IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
FIRST APPEAL NO.482 OF 1990
Shri Chandrahas Narayan Shetty
V/s.
1. Smt.Misribai Ramkuvar Pandit
CORAM : R.Y. GANOO, J.
DATED : 20th April, 2009
Citation; 2009 (4) MH l J 980 Bom
1.
The
Suit
No.86
Judge,
a
of 1982 in the Court of 2nd
Senior
performance
and
appellant herein instituted Special Civil
flat
Division, Thane for
Joint
seeking
specific
against respondents in regard to 3
(hereinafter referred to
as
Civil
the
shops
’suit
property’)
situate
Municipal
within
of Kalyan
to be constructed on land bearing
Council
the
limits
more particularly set out in the plaint.
2. learned
Division,
Thane
’learned
and
2nd
Joint Civil
(hereinafter
trial
Judge,
Senior
The
survey Nos.
referred
to
as
Judge’) decided the suit by
judgment
decree dated 24th October, 1981 and rejected
prayer
for
The learned
the
trial
however granted money decree against respondent
the
2 and 3 to the extent of Rs.5,501/-
interest
operative
more
particularly
ig
Nos.1,
Judge
specific performance.
the
set
alongwith
out
in
part of the judgment and decree dated
the
1989.
This judgment and decree dated
24th
October,
24th
October, 1989 is challenged in this first appeal.
facts
necessary for the disposal of the first
Few
appeal
are as under.
The
he 3. entered
appellant original plaintiff claims
into
an
oral
agreement
Kanjibhai being partner of the firm M/s.
with
respondent
one
that
Mr.
Thakkar i.e.
No.3 for purchase of 3 shops and one
more particularly set out in the plaint.
flat
According to
the appellant, the said transaction was being carried
out by defendant No.3 in its capacity as sole selling
agent
respect
of defendant Nos.1 and 2 who were the owners in
of the suit property which was to be sold
in
favour
the
of the appellant.
shop
appellant
Nos.1, 2 and 3 were agreed to be
sold
and
they were subsequently renumbered as shop Nos.9,
appellant
paid
to
According to the appellant, the
said Kanjibhai in all
a
8 and 7 respectively.
sum
of
that
According to the
Rs.5,501/- and also a sum of Rs.1,38,375/- towards the
transaction in question.
the
The appellant claims that as
oral agreement was not specifically performed
respondent Nos.1,2
institute
and
the suit.
3,
the
appellant
had
ig
At
some
regards
witnesses
the
issues
to
framed
recorded
stepped
in
respect of
into
said Kanjibhai.
on
the
The learned
basis of
the
stand as
payment of
trial
Judge
pleadings
finding that respondent No.3 was the
of respondent Nos.1 and 2.
the
examined
his
transaction in question and
monies
appellant
a
7 and 8.
box as a principal witness and also
other
agent
the
witness
trial,
to
Respondent No.4 happens to be
subsequent purchaser in regard to shop Nos.
4.
by
and
estate
However, he did not
record a finding in favour of the appellant as regards
grant of
specific
performance.
The
learned
trial
Judge granted money decree in favour of appellant
to
the tune of Rs.5,501/- and interest as the said amount
was
Judge
paid
to the respondent No.3.
The learned
declined the claim of the appellant as
trial
regards
Rs.1,38,375/- as the said payment turned out to be the
one
made in violation of provisions of Section 23
of
5.
On
the
basis
of the
the Indian Contract Act.
record
as
aforesaid,
following points do arise for my determination.
(i)
Whether
the acts of defendant No.3 do
bind defendant Nos.1 and 2 as regards the sale
of suit property ?
In the negative.
(ii) What orders ?
I
have heard learned advocate
6.
As per the operative order.
appearing on
plaintiff and
appearing
on
behalf
of
learned
the
Mr.Arjunwadkar
appellant
advocate
Mr.
original
Kumbhakoni
behalf of respondent Nos.1 and
2
i.e.
the persons who were the owners in respect of the suit
property.
Nobody
appeared on behalf
of
respondent
No.3, the partnership firm.
7.
that
On consideration of the record, it is made out
original respondent No.3 was the estate agent of
respondent
Nos.1 and 2 and said Kanjibhai was
acting
as
the partner of respondent No.3 and said respondent
No.3
was acting as the estate agent in regard to
the
suit property, which was being developed by respondent
The fact that said Kanjibhai was partner
Nos.1 and 2.
Nos.1
of respondent No.3 could not be disputed by respondent
and 2.
A sum of Rs.5,501/- came to be paid
to
respondent No.3 as and by way of consideration for the
suit
property is also made out.
The appellant in his
evidence has
stated that a sum of Rs.1,38,375/-
paid to said Kanjibhai and the appellant has
that the i.e. a
was
Mr.Arjunwadkar
argued
by
and
No.3 through
respondent Nos.1 Nos.1 respondent
learned
advocate
that respondent No.3 was the agent
respondent
and 2.
2
and
therefore
Kanjibhai
It was also
acts
would
of
of
bind
argued
before
Court that the appellant had a transaction
respondent
2.
of
ig
It
this
money
payment not recognized by the provisions
8.
stated
said amount was paid by way of black
law.
was
No.3 on behalf of the respondent No.1
with
and
In so far as this aspect is concerned, nothing was
pointed
out
by
the appellant on the
basis
of
the
record that respondent No.3 held power of attorney on
behalf of respondent Nos.1 and 2 so as to enter
an
agreement
property.
for
sale
or to dispose
of
the
into
suit
In the absence of proper authority given to
respondent No.3 to negotiate and execute documents on
behalf of respondent
cannot be equated
to
a
status
respondent
of
a
No.3
vendor
and
any transaction that the appellant may have
therefore
Nos.1 and 2,
agent
would
had with respondent No.3 in his capacity as the estate
respondent
not bind respondent Nos.1 and
2.
Once
No.3 is cited as an agent, his role in the
entire transaction was limited and he was obliged
bring two
parties
Nos.1
and
2
and
namely
vendor
purchaser
i.e.
namely
respondent
together
to
the
appellant and see that the transaction is entered into
necessary
the parties.
executed
No such transaction is shown
between the appellant
been
documents are executed by and
and
Nos.1 and 2.
not
show
to
have
respondent
In the present case, the appellant could
to this Court that he ever
met
respondent
and 2 in connection with the suit
Nos.1
and
between
transaction.
respondent No.3 in its capacity as an estate agent
of this be so, whatever representation has been
by If respondent
Nos.1
and 2, cannot
bind
made
respondent
Nos.1 and 2.
9.
It
accepted
is
No.3
the
was
case of the appellant
that
the estate agent however that
respondent
learned
true that the learned trial Judge
Nos.1
trial
and 2.
respondent
cannot
It is in this context,
Judge has passed a decree
has
bind
the
simplicitor
against respondent Nos.1 and 2 and respondent No.3 the
estate
to
decree is not challenged
3.
by
respondent
Certainly when the appellant admits
evidence
December,
respondent
This
Nos.1
that
certain amount was
in
paid
on
3rd
1980 by way of black money, the trial Court
could not help the appellant.
was
interest
the amount paid by the appellant to
No.3.
his
to the tune of Rs.5,501/- and
being
agent
right
in
Nos.
passing the
decree
1 to 3 in regard to
respondent
not
The learned trial Judge
against
the
the
appellant
namely Rs.1,38,375/- which the appellant has termed as
amount by way of black money.
will
Certainly, no Court
ig
an
assist
the
person
whose
acts
are
not
in
consonance with the provisions of law.
10.
oral
is the positive case of the appellant that
agreement was entered into in regard to
an
It
suit transaction.
to
be
noted
the
In such a situation, it is required
that
in the normal
course,
grant
of
specific performance based on oral agreement is always
considered
peculiar
relief
with
case,
reservations.
the
Assuming that
Court would like
to
grant
in
a
the
of specific performance it will be the duty of
the Court to ascertain the terms on the basis of which
the
such
parties
to
wanted to complete the transaction.
In
a case, the terms of oral agreement are required
be placed before the Court in the form of evidence
so
as
to crystalise the terms on the basis of
specific performance was agreed to be granted.
which
In the
present case, the evidence on record no where shows as
be granted.
the
Court
in
performance
absence
the
The quality of evidence placed before
the
matter
of
grant
is absolutely weak.
of
specific
In any case, in
in the absence of direct agreement
respondent Nos.1 and 2, the appellant could
get
the
of agreement that the owners who could convey
property i.e.
with
to
to on what terms the specific performance was required
specific
performance.
Whatever the
not
transaction
which he had with respondent No.3 was not binding upon
respondent Nos.1
aforesaid, the
and 2.
learned
appreciating
the
For the
trial
reasons
Judge
mentioned
was
right
evidence against the appellant
in
and
that the learned trial Judge rightly declined to grant
specific performance.
11.
For
inclined
trial
to
the
Judge
interference
Hence,
point
reasons
mentioned aforesaid,
observe that the view taken
by
required in the
No.1
am
learned
is right on the basis of record
is
I
impugned
and
no
will have to be answered
judgment.
in
the
negative and point No.2 will have to be decided as per
the operative part of this order.
12.
For the reasons mentioned aforesaid, following
order is passed :-
ORDER
The first appeal is dismissed.
facts
and
In the
circumstances of the
case,
there
shall be no order as to costs.
Appeal
Appeal from
No.737
of
1990
do
appeal
Order
and
not
in view of the dismissal of the first
and
that the said Appeals from
ig
survive
from Order No.736 of 1990
Order
are dismissed with no order as to costs.
(R.Y. GANOO, J.)
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