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2022 Supreme(Bom) 211
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR
ANIL SATYAVIJAY KILOR, J.
Ravindraprasad @ Rajendra Bholaram Yadav and Ors. – Appellants
Versus
Vasant Narayan Agrawal and Ors. – Respondents
Second Appeal No. 182 of 2018
Decided on : 22-03-2022
Advocate Appeared:
For the Appellant :A.R. Deshpande, Advocate
Ratification of the Power of Attorney can validate an earlier act, and the appellate court must consider the appeal on its merits.
Headnote:
Ratification - Specific Performance - Indian Penal Code - Indian Evidence Act - [SPECIFIC PERFORMANCE] - [Indian Penal Code, Sections 420 and 468; Indian Evidence Act, Section 58] - The court discussed the validity of an agreement for specific performance and the subsequent ratification of the Power of Attorney by the plaintiffs. The court referred to the case of Jugraj Singh & another vs. Jaswant Singh and others (1970) 2 SCC 386 and U. Manjunath Rao vs. U. Chandrasekhar & anr. (2017) 15 SCC 209 to establish the principle of ratification and the need for conscious application of mind by the appellate court. The court concluded that the lower appellate court erred in not considering the appeal on its merits and referred the matter back for a fresh decision.
Fact of the Case:
The plaintiffs filed a suit for specific performance of a property. The defendant resisted the suit, alleging illegal money lending and mortgage of the property to another party. The trial court dismissed the suit, and the appeal was also dismissed based on the invalidity of the agreement for specific performance.
Finding of the Court:
The lower appellate court erred in not considering the appeal on its merits and concluded that the agreement dated 25/04/2003 is not valid. The matter was referred back for a fresh decision.
Issues: Validity of the agreement for specific performance, ratification of the Power of Attorney, and conscious application of mind by the appellate court.
Ratio Decidendi: The appellate court must consciously apply its mind and record findings supported by reasons on all issues. Ratification of the Power of Attorney can validate an earlier act, and the appellate court must consider the appeal on its merits.
Final Decision: The appeal was partly allowed, and the judgment and decree of the lower appellate court were quashed and set aside. The matter was referred back for a fresh decision.
JUDGMENT :
Anil Satyavijay Kilor, J.
1. This appeal is arising out of the judgment and decree dated 22/11/2017 passed by the Ad-hoc District Judge-2, Akola in Regular Civil Appeal No. 108 of 2012, dismissing the appeal arising out of the judgment and decree dated 27/07/2007 rendered in Special Civil Suit No. 17 of 2004 by the learned Civil Judge Senior Division, Akola, dismissing the suit for specific performance of contract along with compensation.
2. The brief facts of the present case are as follows:
(The parties are referred to as per their status before the trial Court.) The plaintiffs/appellants filed a suit for specific performance. It is the case of the plaintiffs that the suit house No. 201 out of Survey No. 9 of 2003 of village Bhaurad, admeasuring 3100 sq. ft. situated at Rajeshwar Nagar, a suit property, is owned by the defendant No. 1. It is the further case of the plaintiff prior to execution of agreement for sale by defendant No. 1 in respect of suit property on 25/04/2003, defendant No. 1 had executed the sale deed of Plot No. 6 arising out of field Survey No. 99/3 dated 28/07/2001 for consideration of Rs.1,00,000/-. It is submitted that subsequently, defendant No. 1 had executed the sale deed in the name of plaintiffs in respect of Plot No. 7 on 25/07/2002 for consideration of Rs.65,000/-. It is further pleaded that the plaintiff had been to the spot with a view to raise construction over the purchased plot. At that time, it was noticed that Plot Nos. 6 and 7 were not actually on the spot and construction of other persons was seen. Therefore, the plaintiffs contacted defendant No. 1 through their power of attorney Ramsamuj Dinu Yadav and asked him to show the plots which were sold by him to the plaintiffs but defendant No. 1 failed to search out those plots. Therefore, the plaintiff lodged report against the defendant No. 1 to police and offence was registered under Sections 420 and 468 of Indian Penal Code.
3. It is further submitted that as per Agreement for Sale, defendant No. 1 had agreed to sell out the suit property for consideration of Rs. 4,00,000/-. It was also agreed that the price of the plot Nos. 6 and 7 should be fixed for the amount of Rs. 2,50,000/-. Accepting that price, defendant No. 1 executed agreement for sale as referred to above and he agreed to execute the sale deed on 25/08/2003. As the defendant failed to execute sale deed despite of receipt of notice issued by the plaintiffs the suit came to be filed.
4. The defendant No. 1 resisted the suit by filing written statement and it is alleged that the power of attorney of the plaintiffs is doing illegal business of money lending and as the defendant No. 1 was in need of money, he requested for hand loan of Rs. 20,000/- in the year 2001 and as a security a sale deed was executed. However, the said sale deed was nominal one. It is further stated that the mother of the defendant No. 1 was suffering from illness and for her treatment defendant No. 1 given Rs. 25,000/- as a hand loan and as a security the power of attorney of the plaintiffs got executed the sale deed. It is further alleged that though the amount was repaid, the plaintiffs refused to return the sale deeds.
5. The defendant No. 2 opposed the suit by filing written statement. It is contended that defendant No. 1 has obtained loan of Rs. 50,000/- from the bank on 15/12/2001. At that time, defendant No. 1 had mortgaged the suit property in favour of the defendant No. 2. It is stated that the defendant No. 2 is ready to release the mortgage, if the loan amount is deposited and cleared.
6. The learned trial Court, after scrutinizing the oral as well as documentary evidence, dismissed the suit vide judgment and decree dated 27/07/2007 passed by the Civil Judge Senior Division, Akola in Special Civil Suit No. 17 of 2004. The plaintiffs thereupon, carried the appeal before Ad-hoc District Judge-2, Akola vide Regular Civil Appeal No. 108 of 2012. The same came to be dismissed vide impugned judgmen
