Bombay High Court
Vasudeo Harchand Kolhe And Another vs Bhaulal Nadarsingh Rajput And Another on 6 October, 1993
Equivalent citations: AIR1994BOM124, (1993)95BOMLR100
JUDGMENT
1. This is plaintiffs' appeal against a decree passed by the learned Civil Judge Senior Division, Jalgaon, in Special Civil Suit No. 45 of 1975, dismissing the plaintiffs' suit for specific performance and decreeing the suit only for a sum of Rs. 16,250/-, though the consideration which was alleged to have passed from the plaintiffs to defendant No. 1 was to the tune of Rs. 24,500/- or so. The claim for possession also was dismissed.
2. The facts as they transpire from the pleadings and the documents show that an area admeasuring 3 Hectors and 12 Rs. out of former Survey No. 96/1-A of village Sakaii, which formed part and parcel of consolidated survey No. 829-B, was the subject matter of the suit. According to the plaintiffs/appellants, under an agreement dated 27th January, 1974, respondent No. 1/defendant No. 1 had contracted to sell the said land to the appellants/plaintiffs for a sum of Rs. 28,000/- and had executed in their favour an agreement of sale vide Exh. 104. An amount of Rs. 5,000/- was allegedly paid as earnest money at the time of execution of the document. But, the liability to pay off certain debts of the defendants before the execution of the sale deed was taken by the plaintiffs. According to the plaintiffs, the possession of the land was given to him and the sale deed was to be executed after defendant No. 1 had obtained permission of the authorities under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, for the sale in quetion. The plaintiffs contended further that in pursuance of this agreement and the delivery of possession, he had discharged the liabilities of the defendant No. 1 as follows :
Rs.7,000/-
paid on 6th March, 1974 in Special Dharkhast No. 28 of 1973 to the decree holder Bismilla Toshamkhan Pathan;
Rs.500/-
paid on the same day at the the same time for household expenses defendantNo. 1;
Rs. 3,850/-
deposited in the Land Mortgage Bank on behalf of defendant No. 1;
Rs. 1,150/-
paid to defendant No. 1 from time to time for household expenses;
Rs. 500 /-
paid to defendant No. 1 on 27th May, 1974;
Rs. 2,100/-
deposited in the Tahsil office at the time of making application for permission;
Rs. 500/-
paid to defendant No. 1 on 29th May, 1974;
Rs. 750/-
paid on 29-9-1974 to repay the bunding loan, and Rs. 3,000/-
paid to Motiram Nathu Bharambe on 30th June, 1974 for cancellation of a deed of agreement executed by defendant No. 1 in favour of said Motiram Bharambe.
Contending further that though only an amount of Rs. 3,000/- to Rs. 4,000/- had remained to be paid, the defendant No. 1 had started negotiating with others for the sale of the land. His application for permission dated 16th July, 1974 was pending for inquiry, but he had withdrawn the same on 21st February, 1975. In the meanwhile, the plaintiffs had given a public notice in a newspaper on 22nd January, 1975, in connection with his transaction with the defendant No. 1 and had asked for the specific performance. As the defendant No. 1 had failed to comply with the requisition, the suit was brought for specific performance of the agreement of sale and the consequential reliefs, including damages, etc.
3. During the pendency of the suit in the Civil Court, Jalgaon, the land in dispute was sold by defendant No. 1 to the defendant No. 2. Therefore, he was impleaded as a party to the suit.
4. Defendant No. 1 -- respondent No. 1 resisted the suit contending that he had never contracted the sale of the land to the plaintiffs and had never executed any agreement in their favour. He contended that he was given to many vices, such as drinking, womanising, gambling, etc. and was often in need of money. He contended that he had approached the plaintiffs for money and they had obtained from him signatures on several blank papers while he was under influence of the drink and had misused those papers. According to him, witness Baliram Jairam Patil also had obtained his signatures on some blank papers. However, he admitted that the plaintiffs had paid Rs. 3,851/- to the Land Mortgage Bank, Rs. 400/- as bunding loan and Rs. 7,000/- for payment of the decretal amount due to Bismilla Pathan in a Special Darkhast. His alternative contention was that even if there was an agreement of sale of the land, the plaintiffs themselves had committed breach thereof inasmuch as they had failed to pay the loan of Fruit Sale Society, Panchayat Samiti, Nutan Co-operative Society, Sakali, etc. and that, therefore, the plaintiffs were not entitled to claim specific performance. Praying that the suit be dismissed with costs, he had also prayed for compensatory costs.
5. Defendant No. 2/respondent No. 2 contended that the documents relied upon by the plaintiffs were obtained by them taking undue advantage of the weaknesses and vices of the defendant No. 1. It was a specific plea of defendant No. 2 that when his transaction was settled with defendant No. 1, plaintiff No. 1 Vasudeo had made it very clear to defendant No. 2 that he was interested only in return of his amount and was not interested in the land. It was, therefore, contended that the sale deed in favour of defendant No. 2 was executed with the consent and connivance of the plaintiff No. 1. Accordingly, he contended that the plaintiffs were not entitled to relief of specific performance of the contract.
6. As many as seven witnesses were examined on behalf of the plaintiffs in the Trial Court. Defendants Nos. 1 and 2 examined themselves and each of them examined one more additional witness in support of their versions.
7. The learned Civil Judge negatived the case of the plaintiffs on the point of execution of agreement of sale and holding that advances to the tune of Rs. 16,250 only were proved by the plaintiffs accordingly, he passed a decree in favour of the plaintiffs for a sum of Rs. 16,250/- with future interest at the rate of 6% per annum from the date of the decree till realisation.
8. Mr. Dixit, the learned Counsel for the appellan/plaintiffs took us through the entire evidence carefully and pointed out in particular that the plaintiff No. 1 Vasudeo (Exh. 103) had proved in his deposition the suit agreement Exh. 104 and the possession receipt Exh. 105. He was corroborated on the point by P.W. 2 Govind Patil (Exh. 111), who had scribed the said document and P.W. 6 Baliram Patil (Ex. 116) who had attested the document. He pointed out further that an Advocates' Clerk P.W. 4 Vithal Zope was examined to prove the endorsement scribed by him on the agreement itself for the payment of the amount to and on behalf of defendant No. 1 for the decretal claim of Bismilla Pathan and also proved that the said endorsement was signed by the defendant No. 1 himself in his presence. It was also pointed out that the defendant No. 1 himself had, in his own handwriting, written on the revenue stamp itself, that he had received the amount of Rs. 7,500/- as stated in the endorsement. It was rightly pointed out that when the case of the defendant No. 1 himself was that he had never known the plaintiffs before the suit transaction, it was unlikely that defendant No. 1 would have paid the amounts on behalf of the defendant No. 1 to pay the debt of the Land Mortgage Bank, to pay the debt of Bismilla Palhan or to pay to the bunding loan. He pointed out further that in the sale deed Exh. 100 executed by defendant No. 1 in favour of defendant No. 2 which the defendant No. 1 admitted in his deposition as genuine and drafted as per his instructions, there was a clear cut admission of the agreement of sale in favour of plaintiff No. 1 Vasudeo Harchand Kolhe and the receipt of amount of Rs. 23,500/- from him towards the aforesaid transaction, the reference in the sale deed Exh. 100 to an earlier document dated 5-2-1975 executed by defendant No. 1 in favour of defendant No. 2, in which it was stated that the liability to pay this amount of Rs. 23,500/- to plaintiff No. 1 Vasudeo was to be taken by defendant No. 2 was by itself, eloquent. Mr. Dixit was right in submitting that in the face of such a strong evidence, in support of the agreement of sale Exh. 104, the learned Civil Judge, Senior Division had come to a conclusion on the basis of some discrepancies here and there, and on the basis of evidence of defendant No. 1's witness Babu-rao Sonawane (Exh. 128), that the execution of the agreement by the defendant No. 1 was not proved, and had accepted the case of defendant No. 1 that certain signatures were obtained from him on blank papers including a stamp paper, which was produced by defendant No. 1 in his own name. We agree with the criticism advanced by learned Counsel for the appellants that the finding, in this behalf, tended to be perverse in the face of the evidence that was referred to above. The learned Civil Judge had referred to only some minor discrepancies here and there, for the purposes of arriving at his conclusion, that the agreement in question was not proved. The learned Counsel for respondents also had very little to urge in support of the aforesaid finding, especially in the light of the averments made in the sale deed Exh. 100 executed by defendant No. 1 in favour of defendant No. 2. The finding recorded by the learned Civil Judge that such an agreement was not proved must, therefore, be set aside and we accordingly set it aside. We hold that the agreement dated 27-1-1974 as alleged by the plaintiffs was duly proved, and that the suit land was agreed to be sold by defendant No. 1 to the plaintiffs for a sum of Rs. 28,000/-.
9. The main contention of Mr. Dixit was that as the subsequent sale deed Exh. 100 was admittedly executed by defendant No. 1 in favour of the defendant No. 2 during the pendency of the suit with the knowledge of the pending suit, and despite the public notice given by the plaintiffs before the institution of the suit, the agreement of sale Exh. 104 executed in favour of the plaintiffs deserved to be specifically performed both by defendant No. 1 and defendant No. 2. He submitted that a decree for specific performance ought to have been passed by the learned Civil Judge Senior Division, holding that the agreement in question was proved. This contention of Mr. Dixit, however, cannot be accepted because of a legal hurdle. In the agreement of sale executed by defendant No. 1 in favour of the plaintiffs, the land to be sold was described as Survey No. 96/1/1-A, admeasuring 3 Hectors and 12 Rs, but in fact, at that time, admittedly a scheme under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act had already become applicable to village Sakali. It was not in dispute that the aforesaid survey number was merged with some other lands and a larger land was allotted the consolidated survey No. 829-B. This Survey number was referred to in the sale deed Exh. 100 as well as in the application that was made by defendant No. 1 to the Tahsildar and to the Commissioner for permission to sell (vide certified copies at Exh. 3/6 and 7). The extract of the relevant entry in the special register maintained at the office of the Assistant Collector was got tendered and proved through plaintiffs' witness No. 7 Pralhad Dhande (Exh. 119) at Exh. 121. It shows that the application was filed in respect of survey No. 96/1/1-A of village Sakali on 27-9-1974, but the same was rejected on 30-10-1974. It appears that probably, thereafter, the application was made to the Divisional Commissioner. The reason for refusal of permission is not given in the remarks column of the aforesaid entry at Exh. 121. But, it appears that one of the reasons could be that the land was not correctly described stating the consolidated survey number. In-deed, under Section 31(3) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, permission for sale of a whole land falling within the scheme prepared under the Act, was not required at all if the sale was in favour of an agriculturist or agricultural labourer and if the sale was of the entire land. Section 31 (1)(b) showed that such a permission was necessary only of a holding allotted under the aforesaid Act was sought to be sub-divided, whether under a decree or order of a Court or any other competent authority, or otherwise, so as to create a fragment, such transfer required a previous sanction of the Collector. It is obvious that the permission of the Assistant Collector or the Collector and the higher Revenue Officers in the hierarchy, was sought to be taken only because, what was proposed to be sold under the agreement Exh. 104 was only a portion of a consolidated survey number. In respect of the transaction made by the plaintiffs with the defendant No. 1, such a permission was never granted by the revenue authorities under Section 31(1)(b) of the Bombay Prevention of Fragmentation and Conslidation of Holdings Act. However, such a permission was granted to the defendant No. 1 before execution of the sale deed in favour of the present defendant No. 2/respondent No. 2. A reference to that permission appears in the sale deed Exh. 100 itself. It may be noted here that Section 31 did not provide for any appeal or any revision against the refusal of permission or against the grant of permission under S. 31(1)(b) of the Act. S. 35 provided for such a revision, but admittedly, no revision was made so far under that provision by the present appellants. On the other hand, S. 36 of the Act provided that except as provided in the aforesaid Act, no appeal or revision application would lie from any order passed under Chapter II, III or IV of the Act. Section 31 falls in Chapter IV of the Act. Therefore, no appeal or revision otherwise than under S. 35 could have been preferred against the grant of permission in favour of defendant No. 1 for sale of the land in dispute to defendant No. 2. The plaintiffs had come to know of the transaction between defendants Nos. 1 and 2 during the pendency of the suit itself and they had, therefore, impleaded defendant No. 2 in the suit as far back as in 1977. Since then, no effort was made by them to challenge the aforesaid grant of permission on any forum including the writ jurisdiction of the High Court. The result is that the aforesaid permission granted for the transaction between defendants Nos. 1 and 2 has virtually become absolute by this time. In the face of that permission, the plaintiffs/ appellants were not likely to get such a permission even if they were given a liberty by this Court to apply for the same.
10. The position that obtains with this observation is that even if it is assumed that the plaintiffs were to succeed on all points connected with the agreement and the payment of the amount, etc., the question would be, whether or not, the plaintiffs would be entitled to get specific performance of the alleged contract. It was the case of the plaintiffs in the plaint itself that despite the agreement of sale with them, defendant No. 1 was negotiating the sale of the suit land with somebody else. At the time of the institution of the suit, they had preferred application Exh. 7 for an injunction restraining the defendant No. 1 from disturbing the plaintiffs possession of the suit land. The application was granted in the trial Court and was confirmed in the District Court. In A.O. No. 228 of 1975, the said order was, however, set aside by consent on 9-3-1976 and the matter was remanded to the trial Court. Thereafter, the matter was heard again and injunction was granted protecting the plaintiffs possession of the suit land. The matter was again carried up to the High Court and in A.O. No. 222 of 1976, an order was passed on 20th September, 1976, selling aside the said interim injunction. What is relevant to note here is that inspite of the fact that the plaintiff knew that the defendant No. 1 was negotiating for sale of the land despite the agreement with them, they never sought an injunction against him for restraining him from selling the suit land to some third party. Defendant No. 2/respondent No. 2 purchased the land on 6-8-1977 vide Exh. 100 after obtaining the necessary permission under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. As discussed earlier in the preceding paragraph, the order granting him permission to purchase the land was never challenged so far. Under such circumstances, by virtue of the order passed in favour of the respondent No. 2 under S.31(1)(b) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, he has acquired certain rights on account of the order passed in his favour under a special Statute. In this eventuality, even if the plaintiffs were to succeed now in the suit, the chances arc far remote to them that they would now succeed in getting that order set aside and in getting in their favour an order under S. 31(1)(b) of the Act, permitting them to purchase the land. It would not be possible for this Court to direct any authority to accord such a permission to the plaintiffs, as a result of this appeal. Under such circumstances, the question is whether or not, the discretionary relief of grant of specific performance of the contract in question could be granted to the appellants/plaintiffs. The answer has got to be in the negative, because, particularly in the matters of discretionary relief, the Court will refrain from passing a hypothetical decree when it is not possible for it to direct the authority, in this very proceeding, to accord such a sanction to the plaintiffs.
11. A reference was made, in this context, to the decision of the Supreme Court in Ms. Chandnee Widyavati v. Dr. C.L. Katial . In that matter, the plaintiffs had entered into a contract of sale of a house belonging to the defendant on the plot granted by the Government and one of the terms of the contract was that the vendor should obtain necessary permission of the Government for sale, within two months of the agreement and if the permission was not forthcoming within that time, it was open to the vendees to extend the date or to treat the agreement as cancelled. The vendor had made an application for permission, but had withdrawn the same. When a suit came to be filed by the vendees for specific performance of the contract or in the alternative for damages, it was found that the vendees were always willing and ready to perform their part of the contract, that it was the vendor who wilfully refused to perform her part of the contract and that the time was not the essence of the contract. Under such circumstances, it was held that the Court had got to enforce the terms of the contract and to enjoin upon the vendor to make necessary application for permission. It was also held that in the event of the permission being refused, the vendee should be entitled to the damages. The facts of this case are at variance with the facts now in hand, inasmuch as in that case, no third party rights were involved. No orders, as in present case, passed by any statutory authority under the provisions of any special Statute were involved. In the present case, such orders passed under Section 31(1)(b) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, are already passed and they have become final, because no revision was preferred for getting them set aside. Under such circumstances, it is not possible to hold that the Court should exercise the discretion for granting in favour of the plaintiffs the discretionary relief of specific performance.
12. The result is that though not for the reasons assigned by the learned Trial Judge, but for the reasons recorded above, a decree for specific performance of the contract, cannot he passed. The claim of the plaintiff/ appellants in that respect, has got to be rejected and the suit has got to be dismissed to that extent.
13. But, the plaintiffs have prayed alternatively for the refund of the consideration. According to the plaintiffs, they have paid to or on behalf of the defendant No. 1, the amounts as follows :
Rs. 5,000 /-
paid as earnest money under agreement Exh. 104;
Rs.7,000/-
paid in Special Darkhast No. 28 of 1973 filed by Bismil-lakhan Toshamkhan Palhan;
Rs.
500/-
paid on the same day for household expenses;
Rs.
3,850/-
paid to the Land Mortgage Bank on 17-3-1974;
Rs.
1,150/-
paid on the same day for household expenses of defendantNo. 1;
Rs.
500 /-
paid on 27-5-1974 for meeting the expenses of the proceeding before the Assistant Collector for permission;
Rs.
500/-
paid on 29-5-1974 for household expenses;
Rs.
750/-
Bunding loan paid on 29-9-1974;
Rs.
3,000 /-
paid on 30-6-1974 on behalf of defendant No. 1 to Motiram Nathu Bharambe for cancellation of the agreement with him, and Rs.
2,100/-
deposited in the Tahsil office on behalf of defendant No. 1 in Saving Deposit at the time of making application for permission.
Out of these amounts, the earnest of Rs. 5,000/-, Rs. 7,000/- paid in Special Darkhast No. 28 of 1973, Rs. 500/- paid on 6-3-1974, 27-5-1974 and 29-5-1974 respectively, and Rs. 3,850/- paid to Land Mortgage Bank and Rs. 1,150/- paid to the defendant No. 1 on 17-3-1974, are specifically acknowledged in writing on the agreement Exh. 104 itself. The amount paid to Bha-rambe is acknowledged by receipt Exh. 106. Though the plaint says that Rs. 750/- were paid for bunding loan, receipt Exh. 107 executed in- that behalf shows that out of Rs. 750/-, Rs. 445/- were for payment of the bunding loan and Rs. 305/- were for household expenses. Thus, a total sum of Rs. 750/- was paid under receipt Exh. 107. It is pertinent to observe that while signing on the revenue stamps for acknowledging these payments, the defendant No. 1 himself had stated the figures of the amount received by him, once on Exh. 104 and again on Exh. 106 and yet again Exh. 107. The contention of the defendant No. 1 that all these signatures were made by him while he was drunk, was accepted to some extent by the learned Trial Judge, but that is a hard pill to swallow. It is the contention of the defendant No. 1 himself that prior to this transaction, he had made several transactions with other different persons, and that every time, he had executed the documents, which he had got subsequently cancelled also. He was certainly not a person, who was ignorant of the procedure involved in execution of the legal documents and in getting them cancelled. It is, therefore, difficult to accept his version, as the learned Trial Judge has done it, that the defendant No. 1 had signed several blank papers and had handed them over to plaintiff No. 1. What is most imortant is that while entering into the transaction with the defendant No. 2 vide Exh. 100 and making a document of contract with him prior to that, defendant No. 1 himself had acknowledged that he had, till then, received an amount of Rs. 23,500/-from the plaintiffs and he had passed on that liability explicitly on defendant No. 2. It was the version of defendant No. 1 himself in his deposition that he was in senses when he had executed the sale deed Exh. 100 in favour of defendant No. 2, and that whatever was written in that document, was genuinely written. The learned Civil Judge was certainly wrong in disbelieving the plaintiff No. 1 and the witnesses examined on behalf of the plaintiffs for proving the consideration so paid from time to time, in the face of the aforesaid admission given by defendant No. 1 in his deposition and in the sale deed Exh. 100. Mr. Dixit was, therefore, right in submitting that the finding of the learned Civil Judge, that an amount of only Rs. 16,250/- was proved to have been paid by the plaintiffs to defendant No. 1 was not only wrong, but it was perverse. On the basis of the aforesaid evidence, we uphold the contention of the plaintiffs that an amount of Rs. 23,500/- was paid by the plaintiffs to the defendant No. 1 towards the transaction made vide Exh. 104. This much amount must be decreed in favour of the plaintiffs.
14. The plaintiffs have claimed in the plaint Rs. 1,440/- towards interest on Rs. 24,000/- from 27-1-1974 and the damages of Rs. 2,000/- caused on account of the breach of the agreement in favour of the plaintiffs. The learned Civil Judge has not considered these claims at all. As the defendant No. 1 himself has rescinded the contract prior to the institution of the suit by negotiating with others for the sale of the suit land to them, and again, during the pendency of the suit by executing a sale deed in favour of defendant No. 2, it was obligatory on the defendants to make good the loss to the plaintiffs, in view of the provisions contained in S. 30 of the Specific Relief Act, 1963. The plaintiffs has not adduced evidence as regards the quantum of rise in the price level. But that does not mean that the breach of agreement should go without remedy. The award of nominal damages is a remedy in such cases. Such nominal damages are permissible in India. See Ramchandra v. Chinubhai, 45 Bom LR 075 (at page 1098) : AIR 1944 Bom 76 at p. 87). The amount of Rs. 2,000/- claimed by way of damages is in a way nominal in its nature, because one can take judicial notice of the rise in the price level of the lands since 27th January, 1974. Again, in the face of enormous rise in the price level, the damages claimed by the plaintiffs by way of interest on the amount paid by them with effect from 27th January, 1974 would also be permissible and rules of English law are not applicable to such cases. See Ranchhod c. Manmohandas, (1907) ILR 32 Bom 165. On the background of the enormous rise in price level of real estates since the date of the breach of agreement in this case, the amount claimed by way of damages, is in a way trifling amount and the same also can be allowed as nominal damages. Therefore, there appears good justification in allowing the plaintiffs an amount of Rs. 3,440/- in addition to Rupees 23,500/- paid by the plaintiffs to the defendant No. 1.
15. The learned Civil Judge has committed a further error in awarding a money decree to the plaintiffs only as against defendant No. 1. When the defendant No. 2 himself had undertaken in the sale deed Exh. 100, the liability to pay the amount of Rs. 23,500/- to the plaintiffs, there was no reason whatsoever to absolve defendant No. 2 of the liability for the amounts to be refunded. He has neither paid the amount to the plaintiffs so far nor has he ever offered to pay such amount. On the other hand, both the defendants together had set up unsustainable defences in the suit, Mr. Girish Wani, arguing the case on behalf of defendant No. 2/respondent No. 2, submitted that the had paid the amount to defendant No. 1. Whatever be the contention on that point, when he had undertaken a liability to pay the amount to the plaintiffs, he was not at all justified, while obtaining the title to the land in question, in paying that amount back to defendant No. 1, if at all he had really done so. He had purchased the property with full knowledge of the rights of the plaintiffs in connection with the suit property. It was only a misfortune of the plaintiffs that in the peculiar circumstances, the agreement of sale of land in their favour could not be specifically performed. But, that, by itself, would not mean that all the liabilities under the agreement were to be ignored by the Court while deciding the matter. Therefore, while decreeing the suit, it must be held that defendant No. 2/respondent No. 2 also shall be jointly responsible with defendant No. 1/respondent No. 1 for payment of amount of Rs. 23,500/-. The rest of the amount of interest and damages may be recovered from the defendant No. 1/respondent No. 1 alone.
16. The appeal must, therefore, succeed in part. The claim of the plaintiffs/appellants for the specific performance of the contract is rejected and, therefore, the decree dismissing the suit in that behalf is confirmed.
Defendants Nos. 1 and 2/respondents Nos. 1 & 2, do pay to the plaintiffs/appellants the sum of Rs. 23,500/- for which they shall be responsible jointly and severally. In addition, the defendant No. 1/respondent No. 1 Bhaulal shall pay to the plaintiffs an additional sum of Rs. 3,440/- towards the interest and damages claimed by the plaintiffs/appellants. Both the defendants shall further pay to the plaintiffs future interest at the rate of 6% per annum from the date of the institution of the suit till realisation of the amount on the claims for which they are held liable as per the decree passed by this Court.
Both the defendants/respondents do pay to the plaintiffs/appellants the costs throughout.
Appeal partly allowed.