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1996 Supreme(Bom) 511
IN THE HIGH COURT OF BOMBAY
Dr. B.P. Saraf M.S. Rane, JJ.
Devkubai N. Mankar others.... Appellants.
Versus
Rajesh Builders others.... Respondents.
Appeal No. 909 of 1995 in Notice of Motion No. 2284 of 1989 in Suit No. 2421 of 1993, decided on 18-9-1996.
Advocates appeared :
I.M. Chagla with Mrs. Zia Mody with P.K. Samdani i/b. M/s. Prakash Co., for appellants.
Navin Parekh with H.V. Chande for respondents.
Headnote:Sections 182 and 188-See Transfer of Property Act. 1882, Section 7.
Power of Attorney Act, 1882
Section 2-Attorney was authorised to negotiate for the sale of properties-Thus attorney had no right to enter into an agreement for sale of the properties.
Sections 4 and 10-See Transfer of Property Act, 1882, Section 7.
Transfer of Property Act, 1882
Section 7-Specific Performance Act, 1963, Sections 4 and 10-Contract Act, 1872, Sections 182 and 188-Sale of property for specific performance by way of Power of Attorney holder-Power of Attorney to make settlement of sale but not encurb-Held-Domain of Attorney holder to strike a bargain and perform the sale-Illegal,-In the preamble of the power of attorney, it is stated that because it was not possible for W without greater inconvenience to attend to the Court cases and to take care of, supervise and manage the same and attend the offices, courts etc. in connection with his property mention therein and to attend, take care of and take part in the enquiries, proceedings etc. in connection therewith and to appear in person in the Courts including Special Land Acquisition Officer. Tahsildars and others authorities.
On any sale of land in question taking place pursuant to such negotiation, the attorney shall be entitled to a commission of 4% on the amount of the value of price of lands or consideration for sale mentioned in the deed of conveyance on the final conveyance being made and registered but not otherwise whatever may be the cause of non-compliance.
It is clear that the power conferred thereby on the attorney is the power to negotiate for the sale of the land with the prospective purchasers or customers for the best available price. Whether power to negotiate can be construed as meaning power to enter into agreement for sale or to complete the sale is the question for determination before us.
Section 7 and Specific Relief Act-Section 17-Management of property and negotiation for sale with buyers through power of attorney-Deal performance and bargain-Not authorised holder to power of Attorney-Claim of specific performance-Not sustainable.-it is not within his domain to strike a bargain and perform the deal it is for the owner to accept or not to accept the deal arrived at by the agent or attorney by negotiation.
The agreement for sale entered into by the respondent No. 1 with P therefore, cannot confer any light on them to claim the execution of the sale of the property of W on the basis of such an agreement of sale.
The Court is therefore, of the clear opinion that p had no authority to enter into an agreement for the sale of the properties of W on the basis of which he could confer on the respondent No. 1 a light to claim specific performance of such agreement and to compel the owner to execute deed of sale of the property in their favour.
No. 2 from the order of the learned Single Judge dated 3rd November, 1995 made in Notice of Motion No. 2284 of 1989 in Suit No. 2421 of 1983 refusing to set aside the interim order of injunction passed on 19-6-1984 in Notice of Motion No. 1953 of 1983 against their predecessor (original defendant No. 2 since deceased).
2.The relevant facts of the case, briefly stated, are as follows. The appellants (hereinafter, for the sake of convenience, referred to as "the heirs of Warli") are the heirs and legal representatives of one Madhya Govind Warli who was defendant No. 2 in the suit filed by M/s. Rajesh Builders, respondent No.1 herein. On or about 5th July, 1973, Mr. Warli, the predecessor of the appellants, had executed a power of attorney in favour of one Mahendra Damodar Patil, original defendant No. 1 (since deceased and represented by his legal representatives who are respondents in this appeal), in respect of certain immovable properties bearing Survey No. 327, Hissa No. 3 and Survey No. 328, Hissa No. 11 (hereinafter referred to as "Warli property"). Identical power of attorney was also executed by one Mr. Mhase, original defendant No. 3 in respect of certain property belonging to him. Another appeal, being Appeal No. 958 of 1995, which is clubbed with this appeal for hearing, pertains to the property belonging to Mr. Mhase and the alleged agreement of sale executed by Mr. patil in respect of the said property.
3.The suit in question was filed by respondent No. 1 against the predecessor of the appellants for specific performance of an agreement of sale dated 10th June 1983 executed by the power of attorney holder Mr. Patil for sale of the Warli property. The case of respondent No. 1 in the suit was that by the agreement dated 10th June, 1983 executed by Mr. Patil in his individual capacity for his own property, as a constituted attorney for the predecessor of the appellants in respect of Warli property, and on behalf of Mr. Mhase property were agreed to be transferred or conveyed to the respondent No. 1 for development. The agreement is a composite one for development of the personal property of Mr. Patil as well as Warli property and Mhase property. In this appeal, we are concerned only with Warli property and so henceforth we would refer only to that property. The case of the appellants is that the said transaction is collusive. According to the appellants, Mr. Warli never received any consideration. Admittedly, he was all throughout in the possession of the said property. It appears that in course of time, some differences arose between respondent No. 1, the developer, and Mr. Patil, the power of attorney holder, as a result of which respondent No. 1 filed a suit for specific performance of the agreement of sale dated 10th June, 1983. The said suit was numbered as Suit No. 2421 of 1983. In that suit, respondent No. 1, original plaintiff, also took out a Notice of Motion No. 1953 of 1983 and prayed for appointment of a receiver and injunction. Prayer (b) of the Notice of Motion which is relevant for the purposes of the present controversy is set out below:
"that pending the hearing and final disposal of the above suit, the defendants, their servants and/or agents be restrained by an order and injunction of this Hon'ble Court from in any way selling, transferring, letting out, alienating, mortgaging or otherwise in any manner dealing with or disposing off the suit lands described in Ex. 'A' to the Plaint or any part thereof in any manner whatsoever."
Though in the Notice of Motion Mr. Warli was made a party along with power of attorney holder Mr. Patil, admittedly, the notice was served only on Mr. Patil, both for himself in his individual capacity as well as on behalf of Mr. Warli as his attorney. As a result, Mr. Warli had no notice of the Notice of Motion in question. The Notice of Motion came up for hearing before the learned si
