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BOMBAY HIGH COURT
R.D. Dhanuka, J.
Vijay Laxmipati Dasari and Ors. —Appellants
versus
Smt. Laxmibai Ramayya
Bolabattin —Respondent
Second Appeal No.383 of 1993
Decided on 16.9.2016
Counsel for the Parties:
For the Appellants:Mr. V.S. Gokhale, Advocate
For the Respondent:Mr. T.D. Deshmukh, Advocate
Headnote:(a) Specific Relief Act, 1963 – Sections 20 and 16(c) – Party seeking specific performance has to prove his continuous readiness and willingness to perform his part of the contract all through out in terms of section 16(c) – Instantly, the transaction between the parties not a sale transaction but a loan transaction – Plaintiff participating in auction sale – Not entitled to specific performance. (Para 47, 48, 49)
(2011) 1 SCC 429 – Relied upon
(b) Specific Relief Act, 1963 – Section 12 – Part performance of contract – plaintiff neither agreeing to pay entire consideration for part of the property nor relinquishing all his claims for performance of the remaining part of the contract – Held, not entitled to oart performance. (Para 50)
(c) Code of Civil Procedure, 1908 – Section 100 – A point not raised before the trial court or first appellate court – Cannot be raised before the second appellate court for the first time. (Para 50)
(d) Specific Relief Act, 1963 – Section 20 – Conduct of the parties is an important circumstance – Plaintiff not approaching court witn clean hands – Trial court justified in refusing to exercise discretion u/s 20. (Para 51, 52, 55)
(2015) 1 SCC 705; (1996) 6 SCC 218 – Relied upon
(e) Indian Evidence Act, 1872 – Section 92 – Bar u/s 92 – Applies to oral evidence to disprove the terms of a contract, and not to disprove the contract itself – Does not apply to prove that the document was not intended to be acted upon and that intention was totally different – Instantly, defendants were entitled to prove that the said agreement to sell was not intended to be acted upon and that the transaction between the parties was loan transaction and not the agreement for sale. (Para 54)
(2006) 1 SCC 697 – Relied upon
(2001) 9 SCC 521 – Referred
Result: Appeal dismissed.
R.D. Dhanuka, J.—By this second appeal filed under section 100 of the Code of Civil Procedure, 1908, the appellants have impugned the order and judgment dated 17th March, 1993 passed by the Additional District Judge, Solapur dismissing the Civil Appeal No.98 of 1990 filed by the appellants (legal heirs and representatives of the original plaintiff). The appellants had impugned the judgment and decree passed by the Special Civil Suit No.106 of 1983 dated 30th September, 1989 passed by the Civil Judge, Senior Division, Solapur dismissing the suit filed by the original plaintiff inter alia praying for specific performance of the agreement of sale dated 1st February, 1983 and in the alternative for refund of the amount paid by the appellants to the defendants. Some of the relevant facts for the purpose of deciding this appeal are as under:-
2. For the sake of convenience, the parties described in this appeal are described as they were described in the proceedings before the trial court. The appellants herein were the original plaintiffs whereas the respondents were the original defendants before the trial court.
3. On or about 1st February, 1983, the plaintiff entered into an agreement for sale in respect of the structure on the northern portion of F.P.No.20, M.H.No.1561, Daji Peth, C.T.S.No.10429 for a consideration of Rs.40,000/-. It was the case of the plaintiff that at the time of execution of the said agreement for sale, the plaintiff paid a sum of Rs.15,000/- as and by way of earnest money and thereafter paid a sum of Rs.4,000/- on 22nd February 1983, Rs.4,000/- on 2nd March 1983 and Rs.4,000/- on 18th April 1983 totalling to Rs.27,000/- to the defendants. On 11th April, 1983, the parties entered into a supplementary agreement. It is the case of the plaintiff that the defendants handed over the possession of one of the shop premises to the plaintiff on 11th April, 1983 in part performance of the said agreement for sale.
4. It is the case of the plaintiff that on 28th July, 1983 the parties entered into another writing by which the time to make payment by the plaintiff was extended upto 13th August, 1983. It is the case of the plaintiff that the defendants agreed to execute the sale deed before the Registrar on 12th August, 1983. It is the case of the plaintiff that since the defendants did not execute the sale deed on 20th August, 1983 the plaintiff filed a suit for specific performance of the said agreement for sale and in the alternate claimed for refund of the said amount paid by the plaintiff with interest. The defendants filed written statement and resisted the said suit filed by the plaintiff.
5. It was the case of the defendants that the suit plot was taken on lease by the deceased Ramayya and his two brothers Irayya and Rajbabbaiyya. There was a partition between Ramayya and his two brothers. It was the case of the defendants that the defendant nos. 1 to 3 had formed a joint Hindu family. The father of the plaintiff Laxmipati Narasayya Dasari was a famous politician from Eastern Region of Solapur in the Co-operative sector i.e. Dayanand Yantramag Industrial Weaving Society Ltd. situated at Municipal House No.1550 which was in existence from the year 1966.
6. The father of the plaintiff Laxmipati Narasayya Dasari was on the Board of Directors of the said society. He was the chairman or vice-chairman of the said society for a considerable period. On the date of filing suit by the plaintiff also his father was the chairman of the said society. The defendant no.2 was working as a secretary of the said society from 1974-75. Vasudev Dandi was working as the accountant of the said society and was having in his custody the cash amount of the said society. It was the case of the defendants that the said Mr.Vasudev Dandi while working as the accountant committed misappropriation of the amount of Rs.7,749.89 of the said society. The chairman and the secretary of the said society was required to sign the books of accoun
