Delhi High Court
Jai Kishan Mehta vs Ram Prashad on 31 July, 1995
Equivalent citations: 1996RLR77, 1996 A I H C 2447, 1996 WLC(RAJ)(UC) 77
Author: R.C. Lahoti
Bench: R.C. Lahoti, Lokeshwar Prasad
JUDGMENT R.C. Lahoti, J.
(1) [ED facts : Parties entered into an agreement of sale of suit house on 14.10.77 for Rs. 40,000.00. Plaintiff paid Rs. 36,000.00 and balance was payable at the time of registration of sale deed which was to take place within one month from the date seller obtained permission of Comp. Auth., under Urban Land (C&R) Act If Deft. failed to perform his part, then pff. was entitled to Rs. 5,000.00. Madanlal & Ors. alleging to be co-owners filed a suit (993/77) in High Court and obtained interim injunction against sale. On 8.9.80, pff. sent notice to Deft. before filing suit. The Deft replied this notice. Pff then filed suit to which Deft. filed W/S. on 3.11.80. As contentions in W/S. differed from the reply to Notice, Deft after filing of reply did not prove and exhibit same After the trial, Adj held that plaint allegations stood proved but denied the relief of specific performance of agreement to sell and granted alternative relief of damaged and compensation. Pff. appealed to High Court against denial of primary relief.] After detailing above, Judgment proceeds : Lokeshwar Prasad J. 11. We have heard the learned counsel for the parties at length and have also carefully gone through the documents/material on record. On behalf of the appellant the arguments were advanced by Sh. Ishwar Sahai, Senior Advocate whereas on behalf of the respondent the arguments were advanced by Shri Bikramajit Nayar,, Advocate. The learned counsel for the appellant after taking us through the relative facts and the merits of the case, particularly after bringing to our notice the findings rendered by the learned Trial Judge in the impugned judgment urged that in the facts and circumstances of the present case the appellant was entitled to a decree for specific performance and not to a decree for the alternative relief as has been done in the instant case. On the other hand the learned counsel for th? Defs. submitted that the relief of specific performance of the contract could not have been granted to the plaintiff by the learned Trial Judge due to the following factors : (a) Due to the restraint order passed by the court on an application I. A. No. 3950/77 under Order 39 Rule 1 and 2 read with Section 151 Civil Procedure Code . in Suit No. 993/1977 filed by Shri Madan Lal & Ors. against Deft. (b)?Due to the fact that when the restraint order, referred to at (a) above, was served on the deft., the Pff. had agreed to take the amount of Rs. 36,000.00 back from the deft. and w hen the deft. wanted to pay the amount back, the PIT. did not take the same on the plea that the same be retained by the deft. as the pff. was arranging to procure another property and that the pff. would take the money back from the deft. at that time after deducting the rent that would become due and payable to the deft. in the meantime. It was urged by the learned counsel for the deft. that the moment pff. agreed to take back the amount of Rs. 36,000.00 and the moment the deft. offered to return the above said amount to the pff. the agreement in question was brought to an end and as such there was no question now of its enforcement; (c) The pff. who is the 'dominus Iitus' in the present litigation sought for alternative reliefs in the suit filed by him in the court of Addl. District Judge, Delhi and both the reliefs, sought by plaintiff are to be treated on par with each other and the Court which had tried the subject matter already granted him one relief vide judgment dated 20.2.85 which in other words means that he (Pff) had the benefit of relief and now cannot come to the appellate Court and ask for the relief not granted to him by the trial court. The learned counsel for the deft, while making his submission on the above point placed reliance on Sakku Bai Amnal vs. R. Babu Radiar ; Bsndi Chalpathi Rao. vs. Official Assignee Soma Sundram vs. Chidambaram ; and (d) The propriety rights in respect of the property in question vest in the Lesser and the respondent being a mere lessee cannot sell or dispose of the same unless permitted by the Lesser in terms of the lease deed.
(2) Regarding (a) above : In our opinion the submission of the learned counsel for the respondent that the relief of the specific performance of the contract could not have been granted to the plaintiff by the learned Trial Judge due !to restraint order passed by this Court in I.A. 3950/77 in Suit No. 993 of 1977, filed by Sh. Madan Lal against the deft. is devoid of substance because the restriction imposed by the above said order, being temporary in nature, it cannot be said that permanent inability had arisen due to which the defendant could not execute the sale deed. It cannot be stated that the nature of the interim order, passed by this Court, was such so as to shake the very foundation of the contract and make it impossible of the performance for all times to come. In our above view, we stand fortified by a decision of the Supreme Court in case Satya-Brata vs. Magneeram Bangar & Co., and Ram Swaroop Gaur vs. Rati Ram . The Supreme Court in case Vannarakkal vs. Chandramaath 41(1990) DLT314 have gone to the extent of holding that the rights of an attaching creditor shall not be allowed to override the contractual obligation arising from an antecedent agreement for the sale of the attached property. Moreover, during the course of arguments, the learned counsel for the appellant submitted that S. No. 993/77- Madan Lal & others vs. Ram Parsad, in which the injunction order was passed, has already been dismissed with costs by this Court on 18.1.1982. He further submitted that Sh. Madan Lal & Ors. have filed an appeal Rfa (OS) 4/82-Madan Lal vs. Ram Parshad which is still pending and there is no stay or restraint order in the above said appeal. The learned counsel for the respondent, in his usual fairness, was fair enough to concede the correctness of the above facts. Needless to say that as per the settled law the present appeal is continuation of proceedings of Suit No. 88/1980, filed by the appellant in the Court of Addl. District Judge, for specific performance of agreement dated 14.10.1977. In other words, legally speaking, during the pendency of the proceedings, with the dismissal of Suit No. 993/77 on 18.1.1282 the impediment, if any, on account of the restraint order has automatically ceased to exist. In view of the above discussion, the above ground urged for the non-performance of the contract is no longer available to the respondent, (3) Regarding (b) above : As already stated, the case of the respondent is that when the restraint order, referred to in the preceding para, was served on the respondent, the appellant had agreed to take the amount of Rs36,000.00 back from the respondent and when the respondent wanted to pay the amount back, the appellant did not take the same on the plea that the same be retained by the respondent as the appellant was arranging to purchase another property and that the appellant would take the money back from the respondent at that time after deducting the rent that would become due and payable to the respondent in the meantime. The above plea, taken by the respondent, has to be judged on the basis of the material on record including the pleadings of the parties and the evidence adduced by the parties in support of their respective pleas before the Trial Court.
(4) In the w/s dated the 3.11.80, filed in the Trial Court, the respondent took the above plea for the first time. The appellant before the filing of the suit served a legal notice dated the 8.9.80 on the respondent calling upon the respondent to specifically perform the agreement of sale dated the 14.10.77. Reply to the said notice was given by the respondent on 12.9 80 and in the said reply the only plea taken by respondent was that Shri Madan Lal bad filed a suit against him in the High Court and an injunction had been obtained restraining him from selling the property and that the said order was in force and would continue till the decision of the suit. It has been stated in the reply that in view of order of the High Court the respondent was not in a position to execute any sale deed in favor of the appellant and that the respondent was willing to refund the amount received from the appellant. No where in the said reply the above facts, as stated in the w/s dated the3.11.80, have been stated. The said reply has neither been exhibited nor is contained in the paper book. The question arises as to whether at this stage we can look into it. The said reply was filed by the respondent in the Trial Court Along with its postal receipt and A.D. (at page 165 of the lower court file) Along with the list of documents filed on 3.11.80, signed by the respondent himself. In our opinion this document, though un exhibited can be lead in evidence as the said document was filed by the respondent himself before the Trial Court and finds mention in para 11 of the w/s. It has been held by this Court in case M/s Rudnap Export-Import vs. Eastern Associates Air 1984 Delhi 20 that such a document, though unproved may be looked into without any further proof at the instance of the opposite party as in the present case. The age old saying that man may lie but not the circumstances is aptly applicable to the facts and circumstances of the present case. Had the case been, as pleaded by the respondent in his w/s dated the 3.11.80 in that event what prevented him from stating these facts as such in his reply to the notice dated the 8.9.80. His not mentioning these facts in the above said reply to the notice is indicative of the fact that the above plea taken by the respondent in the w/s is decidedly an after thought and only a pretext not to specifically perform the agreement dated the 14.10.77.
(5) Now coming to the evidence on record the position is that Respondent (DW1) in his statement stated that on 23.11.77 the agreement was written, said proforma was written but on the next date the appellant came to him saying that he did not want to purchase the property alleging that his brothers were contesting the rights with him and disputing the same. Thus as per he version of respondent, it was on 24.11.77 that the appellant stated to the respondent that he did not want to purchase the property. DW-2-Shankar Lal Sharma gives the date of the above incident in his statement on 26.1.70. Sh. Paras Ram DW-3 gives the date of the alleged incident as 26.1.78. The above discrepencies in the statements of respondent and his witnesses are material discrepancies. On the other hand, the appellant (PW1) in his statement on oath categorically stated that he never told the respondent to receive back the amount of Rs. 36,000.00 or to cancel the agreement. He categorically stated that the respondent never offered the amount of Rs. 36,000.00 paid by him and that he never went to the house of the respondent. In the presence of the above facts it is difficult to believe that the appellant had agreed to take back the amount of Rs. 36,000.00 from the respondent and when the respondent wanted to pay the amount back the appellant did not take the same on the plea that the same be retained by the respondent as the appellant was arranging to purchase another property and that the appellant would take the money back from the respondent at that time after deducting the rent that would become due and payable to the respondent in the meantime.
(6) Regarding (c) above: The High Court of Madras in has taken the view as submitted by the learned counsel for the respondent before this Court. However, the High Court of Bombay in case Karsan Das vs. Chhotelal 1923 (77) 1C Bombay 275 has taken somewhat a different view. The High Court of Madras in case reported as had relied upon the earlier decision of the High Court in Sakku Bai Ammal's case . In so far as Sakku Bai Ammal's Case, referred to above, is concerned the position is that much after the above said decision in Sakku Bai Ammal's case, Annapoorani Ammal and others filed an appeal against the judgment and decree in O.S. No. 56 of 1974 on the file of Principal Subordinate Judge, Dindigul (Tamilnadu) The appeal came before Justice Singaravelu for final disposal. However, it was noticed by him that the Supreme Court in Ramesh Chandra vs. Chunni Lal took a different view and therefore the matter was referred to a Full Bench. The F.B. considered the matter and held that an appeal by the plaintiff obtaining only the alternative relief of refund of the earnest money or advance money, and who has been denied the relief of specific performance is a competent appeal and the appellant must be held to be an 'aggrieved person.' The F.B. of the Madras High Court answered the reference stating that any observation found in Sakku Bai Ammal's case running contrary to what the Full Bench had expressed stood overruled. Thus, the decision of the High Court of Madras in relied up on by learned counsel for the respondent in so far as the above aspect is concerned, stands overruled. We fully agree with the view taken by the F.B. of Madras High Court in . While deciding Sakku Bai Ammal's case reported as 1 77 Madras 223, the High Court of Madras had relied upon an earlier decision of the High Court of Madras reported as , also relied upon by the learned counsel for the respondent.
(7) In view of the above discussion, in our opinion the cases relied upon by the learned counsel for the respondent in no way help the case of the respondent. The reliefs sought by the appellant in the Trial Court cannot be treated on par with each other. The relief of the specific performance of the agreement dated the 14 10.77 is the primary relief. The question of the grant of alternative relief would arise only in case the appellants claim for specific performance is refused. When the appellant asked for the alternative relief, there was no legal presumption or assumption that he gave up the main or primary relief of specific performance of the contract. From the wordings of the plaint, if read as a whole, it is apparent that the appellant primarily wanted the relief of specific performance of contract and pleaded that in case the primary relief was to be refused, he should be granted the alternative relief. It does not mean that when primary relief is denied to the appellant he could not be stated to be an 'aggrieved person' in respect of the judgment and decree of the Trial Court, denying him that relief on the reasoning that be had obtained the alternative relief. There can be no denial of this fact that the remedy of an appeal is open only to a "person aggrieved' by an order or decree of the first court. The question for consideration is as to when a person could be treated to be an 'agrieved person' so as to clothe him with the right of appeal. In our opinion the decision of the Trial Court, in so far as it negatives the primary relief of specific performance, is materially adverse to the appellant. In other words, he has been denied or deprived of something to which according to the appellant he wa" entitled to. Viewed in the above context, in our opinion, the present appeal by the appellant, obtaining only the alternative relief of the refund of advance money and denial of the relief of specific performance is a competent appeal, and as the Trial Court denied him the primary relief of specific performance, the appellant must be held to be an 'aggrieved person'. Thus, in view of the position explained above, the submission made at (c) above by the learned counsel for the respondent, in our opinion, holds no water being devoid of substance. Moreover, in view of the amendment brought in the Specific Relief Act by the amending act No. XIvii of 1963 it was incumbent on the part of the appellant to have sought relief in the alternative, as claimed by him.
(8) Regarding (d) above : As regards the submission at (d) above, the position is that the plea, as contained in (d) above, was not taken by the respondent in the Trial Court and the above contention was raised for the first time before us by the learned counsel for the Respondent while arguing the case. Without going into the technicalities as to whether the above plea can be raised at this stage, in the interest of justice, we would like to deal with the above plea on merits as to whether the same has any force or not. Section 13(l)(b) of the Specific Relief Act, 1963 provides :- "WHERE the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or Lesser, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of the vendor or Lesser, the purchaser or lessee may compel him to procure such conveyance,"
(9) In case Dr. C.L. Katial vs. Mrs. Cwv Madden the question arose whether a decree for specific performance could be granted to the purchaser under an agreement for sale of a house when the agreement provided that before the sale was completed, the vendor should obtain the permission of the Chief Commissioner of Delhi for transfer of the site on which the house was constructed. Falshaw J (as his lordship then was) held- "ASI have said there is nothing whatever in the present case to suggest that an application by the deft. to the Chief Commissioner for sanction to sell the property is likely to be rejected. Indeed, the profit made by the Govt. makes refusal unlikely. Thus as far as the parties arc concerned the sale agreement is a complete agreement. In my opinion the mere fact that the sanction of the Chief Commissioner is to be obtained before the sale can be concluded does not make the agreement incomplete and is not a bar to the grant of a decree for specific performance. If the Chief Commissioner does ultimately refuse to sanction the sale then the plaintiffs will not be able to enforce their decree but as far as the court is concerned I cannot see any reason for refusing the decree."
(10) We are in perfect agreement with the views expressed by Falshaw J in the above noted case of Dr. C.L. Katial and in our opinion too the specific performance of the contract cannot be denied by the respondent on the above ground.
(11) As already noticed the agreement of sale dated the 14.10.76 is not in dispute learned Trial Judge was not justified in denying him the primary relief sought by him of the specific performance of agreement dated the 14.10.77.
(12) In view of the above infirmities, in our opinion, the impugned Judgment and decree are not liable to sustain the test of judicial scrutiny and are liable to be quashed.
(13) For the reasons explained above, the appeal of the appellant is allowed. The impugned Judgment and decree are set aside and decree of specific performance of agreement dated the 14.10.77 is passed in favor of the appellant and against the respondent. The appellant is directed to deposit the balance amount of Rs 4,000.00 in the court within a month and within two weeks thereafter the respondent shall file application/papers seeking necessary permission/no objection from all the concerned authorities and within two weeks of the grant of such permission/no objection, the respondent shall execute a sale deed of the property in question in favor of the appellant. On failure of the respondent to comply with these directions, it will be open to the appellant to apply to the court and on appellant's so applying the Court shall execute the sale deed in respect of the property in question in favor of the appellant on behalf of the respondent. However, in the facts and circumstances of the case, the parties are directed to bear their own .costs,