Indian Kanoon - Search engine for Indian Law

Whether the said documents stand proved will be dealt with after perusing the oral evidence led on behalf of the parties.

11. On behalf of the plaintiffs, their learned Counsel has contended firstly about oral agreement and subsequent agreements in writing Exhibit "H" and "J" respectively. Learned Counsel points out that substantial controversy arose between the parties about handing over vacant possessions of the ground floor of the residential Noble Building and entire factory premises including stable and shed and subsequent handing over of possession of factory premises, etc. in part performance. It is submitted that the issue pertaining to possession in terms of the oral agreement was to be separately recorded by a letter and not in the formal agreement to that effect Mr. Captain, Attorney for the defendants had drafted letter of 5th May, 1976 to hand over vacant possession and had handed over to the representative of the vendors in the presence of Mr. Agarwal and Mr. Tijoriwala. It is contended that this evidence is not controverted and in fact defendant in para 4 of the written statement have admitted about meeting which took place on 6th May, 1976 in which the drafts were to be engrossed immediately for execution and that on 7th May, 1976 they received the stamped engrossed draft agreement with Attorneys' cheque for earnest money. Exhibit "K" it is contended have been signed by seven out of the 10 co-owners. Drafts of the Agreement recording handing over vacant possession were prepared by Attorneys of the Defendant Nos. 1 to 10. In so far as the earnest money is concerned, it is contended the plaintiffs had deposited a sum of Rs. 72,000/- with their Attorneys being Rs. 68,000/- and Rs. 3,000/- as earnest money of the two agreements and Rs. 1,000/- towards expenses. The cheques were first sent and delivered on 10th May, 1976. These cheques were returned on 10th May, 1976 being Exhibits "C" and "D" respectively. Cheques were once again sent to the Attorneys for the defendants on 17th May, 1976. The cheques were returned by the Attorneys for the defendants on the ground that there were differences inter se between the defendants. Stamped signed engrossments were however retained. This is proved by Exhibits 5, L-4, 6 and 7, L-5 and 7 and L-6 and L-8 and two cheques by Exhibits "C" and "D". It is then contended that by letter of 21st September, 1976 Exhibit L-7 the stamped engrossments were duly executed and were sent to the purchasers' Attorneys with the request to forward the two cheques. It is contended that defendants have not proved the contents of the said letter. In so far as the earnest money is concerned, it is submitted that two fresh cheques for earnest money were kept ready on 21st September, 1976 being Exhibits "E" and "F". These cheques were not sent on instructions of the representatives of defendant Nos. 1 to 10 until the signatures of the remaining three vendors were obtained on the letter. It is contended that though defendant Nos. 1 to 10 purported to terminate the Agreement by letter dated 14th October, 1976 plaintiffs replied to the letter by letter of 8th March, 1977 explaining the matter regarding possession and non-despatch of the two cheques. The plaintiffs by the said letter expressed their readiness and willingness to proceed with and complete the transaction. Cheques for the earnest money were thereafter sent by the Advocates' letter dated 21st May, 1977 being Exhibit L-8. It is contended that in part performance of the agreement the defendants have put the plaintiffs in occupation of the factory, shed, etc. and had handed over possession which is proved by Exhibit L-11 which is the letter written on behalf of the defendants by their Advocate. Reference to possession can also be evidenced by the averments in para 5 of the written statement of defendant Nos. 1 to 10. It is, therefore, contended that the contract has been acted upon and as such is specifically enforceable. In so far as the Agreement is concerned, it is contended that earnest money was not to be parted with to the Vendors until completion of the sale but was to remain with the Attorneys for defendant Nos. 1 to 10 and invested in fixed deposit and interest thereon was to be given by the plaintiffs. Time for completion of the contract it is contended was not essence of the contract. It is submitted that the amount deposited by the plaintiffs with their Attorneys remained so deposited until the suit was filed. In so far as clause 14 is concerned, it is contended that the said clause is sought to be co-related with the statement of outgoings which was not signed by the plaintiffs. The same has not been proved as the defendants have led no evidence in respect of the said statement and that clause 14 by itself cannot be read to mean that it refers to the statement annexed to the agreement. In substance, therefore, it is contended that the plaintiffs have performed their part of the contract and were ready and willing to perform their obligations under the contract. Learned Counsel refers to various averments in the written statement to contend that these averments would tantamount to admission in view of the averments in the plaint made on behalf of the plaintiffs. In so far as the proof of documents is concerned, it is contended that the documents were marked as Exhibit without formal proof subject, however, to the proof of correctness of the contents thereof. The plaintiffs have proved their documents through P.W. 1, the defendants have failed to prove their documents as no evidence has been led on their behalf to prove the correctness of the contents of the documents relied upon by them. The plaintiffs have proved their case through evidence of P.W. 1 and P.W. 2 who corroborate the evidence of P.W. 1. Evidence have not been shaken in cross-examination and in these circumstances in the absence of any evidence on behalf of the defendants the preponderance of evidence is in favour of the plaintiffs and as such suit for specific performance ought to be succeeded. It is also contended that apart from proving the two agreements Exhibits "H" and "J" the plaintiffs have already proved those agreements by examining P.W. 1 whose version has been corroborated by P.W. 2. In so far as escrow is concerned, it is contended has not been proved as the essential terms by letter dated 21st September 1976 and Exhibit L-17 have not been proved. Regarding possession, it is contended that oral evidence of the two witnesses establishes the agreement to give vacant possession. At any rate it is contended by virtue of section 65(1)(f) of the Transfer of Property Act, it would be a term of the contract for the Vendors to put the plaintiffs in possession. It is contended that sections 91 and 92 of the Indian Evidence Act are not attracted.

In so far as the documentary evidence is concerned, apart from Exhibit "K" i.e. letter dated 7th May, 1976 in respect of which there is a dispute as also whether the contents have been proved, there is a letter dated 8th March, 1977 which has been produced on record as Exhibit "I-10" and proved through P.W. 1. In paragraph 3 of the said letter written by Attorneys for the plaintiffs, it was set out that in addition to the terms recorded in the Agreement for sale, it was also agreed between the respective clients that the defendants would hand over vacant possession of the entire ground floor of the main building, the whole of the factory premises, stable and shed and all other open spaces. It has further been set out that it was expressly agreed and understood between the parties that defendants would execute the said letter and only after receipt of the said letter duly executed by each of the defendants were the plaintiffs required to proceed further in the matter. It has been further averred that after receipt of the letter dated 21st September, 1976 Exhibit "L-7" the Attorneys for the plaintiffs had kept ready two cheques drawn in favour of Attorneys for defendant Nos. 1 to 10 and were about to forward the same. The monies were lying with them since May, 1976. The earnest money it is contended were not despatched as defendant No. 1 and Mr. Nicholson who represented the defendant Nos. 1 to 10 informed the plaintiffs that three of the co-owners had not yet signed the letter affirming to hand over possession as there was a dispute about their share relating to vacant possession and that the plaintiffs should withhold sending a cheque until they hear from Mr. Nicholson and defendant No. 1. It was further contended that they were informed by defendant No. 1 and Mr. Nicholson that if the cheques were withheld they would strengthen the hands of Mr. Nicholson and defendant No. 1. Exhibit "L-11" letter dated 12th April, 1977, is the reply by the Attorneys for defendant Nos. 1 to 10 to the letter dated 8th March, 1977. In the said letter it was denied that there was any dispute between the defendants about their share in the matter of giving vacant possession of the premises. It is set out that the correct facts were that the defendants were unwilling to complete the proposed Agreement for sale until the water proofing of the terrace and roof were carried out which the plaintiffs were bound to do hut had failed to carry out. The oral agreement regarding handing over possession is denied and more specifically of handing over the entire possession of the entire ground floor of the main building, etc. It is also denied that the issue of handing over vacant possession was not to be incorporated in the Agreement and would be done by a separate letter. There is another letter being Exhibit "M-A" dated 21st May, 1977 written on behalf of the plaintiffs by their Attorneys. The plaintiffs denied that there was any agreement for water proofing the terrace and/or roof before the Agreement for Sale was executed.

In the oral evidence P.W. 1 has averred that as regards the vacant possession defendant No. 1 and Mr. Nicholson informed P.W. 1 that it would be recorded by a separate letter and not in the Agreement and that Solicitors for original defendant Nos. 1 to 10 and for the plaintiffs would decide about the same. He has further deposed that in respect of the letter which he handed over there was a meeting between the witness defendant No. 1, Mr. Noble and Mr. Nicholson about three or four days from 23rd September, 1976 where the witness was informed that the signatures of three of the co-owners on the letters in respect of the possession were not subscribed. Original letter signed by seven of the original owners were shown to him. Witness asked them to hand over the original as signed by seven owners. He was informed by defendant No. 1 and Mr. Nicholson that signatures of other three of the co-owners would be required and that they would like to retain the original. They also informed him not to forward the cheques till the original letter pertaining to vacant possession was signed by the original owners and that only after forwarding of the letter should the cheques be forwarded to the Attorneys for the defendants. In his cross-examination, in the question put to him as to whether there were difference between the oral agreement as pleaded in para 2 of the plaint and two agreements dated 21st September, 1976, he has answered that there were some minor differences otherwise they were the same. To another question as to what were the differences between the oral agreement and written agreement, the answer is that there were no finalisation about repair and as such there was no mention about repairs in the oral agreement whereas in the written agreement dated 21st September, 1976 there was a mention of repair. About vacant possession, though it was in the oral agreement, it was not mentioned in the written agreement. To another question as to the major difference in the agreement, he has answered the major difference was in respect of the vacant possession. His attention was invited to clause No. 1 of the Agreement dated 21st September, 1976 Exhibit "H". He has answered that there was no mention about vacant possession about the entire ground floor of the main building, etc. He has also added that it was agreed to incorporate all the terms and conditions settled under the oral agreement and written agreement except for giving vacant possession. He has answered that there was no legal impediment in incorporating clause 2(c) as set out in the plaint. Clause 2(c) pertains to handing over of vacant possession. He has further deposed that the condition to hand over vacant possession of the suit property was settled in the very first meeting when he visited the suit property. He was shown letter dated 7th May, 1976 addressed by Attorneys of the plaintiffs to Attorneys of defendant Nos. 1 to 10 he was asked as to why there was no reference to any letter of handing over vacant possession being executed or sent to him. He has answered that separate letter incorporating the terms of handing over vacant possession was to be sent by plaintiffs to defendants and that is why there is no reference in the letter dated 7th May, 1976. He has further stated that letter incorporating terms of handing over vacant possession along with draft agreement was to be first sent to his Solicitors. He has further set out that the talks between him, defendant No. 1 and Mr. Nicholson about handing over of vacant possession was not recorded in any letter as he trusted them. He has asked a question whether after 6th May, 1976 in the meetings between Solicitors of plaintiffs and Solicitors of defendants was the matter of giving a separate letter of possession and/or defendant Nos. 1 to 10 having failed to send such a letter was discussed. The answer is he did not remember. The next question put to him was whether alleged oral agreement to execute the separate letter of handing over possession discussed between respective Solicitors prior to 6th May, 1976, the answer is he did not remember any such talk had taken place prior to 6th May, 1976.

P.W. 2 Kirti Tijoriwala has deposed that it was stipulated by defendant No. 1, Mr. Nicholson and agreed to by the partner of the plaintiffs Mr. Suresh Agarwal that the Deed of Agreement would not contain a provision for delivery of vacant possession but would be separately recorded by a letter. He has further deposed that Mr. Captain from M/s. Mulla & Mulla told Mr. Nicholson that he would get letter regarding possession from the 10 co-owners by evening and made it over to Mr. Rustom and Mr. Nicholson and told them to collect, get it signed and bring it to the office by evening. Mr. Captain prepared a memo containing minutes of the meeting. The draft agreement was settled therein. This transpired on 6th May, 1976. The witness has deposed that Mr. Captain informed that he would also get letter regarding vacant possession by the Vendors. He has deposed that after two or three days subsequent to 23rd September, 1976, Mr. Agarwal complained to defendant No. 1 and Mr. Nicholson that the letter recording possession had not been handed over whereupon the original letter bearing seven signatures was produced and Agarwal was informed that he would get the signatures of the others. His attention was invited to a tabular statement attached to Agreement Exhibit "H". His answer is that he new nothing about the said statement and that the said statement was not attached to the Agreement when signed on 7th May, 1976. He deposed that Mr. Agarwal telephoned him about the statement to Exhibit "H" as it was not there when he had signed the Agreement and to enquire about the same and let him know. He checked with Mr. Rustom about the statement. He was informed that the statement was made only for the purpose of annual letting value and tax purposes and ground floor was in possession of the co-owners and there are no tenants. He has deposed in cross that area of the ground floor is approximately 3,000 sq.ft. and when they first visited the site there were locks on the flats and Mr. Rustom had opened the locks and showed the flats. He has further deposed that the Agreement did not contain anything about vacant possession of the ground floor as the same was not to be incorporated in the Agreement. He has further deposed that the transaction would be complete only after all the co-owners handed over letter of vacant possession. He agreed that till date all the co-owners have not signed the letter of handing over vacant possession. He has denied the suggestion that co-owners had not signed the letter handing over vacant possession as the same was not part of the Agreement. He has further deposed that Mr. Agarwal informed his Solicitors that because of the internal problem amongst the co-owners, the question of vacant possession being handed over was not to be recorded in the Agreement but by a separate letter. He has denied the suggestion that his evidence to the effect that letter of possession was signed by seven co-owners was false. He has answered that the xerox copy of the said letter was given to Mr. Agarwal after the original was shown to him.