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2006(3) Kar. L.J. 1 (DB)
In The High Court Of Karnataka At Bangalore
(Division Bench)
S.R. Bannurmath And Subhash B. Adi, JJ.
N.K. Giriraja Setty
V.
N.K. Parthasarathy Setty And Others
Regular First Appeal No. 328 of 2002.
9th March, 2006
Cases Referred: ILR 2005 Kar 729 (SC); 1990 (3) SCC 1; (1998) 5 SCC 381; AIR 1959 Mysore 148; AIR 1930 Madras 770; AIR 1972 Calcutta 12; AIR 1975 Madras 374; AIR 1976 SC 2073; AIR 1951 Orissa 291; AIR 1922 Madras 23.
Powers-of-Attorney Act, 1882 -Deposition on behalf of principal -Section 2 -Deposition on behalf of principal - Agreement of sale - Attorney holder not a party to - Having no personal knowledge - Cannot depose on behalf of his principal (plaintiff) - His evidence would not prove prevention of agreement.
Specific Relief Act, 1963 -Decree for specific performance -Section 20 -Decree for specific performance -Grant of -Discretion of Court. Settled Principle: To relief for specific performance is discretionary and is not given merely because it is legal but it is governed by sound judicial principles. The circumstances referred to in sub-sections (2) to (4) of Section 20 in regard to exercise of discretion for granting a decree for specific performance are not exhaustive. In a suit for specific performance, the evidence and proof of the agreement must be absolutely clear and certain. While normally it is permissible to grant relief on the basis of what emerges from the evidence-even if not pleaded, provided there is no prejudice to the opposite party, such a principle is not applied in suits relating to specific performance. Where the defendant denies the contract as alleged and the evidence proves a contract, but different from that alleged by the plaintiff, the Court should refuse to exercise discretion for grant of decree for specific performance [(1998) 3 SCC 381] [S. R. Bannurmath and Subhash B. Adi, JJ]:
Specific Relief Act, 1963 -Specific performance -Section 9 -Specific performance -Requirements for enforcement of -Burden of proof. Settled Principle: The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the Courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance for there was no contract at all. Where there are negotiations, the Court has to determine at what point, if at all, the parties have reached agreement. Negotiations thereafter would also be material if the agreement is rescinded [(1990) 3 SCC 1).
Indian Contract Act, 1872 -Uncertain contract -Section 29 -Uncertain contract -Voidability of. [S. R. Bannurmath and Subhash B. Adi, JJ]: It is true that the contract is not void for uncertainty if it can be made certain within the meaning of Section 29 of the Contract Act. Settled Principles: Where a written contract for sale of land is silent about the price and the time for performance, the contract is not void for uncertainty, if it is one that can be made certain within the meaning of Section 29. If on evidence it is found that the parties agreed to" the payment of a reasonable and fair price and complete the contract within reasonable time the Ct. can imply such terms in the contract and determine what is reasonable price and what is reasonable time [AIR 1951 Orissa 291].
Cases Referred: ILR 2005 Kar 729 (SC); 1990 (3) SCC 1; (1998) 5 SCC 381; AIR 1959 Mysore 148; AIR 1930 Madras 770; AIR 1972 Calcutta 12; AIR 1975 Madras 374; AIR 1976 SC 2073; AIR 1951 Orissa 291; AIR 1922 Madras 23.
This is plaintiffs appeal questioning the judgment and decree in O.S. No. 93 of 1992, on the file of the II Additional Civil Judge (Senior Division), Bangalore Rural District, dated 19th November, 2001, decreeing the suit partly and directing defendants 1 to 3 to execute a registered sale deed in favour of the plaintiff conveying right, title, interest and possession of their properties by receiving the balance consideration to the extent of their share and on failure to execute the sale deed, the plaintiff is at liberty to get the Court Commissioner appointed to execute the sale deed and registered through Court as per the agreement on behalf of the defendants 1 to 3 and dismissed the suit against the defendants 4 to 6.
2. The parties will be referred to, as to their status in the Trial Court. 3. Case of the plaintiff is, that the defendants are close relatives of the plaintiff and they own the lands bearing Sy. Nos. 19, 18/2 and 110/2, measuring 9 acres 19 guntas, 1 acre 12 guntas and 2 acres 7 guntas respectively. The land bearing Sy. Nos. 19 and 18/2 are situated at Byadarahally Village, Kasaba Hobli, Nelamangala Taluk and land bearing Sy. No. 110/2 is situated at Mylanahalli, Kasaba Hobli, Nelamangala Taluk. The land bearing Sy. No. 19 consists of phot kharab of 18 guntas, residential building and one pit measuring 1 acre 18 guntas and also 33 guntas of land, which has come to the share of the plaintiff's father late K.S. Narasimhaiah Setty. The actual measurement of the lands available after excluding the 33 guntas of plaintiff's land, phot kharab, pit, etc., in Sy. Nos. 19, 18/2 and 110/2 is 8 acres 37 guntas. Defendants intended to alienate their lands in Sy. Nos. 19, 18/2 and 110/2 and persuaded the plaintiff to purchase the said lands belonging to them. Plaintiff agreed to purchase the lands at a price fixed at Rs. 40,000/- per acre with a clear understanding amongst the parties that the said price is fixed as per exact measurement of the lands available for sale. On 24-11-1989, the defendants executed an agreement of sale in favour of the plaintiff, agreeing to sell their lands in the aforesaid Sy. Nos. 19, 18/2 and 110/2 and received a sum of Rs. 10,000/- from the plaintiff as part payment of the sale consideration. It is stated that thereafter the defendants demanded further advance of Rs. 50,000/- towards the agreed sale price and on 27-10-1990 to this effect, they executed an endorsement on the agreement of sale, acknowledging the receipt of Rs. 50,000/- as advance towards the sale price. It is contended that as the fourth defendant was not available immediately to sign the said endorsement, he had not put his signature on the same. It is the case of the plaintiff that the defendants received a total sum of Rs. 60,000/- from the plaintiff as part payment towards the agreed price. The plaintiff contended that though he was ready and willing to pay the balance sale consideration as per actual measurement of the lands agreed to be sold by the defendants under the terms and conditions of the agreement of sale and obtain a registered sale deed from the defendants at his cost, but the defendants postponed the sale on one or the other pretext. In the month of January 1991, plaintiff came to know that the defendants were making attempt to deal with the property and as such he issued a notice dated 30th January, 1991 to the defendants calling upon them to execute a registered sale deed in his favour by receiving the balance of sale consideration as per the actual measurement available. Defendants 1 to 3 replied to the notice expressing their inability to execute sale deed, on account of non-cooperation of the defendants 4 to 6. It is further case of the plaintiff that the fourth defendant also by letter dated 10-2-1991 replied to the notice of the plaintiff. It is the case of plaintiff that as defendants failed to execute the sale deed and attempted to sell the lands in favour of others, he was constrained to fi
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