and he has admitted the suggestion that normally for purchase of property, they were going through brokers.
33
27. D.W.1 - H.R. Subramanya Shastry, who is defendant No.1 in his examination-in-chief has denied all the plaint averments and has deposed that there was no oral agreement as alleged on 10.4.2010; he has not agreed for the Sale Consideration of Rs.40,11,000/- or even he has not received any amount of Rs.5,11,000/- or a sum of Rs.3,11,000/- or a sum of Rs.2 lakhs by way of cheque as advance as alleged by the plaintiff on that day; He has deposed that there was an old building in the suit schedule property at SPM Road, Shivamogga. First it was given for rent and after filing the suit, he got vacated the suit schedule premises. At that time, the plaintiff had demolished the building through broker and had taken away the demolished building materials assuring to give him a sum of Rs.2 lakhs. So he had agreed for the same. Therefore, the plaintiff had given a cheque drawn on Canara Bank for a sum of Rs.2 lakhs. Thereafter, the plaintiff has filed the suit claiming specific performance on the basis of false allegation. In the cross-examination, D.W.1 has denied the suggestions that all the brothers have discussed to demolish the building after vacating the tenants from the building and informing the broker; on the date 34 of oral or written agreement, he has given key to the plaintiff. He has deposed that as there was no agreement, the transaction between him and the plaintiff was only for demolition of the building, since the plaintiff had told that he would demolish the building within one month, he had handed over original records of the permission granted by the Municipality by keeping the Photostat with him. He had also informed about the same to the Municipality and had paid the tax upto date.
28. D.W.1 has further deposed that the discussion was only for demolition of the building and he has not given any documents pertaining to the property to the plaintiff, except documents of the building for demolition of the building and it was agreed that after demolition of the building, all the documents will have to be returned. He has also admitted that Ex.P.1 is a Xerox copy of the tax register pertaining to the suit property and he has taken back the documents after demolition of the building, depicting that after demolition of the building, tax has been paid for the vacant land. The transaction between them was only for demolition of the building and there was no oral agreement as alleged. He has 35 further deposed that Exs.P.16 to 20 are the receipts for having paid the tax and challan after demolition of the building. He has further reiterated that there was no transaction with regard to alteration of the schedule property. He has denied the receipt of Rs.5,11,000/- lakhs i.e., Rs.2 lakhs by way of cheque and Rs.3,11,000 by way of cash in presence of the witnesses. He has also denied the suggestion that he would give all the documents pertaining to suit schedule property and within one month he would register the suit property. Even there was no written agreement. He has further deposed that he had not executed any oral agreement for sale of the schedule property, except for demolition of the old building and had received a sum of Rs.2 lakhs for removal of the building materials.
29. On careful reading of the aforesaid evidence of plaintiff and defendants, it is clear that defendant No.1 is not alone the owner of the suit schedule property. Except the oral agreement set up by the plaintiff, there is no other materials including receipt of advance amount, which is denied by the 1st defendant, stating that the oral agreement was only for demolition of old building and 36 removal of demolished materials for a sum of Rs.2 lakhs and the same was received through cheque. Even it is clear that the presence of P.Ws.2 to 6 at the time of oral agreement is neither averred in the plaint nor in the legal notice issued by the plaintiff to the defendants. The presence of P.Ws.2 to 6 is whispered for the first time in the evidence which is contrary to the plaint averments and legal notice issued. All the witnesses have categorically stated that the plaintiff and P.Ws.2 to 5 belong to the Jain Community and are Members of the Hospital Committee as admitted by them. Even in the evidence of P.W.3, who is the auditor, in whose presence the transaction took place, it is not forthcoming why there was no receipt for having paid a cash of Rs.3,11,000/-. Plaintiff alone deposing that he has paid a sum of Rs.3,11,000/- by way of cash is contrary to the evidence of P.W.4, who in his cross-examination has deposed that the plaintiff had brought only a sum of Rs.2 lakhs by way of cheque and remaining sum of Rs.3,11,000/- by way of cash was brought from his house, which was paid in presence of all the witnesses. Hence the evidence of P.Ws.1, 2 and 3 are contrary to 37 the evidence of P.W.4 which material facts has not been considered by the trial Court.
30. It is also relevant to consider that though according to the plaintiff, he had paid a cash of Rs.3,11,000/- to the 1st defendant, why he has not demanded the receipt or acknowledgment for having paid the same is not forthcoming. It is also not in dispute that the defendants are the joint owners of the suit schedule property and there is no material either oral or document to show that the other defendants have authorized the 1st defendant to enter oral agreement as alleged by the plaintiff, since the 1st defendant has denied the very alleged oral agreement entered into between the parties on 10.4.2010. The plaint averments also does not depict the terms and conditions of the oral agreement nor there is any pleading in the plaint or in the evidence of P.W.1. There is no concluded contract between the plaintiff and the defendants. The plaintiff witnesses have admitted that the negotiation was for the first time between the parties and there was no agreement earlier between them.
38
31. In view of the oral agreement set up by the plaintiff in respect of the immovable property, heavy burden is on him to discharge the same when there was an oral contract that too when the defendants have filed a written statement denying the oral agreement contending that the cheque received was only for a sum of Rs.2 lakhs for demolition of the old house and for removal the building materials after demolition. The payment of Rs.3,11,000/- by way of cash by the plaintiff to the 1st defendant is not proved since at one breath, the plaintiff says that he has paid the amount in presence of other witnesses and at another breath P.W.4-Hansraj Kavad says that plaintiff had brought a cheque only for a sum of Rs.2 lakhs and he went and brought a sum of Rs.3,11,000/- from his house, which was paid to the defendant. The same is denied by the 1st defendant. It is also not the case of the plaintiff that the other defendants were present at the time of giving the advance amount of Rs.3,11,000/- through cash to the 1st defendant.
32. Even on careful perusal of the evidence of plaintiff and P.Ws.2 to 6, it is clear that they all belong to the Jain Community, Members of the Committee of the Jain Hospital and were search for 39 a site for construction of a new Hospital for their Community. P.Ws.2 to 6 are interested witnesses on behalf of the plaintiff as the plaintiff wanted to purchase a property on behalf of the Jain Community for construction of a Jain Hospital. If the transaction had taken place between the parties as alleged, P.W.2 being the auditor, should have taken care by insisting an agreement in writing and ought to have taken an acknowledgement/receipt for payment of the advance amount. Though the trial Court proceeded to decree the suit ignoring the above circumstances only on the ground that the plaintiff has consistently spoken to about cash payment made by him towards the advance amount to defendant No.1 and admitted receipt of cheque for a sum of Rs.2 lakhs and the evidence of P.W.4 that his house was situated about 200 feet away from the house of defendant No.1 and he having gone to his house and brought a cash of Rs.3,11,000/- and paid to 1st defendant when defendant No.1 insisted for payment of part of the advance in cash, a finding has been recorded that the deposition of P.W.5 was in natural way with regard to, he going with the plaintiff to the house of 1st defendant only as a friend to him and not as a witness to the 40 transaction. The trial Court has erred recording a finding that P.Ws.1 to 6 and D.W.1 have admitted that the Jain Community is running a charitable hospital in a rented premises on SPM Road and the plaintiff setting up to putforth an oral agreement only to have a permanent building for the said hospital, is not supported by any pleadings in the written statement. The Trail Court has ignored the fact that the plaintiff, who has come to the Court with a set up of an oral agreement, has to prove his own case independently and he cannot succeed on the weakness of the defendants. Merely because defendant No.1 had expressed his intention to sell the property, unless the plaintiff proves by both oral and documentary evidence and only with reference to pleadings that there was an oral agreement entered into between the parties i.e., the plaintiff and defendant No.1 when the suit schedule property is the joint property of defendant Nos.1 to 4, it is the plaintiff, who has to prove that all the defendants had agreed for oral agreement. In the absence of any pleading and evidence, it is not safe for the Court to agree with one sided evidence of P.Ws.1 to 6, who belong to the same Community and the plaintiff and his witnesses were 41 aspiring to have a separate place for construction of a Jain Hospital, naturally the witnesses support the case of the plaintiff, who want to purchase the property on behalf of the Jain Community for construction of a hospital. Therefore, as they are highly interested and partisan witnesses, their evidence cannot be solely relied upon unless the same is proved by oral and documentary evidence on record in view of the provisions of Section 54 of the Transfer of Property Act, the said material aspect has not at all been considered by the trial Court while passing the impugned judgment and decree.
33. The Hon'ble Supreme Court while considering the provisions of Section 54 of the Transfer of Property Act with regard to specific performance of oral agreement of sale sought in the case of Brij Mohan and Others -vs- Sugra Begum and Others reported in (1990) 4 SCC 147 at paragraphs 20 and 22 has held as under:
"20. We have given our careful consideration to the arguments advanced by Learned Counsel for the parties and have thoroughly perused the record. We agree with the contention of the 42 Learned counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad- idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement.
22. In the oral evidence P.W. 1 Shri Brij Mohan, plaintiff No. 1 stated that in the meeting arranged in the 3rd week of April, 1979 Shri Ibrahim and 43 Shri Arif Ali came to the plaintiff's shop and then they all went to the residence of defendant No. 1. The second plaintiff also accompanied them. The husband of defendant No. 1 Shri Yunus was also present at the meeting. He was introduced to them as the retired Law Secretary. Defendant No. 1 insisted for Rs.10,00,000 as consideration of the suit property and told the plaintiffs that she would obtain the permission from the ceiling au- thority. Shri Brij Mohan then stated that they raised their offer to Rs.8,00,000 defendant No. 1 told them that she would think over for two or three days and inform them through Shri Arif Ali, Thereafter Shri Brij Mohan states regarding the bargain held on 3.5.79. According to him he himself, second plaintiff and Mr. Ibrahim Moosa went to Shri Arif Ali on 3.5.79. Shri Arif Ali told them that defendant No. 1 was not willing to sell the suit property for less than Rs.10,00,000. And if they were willing to purchase for Rs.10,00,000 then they were welcome to do so at any time. Shri Brij Mohan then said that they agreed to purchase the suit property for Rs.10,00,000 and asked Shri Arif Ali to get the confirmation from defendant No. 1. Shri Arif Ali spoke to defendant No. 1 on telephone and then informed that defendant No. 1 was willing to sell 44 the property to them for Rs.10,00,000. Shri Arif Ali then said that they would buy the stamps for agreement and fixed 6.5.79 morning for a meeting with defendant No. 1. From a perusal of the above evidence it would be abundantly clear that nothing was settled on 3.5.79 except the fact that the plaintiffs had conveyed their approval to purchase the suit property for Rs.10,00,000 and Shri Arif Ali after speaking to defendant No. 1 was willing to sell the property for Rs.10,00,000. Admittedly at the same time a meeting was fixed with defendant No. 1 on the morning of 6.5.79. According to the case set up by defendant No. 1 she had never agreed to obtain the permission from the ceiling Authority. It would be important to note that no averment was made in the plaint that defendant No. 1 had agreed to obtain the permission from the ceiling Authority in the meeting held in the third week of April, 1979. However, Shri Brij Mohan plaintiff has sought to introduce this fact for the first time in his statement in the Court that defendant No. 1 had told them in the meeting held in the third week of April, 1979 that she would obtain the permission from the ceiling Authority. We are unable to accept the above statement of Shri Brij Mohan that in the meeting held in the third week of April, 1979 itself 45 the defendant No. 1 had agreed that she would obtain the permission from the ceiling Authority. It is an admitted position that till the meeting held in the 3rd week of April, 1979 the plaintiffs had offered Rs.8,00,000 and the first defendant had told them that she would consider and communicate her views through Shri Arif Ali some time later. We agree with the conclusion of the High Court in this regard that without first determining the sale price, it was quite unlikely that the parties would have bargained as to who should obtain the clearance under the Urban Land Ceiling Act. It was known. to the parties that until the clearance under the Urban Land Ceiling Act and the Income Tax clearance, the property will not be registered. The High Court was right in concluding that it is unbelievable that in the third week of April, 1979 when still there was a wide gap of Rs. 2,00,000 in the price payable for the suit building the parties would have stipulated about the condition as to who should obtain the per- mission under the Urban Land Ceiling Act. It is further pertinent to mention that even in Exhibits A-1 and A-2 which are drafts of agreement of sale there is no reference to the oral agreement said to have taken place on 3.5.79. In case all the terms had 46 already been concluded in the oral contract between the parties on 3.5.79 and only a formal agreement was to be reduced in writing on 6.5.79, then in that case there ought to have been a mention in the draft agreement exhibits A-1 and A- 2 regarding the oral agreement of 3.5.79. According to the statement of Shri Brij Mohan plain- tiff No. 1 ,himself, nothing was discussed with defendant 'No. 1 herself and for that reason a further meeting was fixed at the house of the first defendant in the morning of 6.5.79. Shri Arif Ali may have been an Income Tax Advocate looking after the income tax and wealth tax matters of defendant No. 1 but he was not a General Power of Attorney holder to negotiate or settle any terms with regard to any transaction of immovable property belonging to defendant No.1. It is further important to note that even in the agreement to sell exhibit B-4 dated 22.6.1979 between defendent No. 1 and defendants Nos. 3 and 4, no responsibility had been taken by the defendant No. 1 for obtaining the clearance from the Urban Land Ceiling Authority. The High Court in these circumstances rightly believed the contention of the defendant No. 1 that the agreement fell through because the plaintiffs insisted that defendant No. 1 47 should obtain the permission from the Urban Land Ceiling Authority while defendant No. 1 did not agree for the same. There was no clinching evidence to show that this stipulation was thought of by the parties on any day prior to 6.5.79. Thus in the above circumstances when the parties were consciously negotiating about the bringing of no objection certificate from the Urban Land Ceiling Authority and the case put forward by defendant No. 1 in this regard has been believed there is no question of applying the principle contained in Section 55 of the Transfer of Property Act. The general principle contained in Sec. 55 of the Transfer of Property Act regarding rights and liabilities of buyer and seller can only apply in the absence of a contract to the contrary and not in a case where the parties consciously negotiated but failed in respect of any term or condition, as a result of which the agreement itself could not be settled or concluded. Once it is held, established in the present case that no agreement was finally concluded or settled on 6.5.79 and negotiations failed and before this date it was never settled that defendant No. 1 would bring the no objection certificate from Urban Land Ceiling Authority, there is no question of applying general principles 48 contained in Section 55 of the Transfer of Property Act."
34. The Hon'ble Supreme Court while considering the provisions of Sections 10 and 20 of the Specific Relief Act, 1963 and Section 53 of the Transfer of Property Act with regard to grant of specific performance of contract and oral sale agreements in the case of V.R. Sudhakara Rao and Others -vs- T.V. Kameswari reported in (2007) 6 SCC 650 at paragraphs-12 and 16 has held as under:
"12. The High Court held that the evidence is not of a very clear proof. The payment of advance amounting to Rs.16,575/- was established. Therefore, the alternative relief in favour of plaintiff in OS No. 350 of 1982 i.e. refund of Rs.16,575/- with interest at the rate of 12% p.a. from the date of payment of the amount till the date of realization, was granted. It was directed that there shall be a charge over the plaint schedule for realization of the said amount. So far as the other suit is concerned, it was held that the suit OS No. 350 of 1982 for the relief of specific performance was to be decreed to that extent. The plaintiff in OS 49 No.131 of 1982 was entitled to the decree of possession and ancillary reliefs. Appeal was accordingly disposed of.
16. The High Court has rightly concluded that there is no clear proof relating to the other terms of condition. The relief of specific performance is discretionary relief and except the oral evidence, there is no clear evidence to prove several of the essential terms which have been taken note of by the High Court. The High Court, on analyzing the evidence, has come to hold that except Exhibit B-1 and the oral evidence of DW 1 and DW2, there is no other clear proof relating to the other terms and conditions of the contract which can be termed as essential conditions like delivery of possession and also the obtaining of permission from the Urban Land Ceiling Authorities and therefore, it cannot be said that all the essential terms and conditions of a well concluded contract had been established in the case at hand."
35. When the plaintiff has set up an oral agreement and has not mentioned any terms and conditions in the plaint, it is clear that there was no contract between the parties and the decree for 50 specific performance could not have been granted by the trial Court mainly on the basis of the evidence of P.Ws.2 to 6, who are belonging to the same community as that of the plaintiff and are all Members of the Committee of the Jain Hospital. The plaintiff wanted to purchase a site on behalf of the said Community for construction of Jain Hospital. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Ganesh Bhat -vs- Dr. C.S.G.K. Setty and Others reported in AIR 1998 SC 2216 wherein at paragraphs-8, 9, 10, 23, 36 to 38, it is held as under:
"Point 1:
8. On this point, as to whether there is a concluded agreement at Delhi on 25-1-1984, there is abundant evidence to say that there is no such concluded agreement. This is clear from the suit notice Ex. P-12 dated 2-7-1984 wherein the plaintiff has stated clearly that at the Delhi meeting, the 1st defendant said that he is yet to consult his two brothers. The correspondence between the parties and PW 2 subsequent to 25-
1-1984 has been read to us by the learned Senior Counsel for the appellant-plaintiff and on reading 51 the same, we are clear that the finding of the High Court that there is no concluded agreement on 25-1-1984 at Delhi is unassailable and is absolutely correct. The tenor of several letters from PW 2 to the 1st defendant after 25-1-1984 shows that consideration for sale was not finalised at Delhi. Learned Senior Counsel for the appellant, after elaborate submissions has more or less accepted this position and has concentrated on the question which we have set out under the third and fourth points. Hence there can be no decree for specific performance of any agreement dated 25-1-1984 as none has been concluded on that day. We hold on Point 1 accordingly.
Point 2
9. The learned Senior Counsel for the appellant has argued before us that the plaintiff must be given relief in respect of the agreement which, according to him, has been concluded at Bangalore on 28-4-1984 and specific performance can be granted in respect of such an agreement.
10. We have already stated that in the High Court, when an opportunity for amendment of 52 plaint was given by the High Court to the plaintiff, the same was spurned and not accepted by the plaintiff's counsel. That being the attitude of the appellant in the High Court, we are of the view that the plaintiff cannot be given any relief for specific performance of any such agreement allegedly concluded at Bangalore on 28-4-1994. Point 2 is also held against the appellant.
23. It is stated in Corpus Juris Secundum (Vol.
81-A, Specific Performance), (para 189) as follows:
"In accordance with general rules, the relief awarded in a suit for specific performance would be based on the issues raised by the pleadings and supported by the proof. More specifically, relief awarded for the plaintiff must be authorised by or be in conformity with his pleading in respect of the contract to be enforced and the parties thereto."
36. Another argument was that in his evidence, the 1st defendant admitted that he signed the draft agreement. The appellant's counsel has contended that this is with reference to Ex. P-3 while the respondent's counsel has submitted that 53 this evidence of the 1st defendant has reference to Ex. D-11, the draft set up by the 1st defendant for Rs 6.50 lakhs. It has also been contended for the respondents that there is no signature of the 1st defendant on Ex. P-3.
37. Applying the legal principles referred under Point 3 to the above facts it will be noticed --
even assuming that a contract dated 28-4-1984 at Bangalore is proved, which in our view, is not proved -- that this case does not fit into the exceptions stated by Fry on Specific Performance inasmuch as this is not a case where there has been part-performance by delivery of possession. Nor can it be said that the variation between pleading and proof is immaterial or insignificant. The plaintiff has also refused to amend the plaint to seek relief on the basis of an agreement dated 28-4-1984, keeping the plaint as it is.
38. Nor can this case be brought within the principles applicable to "general relief" because the plaint specifically says that there is a concluded contract on 25-1-1984 at Delhi which is belied by the oral and documentary evidence.
However liberally the plaint is construed, all that 54 it says is that the 1st defendant came to Bangalore and asked the plaintiff to be ready. It does not speak of any fresh agreement entered into at Bangalore on 28-4-1984. Nor are we able to spell out any such agreement concluded on 28- 4-1984. The grant of any general relief on the basis of an agreement of sale dated 28-4-1984 -- even if proved -- will be doing violence to the language in the plaint to the effect that the parties concluded an agreement on 25-1-1984.
36. In so far as the contention of the plaintiff that he had paid an advance amount of Rs.5,11,000/- out of which a sum of Rs.2 lakhs by way of cheque and remaining sum of Rs.3,11,000/- by way of cash, the 1st defendant has specifically stated in his written statement as well as in his evidence that there was a transaction with regard to demolition of the old house that existed in the suit schedule property and to take away the building materials and therefore, the plaintiff had issued a cheque and in respect of payment of cash, the plaintiff has not proved by producing any of the documents except the evidence of the partisan witnesses i.e., P.Ws.2 to 6. A mere issue of a cheque in favour of 55 the payee by itself will not be the evidence of payment even, if the cheque is encashed by the payee. It has to be established that the said cheque issued was for an oral agreement between the parties and must be proved by the plaintiff by other evidence, if not, it would lead to dangerous and disastrous consequences. Therefore, the finding of the trial Court that there was payment of Rs.5,11,000/- out of which a sum of Rs.2 lakhs by way of cheque, cannot be accepted, in the absence of any other proof based on the said cheque when the 1st defendant has taken the contention that he has received a sum of Rs.2 lakhs for demolition of the old building and for taking away the building materials by the plaintiff after demolition. Therefore, on that ground also the impugned judgment and decree passed by the trial Court cannot be sustained.
37. It is well settled that where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, "heavy burden lies on the plaintiff" to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immoveable property. Whether there was 56 such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiff that vital and fundamental terms for sale of immovable property were concluded between the parties and in terms of the provisions of Section 20 of the Specific Relief Act where discretion for grant of specific performance is discretionary, but it has to be exercised in accordance with 'sound and reasonable judicial principles'. To grant specific performance, however, the Court is not bound to grant such a relief merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of each case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant. The relief of specific performance is discretionary but not arbitrary; hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The said principle is not at all considered by the trial Court while passing the impugned judgment and decree which cannot be sustained. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of K. Nanjappa 57 (Dead) by Legal Representatives -vs- R.A. Hameed Alias Ameersab (Dead) by Legal Representatives and Another reported in (2016)1 SCC 762 wherein at paragraphs-21, 22, 23, 24, 25, 32 and 33, it is held as under:
"21. There is no dispute that even a decree for specific performance can be granted on the basis of oral contract. Lord Du Parcq in a case [Shankarlal Narayandas Mundade v. New Mofussil Co. Ltd., 1946 SCC OnLine PC 7 : (1945-46) 73 IA 98 : AIR 1946 PC 97] observed, while deciding a suit for specific performance, that an oral contract is valid, binding and enforceable. A decree for specific performance could be passed on the basis of oral agreement. This view of a Privy Council was followed by this Court in Kollipara Sriramulu v. T. Aswatha Narayana [AIR 1968 SC 1028] and held that an oral agreement with a reference to a future formal contract will not prevent a binding bargain between the parties.
22. However, in a case where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immovable property on the 58 basis of an oral agreement or a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immovable property. Whether there was such a concluded contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties.
23. In a suit for specific performance of a contract, the court has to keep in mind Section 20 of the Specific Relief Act, 1963. This Section preserves judicial discretion to grant decree for specific performance. However, the court is not bound to grant specific performance merely because it is lawful to do so. The court should meticulously consider all facts and circumstances of the case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant.59
24. In Surya Narain Upadhyaya v. Ram Roop Pandey [1995 Supp (4) SCC 542] , this Court while considering Section 20 of the Specific Relief Act held as under: (SCC pp. 543-44, para 4) "4. Though the decree for specific performance is a discretionary power, yet the court is not bound to grant such a relief merely because it is lawful to do so; but the discretion of the court is not arbitrary, but sound and reasonable, guided by judicial principles of law and capable of correction by a court of appeal.
Therefore, the discretion should be properly exercised keeping in view the settled principles of law as envisaged in Section 20 of the Act. This case demonstrates that the High Court [Ram Roop Pandey v. Surya Narain Upadhyaye, Second Appeal No. 2385 of 1974, decided on 26-9-1979 (All) (unreported)] took irrelevant consideration into account to refuse to grant the decree for specific performance. It also committed 60 manifest illegality in reversing the concurrent finding of facts recorded by the trial court as well as the first appellate court, namely, the appellant has always been ready and willing to perform his part of the contract."
25. It is equally well settled that relief of specific performance is discretionary but not arbitrary, hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The cases providing for a guide to courts to exercise discretion one way or the other are only illustrative, they are not intended to be exhaustive. In England, the relief of specific performance pertains to the domain of equity, but in India the exercise of discretion is governed by the statutory provisions.
32. After examining the entire facts of the case and the evidence produced on record, we are of the definite opinion that it is not a fit case where the discretionary relief for specific performance is to be granted in favour of the respondent-
plaintiff. The High Court in the impugned judgment [2003 SCC OnLine Kar 881] has failed 61 to consider the scope of Section 20 of the Specific Relief Act and the law laid down by this Court.
33. For all these reasons, this appeal is allowed and the impugned judgment [2003 SCC OnLine Kar 881] passed by the High Court is set aside.
Consequently, the judgment of the learned trial court is restored. Hence, the suit is liable to be dismissed."
38. Though the learned Counsel for the plaintiff contended that by conjoint reading of the written statement and the evidence of the 1st defendant that there was an oral agreement of sale between the parties in respect of the sale of the suit schedule property and not an agreement for demolition of the old existing building, on careful reading of the plaint averments, legal notice and the evidence of both oral and documentary, it is clear that there was no concluded contract between the plaintiff and defendants in terms of the oral agreement and what were the terms and conditions entered into between them are not forthcoming in the plaint. Therefore, the contention of the learned Counsel for the 62 plaintiff cannot be accepted and as such, the trial Court was not justified in decreeing the suit of the plaintiff.
39. It is also not in dispute that though the trial Court has not framed any issue with regard to hardship as contemplated under Section 20 of the Specific Relief Act, but while considering issue No.5 as to whether the plaintiff is entitled to the relief as sought for, has erroneously recorded a finding that in the evidence of defendant No.1, he himself has deposed that the defendants were intending to sell the suit schedule property and not to retain it for themselves and keeping that in mind, D.W.1 even claims to have informed many brokers to look for prospective buyers. Therefore, no hardship or injury would be caused to the defendants, if the suit for specific performance is to be decreed in favour of the plaintiff, who has duly proved the oral agreement. The learned Judge has failed to notice that in a case of specific performance of contract, a greater degree of certainty is required and it demands a clear, definite and precise understanding of all the terms and they must be exactly ascertained before their performance can be 63 enforced. The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary, but sound and reasonable, guided by judicial principles and capable of correction by a Court of Appeal. Admittedly, in the present case, the plaintiff has set up an oral agreement dated 10.4.2010 and the same is denied by the defendants in their written statement and also the presence of P.Ws.2 to 6 at the time of oral agreement, which is neither pleaded in the plaint nor in the legal notice and the presence of the witnesses - P.Ws.2 to 6 is whispered for the first time in their evidence and admittedly, all the witnesses belong to the plaintiff's community (Jain Community) and also are the Members of the Committee of the Jain Hospital as admitted by all the witnesses. In that view of the matter, the plaintiff has failed to prove the oral agreement and has not proved his case as pleaded in the plaint and therefore, the trial Court ought not to have exercised its discretionary power in favour of the plaintiff. On that ground also, the impugned judgment and decree passed by the trial Court cannot be sustained.
64
X Conclusion
40. For the reasons stated above, point No.1 raised in the present regular first appeal is answered in the affirmative holding that the appellants-defendants have made out a case to interfere with the impugned judgment and decree passed by the trial Court. Accordingly, point No.2 has to be answered in the negative holding that the suit filed by the plaintiff for specific performance based on the oral agreement was not maintainable and therefore, the plaintiff is not entitled to the relief of specific performance.
41. In view of the above, we pass the following:
XI RESULT
i) The regular first appeal is allowed;
ii) The impugned judgment and decree dated 11.2.2013 made in O.S.No.80/2010 on the file of the I Additional Senior Civil Judge, Shivamogga is hereby set aside; 65
iii) The suit filed by the plaintiff for specific performance based on oral agreement is dismissed; and
iv) Parties to bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE Nsu/-