Second appeal against a decree for specific performance of an agreement to sell two lands. The defence of signatures obtained on blank stamp papers and inadequate consideration was rejected; refusal of amendment and undue-hardship plea upheld.
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2024:BHC-NAG:5128
4-SA-79-2017.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
SECOND APPEAL NO. 79 OF 2017
Mahadeo s/o Narayan Lende,
Since deceased through Legal Representative
Keshav s/o Mahadeo Lende,
aged about 62 years, Occ. Cultivation,
R/o Ambedkar Ward,
Village and Post – Thana (Petrol Pump),
Tah. and District – Bhandara (M.S.).
...APPELLANT
Versus
Purshottam s/o Narayan Ramteke,
aged about 54 years, Occ. Business,
R/o Ambedkar Ward, Bhandara – 441904,
Post, Tahsil and District – Bhandara.
...RESPONDENT
Shri V.D. Muley, Counsel for the appellant.
Shri K.K. Gour with Shri Y.B. Mandpe, Counsel for the respondent.
CORAM : ANIL L. PANSARE, J.
ARGUMENTS WERE HEARD ON : APRIL 23, 2024
JUDGMENT IS PRONOUNCED ON : APRIL 30, 2024
JUDGMENT:
The appeal has been admitted on the following
substantial questions of law :
“1) Whether in view of the material on record, the
Courts below ought to have held that the agreement
dated 13.7.2005 is shrouded with suspicious
4-SA-79-2017.odt 2
circumstances, which have not been dispelled by the
plaintiff ?
2) Whether the appellate Court erred in not permitting
the defendant to amend the written statement ?
3) Whether the decree of specific performance results
in undue hardship to the defendant ?”
2]The appellant is the original defendant and the
respondent is the original plaintiff. They will be hereinafter
referred to as per their nomenclature before the trial Court.
3]The plaintiff filed suit for specific performance of
contract against the defendant stating therein that on
6/7/2005, the defendant and his wife entered into an
agreement to sell the lands bearing Gat Nos. 179, 180, 181 and
182 situated at Mouza – Thana. The wife of defendant,
thereafter, on 13/1/2006, executed sale deed, in favour of the
plaintiff, of lands bearing Gat Nos. 181 and 182. In the
meantime, on 13/7/2005, the plaintiff and the defendant
entered into a fresh agreement in respect of lands bearing Gat
Nos. 179 and 180 for a total consideration of Rs.4,00,000/-.
The plaintiff paid Rs.1,00,000/- as earnest amount. There
occurred certain dispute and, therefore, the plaintiff filed suit
4-SA-79-2017.odt 3
for specific performance of contract.
4]The stand of the defendant, through written
statement, was that his wife executed the sale deed under
pressure of his son Devidas. He denied execution of agreement
to sell. According to the defendant, his son Devidas, is addicted
to liquor and is a close friend of the plaintiff. His son had taken
signatures on two blank stamp papers on the pretext of taking
loan. As stated earlier, the trial Court decreed the suit. The First
Appellate Court dismissed the suit and in doing so, formulated
points for determination and answered the same in the
following manner :
Sr. No. |
Points |
Findings |
|---|---|---|
1) |
Whether the plaintiff proved that thedefendant agreed to sell suit property tohim for a consideration of Rs.4,00,000/-and entered into an agreement of saleon 13/7/2005 by accepting an earnestamount of Rs.1,00,000/- ? |
Yes. |
2) |
Whether the plaintiff proved that hewas and is all along ready and willingto perform his part of the contract ? |
Yes. |
3) |
Whether the defendant proved that hisson Devidas obtained his signatures ontwo blank stamp papers worth Rs.100/- |
4-SA-79-2017.odt 4
and his son in-collusion with plaintiffprepared false agreement of sale andthereby cheated him ? |
No. |
|
|---|---|---|
4) |
Whether the agreement of sale dated6/7/2005 would prevail oversubsequent agreement dated13/7/2005 ? |
No. |
5) |
Whether the defendant has made outany ground to allow amend his writtenstatement at appellate stage ? |
No. |
6) |
Whether the defendant has made outany ground to allow him to adduceadditional evidence at appellate stage ? |
No. |
7) |
Whether the judgment and decreepasses by the learned trial court calls forany interference ? |
No. |
8) |
What order ? |
Suit is dismissed withcosts. |
5]The learned Counsel for the appellant argued,
which was also his argument before the First Appellate Court,
that the first agreement dated 6/7/2005 (Exh. 74) was in
respect of four lands bearing Gat Nos. 179 to 182. The total
consideration for these lands was Rs.12,50,000/-. He then
submits that the subsequent agreement dated 13/7/2005 (Exh.
52) was in respect of two lands bearing Gat Nos. 181 and 182
4-SA-79-2017.odt 5
showing consideration of Rs.4,00,000/- only. According to him,
the sale deed executed by the appellant’s wife, in respect of Gat
Nos. 181 and 182, was for Rs.1,00,000/-. If these two lands
were sold for Rs.1,00,000/-, the consideration amount for
remaining two lands, i.e., Gat Nos. 179 and 180 ought to have
been Rs.11,50,000/-. As against, the agreement (Exh. 52)
dated 13/7/2005 indicates that the consideration amount is
only Rs.4,00,000/-. According to him, no prudent man will sell
the property for such reduced price. In that sense, he submits
that the theory put forth by the defendant that his signatures
were obtained on blank stamp papers by his own son, ought to
have been accepted on preponderance of probability.
6]This theory has been rejected by the First Appellate
Court and in my view has correctly done so. There is no cogent
evidence, except for the bald statement that the appellant’s son
has obtained his signature on blank stamp papers. The
appellant, in his cross-examination, admitted his signature. As
could be seen, the first agreement is dated 6/7/2005. This
agreement was executed by the appellant and his wife. The
4-SA-79-2017.odt 6
appellant has no grievance as regards this agreement. The
second agreement was executed within a week, i.e., on
13/7/2005. Why was that done is not clarified by both the
sides. The appellant states that he came to know of the
subsequent agreement sometime in the month of December,
2005, but has not disclosed the date. He lodged the report on
6/1/2006. Why did he take such a long time to lodge report is
also not disclosed. If what the appellant states is correct that is
his son has obtained signatures on blank stamp papers and
those stamp papers were misused by the respondent, he ought
to have promptly lodged report. He did not do so. More
importantly, on 10/1/2006, i.e., within four days of lodging
report, his wife has executed sale deed of lands bearing Gat
Nos. 179 and 180 in favour of the respondent. The appellant
has given no satisfactory answer as to if he came to know of
misuse of stamp at the hands of the respondent in December,
2005 and when he lodged report on 6/1/2006, why has he not
objected or how did he permit his wife to execute sale deed on
10/1/2006 of the two lands in favour of the plaintiff.
4-SA-79-2017.odt 7
7]Considering these facts, which includes admission
of the appellant of his signatures on stamp papers, coupled
with the unacceptable theory of misuse of stamp followed by
his wife executing sale deed in favour of the plaintiff, the First
Appellate Court has held that there is no merit in the defence
taken by the appellant. The finding, in my view, is in tune with
the evidence before the Court.
8]Once it is held that the agreement under question
was a valid agreement, the theory of inadequate consideration
will be of no relevance inasmuch as the parties to the contract,
i.e., the appellant and the defendant have both agreed for the
said consideration. Why was consideration reduced is
something which is within the exclusive knowledge of the
parties, who entered into the contract. There could be multiple
reasons to agree for a lesser consideration of a particular land.
The appellant failed to prove that this consideration amount
has any relevance with the theory of misuse of stamp and,
therefore, merely on the ground of inadequate consideration,
specific performance could not be refused.
4-SA-79-2017.odt 8
9]The learned Counsel for the respondent has rightly
invited my attention to Explanation 1 of Section 20 of the
Specific Relief Act, 1963 to contend that inadequacy of
consideration cannot be a ground to deny specific performance.
The seller and the purchaser if have agreed for a lesser
consideration amount, it is their choice to do so. The parties
will be bound by the contract. Thus, the reason of inadequacy
of consideration will be of no help to the appellant to refuse
specific performance of contract.
10]The learned Counsel for the appellant has relied
upon the judgment of the Hon’ble Supreme Court in the case of
Lourdu Mari David and others Vs. Louis Chinnaya
Arogiaswamy and others [AIR 1996 SC 2814] to contend that
the person claiming specific performance of contract if not
coming with clean hands, the decree of specific performance
could not be granted. This judgment is relied upon on the
count that the respondent has suppressed true facts. He has not
disclosed the reason for reducing the price of consideration in
subsequent agreement.
4-SA-79-2017.odt 9
11]I do not find any substance in the said plea. The
parties, i.e., the appellant and the defendant have entered into
subsequent agreement. In the circumstances, both the parties
will share burden to prove the necessity to agree to sale the
property for a particular sum. It will be impermissible to jump
to the conclusion that it is the respondent who has played
mischief or that has suppressed certain fact or that has not
come clean before the Court. The judgment, therefore, will be
of no help to the appellant.
12]In the circumstances, it cannot be said that the
agreement dated 13/7/2005 was shrouded with suspicious
circumstances. The first substantial question of law is
accordingly answered in the negative.
13]So far as the second substantial question of law is
concerned, the appellant before the First Appellate Court come
up with a theory of permitting amendment in written
statement. The appellant, by way of amendment, intended to
put forth a defence that in the event of specific performance is
4-SA-79-2017.odt 10
granted, the appellant would become a landless person and the
only source of income would go away. Further amendment was
as regards comparative hardship, which is likely to be caused to
the appellant and hence discretionary relief of specific
performance ought to be not granted. According to the
appellant, the amendment was necessary and in fact he
instructed his Counsel appearing before the trial Court, but the
said fact was not incorporated in the pleading.
14]The question is whether the appellant’s version is
acceptable. What he says is that he had instructed his Counsel
to incorporate the aforesaid facts but has not done so. It is not
the case of the appellant that this fact of failure of Counsel to
include the aforesaid pleading was known to him when he
entered witness box. In that sense, the appellant carried the
presumption, when he entered witness box, that these
pleadings have been incorporated. Despite such fact, the
appellant has not uttered a word in his chief examination as
regards his becoming landless or as regards comparative
hardship, etc. The learned Counsel for the appellant failed to
4-SA-79-2017.odt 11
convince the Court as to why did the appellant not deposed
about the aforesaid facts, which according to him, were
instructed to be pleaded before the trial Court.
15]The appellant has, for the first time, came up with
this theory of the Counsel committing mistake when he filed
the appeal. This clearly indicates that until appeal is filed, he
carried an impression that his instructions of adding pleading
in the written statement were adhered to by the Counsel
appearing before the trial Court. It was therefore expected
from him to depose the aforesaid facts in chief examination. He
has not done so, which clearly falsifies his case of giving
instructions to incorporate the aforesaid pleading in written
statement. The First Appellate Court has, therefore, rightly
rejected the application and has, thus, not committed any error
in not permitting the appellant to amend the written
statement. The second substantial question of law is
accordingly answered in the negative.
16]The third substantial question of law relates to
4-SA-79-2017.odt 12
causing undue hardship to the appellant if the decree of
specific performance is granted. In absence of pleading and
evidence in this regard, to my mind, the question will have to
be answered in the negative and stands answered accordingly.
17]Having answered the questions of law in manner
hereinabove, there is no merit in the appeal. The appeal is
accordingly dismissed.
JUDGE
Sumit
3 issues framed by the court
Was the agreement dated 13.7.2005 shrouded in suspicious circumstances not dispelled by the plaintiff?
Did the appellate court err in refusing to permit amendment of the written statement?
Would the decree of specific performance cause undue hardship to the defendant?
Colour shows how this judgement treated each authority
Lourdu Mari David and others Vs. Louis Chinnaya Arogiaswamy and othersDistinguished¶11
[AIR 1996 SC 2814] · Who else cites this
1 provisions across 1 enactments
Mahadeo s/o Narayan Lende (deceased) through Legal Representative Keshav s/o Mahadeo Lende
Purshottam s/o Narayan Ramteke
Anil L. Pansare
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court