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2020 Supreme(MP) 110
MADHYA PRADESH HIGH COURT BENCH AT INDORE
Rohit Arya, J.
Satish Kumar Khandelwal - Appellant
Versus
Rajendra Jain And Others - Respondents
First Appeal No. 647 of 2008
Decided On : 16-03-2020
A.K. Sethi, Advocate, Shri Harish Joshi, Advocate, S.C. Bagadia, Advocate, Nitin Phadke &D K Chabra, Advocate, Sunil Jain, Advocate, Kushagra Jain, Advocate, Brajesh Kumar Pandya, Advocate
An agreement to sell is vague, uncertain, and not capable of execution if it does not specify the details of the land, its location, dimensions, and area. An agreement to sell is hit by the prohibition under section 3 of the Benami Transactions (Prohibition) Act, 1988 if the plaintiff is not the real purchaser of the land.
Headnote:
The court held that the agreement to sell was vague, uncertain, and not capable of execution. The court also held that the agreement was hit by the prohibition under section 3 of the Benami Transactions (Prohibition) Act, 1988 and, therefore, not enforceable by law.
Fact of the Case:
The plaintiff entered into an agreement to sell 8 acres of land to the defendants for Rs.1.120 crores. The plaintiff paid Rs.66.00 lakhs to the defendants, but failed to pay the remaining amount of Rs.35.00 lakhs. The defendants refused to accept the remaining amount and the plaintiff filed a suit for specific performance of the agreement.
Finding of the Court:
The court found that the agreement to sell was vague, uncertain, and not capable of execution. The court also found that the agreement was hit by the prohibition under section 3 of the Benami Transactions (Prohibition) Act, 1988 and, therefore, not enforceable by law.
Issues: 1. Whether the plaintiff is a fictitious person?; 2. Whether, the agreement to sell dated 27/04/2005 is vague, uncertain and not capable of execution?; 3. Whether the agreement to sell is hit by the prohibition under section 3 of the Benami Transactions (Prohibition) Act, 1988 and, therefore, not enforceable under law?; 4. Whether the plaintiff was ready and willing to perform his part of the agreement?; 5. Whether defendants No.4 and 4 are entitled for cost?
Ratio Decidendi: 1. The agreement to sell was vague, uncertain, and not capable of execution because it did not specify the details of the land, its location, dimensions, and area. 2. The agreement was hit by the prohibition under section 3 of the Benami Transactions (Prohibition) Act, 1988 because the plaintiff was not the real purchaser of the land. 3. The plaintiff was not ready and willing to perform his part of the agreement because he failed to pay the remaining amount of Rs.35.00 lakhs.
Final Decision: The court dismissed the plaintiff's suit for specific performance of the agreement.
JUDGMENT
Rohit Arya, J. - This first appeal by plaintiff under section 96 CPC is directed against the judgment and decree dated 28/08/2008 passed in civil suit No.1A/2006 by the District Judge, Indore. Plaintiff's suit for specific performance of an agreement dated 27/04/2005 (exhibit P/9) has been dismissed.
2. Plaintiff; Satish Kumar Khandelwal son of Shankarlal Khandelwal, resident of 78A Parshanand Nagar, R.T.O.Road, Indore as described in the plaint inter alia contended that the defendants No.1 and 2 agreed to sell 08 acres of land out of the remaining area after sale to other persons falling in survey Nos.208/12, 208/9, 213/1, 213/238, 214, 216/4, 219/2, 220, 221/1 and 221/2 situated in village Talavali Chanda tehsil and district Indore. In addition, it was also agreed that the defendants No.1 and 2 shall purchase 04 acres of land from its owners falling in survey Nos.213/1, 216/4 & 213/238; Surendra Dilliwal and Sudha Dilliwal (defendants No.4 and 5) and in turn shall sell the same to the plaintiff fulfilling his requirement of 12 acres of land.
Total consideration amount was Rs.1,68,50,000/- at the rate of Rs.14.00 lakhs per acre.
Consideration amount was payable in installments and the last installment was payable on or before 27/03/2006. Thereafter, the sale deed to be executed in favour of plaintiff or any other person, plaintiff would suggest. Schedule of payment agreed to was as under:
(a) 27/04/2005 : Rs.18.00 lakhs : Cash
(b) 16/05/2005 : Rs.30.00 lakhs : Cash
(c) 27/10/2005 : Rs.50.00 lakhs : Cash
(d)Remaining amount of Rs.14.00 lakhs to be paid prior to 27/03/2006 in cash.
A public notice was to be issued by defendants, two months prior to the date of sale but, in any case not before 27/01/2006 with the permission of plaintiff.
However, total amount of Rs.66.00 lakhs only was paid by the plaintiff to the defendants No.1 and 2; breakup is as under:
| Sl.No. | Amount (Rs.) | Date | Details |
| (a) | 18.00 lakhs | 27/04/2005 | Cash |
| (b) | 03.00 lakhs | 29/04/2005 | Cash |
| (c) | 09.00 lakhs | 07/05/05 | Cash |
| (d) | 07.50 lakhs | 16/05/2005 | Pay Order No.26001 of U.T.I. Bank |
| (e) | 07.50 lakhs | 16/05/2005 | Pay Order No.26002 of U.T.I.Bank |
| (f) | 06.00 lakhs | 16/05/2005 | Cash |
| (g) | 15,.00 lakhs | 31/10/2005 | Cash |
Besides, on 26/10/2005 three pay orders, viz., 594016, 594017 & 594019; each of an amount of Rs.7.00 lakhs; total Rs.21.00 lakhs in favour of Rajendra Jain (defendant No.1) and two pay orders, viz., 594020 and 594021; each Rs.7.00 lakhs; total 15.00 lakhs in the name of defendant No.2 Rachna Jain (defendant No.2 ) were prepared from Bank of Rajasthan Limited, Branch Palasiya. On 27/10/2005, pay orders of Rs.35.00 lakhs and cash of Rs.15.00 lakhs were tendered to defendant No.1, however, he accepted cash of Rs.15.00 lakhs but, declined to take pay orders of Rs.35.00 lakhs with a request to pay in cash as per agreement. The date for payment of amount was extended upto 05/11/2005.
It is further contended that the plaintiff surrendered the pay orders with the bank and thereafter, though tendered cash to defendants No.1 and 2 but, they refused to accept the same.
Land falling in survey Nos.208/9, 214, 219/2, 220, 221/1, 213/1 & 208/12 is of the joint ownership of defendants No.1 & 2. Land falling in survey No.219/2 is of the ownership of Smt. Rachna Jain (defendant No.2), Palak and Subham (daughter and son of defendant No.1).
Likewise land falling in survey Nos.213/238 & 216/4 is of the joint ownership of Rajendra Jain (defendant No.1), R
