Ms Eastern India Home Makers Represented by Its Authorized Representative Umesh Kumar Pathak Vs Surendra Kumar Singh

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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F.A. No. 84 of 2020

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M/s. Eastern India Home Makers, a business firm, having its office at Milhiram Market, First Floor, Sakchi, P.O.-Sakchi, P.S. Sakhi, Town Jamshedpur, District Singhbhum East (Jharkhand) herein being represented by its Authorized representative namely Umesh Kumar Pathak Resident of Dihing Road, Qr. No. 6, Old Baridih, P.O. Baridih, P.S. Sidhora, Town Jamshedpur, District Singhbhum East. (Jharkhand).

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Umesh Kumar Pathak, Aged about- 37 years, Son of R.P. Pathak, by religion Hindu, by occupation-business, Resident of Dihing Road, Qr. No.6, Old Baridih, P.O. Baridih, P.S. Sidhgora, Town Jamshedpur, District Singhbhum East (Jharkhand)

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.... …. Appellants

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Versus

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Surendra Kumar Singh, Son of Late Sarju Singh.

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Smt. Renuka Singh, Wife of Sri Surendra Kumar Singh. Both by religion Hindu, No.1 by Occupation Service and No.2 by occupation household affairs, both residents of H.No.220, Bhuiyadih, P.O.-Agrico, P.S. Sitaramdera, Town Jamshedpur, DistrictSinghbhum East. (Jharkhand).

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.... .... Respondents

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Coram: HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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-----For the Appellants : Mr. Alok Anand, Advocate Mr. Ramesh Kumar Singh For the Respondents : Mr. Rahul Kr. Gupta, Advocate Mr. Rakesh Kumar, Advocate. Mr. Malsi Pathak, Advocate. ------ CAV On Dated- 06.05.2024 Pronounced On 05.08.2024

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Heard learned counsel for the appellants as well as learned counsel for the respondents.

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2. The present first appeal is directed against the judgment dated 28.02.2020 (decree signed on 07.03.2020) passed in Original (Title) Suit No. 85 of 2009, whereby and

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whereunder, the learned Civil Judge (Senior Division)-1^st , Jamshedpur partly allowed the suit of the plaintiff by allowing the suit for Specific Performance of Contract dated 29.11.2004 directing the defendants (appellants) to deliver 12 flats as mentioned in Schedule-B to the plaint to the plaintiff within four months, a decree for permanent injunction restraining the defendants from disposing off or in any way to alienate or transfer the schedule-B flats or any portion thereof to any person along with a decree declaring that the registered Sale Deed No. 2084 and 2085 both dated 29.04.2006 executed by defendant no. 2 as an attorney of the plaintiffs in favour of defendant no. 1 represented by Rajendra Prasad Pathak is illegal, void and inoperative and at the same time declining the relief sought by the plaintiffs for recovery of Rs. 17 lakhs from the defendants.

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3. The factual matrix of the case is that the plaintiffs have acquired suit Schedule-A land through valid registered sale deed no. 2486 dated 06.04.1984, Area – 5 Katha of land in favour of plaintiff no. 2 and vide registered sale deed no. 7760 dated 15.12.1990, Area – 5 Katha of land in favour of plaintiff no. 1, vide registered sale deed no. 198 dated 17.01.1994, Area – 2 Katha of land in favour of plaintiff no. 2 and deed no. 199 dated 17.01.1994, Area – 3 Katha of land in favour of plaintiff no. 1, as such, plaintiffs

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came into peaceful possession of the aforesaid total 15 Kathas of land and being husband and wife jointly owned the suit property as described in Schedule-A to the plaint.

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4. Further case of the plaintiffs is that defendant no. 1, M/s Eastern India Home Makers is the Proprietorship Firm of defendant no. 2, who are promoters of defendant no. 1 and carries on business of developer and builder in the town of Jamshedpur. The plaintiffs, for the purpose of construction of building and development of land mentioned in Schedule-A to the plaint, entered into an agreement with the developer and promoter of M/s Vijaya Homes Pvt. Ltd., which could not be materialized, as such, the said agreement was cancelled by the parties. Thereafter, the defendant no. 2 approached to the plaintiffs and apprised about his own business of development of land and construction of building in the name and style of M/s Eastern India Home Makers (defendant no. 1) and gave out that he has been disassociated himself from M/s Vijaya Homes Private Limited and has started his own independent business and requested the plaintiffs to give him the suit Schedule-A land and the house standing thereon for the purpose of development of land and construction of building over the said land.

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5. The plaintiffs also apprised to the defendant no. 2 that he has constructed a double storied building in the portion

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of the said land, which incurred expenditure of Rs. 10,00,000/- and also installed bore well and constructed pucca boundary wall incurred cost of Rs. 3,00,000/-. Agreement was entered into between the plaintiffs as first party / owner and defendants as second party / promoter on 29.11.2004. The defendant no. 2, being the promoter of defendant no. 1, signed the agreement representing the defendant no. 1 also. As per agreement, the plaintiffs delivered the possession of the land including the boundary wall and structures standing thereon to the defendants. The important terms and conditions, as agreed between the parties, were reduced into writing, which are enumerated as under:-

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(i) The second party undertook to perform and complete the construction work within 36 months from the date of ground breaking of the proposed project and deliver the flats mentioned in the Schedule-B of the plaint to the first party/plaintiff with super built up area of proposed residential flats, each about 1150 sq.ft, little more or less in different floors.

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Schedule-B, i.e., (owner allocation) i.e. 12 residential flats to be delivered to the first party by the second party within three years.

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(ii) The promoter was to prepare a building plan by an Architect for construction of multi-storied building on the said plot of land on the basis of floor area, specification etc. and after approval of such building plan from the concerned authority, the promoter was to raise construction on the said plot of land.

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(iii) The promoter/second party agreed to bear all costs for drawing up and sanction of plan and payment of fees to the related government offices and do everything in getting the said plan sanctioned by the authority.

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(iv) The plan being sanctioned by the J.N.A.C., the owner/first party was to deliver the Schedule–B land to the second party/promoter for its development and the promoter was to start the construction of the proposed multi-storied building, as per the terms of this agreement.

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(v) The second party out of his own funds, control management and supervision undertook to construct multi-storied building thereon and agreed to be liable for any incidental loss or damage if incurs or occurs during the period of construction and the first party was made free from all incident of charges.

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(vi) The first party undertook to execute the general power of attorney, all papers, documents, assurances

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building plan, free from all encumbrances at the cost of the promoter as was deem to be necessary.

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(vii) The parties hereto shall have right to take the shelter of law in specific performance of contract under law and damage, if such party deprived by other.

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6. Since the defendants wanted to construct multi-storied building over the suit land as such, they were required to demolish the existing buildings. Hence, in addition to giving 12 flats in the aforesaid terms of the agreement, they orally agreed to pay Rs.25 lacs to the plaintiffs towards the price of the building as assessed at that time. The aforesaid sum of Rs.25 lacs was to be paid by the defendants within the period of 36 months from the date of ground breaking ceremony.

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7. Before putting signature in the agreement, the plaintiffs clearly pointed out that the terms of payment of Rs. 25 lacs towards the price of the building and structures standing thereon which was to be demolished by the defendants for making new construction over the said land was not incorporated in the agreement whereupon the defendant no. 2 impressed upon the plaintiffs that since he has started a new venture of promoter and developer, he could not incorporate the said term of payment of Rs. 25 lacs as the same will be precedence to the other land owners which he would deal for development of their land with him / them and it would also

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be problem for him in the matter of income tax. The defendant no. 2 further gave out and made to believe the plaintiffs that Rs. 25 lacs agreed to be paid in a gentleman’s oral agreement and he firmly assured the plaintiffs that the plaintiffs should repose complete confidence on him in respect of the payment of Rs. 25 lacs agreed to be paid to them. In good faith and believing the assurance given by the defendants that the aforesaid Rs. 25 lacs will be paid to the plaintiffs and accordingly, the plaintiffs executed the agreement on 29.11.2004 in which the terms of payment of Rs. 25 lacs was kept silent on the assurance of the defendant. Further, the initial payment of Rs.2 lacs was made by the defendants, which has been incorporated in the said agreement. The defendants, pursuant to their assurance for payment of Rs.25 lacs as stated above, paid further amount of Rs.6 lacs to the plaintiffs, besides Rs.2 lacs, which has already been paid at the time of agreement as aforesaid.

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8. Further, the case of the plaintiffs is that after taking possession of the land and house standing thereon, the defendants completely demolished the house which was standing over the suit land and commenced construction as per terms of the agreement and have already succeeded to make huge construction over the said land. In the course of construction work, the plaintiffs came to know that the defendants have also been constructing additional floors

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beyond the approved plans in violation of terms of the agreement as well as against the Municipal Law. Accordingly, the plaintiffs sent notice to on 08.08.2006 through the lawyers to the defendants demanding the compliance of the written as well as oral contract between them for giving the balance consideration out of Rs.25 lacs and deliver them 12 flats as agreed upon, as early as possible. But surprisingly, the defendants, instead of complying with request of the plaintiffs, gave a Reply dated 16.09.2006 through the lawyers making false allegation that the plaintiffs have already sold their property to the defendants for Rs.40 lacs out of which Rs.5 lacs was paid to the plaintiffs and remaining amount of Rs.35 lacs was given by cheque, worth Rs.11 lacs has been encashed by them.

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9. The defendants have further falsely alleged that the plaintiffs have also granted receipt in favour of the defendants on 23.03.2006 cancelling the agreement dated 29.11.2004.

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10. As per the plaintiffs, they have received only a sum of Rs.2 lacs at the time of agreement and subsequently Rs.6 lacs by cheque from the defendants, out of which Rs.25 lacs agreed and assured to be paid to the plaintiffs for old standing structures. The plaintiffs have not received any cheque nor or any further amount from the defendants, either by way of cheque worth Rs.11 lacs, as alleged by the defendants nor encashed the same. The plaintiffs have also not granted any

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receipt to the defendants on 23.03.2006 or any other date cancelling the agreement dated 29.11.2004, rather the said agreement dated 29.11.2004 is still subsisting between the parties. Thus, the plea of defendants about selling of the suit property for consideration amount of Rs.40 lacs is totally false and fabricated.

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11. The value of property, which are given for development as its market value at present is more than a crore. Similarly, the value of 12 flats for which the plaintiffs are entitled as per the agreement would not have less than Rs.1 crore.

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12. The plaintiffs apprehends that the defendants have prepared some forged documents and receipt to grab the property of the plaintiffs. The defendants have not only constructed 40 flats and additional floors beyond approved plan, but have also transferred some residential units to some purchasers.

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13. For the fraudulent activities adopted by the defendants, the plaintiffs have also filed C/1 Case No. 864 of 2007 against the defendants in the Court of C.J.M, Jamshedpur and cognizance for the offence under Section 420 of the I.P.C. and other Sections have been taken against the defendants.

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14. As per Clause 13 of the agreement dated 29.11.2004, the plaintiffs have executed two registered power of Attorney No. 1029 and 1030 dated 11.02.2004 in favour of the defendant No.2 facilitating him for disposal of units to be

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constructed over the said land excepting the aforesaid 12 units to be given to the first party/plaintiffs. It is further pleaded that in the month of October, 2008 plaintiff No.1 contacted the defendant no.2 desiring an amicable settlement of the dispute between the parties, then defendant No.2 gave out that he has already transferred the aforesaid lands on the strength of the power of attorney in the name of the defendant No.1. The plaintiff made an inquiry from the Registration Office, Jamshedpur and obtained the two certified copies of sale deeds No. 2084 and 2085 both dated 29.04.2006 and found that the defendant no.2 taking advantage of the aforesaid power of attorney by virtue of sale deed no.2084 purported to sell 7 Kathas of lands for consideration of Rs.7,25,000/- only and by sale deed no.2085 purported to sell 8 Kathas of lands for consideration of Rs.8,25,000/- only in favour of defendant no.1 represented by the father of the defendant no. 2 Rajendra Prasad Pathak. The defendant No.2 has no legal right or authority to sell 15 kathas of land by virtue of aforesaid power of attorney. No consideration has already been passed for the said two sale deeds and the said sale deeds are without consideration, illegal, void, ab initio and not binding on the plaintiffs and has not conferred any title over the said lands in favour of the defendant No.1. The aforesaid fraud alleged to be committed by the defendant no.2 will further clear from the Reply dated 16.09.2006, wherein it

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is not specifically mentioned about the aforesaid sale deeds nor even whisper about the aforesaid sale deeds in criminal proceedings also.

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15. In the above factual premises, the plaintiffs have claimed a decree for Specific Performance of Contract entered into between the plaintiffs and the defendants dated 29.11.2004, for a decree directing the defendants to deliver 12 flats as mentioned in Schedule-B of the plaint to the plaintiffs within time to be stipulated by this Court, for a decree for recovery of possession of 12 flats mentioned in the ScheduleB of the plaint through the process of the Court, in the event, defendants failed to deliver the said flats to the plaintiffs within time to be stipulated by this Court, for a decree of permanent injunction restraining the defendants from disposing off or in any way to alienate or transfer the Schedule-B flats or any portion thereof to any person along with declaring that the registered sale deeds No. 2084 and 2085 both dated 29.04.2006 executed by defendant no. 2 as attorney of plaintiff in favour of the defendant No.1 represented by Rajendra Prasad Pathak is illegal, void without any consideration, obtained by practicing fraud and not binding on the plaintiff and for Rs.17 lacs in favour of the plaintiffs against the defendants and for the cost of the suit and for any other relief or reliefs, for which, plaintiffs are entitled under law and equity.

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16. Per contra, the defendants appeared and filed their written statement with general and usual pleadings that suit is not maintainable in the present form, the plaintiffs having no cause of action and the suit is barred by the law of limitation, waiver, estoppels and acquiescence. The suit is barred under the provisions of C.P.C. and the Specific Relief Act, it is bad for misjoinder and non-joinder of necessary parties.

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17. The specific plea of defendants is that defendant no. 1, M/s Eastern India Home Markers is sister concern of Eastern India Enterprises under the Companies Act and the defendant no. 2 is the Managing Director thereof. The greedy nature of the plaintiffs led to the breach of the agreement between the plaintiffs and M/s Vijaya Home Private Limited and ultimately, agreement was given a quit requiem. The defendant no. 2 never found that any agreement between the plaintiffs and M/s Vijaya Homes Private Limited did not materialize. It is admitted that the plaintiffs and defendants entered into an agreement dated 29.11.2004 for development and construction of flats over entire Schedule-A land of the plaint by demolishing old standing structure thereon and as such, no question arises regarding consideration of Rs. 25 lacs for the existing structure standing on the Schedule-A land beyond the terms and conditions of the agreement. The defendants disputed and denied each and everything foreign

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of the said agreement. There was no any oral agreement regarding payment of Rs. 25 lacs or any part thereof for compensating the old structures. It is further stated that initially an amount of Rs. 2 lacs was paid by the defendant no. 1 to the plaintiffs by way of security deposit. There was an agreement to deliver 12 flats to the plaintiffs. However, at the instance of the plaintiffs, Agreement dated 29.11.2004 was terminated on 20.02.2006 itself, when the plaintiffs offered for outright sale of Schedule-A land of the plaint to the defendant no. 1 and the latter agreed to it and as such, the plaintiffs received Rs. 3 lacs (plaintiff no.1 Rs. 1,50,000/- vide cheque no. 283490 dated 20.02.2006, acknowledged vide money receipt Sl. No. 098 plus plaintiff no. 2 Rs. 1,50,000/- vide cheque no. 283491 dated 20.02.2006, acknowledged vide money receipt no. 099) from the defendant no. 1 against outright sale of Schedule-A land as a part consideration amount of Rs. 30 lacs. However, when the construction work was going on in full swing, the greed of plaintiffs went on increasing and they started to pressurize the defendant no. 1 to enhance the total consideration amount from Rs. 30 lacs to Rs. 40 lacs. The defendant no. 1 finding no other alternative had to bow down to the illegal demand of the plaintiffs to complete the project and accordingly on 23.03.2006 a receipt was executed jointly by the parties in presence of witnesses, in which they had categorically stated that the agreement

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dated 29.11.2004 between them and defendant no. 1 stood cancelled as null and void and the plaintiffs further admitted to have received Rs. 5 lacs, Rs. 3 lacs, which they received by aforesaid two cheques referred to above plus Rs. 2 lacs which was given to them as security deposit on the date of execution of agreement dated 29.11.2004, Besides above, the plaintiffs also received the balance Rs. 35 lacs by the following cheques of the different dates, Cheque No. 318807 of Rs. 3,00,000/-, Cheque No. 318808 of Rs. 4,00,000/-, Cheque No. 318809 of Rs. 4,00,000/-, Cheque No. 318810 of Rs. 6,00,000/-, Cheque No. 318811 of Rs. 8,00,000/- and Cheque No. 318812 of Rs. 10,00,000/-. It is also pertinent to mention here that out of the aforesaid sum of Rs. 35 lacs, the plaintiffs encashed three cheques worth Rs. 11 lacs and with some malafide intention stopped themselves from encashment of the cheques in order to further create any such cock and bull story so as to defame and cause wrongful loss to the defendant no. 1.

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18. It is further pleaded that earlier plaintiffs have sent a legal notice through lawyer on 01.03.2006 in the name of Umesh Kumar Pathak with false and frivolous allegations and illegally demanded therein Rs. 12 lacs as price of the alleged existing house as well as Rs. 1,50,000/- towards the brick and furniture. However, the said notice was properly replied to in terms of Reply dated 20.03.2006. Ultimately, it is denied

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that further payment of Rs. 6 lacs in addition to already paid to Rs. 2 lacs was any part of payment out of any assured amount of Rs. 25 lacs or any part thereon.

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19. It is further stated that since the defendants were not in position to comply the illegal demands of the plaintiffs in terms of their notice dated 08.08.2006 and as such, the answering defendants sent a reply dated 16.09.2006 through their Advocate clarifying inter alia that the plaintiffs have already sold their property to the defendants for Rs. 40 lacs, out of which Rs. 5 lacs was paid to the plaintiffs and remaining amount of Rs. 35 lacs was given by cheque of different denomination out of which cheques worth Rs. 11 lacs had been encashed by them. Plaintiffs had also granted receipts in favour of the defendant no. 1 on 23.03.2006 cancelling the Agreement dated 29.11.2004.

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20. It is denied that the plaintiffs are entitled to 12 flats as per Agreement dated 29.11.2004 as the agreement itself has been terminated and become null and void at the instance of the plaintiffs on 20.02.2006, for which a receipt vis-à-vis termination of agreement dated 29.11.2004 was also executed by plaintiffs on 23.03.2006, as against it, the plea of the plaintiffs is baseless false, fabricated story. The receipt dated 23.03.2006 is a genuine document executed by the plaintiffs. The plaintiffs have filed a complaint being C/1 Case No. 864 of 2007 against the defendants and cognizance under Section

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420 of I.P.C. and other sections was taken against the defendants. The defendants preferred a petition under Section 482 of the Cr.P.C. bearing Criminal Misc. Petition No. 763 of 2009 for quashing the proceedings of the complaint case before the Hon’ble Jharkhand High Court, Ranchi.

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21. As per the terms contained in Development Agreement dated 29.11.2004, the plaintiffs executed two Power of Attorney in favour of their attorney Umesh Kumar Pandey, Son of R.P. Pandey in his individual capacity and not in the capacity as impleaded as defendant no. 2, hence two fill different characters. It is also false to state that the said power of attorney was given to the attorney facilitating him for disposal of the units to be constructed over the suit land excepting the aforesaid 12 units to be given to first party members. The said terms and conditions find no mention in any of the two power of attorney and the answering defendants disputed and denied everything beyond those. The power of attorney holder Umesh Kumar Pandey had full legal right or authority to sell the aforesaid 15 kathas of land by virtue of aforesaid power of attorney. It is false to state that no consideration has passed for the said two sale deeds or that they are without any consideration illegal, void, ab initio, not binding on the plaintiffs and has not conferred any title over the said land in favour of defendant no. 1.

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The defendant no. 1 was not practicing fraud and by misusing the said power of attorney and not in connivance with his father Rajendra Prasad Pathak has got the aforesaid sale deed executed and brought into existence, with any mala fide intention to grab the said land. It is to clarify that the said Rajendra Prasad Pathak is not father of defendant no. 1. It is also incorrect to state that the fraud practiced by the defendant no. 2 would be clear in the reply dated 16.09.2016 as because it did not specifically mention about the aforesaid sale deeds nor mentioned about the aforesaid sale deeds in the aforesaid criminal proceedings. The revocation of alleged two Power of Attorney by the plaintiffs is null and void, as such, since the very agreement was cancelled and in nonexistence, no question for Specific Performance of the said agreement arises. Plaintiffs have no cause of action for the suit and arbitrarily valued the suit properties. Hence, suit is liable to be dismissed with exemplary cost.

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22. On the basis of rival pleadings of both the parties, the learned trial court has settled the following issues for adjudication:-

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ISSUES

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(I) Whether the suit is maintainable in its present form and for the relief as claimed?

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(II) Whether there is valid cause of action for right to bring this suit?

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(III) Whether the suit is barred by limitation, waiver, estopples and acquiescence?

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(IV) Whether the suit is barred by provisions of C.P.C. and the Specific Relief Act?

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(V) Whether suit is barred by misjoinder and non-joinder of the necessary parties?

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(VI) Whether the plaintiff is entitled for a decree of Specific Performance of Contract dated 29.11.2004?

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(VII) Whether the plaintiff is entitled for a decree of recovery of possession of twelve flats described in Schedule-B of plaint?

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(VIII) Whether the plaintiff is entitled for a decree of permanent injunction?

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23. The trial court has taken Issue No. I, VI, VII & VIII as primary issues to be adjudicated simultaneously and on the basis of oral and documentary evidence adduced by the parties, decided the same in favour of the plaintiffs and against the defendants (appellants).

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24. Similarly, Issue Nos. II, III, IV & V were also taken together for adjudication and decided in favour of the plaintiffs with observation that since these issues are formal issues taken on behalf of the plaintiffs, there is sufficient and cogent evidence adduced by the plaintiffs, who established these facts. Accordingly, these issues are adjudicated in positive and in favour of the plaintiffs.

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25. Learned counsel for the appellants has strenuously argued that the learned trial court has miserably failed to settle the proper issues involved in this case as per pleadings of the parties, rather as against the provisions of Order XX C.P.C. has joined several distinct issues to be decided together without considering the intrinsic values of each issue. Further elucidating his arguments, it is argued by the learned counsel for the appellants that there was no occasion for the learned trial court to have relied on a document (Development Agreement), which was inherently not admissible under law for following reasons:-

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Firstly, it ought not have been marked as exhibit as photocopy of the agreement cannot be admitted as evidence without production of its original.

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Secondly, the contents thereof could not be relied upon to arrive at a conclusion that the terms and conditions thereto were admitted or that there was a reciprocal obligation on the part of the defendants/appellants to deliver the 12 flats.

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Exhibit No. 1 is the photocopy of agreement dated 29.11.2004 filed in Complaint Case No. 864/2007, which was marked as exhibit, it did not qualify even as secondary evidence in terms of Sections 63 and 65 of the Evidence Act, as such, the Court is under an obligation to exclude inadmissible and irrelevant evidence at the threshold.

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26. It is further argued that the defendants/appellants in their written statement have categorically pleaded about the cancellation of agreement dated 29.11.2004 and receipt acknowledging the payment/consideration as against the sale of land in favour of defendant No.1 on the strength of power of attorney executed by the plaintiffs. The Learned Trial Court did not settle any issue regarding cancellation of the very agreement dated 29.11.2004 and providing opportunity to both the parties to lead their evidences on this issue which is vital to decide the fate of the case, unless there is a valid and existing agreement between the parties, no question of specific performance of the said contract arises. The learned Trial Court has simply arrived at entitlement of the plaintiffs to enforce the said agreement de hors further development between the parties and without providing them to lead their evidence and decided the issues on the basis of extraneous facts, calculation and imagination of its own. The learned Court below failed to comprehend and perceive that the Exhibit-D is only a document showing cancellation of the agreement and acknowledging the receipt of consideration and not a document evidencing transfer of title, hence was not required to be registered. Rather transfer of title was of two registered sale deeds, which were for a proper consideration and duly registered.

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27. Further point of argument is that from averments /pleadings made in the plaint and the depositions of the plaintiff and the defendants, the case of the defendants was that even though, the agreement was terminated on 20.02.2006 bearing to the illegal demands of Rs.40 lacs, the defendants agreed to the joint execution of receipt dated 23.03.2006 by which agreement was terminated/cancelled by the plaintiff after acknowledging the receipt of consideration, whereas the case of plaintiffs/respondents was that the receipt dated 23.03.2006 is forged and fabricated. They have not given any such receipt. The learned Trial Court without framing any issue as to whether the receipt was forged and fabricated or not, made out a third case of the document evidencing transfer of title not being registered is inadmissible, which finding is not tenable in law. The learned Trial Court has also failed to frame proper and specific issues in view of specific prayer of the plaintiffs that the registered Sale Deeds dated 29.04.2006 were illegal, void without consideration, obtained by practicing fraud and not binding on the plaintiff and the specific and categorical reply of the defendants that no fraud was practiced and that the sale deeds were executed only pursuant to passing of proper consideration and binding on the plaintiffs. No issue framed on the legal sanctity of the sale deeds on which evidence could have been adduced by the parties.

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28. It is submitted that the exclusive reliance was placed on the general power of attorney which was never produced or exhibited by either of the parties so that any determination could have been made about its contents and also without appreciating that the power of attorney was executed in individual capacity and not in favour of the Director of the Company and without comprehending that the attorney, Director and company were different legal entities gave a finding de hors the materials on his own personal assumptions.

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29. It is further submitted that it was a suit for Specific Performance of Contract and no issue was framed on the conduct or readiness or willingness of the plaintiff to perform the contract on the part of the plaintiffs in terms of Section 16(c) of Specific Relief Act, 1963 and no such averments has also been made in the plaint itself.

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30. Per contra, learned counsel for the respondents vehemently opposed the aforesaid contentions raised on behalf of the appellants and submitted that Exhibit-1, the agreement is an admitted fact by the defendants and its cancellation was never proved by the defendants. If the contentions of the appellants that the Contract stood terminated on 20.02.2006 vide money receipts (Exhibit B/2 and B/3), there was no occasion for them to have responded vide their reply dated 20.03.2006 to the legal

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notice dated 01.03.2006 of the respondents that they have never violated the terms and conditions of the said agreement and are still ready to fulfill all the conditions whatever is mentioned in the agreement.

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31. It is further submitted that the sale deeds marked as Exhibit No. 2/c and 2/d is absolutely illegal and void and without consideration. The contentions of the appellants that the amount in the agreement of sale of land being Rs.40 lacs, still Exhibit 2/c and 2/d were executed for consideration amount of only Rs.8,25,000/- and Rs. 7,25,000/- and therefore, the sale deeds are executed by non-payment of the said amount and as such, void document under Section 25 of the Indian Contract Act.

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32. It is further contended that the plea of the defendants about cancellation of agreement and issuance of money receipts dated 23.03.2006 must have been proved by the defendants by appointing an expert or lead to any other cogent or liable evidence. The learned Trail Court has very wisely and aptly taking into consideration all the attending facts and circumstances of the case in view of oral and documentary evidences available on record, arrived at right conclusion by decreeing the suit of the plaintiffs /respondents. There is no illegality or infirmity in the impugned judgment and decree calling for interference in this appeal, which is fit to be dismissed.

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33. I have given anxious consideration to overall aspects of the case and convinced with the argument of learned counsel for the appellants that in a case of Specific Performance of Contract, it is first and foremost issue to prove the existence of the contract, which has to be specifically enforced. In case, the defendants deny or dispute the existence of contract or its cancellation, there must be a proper issue settled for adjudication. There is statutory obligation on the plaintiffs to take specific plea that they have always been ready and willing to perform their part of the contract.

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34. In the instant case, the sale deed executed on the strength of power of attorney executed by the plaintiffs in favour of defendant No.1 is also disputed and alleged to have been revoked / cancelled, but no power of attorney was brought on record by either party nor the manner and mode of its cancellation has been shown, but surprisingly no issue has been framed in this regard and the sale deeds executed by defendant no.2 in favour of defendant no.1 by deed nos. 2084 and 2084 dated 29.04.2006 has been declared to be illegal, void and inoperative.

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35. The entire approach of the learned Trial Court in deciding the suit in haphazard manner is quite obvious from the perusal of the impugned judgment and decree.

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36. Aforementioned glaring infirmities appearing in the judgment and decree compels me to direct re-trial of the case by the concerned Trial Court by framing necessary and proper issues involved in this case.

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37. In view of the above discussions and reasons, this first appeal is allowed and impugned judgment and decree passed by learned Trial Court is hereby set aside by exercising the powers under Order XLI Rule 23A of the Code of Civil Procedure.

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38. The learned Trial Court is directed to conduct re-trial of the case from the stage of settlement of issues taking into consideration, the proper issues as observed above to be settled in the case and after taking evidence of both the parties, if so desired, pass a fresh judgment in accordance with law preferably within six months from the date of receipt / production of copy of this judgment / order.

¶111

39. Let a copy of this judgment along with lower court records be sent back to the learned Trial Court for information and needful.

¶112

(Pradeep Kumar Srivastava, J.)

¶113

Jharkhand High Court, Ranchi Dated : 05/08/2024 Sunil-Amar/ NAFR

¶114

Page 25 of 25

Ms Eastern India Home Makers Represented by Its Authorized Representative Umesh Kumar Pathak v. Surendra Kumar Singh

Case brief

What is this about?

What did the court decide?

Ms Eastern India Home Makers Represented by Its Authorized Representative Umesh Kumar Pathak v. Surendra Kumar Singh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

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