1. This appeal is filed against the judgment and order dated 30.4.1996 passed by the learned Civil Judge (S.D.), Bhavnagar in Special Civil Suit No.129 of 1988, whereby the suit filed by the present appellants-original plaintiffs was dismissed (hereinafter referred to as the “original plaintiffs” for the sake of convenience) against the present respondents-original defendants (hereinafter referred to as the “defendants” for the sake of convenience).
2. The facts leading to filing of this appeal are such that the plaintiffs are residing at Bombay and are dealing in business of Diamond Cutting. On 3.8.1985, plaintiffs purchased the suit property named “Vraj Nivas” Plot bearing no.1876 situated in Krushnanagar Atabhai Chowk for Rs.6,40,000/- from the defendants and for that agreement to sale was also executed on 3.8.1985 and plaintiffs paid Rs.4,40,000/- to the defendants. As per terms and conditions of the agreement to sale, defendants had to obtain vacant possession of the outhouse and rest of the rooms from the unauthorized persons and after receipt of the vacant possession, sale deed was to be executed in favour of the plaintiffs on payment of Rs.2,00,000/- to the defendants. After execution of the agreement to sale, plaintiffs have spent huge amount for the purpose of renovation of the property. Further averments are made that defendants had to hand over the vacant possession of the outhouse and rest of the rooms to the plaintiffs. Although plaintiffs were willing to execute the sale deed by fulfilling the terms and conditions of agreement to sale and defendants were not ready and willing to carry out so called conditions of the agreement to sale and no title clearance papers and required documents were furnished to plaintiffs by defendants. As defendants failed to carry out the performance of agreement, plaintiffs issued public notice on 19.5.1988 and also registered notice through advocate on 3.6.1988 and as cause of action arose, plaintiffs filed the suit praying that defendants be ordered to pay Rs.5294.51 ps. to the plaintiffs towards tax paid by them and also that defendants be directed to execute sale deed in favour of plaintiffs or through Commissioner appointed by the Court of the property as plaintiffs are willing and ready to deposit Rs.2,00,000/- in the Court and also to pay all expenses for the same.
3. After hearing both the sides and after perusing the papers, the learned trial Court dismissed the suit against which, this appeal is filed.
4. Learned advocate Mr.Thakkar submits that the suit is solely based on Exh.51 i.e. agreement to sale dated 3.8.1985 and as per the said agreement to sale, the amount of consideration was fixed at Rs.6,40,000/-, the defendants handed over the suit property named as Vraj Niwas to the plaintiffs by receiving Rs.4,40,000/- as part payment and the remaining amount of Rs.2,00,000/- was to be paid at the time of execution of sale deed. Further, the defendants have already waived all the rights over the property and defendants' only right then was for recovery of Rs.2,00,000/- and in default Rs.25,000/- as penalty as well as 18% interest on the said amount. Mr.Thakkar further submits that though there are specific terms in the agreement to sale, the trial Court has not considered the same and relying upon the evidence of the plaintiff and documentary evidence i.e. notice, reply of notice, came to the conclusion that the plaintiffs are not ready and willing to make payment of Rs.2,00,000/- to the defendants and not willing to execute the sale deed. He further submits that the present appellants have stated that the appellants are ready and willing to deposit Rs.2,00,000/- as and when the Court directs. An affidavit Exh.42 is also filed by the present plaintiffs during the pendency of said suit that they are ready to deposit the said amount within 24 hours if any order is passed by the trial Court. He submits that the trial Court has not considered this evidence on record and committed an error in coming to the conclusion that plaintiffs are not ready and willing to execute the sale deed and, so, the suit is not maintainable and dismissed the suit. In support of his arguments, he relied on the following decisions :
1. Motilal Jain V/s Smt.Ramdasi Devi and others, reported in AIR 2000 SC 2408.
2. Prakash Chandra V/s Angadlal and others, reported in (1979) 4 SCC 393.
3. P.S.Ranakrishna Reddy V/s M.K.Bhagyalakshi and another, reported in (2007) 10 SCC 231.
4. Bachhaj Nahar V/s Nilima Mandal and others, reported in AIR 2009 SC 1103.
5. Union of India V/s E.I.D.Parry (India)Ltd., reported in (2000) 2 SCC 223.
5. Learned advocate Mr.Patel for the respondents-original defendants submits that after evaluating the oral evidence and considering the conduct of the plaintiffs, the trial Court has rightly dismissed the suit. It is also submitted by him that the plaintiffs have asked for deducting an amount of Rs.1,30,000/- from the remaining amount of Rs.2,00,000/- which is required to be paid by the plaintiffs to the defendants. He also asked for the payment made towards the tax of the property which prima facie shows that the plaintiffs were not ready and willing to perform their part of the agreement to sale and so rightly the trial Court has, after considering this evidence on record, dismissed the suit. He relied on the following decisions :
1. A.C.Arulappan V/s Smt.Ahalya Naik, reported in AIR 2001 SC 2783.
2. Bal Krishna and another V/s Bhagwan Das (Dead) by L.Rs. And others, reported in AIR 2008 SC 1786.
3. Pramod Buildings and Developers(P)Ltd., V/s Shanta Chopra, reported in AIR 2011 SC 1424.
4. FGP Ltd. V/s Saleh Hooseini Doctor and another, reported in AIR 2009 SC (Supp)2597.
5. Sardar Govindrao Mahadik and another V/s Devi Sahai and others, reported in AIR 1982 SC 989(1).
6. This Court has gone through the judgment and order passed by the trial Court as well as the document Exh.51 which is agreement to sale and considered the rival submissions of the learned advocates for the respective parties. English Translation of the said agreement to sale as provided by the Registry is as under:
“Today on 3.8.1985 day Saturday the party taking in writing this deed of exchange 1.Shardaben Batukbhai Patel age 30 occupation Household work & 2.Jitendra Batukbhai Patel age 12 years minor through his guardian Batukbhai Ravjibhai Patel age 35 years both residing at Vatva Panvadi road, Bhavnagar, who will hereafter in this deed shall be addressed as “Purchaser”. In meaning of said work, the representatives, or heirs & descendants are included.
Whom the Party giving in writing of Second Part-
The heirs of deceased Vrujlal Jagjivandas 1.Pratapray Shantilal himself and as a Vahivat Karta of the Family of all heirs and as a power of attorney holder of No.4 to 9, 2 Bhadresh Gangaram Mehta himself and as a power of attorney holder of no.4 to 9, 3 Pannalal Hiralal Mehta himself and as a power of attorney holder of no.4 to 9, 4 Sharad Mohanlal Mehta, 5 Jayantilal Mohanlal Mehta,
6 Dhirajlal Shantilal Mehta, 7 Navinchandra Shantilal Mehta, 8 Ghanshyam Hiralal Mehta, 9 Hiralaxmi Gangadas Mehta and 10 Jayalaxmi Hiralal Mehta, 233/3 Viyaj villa Sayan (East), Mumbai-22 of one Party and 1 Indulal Balkrishna Sanghvi, 2 Yashvanti Indulal Sanghvi, 3 Rajesh Indulal Sanghvi, 4 Prakash Indulal Sanghvi and 5 Shailesh Indulal Sanghvi himself and for and as a power of attorney holder of Vipul Indulal Sanghvi all adult, all residing at Mumbai, who will hereinafter, in this deed shall be addressed as “Seller.” In meaning of said the own and interested persons of joint family of all the heirs of deceased Vrajlal Jagjivandas and Indulal Balkrishna Sanghvi and Yashvanti Indulal Sanghvi and their all heirs are included, who being binding by this, give in writing and decide that,
1. A bungalow being known as “Vraj Nivas” having main gate towards South on the road going towards Rupani Circle, form Atabhai Avenue chawk in Krushnanagar area in Bhavnagar city is situate in the land of right of ownership of leasehoild of 99 years of Muni.Plot no.1876, which is noted vide city survey no.3118 in sheet no.276 in ward no.6 in city survey record.
The total area alongwith land at backside thereof, as per the measurement of city survey is 1488-89 sq.meters, in which, the construction of main bungalow is 64-8-63- 00 and that of out house, garage etc at backside is 18-91-54-3 and there is Kundli at back at West and a wall of whole right on main road at South and a continuous wall at West is situate and a fence having pillars of thorny wires at North is situate and house garden in front part at South and trees are standing in open land. The total valuation of Rs.1,51,555=00 along with construction is stated on page no.5 of valuation report dated 2/12/80 of Planning Bureau Architects, Ahmedabad. Four boundaries thereof are as under At the East : There is a house of Advocate Krushnalal Keshavlal Trivedi At the West : There is a house of H.D.Shah At the North : There is mixed land of lane, remaining land of avoided lane.
At the South : There is main road.
The light fitting is in some part and there is water connection. This building is 45 years old and the floors have gone down in some parts. Moreover, the cracks have taken place in terrace and walls and there is very much requirement of repairing. The building is assigned in the condition accordingly.
2. The out house and a house having construction of garage at back part out of said property was given earlier to salaried Chotiyat of bungalow to live and use with his family, as a part of his service. At present, even, Spl.C.S.No.77/83 is pending against Pagi Nagji Lalji and the part of house given to him to live-use is in his possession unauthorizedly. Pagi Nagji Lalji is discharged from service since long time and he is given a notice to vacate and handover the part of his possession of said house and part given to somebody else falsely. Getting the part of said house vacated, we the sellers have to assign the special possession of said house to you the purchaser. The part of said house is sold by this deed of exchange subject to that limit and handover the symbolic possession of said house to you the purchaser.
3. We each have to comply with the conditions of deed of agreement produced on 3/5/85 in the Spl.C.S.No.77/83 by we the Party selling this property.
4. Deciding the sale price Rs.6,40,000/- in words Rupees Six Lacks Forty Thousand of the property of description and detail accordingly, alongwith construction, therein, land, facilities, easement rights, connection, rights etc the same is sold to you on the permanent basis. Today you the purchaser have paid Rs.4,40,000=00 in word rupees four lacks forty thousand towards the said sale price of we the seller on the fact below and taking said amount. We the seller today have handed-over the possession of entire property to you the purchaser and putting it in your possession the same is given to you, in which, getting the special and vacant possession of the part of possession of Pagi Nagji Lalji on the fact of aforesaid para 2, the same is to be handed- over. On getting the same, it will automatically be obtained and will remain obtained and accordingly, on getting full possession of entire premises, the Pakka registered deed is to be executed by virtue if this deed of exchange and you the purchaser have to pay Rs.2,00,000/00 in words rupees two lacs being outstanding consideration to we the Party of First Part or to a person. We state in writing immediately, after getting possession and we the sellers are bound to execute a Pakka deed in name of you the purchaser or in the name of you state.
5. It is further clarified that one or more deeds shall have to be executed in the name or in a manner for any person being suggested by purchaser for that much portion i.e. as per only one or parts of entire property being made, without taking any further consideration and without raising objection dispute therein.
6. We the seller are responsible to pay the amount liable to be paid to the Government semi Government or any person or institute and the amount of all taxes or bills or lease or water connection or electricity charges etc. till this very day and you the purchaser are responsible for all amounts of taxes, tax charges etc.
7. We the sellers are bound to obtain and provide the necessary declaration, affidavits, certificates to be obtained under the Income Tax Act etc. for the registered deed to be executed by virtue of this deed of exchange.
8. The entire expense in respect of the certificates, such as title clearance, declaration, affidavits, stamp paper, registration fee, drafting fee, title clearance charges, necessary procedures etc shall be borne equally by both the parties the seller and purchaser, in which, the costs of suit against Nagji Lalji shall be borne separately by the seller, by virtue of this deed of exchange.
9. The purchaser is entitled to utilize and enjoy the property of this sale during the period registered deed is being executed by virtue of this deed of exchange. No depreciation charges or a compensation is to be taken or given.
10. By virtue of this deed of exchange, the seller has no interest, relation with the purchaser transfers the rights, interest or powers to any body by all sorts of price or with increase decrease taking place in cost or utilization of the property of this deed or exchange. The seller is not entitled in any way except getting the outstanding Rs.2,00,000/- in words rupees two lacs. Therefore, the purchaser is entitled to make necessary additions alteration or changes in part of possession. Including the same, there shall be prerogative and first charge upon the outstanding rupees two lacs towards the consideration of the entire property.
11. The Party of Second Part is entitled to get Rs.25,000/- in words rupees twenty five thousand towards the special loss and, the cost what ever being made for implementation of deed of exchange from the defaulter party committing breach of condition of this deed of exchange. But in case of procrastination or fault is being committed in making payment of remaining consideration within thirty days from getting the special and vacant possession of the part of Lalji Nagji, then besides the penalty of breach of condition, the seller is entitled to take interest at every month at the rat of one and half percent, percent. The purchaser is entitled to get the specific implementation of this deed of exchange done. That right will not be obstructed.
12. The purchaser has made a payment of Rs.4,40,000/- to we the sellers outwards the cost of this deed.
Rs.50,000/- In words rupees fifty thousand were given on 03/05/1985 as a deposit at the time of oral exchange was made. The Party of Second Part has taken that full amount.
Rs.1,25,000/- Bearer cheque No.KSN 0034031 dated 03/08/85 of Bank of India in the name of Sanghvi Shailesh Indulal.
Rs.2,65,000/- Bearer cheque no. KSN 0034032 dated 03/08/85 of Bank of India in the name of Pratapray Shantilal Mehta.
Rs.4,40,000/- Four Lacs forty thousand only Accordingly, as per the deed of agreement dated 03/08/85, Sanghvi Yashvanti Indulal and her family members are given and received Rs.1,75,000/- i.e. amount to be given from the cost of this property by virtue of compromise and whenever the Pakka registered deed is to be executed, Sanghvi Yashvanti Indulal and her family members for and to behalf of them shall have not to take or demand any additional or denovo consideration and Rs.2,00,000/- in words rupees two lacs being the outstandinig consideration shall be given to the heirs of sons of Vrajlal Jagjivandas only and they have to take the same, in which, Sanghvi Yashwanti Indulal and her family members are not responsible for the cost regarding deed or expense regarding it.
13. By virtue of this deed of exchange, the aforesaid property in the name of “Vraj Nivas” is sold and handed over with all rights interest whatsoever are or were or considered in respect of seller towards the construction, facilities, easement rights etc. and with right to obtain the possession from the unauthorized occupants on the permanent basis and by virtue of part performance, as you the purchase have paid Rs.4,40,000/- in words four lacs forty thousand out of Rs.6,40,000/- in words Six lacs forty thousand being total consideration, now only rupees two lacs are to be given on the aforesaid fact. There is no objection regarding right, interest or claim among we the sellers.
14. Accordingly, we the sellers by our free will and pleasure, while in sound state of mind and consciousness hereby execute this deed at Bhavnagar in favour of you the purchaser. In this regard, getting this agreement No.2414 worth of Rs.10/- and no.2415 worth of Rs.10/-, thus total two stamp papers types, both the parties have put their signatures therein for the same. Same is and will be approved of agreed to and binding to each and heirs and descendants of each, in which, you the purchaser have kept the original deed and we the sellers have kept duplicate deed.
Xxxxxxxxx”
7. Now as per paragraph 10 of this agreement to sale, it is crystal clear that the present defendants have waived all rights in the property and if dispute is arising, then they will be only entitled to get Rs.2,00,000/-. As per this agreement to sale also, if the payment is not paid by the plaintiffs of Rs.2,00,000/- to the defendants, then the plaintiffs are required to make payment of Rs.25,000/- towards penalty and also to make payment of interest @18% p.a. Rs.2,00,000/-. It is also admitted fact that at the instance of plaintiffs, unauthorized occupants vacated the portion of the suit property and the plaintiffs are in absolute possession of the property. There is no force in the argument of Mr.Patel that against the provisions of the Tenancy Act by applying illegal means the plaintiffs have obtained the possession of the part of the disputed property and so the plaintiffs are not entitled to get any relief as claimed for. Dispute is not between tenant and landlord and so from any stretch of imagination, it could not be said that as the plaintiffs have vacated the tenant or the authorized occupants from the part of the suit property, without adopting the legal course, plaintiffs are not entitled to get any relief as claimed for. Considering the terms and conditions of the agreement to sale, the defendants have sold the property to the plaintiffs and as part of the property was in possession of the third person, it could not be said that at lesser price the property is sold by the defendants to the plaintiffs. Though the defendants were not in absolute possession of the property, the plaintiffs have purchased the property by executing the agreement to sale and paid the amount of Rs.4,40,000/- to the defendants and as per the agreement to sale which is referred above, there is right of plaintiffs over the property and plaintiffs have to pay Rs.2,00,000/- and if the plaintiffs are at default to make payment then the defendants are only entitled to get Rs.25,000/- towards the penalty @18% interest over and above Rs.2,00,000/-. The trial Court has not, in opinion of this Court, properly interpreted this document at Exh.51-agreement to sale and committed error in holding that the defendants were not ready and willing to perform their part of the agreement and not ready to receive payment of Rs.2,00,000/- and not ready to execute the sale deed. In paragraph 8 of the plaint also, there is specific averment that if any order is passed by the Court the plaintiffs are ready and willing to pay Rs.2,00,000/- and affidavit Exh.42 is also filed by the plaintiffs before the trial Court that if any order will be passed by the Court then they are ready to deposit Rs.2,00,000/- within a stipulated time. Even otherwise, if the plaintiffs are not ready to make payment of Rs.2,00,000/- then also considering this above referred agreement to sale, the defendants are only entitled to get Rs.2,00,000/- and in default to get Rs.25,000/- towards penalty with interest @18% per annum. From the agreement to sale, intention of the parties is very clear that the defendants have already waived all the rights in the property and in default of payment of Rs.2,00,000/-, they are entitled to get Rs.2,00,000/- with penalty and 18% interest.
8. The decision relied upon by the learned advocate for the appellant in the case of P.S.Ranakrishna Reddy (supra) is applicable to the facts of the present case case.
9. Considering the oral evidence of the plaintiffs and documentary evidence i.e. notice and reply of notice etc. as the plaintiffs are ready and willing to make payment of Rs.2,00,000/-, I am of the opinion that the trial Court has committed an error in dismissing the suit.
10. It is also transpired from the evidence that the present appellants-plaintiffs have asked the defendants to adjust the amount of Rs.1,30,000/- which is paid by them to the tenant for vacating the premises and also asked the defendants for adjusting the amount which is paid towards the municipal taxes. This clearly shows that the plaintiffs have not paid Rs.2,00,000/- as per the agreement to sell and so as per the terms of agreement to sell, the plaintiffs are liable to make the payment of Rs.25,000/- towards penalty with 18% interest on the entire amount of Rs.2,25,000/-.
11. In view of the above, this appeal is allowed. The impugned judgment and order dated 30.4.1996 passed by the learned Civil Judge (S.D.), Bhavnagar in Special Civil Suit No.129 of 1988 is hereby quashed and set aside. The plaintiffs' suit is hereby decreed. The plaintiffs are hereby directed to deposit Rs.2,00,000/- with penalty of Rs.25,000/- with 18% running interest from the date of filing of the suit in the trial Court within 30 days from today. On the deposit being made by the plaintiffs, the defendants are directed to execute the sale deed with regard to the property named “Vraj Nivas” plot bearing no.1876 situated in Krushnanagar Atabhai Chowk in favour of the plaintiffs. On the sale deed being executed in favour of the plaintiffs, the defendants are at liberty to make appropriate application for withdrawal of the amount from the trial Court and the trial Court shall pass appropriate order in accordance with law. Decree be drawn accordingly.
( M.D.Shah, J ) srilatha After pronouncement of this order, learned advocate Mr.Patel for the respondents prayed to stay the operation of this order for four weeks. Prayer as prayed for is granted. This order is stayed for four weeks.
( M.D.Shah, J ) srilatha