Bombay High Court
Niwas Builders vs Chanchalaben Gandhi (Since Deceased ... on 10 December, 2002
Author: V.C. Daga
Bench: V.C. Daga, J.P. Devadhar
JUDGMENT V.C. Daga, J.
1. The appellant in this appeal has impugned the judgment and decree passed by the Joint Civil Judge, Senior Division, Solapur in Special Civil Suit No. 46 of 1984.
THE FACTS :
2. The facts, which are necessary to appreciate the rival contentions, may be summarised briefly:
The appellant was the plaintiff; whereas the respondent was the defendant in the original suit. The parties will be referred to as arrayed in the suit. The plaintiff is a partnership firm registered under the Partnership Act engaged in the business of construction. The plaintiff as a part of its business used to purchase open plots, develop and sell it to the customers.
3. The defendant is the owner of the City Survey No. 8512 with house bearing Municipal House No. 126 situated at Murariji Peth, Solapur. This property contains constructed bungalow known as "Chandulal Bungalow". Besides this, there are 26 blocks. Out of that, part of the property was and is in possession of the tenants. The plaintiff entered into an agreement of sale on 6th April 1981 to purchase this property of the defendant so as to use it for their business i.e. to develop and sell the same in the market. The agreement of sale contains various conditions. It provides that the plaintiff shall prepare layout and map of the proposed construction. The plaintiff agreed to construct and provide residential accommodation to the defendant subject to her approval behind the block Nos. 25 and 26 having an area of about 2,000 sq.ft.
4. The defendant in the agreement agreed to co-operate with plaintiff in development of the property and also agreed to provide necessary documents and her signatures on the relevant documents so as to get the plan of the proposed construction approved. The defendant under agreement agreed to vacate the bungalow occupied by her and to hand over the same to the plaintiff so as to enable the plaintiffs to proceed with the construction as per the sanctioned plan.
5. The plaintiff after the execution of the agreement of sale claims to have immediately prepared layout plan and got the map of the proposed construction prepared as desired by the defendant so as to provide accommodation for her residence. The plaintiff also claims to have paid in all Rs. 3,47,000/- from time to time to the defendant. The plaintiff alleged that the defendant failed to hand over possession of the bungalow with open area even though the plaintiff had demanded it from time to time. The plaintiff further alleged that in the meantime property princes were increased. The defendant, therefore, tried to resile from the agreement in question though the plaintiff was ready and willing to perform his part of obligation for all the material time right from, the date of execution of the agreement till the date of filing of the suit and thereafter. The plaintiff also expressed at all material time that the plaintiff is ready to abide by the terms of the agreement and also ready to perform its part of the obligation. With the aforesaid pleadings in the plaint, the plaintiff filed suit seeking specific performance of contract in the year 1984 and by way of alternate relief claimed refund of the consideration along with interest and compensatory costs.
6. On being summoned, the defendant appeared and filed her written statement denying all the allegations made by the plaintiff and also went to the extent of disputing the receipt of the amount of Rs. 61,000/- out of the payments shown to have been made by the plaintiff in the plaint, the details of which are not necessary at this stage.
7. The Trial Court framed issues relevant to the pleadings of the parties and recorded findings thereon holding that the plaintiff has proved to be a registered partnership firm authorised to enter into agreement with the defendant through one of its partner Ramniwas Jamnalal Jaju for consideration of Rs. 15 lakh to be paid within a period of three years to the defendant. The trial Court also recorded finding that barring the payment of Rs. 61,000/- rest of the amount amounting to Rs. 2,86,000/- was received by the defendant towards part payment of consideration. The trial Court dismissed the suit for specific performance of the contract but directed refund of the consideration paid by the plaintiff without any interest.
8. Being aggrieved by the aforesaid judgment and decree, the plaintiff preferred this present appeal.
THE ARGUMENTS :
9. At the outset, learned counsel for the plaintiff submitted that Issue No. 3 was framed by the trial Court while dictating judgment which caused serious prejudice to the plaintiff. He took us through the agreement between the plaintiff and the defendant in respect of suit property dated 6th April 1981 (Exh. 42) and brought to our notice the payment of earnest money paid in the sum of Rs. 51,000/- and also invited our attention to some of the conditions of the agreement such as preparation of layout and the plan of the proposed construction which was to be prepared by the plaintiff in consultation with the defendant. The term of the agreement with regard to the obligation of the plaintiff to construct residential apartment for the defendant of about 2,000 sq.ft. on the suit plot denotes that the defendant was to vacate the bungalow so as to put the plaintiff in possession of the suit property with other allied conditions. The learned counsel for the plaintiff further pointed out to us that the plaintiff had paid Rs. 3,47,000/-to the defendant from time to time, out of which payment of Rs. 2,86,000/- has been admitted by the defendant leaving a dispute with respect to balance amount of Rs. 61,000/-
10. The learned counsel also took us through the evidence of the plaintiff and brought to our notice the admitted fact based on evidence that three different drawings were prepared by the plaintiff through its architect Mr. Prakash Joshi for construction of residential accommodation to be provided for the defendant as per her choice. He submitted that the defendant did not select any of the drawings though as per the suggestion of the defendant the drawings were prepared and modified from time to time. He further pointed out that Vikas Sahakari Bank had agreed to sanction loan in the sum of Rs. 10 lakh for purchase and development of the suit property, but the defendant did not co-operate with the plaintiff. She did not select any of the drawings; though large number of drawings as many as eight were rejected by the defendant which resulted in causing delay in execution of the agreement, as such the plaintiff was required to file suit for specific performance of the contract.
11. The learned counsel for the plaintiff took us through the contents of the written statement and went to the extent of submitting that the plaintiff is prepared to accept the case sought to be made out by the defendant in the written statement. In this view of the matter, he submitted that the plaintiff is entitled to a decree of specific performance of the contract. So far as the disputed payment of Rs. 61,000/- is concerned, he submitted that if the evidence of the defendant herself is examined, it would be clear that amount of Rs. 61,000/- has been received by the defendant, as such adverse finding recorded by the trial Court cannot be sustained. He further urged that it was not necessary for the plaintiff to produce cash in the Court to establish availability of funds with it and to demonstrate readiness and willingness on the part of the plaintiff. In his submission it was not necessary for the purchaser of the property to show that he did possess hard cash in hand. He placed reliance on the judgment of the Apex Court in the case of Nathulal v. Phoolchand, AIR 1970 SC 547 in support of his contention. The learned counsel for the appellant criticized the approach adopted by the trial Court and the findings recorded in this behalf and urged that the trial Court at no point of time directed the plaintiff to deposit the amount of consideration. Had there been any such direction, the plaintiff would have tendered or deposited amount of consideration which was agreed between the parties. He further submitted that, had the defendant any doubt about financial capacity of the plaintiff, the defendant ought to have moved an application to the trial Court calling upon the plaintiff to deposit the balance consideration. In that event, the plaintiff would have deposited the amount of consideration.
12. So far as payment of balance amount of consideration is concerned, the learned counsel for the plaintiff submitted that the same could not be paid to the defendant since she refused to execute the sale deed in favour of the plaintiff. He further submitted that the defendant was called upon to execute sale-deed well within a reasonable time and the plaintiff was ready and willing to obtain sale-deed as per the agreement between the parties. He submits that merely because the defendant was not called upon to attend the office of the Sub-Registrar for executing the sale-deed, did not mean that the plaintiff was not ready and willing to obtain sale-deed of the property in question.
13. So far as the condition in the agreement with respect to obtaining of permission from the tenants is concerned, the learned counsel for the plaintiff submitted that possession was to be taken from the tenants after execution of the sale-deed and, therefore, it could not be said to be a condition precedent to perform the obligation under the agreement. He further submitted that the plaintiff did all whatever was at its command. In his submission this is a fit case wherein the decree for specific performance needs to be granted in favour of the plaintiff.
14. In reply, the learned counsel appearing for the defendant submitted that the plaintiff was not ready and willing to perform its part of contract. He pressed into service Section 16(c) of the Specific Relief Act and contended that this Court for the first time should not grant specific performance of the agreement in favour of a person who was not ready and willing to perform his part of the contract. He relied upon the judgment of the Apex Court in the case of N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao, and pressed into service the observations reading as under :
"The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. Right from the date of execution of the agreement to the date of the decree he must prove that he was ready and has always been willing to perform his part of the contract."
The learned counsel for the defendant further pressed into service another judgment of the Apex Court in the case of His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thaper, , wherein the Apex Court observed as under :
"There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price."
The defendant's counsel took us through the evidence and submitted that the plaintiff has admitted that it had no funds to pay the purchase price and put much emphasis on para-10 of the cross-examination of PW2 Ramniwas. He further relied upon the statement of PW2 Ramniwas to contend that the plaintiff was trying to raise loan from the bank and a letter (Exh. 66) to that effect from the bank, of which PW2 Ramniwas was a Chairman at the relevant time when the letter was issued. The learned counsel for the defendant criticised the conduct of the plaintiff in not depositing the amount in the Court or in any nationalised bank to show its readiness and willingness to perform its part of obligation. He urged that the plaintiff was not ready and willing to perform its part of the contract.
15. The learned counsel for the defendant further urged that the agreement was executed on 6th April 1981; whereas the suit was filed on 12th April 1984. During this period, the plaintiff could pay only Rs. 2,86,000/-, when the agreed consideration to be paid was Rs. 15,00,000/-. He, therefore, contended that the plaintiff failed to prove that it was ready and willing to purchase the suit property. He further submitted that at no point of time the defendant was called upon to attend the office of the Registrar to execute the sale-deed and to receive balance consideration. The notice issued by the plaintiff also did not call upon the defendant to attend the office of the Registrar to execute the sale-deed. All these circumstances put together are sufficient to demonstrate that the plaintiff was not ready to perform its part of the obligation.
16. The learned counsel further urged that as per the agreement of sale (Exh. 40), it was obligatory on the part of the plaintiff to get the tenants vacated and then proceed to build the premises so as to provide suitable accommodation for the residence of the defendant before taking possession of the other part of the property. He submitted that neither any steps were taken by the plaintiff to get the tenants vacated nor the tenants were joined as parties to the present suit so as to make the decree binding on them. He, therefore, contended that the learned trial Judge has rightly come to the conclusion, looking to the conduct of the plaintiff and all attending circumstances, that the plaintiff was not ready and willing to perform its part of the obligation flowing from the agreement in question. The trial Court was thus justified in declining the specific performance of the contract to the plaintiff.
17. The learned counsel for the defendant, relying upon Clause (10) of the agreement (Exh. 40), contended that as per the said clause the defendant was to hand over possession of the suit property on plaintiff's constructing premises admeasuring about 2,000 sq.ft. in the adjoining open space so as to provide newly constructed accommodation to the defendant for her residence. This condition was a condition precedent for the performance of the other conditions of the agreement. It was the essence of the agreement, as such plaintiff could not have asked for possession of the suit property in absence of discharge of this particular obligation. He submitted that the plaintiff took no steps to get the tenants vacated. The plaintiff also failed to take any steps to fulfil its part of the contract, with the result, the contract stood frustrated. In absence of eviction of tenants, no construction or development work can be undertaken by the plaintiff even if decree for specific performance is granted. It was thus urged that the decree for specific performance cannot be put into operation, as such the contract as it stands today cannot be enforced. It is not enforceable as on date, consequently, decree of the trial Court is liable to be confirmed.
18. The learned counsel for the defendant further contended that it would be inequitable to specifically enforce the agreement in favour of the plaintiff. He pressed into service Section 20 of the Specific Relief Act and placed reliance on the Apex Court judgment in the case of P. R. Deb and Associates v. Sunanda Roy, in support of his contention. The learned counsel for the defendant tried to support the findings of the trial Court and contended that following the well established principles laid down by the Apex Court, the trial Court was justified in refusing to grant equitable relief in favour of the plaintiff. He urged that the trial Court has taken into account the absence of readiness and willingness on the part of the plaintiff to perform its part of the contract. The plaintiff was not ready with the amount. The plaintiff did not deposit the amount with the Court to show its bona fides. The learned counsel for the defendant also brought to our notice that the trial Court has also taken into account escalation in prices of the property and contended that the plaintiff being the professional builder need not be granted equitable relief of specific performance of contract.
19. The learned counsel for the defendant, lastly, invited our attention to the date of the agreement being 6th April 1981 and urged that the agreed price of Rs. 15,00,000/- which was to be paid before the expiry of three years i.e. on or before 6th April 1984. The plaintiff paid only Rs. 2,86,000/-. The learned counsel for the defendant tried to dissect various facts and circumstances brought on record to show astronomical rise in price and also relied upon ready reckoner published by the Government of Maharashtra to demonstrate phenomenal increase in the value of the suit property. He produced the dissected data to establish price escalation of the suit property and contended that rates of the properties, as per the ready reckoner used by the Sub-Registrar for calculating the stamp duty on sale and purchase transactions, would show abnormal rise in property prices. The date produced along with affidavit read as under :
The total area of the suit property is 3890.40 sq.mtrs.
Area Rate as per ready reckoner (per sq.mtr.) Value 890.44 sq.mts. commercial use 15,635/-
1,39,22,029/-
470.00 sq.mts. Residential use (Tenants) 7,755/-
36,44,850/-
500 sq.mts.
Residential use (Bungalow) 7,755/-
38,77,500/-
2030 sq.mts.
Open area.
2,635/-
53,49,050/-
Total 2,67,93,429 (The value of the property as per ready reckoner as on date appears to be Rupees Two Crore Sixty Seven Lakh Ninety Three Thousand Four Hundred Twenty Nine only as per the above calculations.) Based on the aforesaid data, learned counsel for the defendant contended that escalation in price of the property along with other grounds, if taken into account, no fault can be found with the approach adopted by the trial Court while refusing the decree. As an extension of the same logic he urged that this Court should also take into account further rise in the price and placed reliance on the Apex Court judgment in the first case of Nirmala Anand, (2002) 5 SCC 489.
20. The learned counsel for the defendant further contended that considering the various judgments of the Apex Court, rise in price of the property is one of the relevant criteria while considering grant of relief of specific performance. In his submission it assumes more importance when the Court is considering to grant such relief for the first time after 21 years from the date of agreement. He pressed into service the Apex Court judgment in the case of Nirmala Anand (supra); wherein the Apex Court acknowledged that the escalation in prices is one of the relevant criteria while considering grant of decree for the specific performance of the contract. He further emphasised his submission contending that this criteria is more relevant when the Court is passing such decree for the first time and placed reliance on V. Pechimuthu v. Gowrammal, . He urged that rise in price of the property needs to be viewed in the backdrop of various facts such as admission on the part of the plaintiff that they had no funds to pay the purchase price and that they were planning to raise loan from the bank coupled with the fact that the plaintiff failed to pay consideration agreed in the agreement within the stipulated period of three years.
21. The learned counsel for the defendant tried to highlight various lapses on the part of the plaintiff including default on its part to get the tenants of the property vacated and consequent failure to construct the premises as agreed. The learned counsel for the defendant also contended that the plaintiff was neither interested nor capable of purchasing the suit property but was dabbling in real estate business without means to purchase the property. The plaintiff was only interested to bind the defendant to take unfair advantage. In the circumstances, the trial Court was perfectly justified in directing refund of the part payments made from time to time. The learned counsel for the defendant thus submits that this Court should not interfere with the impugned judgment and decree and prayed for dismissal of appeal with costs.
CONSIDERATION AND FINDINGS :
22. At the outset, we may observe that Section 20 of the Specific Relief Act provides that jurisdiction to grant decree of specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so; the discretion of the Court cannot be exercised in an arbitrary manner but to be exercised on sound and reasonable considerations, guided by judicial principles, capable of corrections by the Court of appeal. The Apex Court in the case of Sardar Singh v. Krishna Devi (Smt), reiterated the same principles.
23. The circumstances specified in Section 20 of the Specific Relief Act are considered to be illustrative and not exhaustive and that the Court is expected to take into consideration the circumstances prevailing in each case, the conduct of the parties and the respective interest under the contract. In K. Narendra v. Riviera Apartments (P) Ltd., the Apex Court ruled that severe hardship may be a ground for refusing specific performance, even though it may result from circumstance arising after the conclusion of the contract, for which the plaintiff is no way responsible. Adverting to inflationary increase in the value of properties and the relevance of the same in denying or granting the relief, it was observed thus :
Added to all this is the factum of astronomical rise in the value of the land which none of the parties would have fore-contemplated at the time of entering into the agreement. We are not in the least holding that the consideration agreed to upon between the parties was inadequate on the date of the agreement. We are only noticing the subsequent event ....Upon an evaluation of the totality of circumstances, we are of the opinion ........ The contract though valid at the time when it was entered, is engrossed in such circumstance that the performance thereof cannot be secured with precision. The present one is a case where the discretionary jurisdiction to decree the specific performance ought not to be exercised in favour of the respondents."
In the recent judgment in the case of V. Pechimuthu v. Gowrammal, the Apex Court observed that where the Court is considering whether or not to grant a decree for specific performance for the first time, the rise in the price of the land agreed to be conveyed may be a relevant factor in denying the relief of specific performance. Reference may be made to the decision of the Apex Court in the case of Gobind Ram v. Gian Chand, , wherein, in order to mitigate the hardship resulting to the vendor due to lapse of time and escalation of prices of the urban properties, further compensatory amount was ordered to be paid, even though in that case the trial Court had granted a decree for specific performance for consideration mentioned in the document and the balance of consideration was also deposited by the purchaser in full therein.
24. In the case of K.S. Vidyanandam and Ors. v. Vairavan, , the Apex Court refused to grant the relief of specific performance of the contract due to escalation of price of the property because the agreement stipulated that the vendee was required to purchase the stamp papers, tender the balance amount and call upon the defendant to execute the sale deed and deliver possession of the property within a period of six months. It was after lapse of 21/2 years that the proposed vendee issued a notice through his advocate to the proposed vendor-defendant stating that he had always been ready and willing to perform his part of the contract, requiring the defendants to execute the sale deed on receipt of the balance consideration. The Court while taking note of delay in filing the suit by the plaintiff came to the conclusion that the exercise of discretion vested in the Court may not be exercised in granting the relief of specific performance because of the escalation in price and the advantage sought to be taken by the plaintiff by filing the suit at a belated stage though within limitation. It was thus held :
In the present case, the case of the defendants is acceptable. In the agreement of sale there is no reference to the existence of any tenant, in the building. No letter or notice was issued by the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11-7-1981. From 15-12-1978 till 11-7-1981, i.e., for a period of more than 21/2 years, the plaintiff was sitting quiet without taking any steps to perform his part of the contract under the agreement. It is thus not a case of mere delay. It is a case of total inaction on the part of the plaintiff for 21/2 years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with a substantial rise in prices -- according to defendants, three times -- between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff."
25. In the aforesaid backdrop and the law laid down by the Apex Court, we propose to examine the rival contentions advanced by the parties.
The agreement in question provides that the plaintiff will make construction in the open area and provide accommodation to the defendant for her stay so as to enable the defendant to vacate the portion of the bungalow occupied by her and to hand over the same to the plaintiff. The plaintiff's witness in his deposition admitted this sequence of reciprocal obligations and stated that it was only after taking these steps the sale deed was to be executed. This entire transaction was to be completed within period of three years. It is the plaintiff who is seeking specific performance of the contract. As per the decision of the Apex Court in the case of Mayawanti v. Kaushalya Devi, , the burden is upon the plaintiff to show that the parties are at ad-idem. If the parties are not at ad-idem then there is no agreement at all. The pleading of the parties, if examined in the light of these terms and conditions of the agreement of sale, it will be clear that the parties are not at ad-idem so far as terms of the agreement are concerned. The plaintiff at this appellate stage of the litigation, in order to get over that hurdle, wanted to rely upon certain averments made by the defendant in the written statement. Needless to mention that written statement or for that purpose any document cannot be read in isolation. It has to be read in toto. The learned counsel for the plaintiff is thus not right in reading some of the statements in isolation so as to contend that some of the averments made in the written statement amount to admission on the part of the defendant. At any rate, the plaintiff cannot be allowed to travel beyond the scope of its own pleadings. The plaintiff is bound by its own pleadings and, if that be so, it must fail or succeed on its own pleadings. The very submission advanced by the learned counsel for the plaintiff goes to show that the parties were not ad-idem, as such contract cannot be said to be enforceable in the eye of law.
26. The terms of the agreement (Exh. 40) have to be appreciated in the light of the admissions given by the architect Mr. Joshi (PW-5) examined by the plaintiff and from the evidence of Shri Nesarikar (DW-2) examined by the defendant. Mr. Joshi clearly stated on oath that for want of eviction of the tenants alternate premises could not be constructed. Mr. Nesarikar deposed that he being in occupation of part of the bungalow for godown used to park his trucks in the open space where proposed construction was to come up. It is thus clear that in absence of eviction of the tenants occupying part of the premises, development of the plot or land in question was not possible. No efforts were made in three years to remove the tenants. As a matter of fact, reading of the agreement unequivocally suggests that it was a development agreement and the plaintiff was to develop the land in terms and conditions stipulated in the agreement. Agreement to develop land or property occupied by the tenants normally casts an obligation on the developer to evict the tenants from the premises with cooperation of the land owner. Normally, properties are handed over to the builder for development, especially, when the land owner is not in a position to develop the same, may be for want of financial resources and/or sometimes not in a position to get the tenants evicted. Looking to the terms and conditions of the agreement, it is absolutely clear that the property was to be developed by the plaintiff after evicting the tenant for which the defendant was to co-operate with the plaintiff. Eviction of the tenants was the obligation of the plaintiff. No efforts were made by the plaintiff to evict the tenants. No steps were taken by the plaintiff even to issue notices to the tenants or to initiate any proceedings against them on behalf of the defendant to evict them from the premises. At no point of time either the power of attorney was asked for by the plaintiff from the defendant or any signature of the defendant was requested so as to initiate eviction proceedings against the tenants. There is no material on record evidencing any negotiations with any of the tenants so as to persuade them to vacate the premises by offering them alternate accommodation on concessional rate; subject to their vacating the tenanted premises. In the circumstances, in our opinion, prima facie; there is breach of agreement of development committed by the plaintiff by not taking any steps to evict the tenants occupying part of the suit property without which the development of the plot or property was not possible.
27. So far as the other obligation with respect to construction of premises; so as to provide residential accommodation to the defendant is concerned, there is no evidence on record to show that at any point of time, any plan was submitted by the plaintiff to the Planning Authority for permission to develop the suit property. It is no doubt true that some evidence is on record to show that alternate plan were prepared by the plaintiff from time to time but there is no positive evidence on record to show that at any point of time, defendant was called upon to finalise the said plans or any letter was issued to the defendant to settle the plan of the proposed construction. There is no material on record to show that any steps were taken by the plaintiff to proceed with the development of the property except getting the plans prepared for the proposed construction.
28. There is no material on record to show that the plaintiff had necessary funds to develop the suit property. What is produced on record is only a letter from the bank, wherein the bank had agreed to make available Rs. 10 lakh for purchase of the property. As a matter of fact, the plaintiff was to develop the property before its purchase. This letter of the bank was not sufficient to infer the availability of finance for development of the property by the plaintiff. This letter at the most only shows that the plaintiff had capacity to raise fund. It is true that it is not essential that the plaintiff should have money ready before the stipulated date of purchase of the immovable property, where the time is not the essence of the contract. It is also not necessary that to prove himself ready and willing to purchase, the vendor has to produce money or to vouch completed scheme finalising the transaction. But, at the same time if any evidence or scheme of finance is produced on record, then such evidence must inspire the confidence of the Court. It must stand to the judicial scrutiny. It was, therefore, necessary for the plaintiff to show that the scheme of finance was genuine and there was nothing to doubt the existence of the scheme to finance the project. It was, thus, obligatory on the part of the plaintiff to examine the representative or officer of the bank to show that actually loan was applied for and the loan application as considered by the board of director. All the terms of finance were settled between the parties.
29. With the aforesaid backdrop, let us now turn to the letter issued by the bank (Exh. 66) which is dated 31st April 1992. It does not bear any outward number. A judicial note can always be taken of the fact that any establishment or commercial organisation; such as banks do maintain inward and outward registers to make entries of their daily dispatches made and received. Absence of outward number on the letter is one of the fact, which is prima facie sufficient to create doubt that the letter was not issued in the regular course of banking business. Perusal of the aforesaid letter of the bank further shows that no date of the request for loan is to be found in the said letter. The letter further mentions that the amount of Rs. 10 lakh would be advance, subject to the condition, which the plaintiff had agreed, that the property shall be in the name of the bank provisionally. One fails to understand this particular condition put by the bank. No bank would put such a condition while making finance to its customer for purchase of the property. The bank cannot have the title of the property in its own name; that too provisionally. At the most, bank can claim possession of the title-deeds so as to create equitable mortgage or could insist upon a registered mortgage, so as to claim charge over the property by way of security but not the title of the property. All these circumstances, if viewed in the light of the fact that one of the partners of the plaintiff-firm was a Chairman of the bank at the relevant time. The letter issued by the bank appears to have been issued to oblige the Chairman of the bank, a partner of the plaintiff-firm.
30. Alternatively, assuming this piece of evidence as unimpeachable, the same can be considered in favour of the plaintiff to reach to the conclusion that the plaintiff had a source to borrow money. In that event, had it been an isolated ground to refuse to grant specific performance of contract, then, this piece of evidence would have assumed little more importance. But having considered this piece of evidence in the light of the observations made hereinabove and other adverse findings recorded against the plaintiff on other counts, we are of the opinion that this cannot be said to be a decisive ground to reverse the findings recorded by the trial court in this behalf.
31. While taking into account the aforesaid evidence and the findings recorded hereinabove, we propose to return to the issue with respect to escalation of the real estate prices. A judicial note of the rise in prices during the pendency of this appeal can always be taken by this Court. This Court irrespective of the data produced by the defendant can safely conclude that the prices of the immovable properties have been increased, especially; in Pune, Mumbai, Aurangabad and Nagpur belt of Maharashtra in the last 21 years. A similar trend is to be found in other parts of the country. This aspect of the matter, therefore, cannot be ignored while considering this appeal. The Apex Court in the second case of Nirmala Anand v. Advent Corporation (P) Ltd., while resolving the differences of opinion between the learned Judges on the condition in respect of additional amount to be paid by the appellant to respondent Nos. 1 and 2 therein observed as under :--
"It is true that grant of decree for specific performance lies in the discretion of the Court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the Court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily, the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen."
If that be so, this Court would be perfectly justified in taking judicial note of the phenomenal increase in prices of the immovable properties, especially, when this Court is considering the question "whether a decree for specific performance should be granted in favour of the plaintiff?" for the first time, it being one of the relevant factor besides many others to be taken into consideration for denying the decree of specific performance as held by the Apex Court in K.S. Vidyanandam and Ors. v. Vairavan (supra) and three Judge Bench of the Apex Court in the second case of Nirmala Anand (supra).
32. Now let us turn to the question raised by the learned counsel for the plaintiff with respect to the issue No. 3A, framed by the trial Court while dictating the impugned judgment. We are in agreement with the learned counsel for the plaintiff that the same has caused prejudice to the plaintiff. It is, no doubt, true that the Court can frame or reframe issue at any time, so long as the case is not decided on its own merits, but that does not mean that in the garb of framing fresh issue, the Court can make out altogether a new case which was never contemplated by the parties in the suit. If the parties have understood rival contentions in its proper perspective and had an opportunity to make rival case and if adequate material is available on record to try the issue, then only the trial Court is expected to frame or reframe such issue while deciding the suit. But, if the rival parties were unaware of the case sought to be made out by the Court on the basis of altogether new issue, then, the Court cannot frame issue for the first time while deciding the suit and travel in an unknown territory unknown to the parties during the course of the trial. Turning to the case in hand, the trial Court has certainly travelled in an unknown territory and sought to make out altogether a new case, which was not contemplated by either of the parties during the course of trial.
33. Even otherwise, the view taken by the trial Court and the finding recorded by it on issue No. 3A are unsustainable on merits. There is no basis to hold that the plaintiff was to pay consideration of Rs. 15 lakh in yearly instalments of Rs. 5 lakh. Having seen the agreement in question, the inference drawn and the finding recorded by the trial Court with respect to the payment for three instalments of Rs. 5 lakh each in each year is liable to be set aside. Accordingly, the same is set aside, but this finding recorded in favour of the plaintiff will also have no ultimate bearing on the fate of this appeal in view of the adverse findings suffered by the plaintiff and confirmed by us on the other aspects of the case.
34. So far as the payments with respect to the total disputed amount of Rs. 61,000/- are concerned, the trial Court did not find favour with the case sought to be made out by the plaintiff. It is, no doubt, true that the plaintiff has deposed having paid Rs. 55,000/- (Rs. 20,000 + Rs. 25,000 + Rs. 10,000 = Rs. 55,000) and spent Rs. 6,000/- for repairing the house of the defendant. It is, no doubt true that Amarchand Raka claimed to have given bearer bond of Rs. 20,000/- taking money from Mr. Ramnivas Jaju. In this behalf, Ramnivas Jaju stated as "Amarchand Raka has given bearer bond of Rs. 21,000/- to the defendant and that he has paid Rs. 10,000/- in presence of Amarchand Raka to the defendant". That is how the plaintiff claims to have paid Rs. 55,000/- to the defendant. It appears that Exh. 82 is the receipt given by the defendant's husband to Shri Amarchand Raka acknowledging the receipt of the amount alleged to have been received from Amarchand Raka. Said Exh. 82 does bear signature of the defendant's husband. Exh. 82 does not refer to the agreement of sale like other receipts which are Exh. 71 to 81. Ramnivan has admitted in his evidence that he has not given any notice pointing out this payment. Ramniwas was cross-examined in this behalf, who categorically admitted that the plaintiff-firm maintained books of accounts and that last three items of payments (except item representing Rs. 6,000/-) had not been reflected in the account books maintained by the plaintiff-firm. With this evidence on record, the plaintiff also examined Amarchand Raka to prove other payments made by the plaintiff-firm. Mr. Amarchand Raka deposed that Rs. 25,000/- were paid to the defendant, as she was in need of money to perform 'pooja'. He further deposed that, at that time Ramnivas gave Rs. 25,000/- to the defendant at his instance. At the relevant time, Ramnivas had no money in his account, as such paid that amount from unaccounted money. That is why, it appears, the acknowledgment evidencing payment to defendant was obtained in the name of Mr. Amarchand Raka. This receipt has also been signed by the husband of the defendant, marked as Exh. 86. The receipt is in favour of Mr. Amarchand Raka. He also admitted having transferred bearer bonds worth Rs. 20,000/- in favour of the husband of the defendant. He further stated on oath that after payment of Rs. 25,000/- again Rs. 10,000/- were paid to the defendant within a span of about ten days. Since some guests were sitting with the defendant no receipt was obtained from her. It is, no doubt, true that the evidence of Ramniwas coupled with his cross-examination together with the evidence of Amarchand Raka coupled with his cross-examination do suggest that the payments worth Rs. 45,000/- [Rs. 25,000 (cash) + Rs. 20,000 (bearer bonds) = Rs. 45,000] were made to the husband of the defendant, but there is no material on record to suggest that this amount was paid by way of part payment towards the suit transaction. Had it been such payments, the same would have been actually paid by the plaintiff to Mr. Amarchand Raka. The account books of the plaintiff would have reflected these payments to Mr. Raka. Admittedly, no such entries showing return of the amounts to Mr. Raka are to be found in the account books of the plaintiff -- firm. Consequently, assuming that an amount of Rs. 25,000/- was paid to the husband of the defendant acknowledged vide Exh. 86 and that the bearer bonds worth Rs. 20,000/- were given to the husband of the defendant, even then these transactions ought to have been found in the books of accounts of the plaintiff-firm. Had it been the transactions between the plaintiff and the defendant, may be through the husband of the defendant, the entries thereof ought to have been reflected in the books of accounts of the plaintiff-firm who was regularly keeping account books in the regular course of its business. Similar is the case with respect to Rs. 10,000/-. No such entry is to be found in the account books of the plaintiff-firm. It is no doubt true that the above payments might have been made but it is difficult to connect the said payments with the suit transaction. Man may speak lie but not the documents. It is, therefore, not possible to accept the contention advanced by the plaintiff in this behalf. The Apex Court in the case of Madhusudandas v. Narayanibai and Ors., 1983 Mh.LJ. 402 observed :
In an appeal against a trial Court's decree, when the appellate Court considers an issue turning on oral evidence, it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witness before it and observing the manner in which they gave their testimony, When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the finding of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. If the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact. AIR 1929 PC 15, and (1950) SCR 781 = AIR 1951 120 Rel. ."
35. So far as the payment of Rs. 6,000/- is concerned, there is no material on record to connect these expenses with the suit property. It is, therefore, not possible to accept the contention of the plaintiff in this behalf.
36. So far as the other findings recorded by the trial Court are concerned, whereby the trial Court was pleased to hold that the defendant did commit breach of contract and had abandoned the contract and, consequently, estopped from enforcing the same and that the plaintiff was not ready to perform part of the contract, we do not see any reason to interfere with these findings.
37. In the circumstances, for the (reasons recorded hereinabove and for the reasons recorded by the trial Court on issue Nos. 8, 9 and 11, we dismiss this appeal with no order as to costs.