2007 Supreme(Bom) 980

Bombay High Court
V. R. KINGAONKAR
HANUSINGH S/o- HARSINGH CHAVAN -Appeallant
Versus
AMNAJI S/o- BHAURAO WADJE -RESPONDENTS
CIVIL APPLICATION 2467 Of 1992
Decided On: 07/19/2007

Headnote:Specific Relief Act, 1963 - Sections 9 and 10-Agreement for sale of suit land-Earnest money paid-Question arises as to genuineness of agreement-Held that agreement of sale is proved.-Original defendant Nos. 1 and 2 (appellants) resisted the suit alleging that there was no agreement of sale in respect of the suit land. They contended that the document styled as agreement dated 29.8.1982 is false and fabricated. They denied that amount of Rs. 50,000/- (Rs. Fifty Thousand) was paid to them by plaintiff-Amnaji as earnest money. The denied all the material averments made by him. They asserted that during pendency of the first appeal filed by them against said Dattu, in 1982 or 1985 a group of some villagers and Advocate Shri Ugrasenrao Mukhedkar made an attempt to settle the dispute between them and said Dattu. They asserted that their signatures were obtained on blank stamp papers so as to scribe settlement of terms with said Dattu. The blank stamp papers were retained by one of the intervener, namely, Hanumant Tukaram Patil. They delivered the signed blank stamp paper to him in good faith because they reposed confidence in him. There was, however, no settlement with said Dattu and the talks of settlement fizzled out. They contended that after the decision of the first appeal they remembered that those signed stamp papers had remained in custody of said ’H’. So they got published a notice in local newspaper and informed all concerned that those stamp papers are likely to be misused for preparation of false documents. They asserted that plaintiff is close friend of defendant No. 3 ’V’ and he is practically his agent. They further asserted that the plaintiff filed false suit on the basis of fabricated document styled as Souda Chitthi (agreement) dated 29.8.1982, at the behest of defendant No. 3 ’V’. On these premises, they sought dismissal of the suit.

       The trial Court duly appreciated the evidence on record and rightly held that the agreement of sale is proved. The appellants however failed to prove that the signed blank stamp paper was misused and there was no agreement of sale as such between them and the plaintiff. If Advocate was also a party to such an attempt of settlement between themselves and said ’D’, they would have examined said Advocate in support of their defence. The plaintiff’s case is more probable and acceptable. The plaintiff’s evidence purports to show that his claim was deferred till decision of the High Court in the first appeal preferred by the defendant Nos. 1 and 2 and he became entitled to obtain the specific performance only after 7.9.1990. His version purports to show that he took immediate action thereafter and demanded the specific performance. He proved his readiness and willingness to perform his part of the agreement.

       Specific Relief Act, 1963 - Sections 9 and 10-Contract Act, 1872, Sections 10 and 73-Defendants 1 and 2 owner of suit property, agreed to sell-Received Rs. 50,000/- in advance-Balance was to be paid an execution of sale-Later avoided to execute it-Suit filed for specific performance-Decreed by trial Court-Second appeal against-Held that, it is conspicuous that the balance will have to be strucked having regard to equities.-From the foregoing discussion and on consideration of the settled legal position, it is conspicuous that the balance will have to be struck having regard to equities and the respondent No. 1 (plaintiff) cannot be allowed to gain unfair advantage when he knowingly entered the legal gamble. The escalation in prices could be advantageous to him only to some extent. The vendors cannot be deprived of the benefits. Obviously, if the respondent No. 1 is ready and willing to purchase the suit land for consideration of Rs. 9,00,000/- (Rs. Nine Lakhs) then also he will gain advantage because the market price in 1990 was approximately Rs. 10,00,000/- (Rs. Ten Lakhs). In view of mitigating circumstances, the defendants No. 1 and 2 (appellants) will be entitled to additional amount of Rs. 6,00,000/- (Rs. Six Lakhs) as compensation due to escalation of the prices. The impugned judgment and decree will have to be therefore modified to this extent.

       In the result, the impugned judgment and decree is maintained and the appeal is dismissed subject to condition that the respondent No. 1 (plaintiff) shall pay further additional amount of Rs. 6,00,000/- (Rs. Six Lakhs) to the appellants by way of compensation on account of escalation of the prices of the land in question. The said payment shall be made at the time of the registration of the sale-deed if the sale permission is granted in favour of appellants or on their failure it is granted in favour of the respondent No. 1-plaintiff-Amnaji. Civil applications are also dismissed as the same are untenable. No costs.

       Specific Relief Act, 1963 - Sections 9 and 10 - Contract Act, 1872, Sections 10 and 73 - Defendants 1 and 2 owner of suit property, agreed to sell - Received Rs. 50,000/- in advance - Balance was to be paid an execution of sale - Later avoided to execute it - Suit filed for specific performance - Decreed by trial Court - Second appeal against - Held that, it is conspicuous that the balance will have to be strucked having regard to equities. - From the foregoing discussion and on consideration of the settled legal position, it is conspicuous that the balance will have to be struck having regard to equities and the respondent No. 1 (plaintiff) cannot be allowed to gain unfair advantage when he knowingly entered the legal gamble. The escalation in prices could be advantageous to him only to some extent. The vendors cannot be deprived of the benefits. Obviously, if the respondent No. 1 is ready and willing to purchase the suit land for consideration of Rs. 9,00,000/- (Rs. Nine Lakhs) then also he will gain advantage because the market price in 1990 was approximately Rs. 10,00,000/- (Rs. Ten Lakhs). In view of mitigating circumstances, the defendants No. 1 and 2 (appellants) will be entitled to additional amount of Rs. 6,00,000/- (Rs. Six Lakhs) as compensation due to escalation of the prices. The impugned judgment and decree will have to be therefore modified to this extent.

       In the result, the impugned judgment and decree is maintained and the appeal is dismissed subject to condition that the respondent No. 1 (plaintiff) shall pay further additional amount of Rs. 6,00,000/- (Rs. Six Lakhs) to the appellants by way of compensation on account of escalation of the prices of the land in question. The said payment shall be made at the time of the registration of the sale-deed if the sale permission is granted in favour of appellants or on their failure it is granted in favour of the respondent No. 1-plaintiff-Amnaji. Civil applications are also dismissed as the same are untenable. No costs.

       Transfer of Property Act, 1882 - Section 53 - Contract Act, 1872, Section 10-Specific Relief Act, 1963, Sections 9 and 10 - Contract for sale of land-Suit filed for specific performance of contract-Question arises as to prior permission of collector-Held that decree could not be passed unless permission of collector received. - Once it is found that the agreement of sale was not a transfer of interest as such, there is no adequate reason to hold that it was a complete transfer due to delivery of possession. There is no question of the plaintiff’s claim regarding plea of part performance because he did not claim delivery of possession at the time of the agreement of sale nor his pleadings would show that any protection under Section 53-A of the Transfer of Property Act was sought by him. Both the above referred decisions, which are relied upon by Senior Advocate Mr. Shah, pertain to the claim in respect of protection under Section 53-A of the Transfer of Property Act. In such context it was held that the agreement of sale accompanied by the transfer of possession was invalid and no protection could be claimed by the prospective purchaser under Section 53-A of the Transfer of Property Act. The fact situation in the present case stands on different footings. The plaintiff is not claiming any protection under Section 53-A nor it is proved that possession of the suit land was delivered to him in pursuance of the terms of the agreement.

       It is observed that an agreement to sale does not create any interest in the property and hence the enforcement of such agreement can be sought. For, execution of the conveyance would be only after grant of sanction by the Collector. Thus, "decree nici" can be passed without difficulty. In this view of the matter there is no error committed by the trial Court while granting the decree for specific performance subject to condition that the defendant Nos. 1 and 2 shall obtain the necessary sale permission.