Law Web: Whether father of plaintiff can prove readiness and willingness on behalf of plaintiff?

As regards the aspect of readiness and willingness, which according to the learned Counsel for the appellant, the respondent No. 1 only personally could have deposed about, it has been held by the Hon'ble Supreme Court in the case of Man Kaur (dead) by LRs v. Hartar Singh Sangha (supra), as follows-

"18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:

(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.

(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.

(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.

(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorised managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holders.

(e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.

(f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.

(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or "conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal (SA) No. 450 of 2017

Decided On: 16.04.2018

Tousif Ahmed Vs. Ferozkhan and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(1) MHLJ 914

1. The appellant herein is the original defendant No. 2 in a suit for specific performance filed by respondent No. 1, the original plaintiff. The respondent No. 1 sought specific performance of an agreement dated 25.08.2001 executed between him and respondent No. 2 (original defendant No. 1). It was the case of respondent No. 1 that the aforesaid agreement was entered into by him for purchase of plot No. 100, Sheet No. 82-D owned by respondent No. 2. As per the terms of the agreement, the consideration amount was Rs. 70,000/-, out of which, Rs. 20,000/- were paid as an earnest money to respondent No. 2 on the date of agreement itself i.e. 25.08.2001. It was agreed between the parties that the sale-deed in pursuance of the agreement would be executed by 24.02.2002. It was also the case of respondent No. 1 that he was accompanied by his father and one Advocate Korde when the aforesaid agreement was executed and earnest amount was paid to respondent No. 2.

2. The respondent No. 1 claimed that he issued notice on 20.02.2002 (Exh. 47) to respondent No. 2 in respect of the aforesaid agreement, stating that he was ready with balance amount of Rs. 50,000/- and that respondent No. 2 should remain present for execution of sale-deed on 25.02.2002, as 24.02.2002 was a Sunday. It is further the case of respondent No. 1 that when he remained present before the Registrar for execution and registration of the sale-deed, the respondent No. 2 remained absent. On this basis, the respondent No. 1 filed Regular Civil Suit No. 83 of 2002 before the Court of Civil Judge, Junior Division, Amravati (trial Court) seeking specific performance of the said agreement and for perpetual injunction. The respondent No. 2 (defendant No. 1) filed her written statement admitting execution of the said agreement and the fact that she had received earnest amount of Rs. 20,000/- from respondent No. 1. She pleaded that when respondent No. 1 came to know that the appellant (defendant No. 2) was already in possession of the suit plot, he became disinterested in the agreement and that therefore, he was not ready and willing to perform his part of contract. The appellant appeared before the trial Court and claimed that he was in possession of the suit plot in pursuance of an agreement dated 04.03.2002 executed by respondent No. 2 in his favour and that the respondent No. 1 was not entitled to decree of specific performance. Since the appellant was in possession of the suit plot, the respondent No. 1 amended his claim and added the prayer for decree of possession.

3. In the proceedings before the trial Court, the father of respondent No. 1 appeared as a witness in support of the contentions raised on behalf of respondent No. 1, on the basis of Power of Attorney. The aforementioned Advocate Korde also appeared as a witness before the trial Court and supported the contention of respondent No. 1 that his father had accompanied them when the agreement in question dated 25.08.2001 was executed and earnest amount was paid to respondent No. 2. Beyond filing written statement, respondent No. 2 i.e. original defendant No. 1 did not adduce evidence on her behalf, although her counsel cross-examined the witnesses who had appeared on behalf of respondent No. 1.

4. On the basis of the pleadings and evidence on record, the trial Court decreed the suit in favour of respondent No. 1, directing the respondent No. 2 to execute sale-deed in pursuance of the aforesaid agreement by accepting the balance consideration amount. The appellant was directed to handover vacant possession of the suit property to respondent No. 1. The trial Court found that the agreement had been proved as also the fact that earnest amount of Rs. 20,000/- was paid to respondent No. 2. It also found that respondent No. 1 had proved his readiness and willingness to abide by the terms of the aforesaid agreement and on that basis the trial Court decreed the suit.

5. Aggrieved by the same, the appellant filed Regular Civil Appeal No. 87 of 2009 before the Court of District Judge, Amravati (appellate Court). It is interesting that the respondent No. 2 i.e. original defendant No. 1 with whom the appellant had entered into an agreement dated 25.08.2001, chose not to challenge the decree passed by the trial Court. The appellate Court considered the entire material on record and as a final Court of facts, rendered findings in favour of respondent No. 1. The appellate Court found that respondent No. 1 had indeed proved the said agreement as also payment of earnest amount and the fact that he was ready and willing to perform his part of the obligations under the said agreement. On this basis, the appellate Court dismissed the appeal and confirmed the decree passed by the trial Court.

6. Aggrieved by the impugned judgment and order dated 02.05.2017 passed by the appellate Court, the appellant (original defendant No. 2) has filed this appeal. The following Substantial Questions of Law arise in this appeal:-

"(i) Whether the failure on the part of the respondent No. 1 (plaintiff) to enter the witness box and evidence given by his Power of Attorney holder (father) was fatal to his maintaining the suit for specific performance of agreement dated 25.08.2001?

(ii) Whether the Courts below had correctly appreciated the evidence on record as also position of law while holding that the respondent No. 1 (plaintiff) had proved his readiness and willingness in the present case while granting decree in his favour?"

7. Heard. Admit, on the aforesaid Substantial Questions of Law. Heard finally with the consent of learned Counsel appearing on behalf of the respective parties.

8. I have heard the learned Counsel for the parties at length, exhaustively on the aforesaid Substantial Questions of Law. Even before this Court, none has appeared on behalf of respondent No. 2 i.e. original defendant No. 1 although served.

9. Shri Alaspurkar, learned Counsel appearing on behalf of the appellant i.e. original defendant No. 2, has vehemently contended that both the Courts below have committed serious errors in arriving at findings in favour of respondent No. 1. It is contended that when respondent No. 1 i.e. original plaintiff failed to appear before the trial Court and instead his father deposed as Power of Attorney holder, it was fatal to the cause of respondent No. 1 and the Courts below ought not to have granted the decree of specific performance. It was further contended that there was no evidence placed on record by respondent No. 1 to prove his readiness and willingness, in order to seek a decree of specific performance in his favour. It was pointed out that mere sending of notice to respondent No. 2 (original defendant No. 1) and stating in the evidence that he was present before the Registrar on a particular day, was not enough and that documentary evidence ought to have been placed on record to show that respondent No. 1 had indeed made arrangements of funds for payment of balance consideration to demonstrate readiness and willingness. In support of his contention, learned Counsel places reliance on the judgments of the Supreme Court in the case of His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar (reported in MANU/SC/0522/1996 : 1996 (4) SCC, 526); Umabai and another v. Nilkanth Dhondiba Chavan (dead) by LRs and another (reported in MANU/SC/0285/2005 : 2005 (6) SCC, 243); I.S. Sikandar (dead) by LRs v. K. Subramani and others (reported in MANU/SC/1093/2013 : 2013 (15) SCC, 27); Kalawati (D) through LRs and others v. Rakesh Kumar and others (Judgment and order dated 16th February, 2018 in Civil Appeal No. 2244 of 2018) and Janki Vashdeo Bhojwani and another v. IndusInd Bank Ltd. and others (reported in MANU/SC/1030/2004 : 2005 (2) SCC, 217).

10. Per contra, Shri Akshay Sudame, learned Counsel appearing on behalf of respondent No. 1 has submitted that the evidence given by the Power of Attorney holder of respondent No. 1 could not be held to be deficient, in the facts and circumstances of the present case, particularly because the Power of Attorney holder was the father of respondent No. 1 who had himself accompanied the said respondent on the date when the agreement dated 25.08.2001 was executed and earnest amount was paid to respondent No. 2. This was confirmed by Advocate Korde who had also appeared as witness before the trial Court. Thus, apart from deposing as Power of Attorney holder, father of respondent No. 1 had also deposed about the facts that were found in his personal knowledge pertaining to the aforesaid agreement dated 25.08.2001. It was further submitted that in certain circumstances even a Power of Attorney holder can depose about the readiness and willingness in a case concerning prayer for grant of decree for specific performance, which had been clarified by the Hon'ble Supreme Court. On the question of readiness and willingness, it was submitted that there were sufficient pleadings and material on record to demonstrate that the concurrent findings rendered by the Courts below on the aforesaid aspect were correct. Reliance was placed on Section 16(c) of the Specific Relief Act, 1963 and relevant forms in Appendix-A of the Code of Civil Procedure to contend that there was sufficient material on record in order to prove the readiness and willingness of respondent No. 1 in the present case. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Man Kaur (Dead) by LRs v. Hartar Singh Sangha (reported in MANU/SC/0789/2010 : 2010 (10) SCC, 512) and A. Kanthamani v. Nasreen Ahmed (reported in MANU/SC/0234/2017 : 2017 (4) SCC, 654).

11. Having heard the learned Counsel appearing on behalf of the respective parties and upon perusal of the record, it appears that the concurrent findings rendered by the two Courts below do not deserve interference by this Court exercising second appellate jurisdiction under Section 100 of the Code of Civil Procedure. There are two aspects highlighted by the learned Counsel appearing on behalf of the appellant pertaining to the aforementioned two Substantial Questions of Law. The first question pertains to the authority of the father of respondent No. 1 as Power of Attorney holder who deposed in support of claims made by respondent No. 1 in the suit for specific performance before the trial Court. Perusal of the pleadings, as also the documentary and oral evidence on record shows that the agreement dated 25.08.2001 was admitted by respondent No. 2 (defendant No. 1) as also the fact that earnest amount of Rs. 20,000/- was indeed paid to her by respondent No. 1. It has come on record that when this transaction took place on the said date, father of respondent No. 1 had accompanied him to the place where respondent No. 2 was residing. The tenor of the oral evidence given by the father of respondent No. 1 shows that he had personal knowledge of important facts pertaining to the aforesaid agreement dated 25.08.2001 and that his deposition was also based on personal knowledge of such facts. As regards the aspect of readiness and willingness, which according to the learned Counsel for the appellant, the respondent No. 1 only personally could have deposed about, it has been held by the Hon'ble Supreme Court in the case of Man Kaur (dead) by LRs v. Hartar Singh Sangha (supra), as follows-

"18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:

12. This is the position of law laid down by the Hon'ble Supreme Court with regard to who can give evidence in respect of transactions on the basis of personal knowledge. Paragraph 18(g) would clearly cover the case of respondent No. 1 in the facts of the present case. Here is a case where the father of respondent No. 1 had accompanied him on the crucial date when the transaction between the parties took place on 25.08.2001 and in that light it cannot be said that the evidence given by him as a Power of Attorney holder could not be looked into by the Court, while considering the prayer for decree of specific performance made by respondent No. 1. The judgment of the Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others (supra) has been relied upon, on behalf of the appellant. The said judgment has been considered by the Hon'ble Supreme Court in the aforementioned judgment in the case of Man Kaur (Dead) by LRs v. Hartar Singh Sangha (supra) in paragraph 15 of the said judgment and thereafter the statement of law has been made in paragraph 18, which has been quoted above. Therefore, the judgment in the case of Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others (supra) will not be of any assistance to the appellant. Therefore, There is no substance in the aforesaid objection raised on behalf of the appellant and the first substantial question of law framed above is answered in favour of respondent No. 1 and against the appellant.

13. It is also significant that the respondent No. 2 with whom respondent No. 1 had entered into an agreement has not contested the case before the trial Court beyond filing written statement and it is only the appellant (original defendant No. 2) seeking to raise such objection before the Court.

14. As regards the second question pertaining to and willingness, the relevant provision of law is Section 16(c) of the Specific Relief Act, 1963, which requires that a plaintiff seeking decree of specific performance must aver and prove that he has performed or he has always been ready and willing to perform the essential terms of the contract which are to be performed by him. In this context, the learned Counsel for respondent No. 1 has relied upon Form No. 47 in Appendix-A to Code of Civil Procedure. It provides a format in which the plaintiff in such a case is supposed to plead about readiness and willingness. In this context, attention of this Court has been invited to the pleadings in the plaint. Perusal of the plaint, particularly paragraph 17 shows that such pleadings have been indeed incorporated by respondent No. 1 while seeking a decree of specific performance. What remains is examination of the material on record to ascertain as to whether the respondent No. 1 has been able to prove his readiness and willingness.

15. Perusal of the evidence of the witness deposing on behalf of respondent No. 1 shows that a notice dated 20.02.2002 (Exh. 47) was issued by respondent No. 1 to respondent No. 2 asking her to remain present on 25.02.2002 for execution of sale-deed as 24.02.2002, the date on which the sale-deed was to be executed, happened to be a Sunday. It was stated in the notice that balance amount of Rs. 50,000/- would be paid in order to execute sale-deed. It has also come in the evidence that respondent No. 1 had produced stamp paper on 25.02.2002 and that he was present for execution of the sale-deed in the office of the Registrar till 06:00 p.m., but, respondent No. 2 failed to appear. It was also stated that respondent No. 1 was ready with the balance amount of consideration on the said date in the office of the Registrar so that the sale-deed could be executed. It was also stated in the evidence that the respondent No. 1 tried to contact respondent No. 2 at least 10 to 12 times on phone on the said date i.e. 25.02.2002 in order to call her in the office of Registrar for registration of the sale-deed and that STD bills pertaining to the said calls were also on record. In the cross-examination of this witness, on behalf of respondent No. 2, nothing much had been brought on record. In the cross-examination on behalf of the appellant, it has come in the evidence that respondent No. 1 did not have documentary evidence to show that he was ready with the balance consideration on the said date.

16. As stated above, it is significant that respondent No. 2 has not challenged the decree of specific performance granted by the trial Court, before the appellate Court and she has also not appeared before this Court despite service. It is only the appellant (defendant No. 2) who claims to be in possession of the suit property pursuant to subsequent alleged agreement dated 04.03.2002 who has been challenging the decree for specific performance. In this context, it would be relevant to refer to the judgments relied upon, on behalf of both the parties. In the case of A. Kanthamani v. Nasreen Ahmed (supra), while dealing with the law pertaining to proof of readiness and willingness of the plaintiff seeking decree of specific performance, the Hon'ble Supreme Court has held as follows:-

"24. The expression "readiness and willingness" has been the subject-matter of interpretation in many cases even prior to its insertion in Section 16(c) of the Specific Relief Act, 1963. While examining the question as to how and in what manner, the plaintiff is required to prove his financial readiness so as to enable him to claim specific performance of the contract/agreement, the Privy Council in a leading case which arose from the Indian courts (Bombay) in Bank of India Ltd., v. Jamsetji A.H. Chinoy, approved the view taken by Chagle A.C.J., and held inter alia that

"it is not necessary for the plaintiff to produce the money or vouch a concluded scheme for financing the transaction to prove his readiness and willingness."

25. The following observations of the Privy Council are apposite: (Jamsetji case, SCC OnLine PC)

"... Their Lordships agree with this conclusion and the grounds on which it was based. It is true that Plaintiff 1 stated that he was buying for himself, that he had not sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. But in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. The question is one of fact, and in the present case the appellate court had ample material on which to found the view it reached. Their Lordships would only add in this connection that they fully concur with Chagla A.C.J. when he says:

'In my opinion, on the evidence already on record it was sufficient for the court to come to the conclusion that Plaintiff 1 was ready and willing to perform his part of the contract. It was not necessary for him to work out actual figures and satisfy the court what specific amount a bank would have advanced on the mortgage of his property and the pledge of these shares. I do not think that any jury-if the matter was left to the jury in England-would have come to the conclusion that a man, in the position in which the plaintiff was, was not ready and willing to pay the purchase price of the shares which he had bought from Defendants 1 and 2.'

For the foregoing reasons, their Lordships answer Question (4) in the affirmative."

(emphasis supplied)

26. This Court in Sukhbir Singh v. Brij Pal Singh followed the aforesaid principle with these words: (SCC p. 202, para 5)

"5. Law is not in doubt and it is not a condition that the respondents should have ready cash with them. The fact that they attended the Sub-Registrar's office to have the sale deed executed and waited for the petitioners to attend the office of the Sub-Registrar is a positive fact to prove that they had necessary funds to pass on consideration and had with them the needed money with them for payment at the time of registration. It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till the date of the decree. It would, therefore, be clear that the courts below have appropriately exercised their discretion for granting the relief of specific performance to the respondents on sound principles of law."

17. In the judgments relied upon, on behalf of the appellant in the cases of His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar; Umabai and another v. Nilkanth Dhondiba Chavan (dead) by LRs and another; I.S. Sikandar (dead) by LRs v. K. Subramani and others; and Kalawati (D) through LRs and others v. Rakesh Kumar and others (supra), it has been stated that a plaintiff seeking decree of specific performance would be required to show arrangement of funds for payment of balance consideration. According to the learned Counsel for the appellant, this is the most crucial aspect of readiness and willingness and that since in the present case there was no material placed on record on behalf of respondent No. 1 showing the actual availability of the balance amount of Rs. 50,000/- with him, it could not be held that he had proved readiness and willingness for the Court to exercise its discretion in his favour for grant of decree for specific performance. Perusal of the relevant paragraphs of the aforesaid judgments relied upon by the appellant would show that there was specific reference made to facts of those cases and the nature of agreements in those particular cases. It was held by the Hon'ble Supreme Court in the said judgments that when the plaintiff was called upon to show his readiness and willingness, he was required to demonstrate arrangements of funds or at least capacity to arrange for the funds so as to successfully claim a decree of specific performance.

18. In the present case, as stated above, the respondent No. 1 has satisfied the requirements of pleadings in the plaint and that evidence has been placed on record in the form of aforesaid notice dated 20.02.2002 sent to respondent No. 2, wherein it is specifically stated that the balance amount of Rs. 50,000/- is to be paid to respondent No. 2. In the evidence, it has come on record that respondent No. 1 was ready with the amount of Rs. 50,000/- on 25.02.2002 and that he had waited in the office of the Registrar with the said amount but respondent No. 2 failed to turn up. As held by the Hon'ble Supreme Court in the above quoted judgment in the case of A. Kanthamani v. Nasreen Ahmed (supra), it is not necessary that a plaintiff in a case of specific performance of contract has to produce the money or vouch a concluded scheme for financing the transaction to prove his readiness and willingness in order to successfully claim a decree of specific performance. A finding on readiness and willingness of the plaintiff is necessarily a finding of fact, which has to be rendered by the Court on the basis of the nature of agreement, evidence and the material on record in the context of readiness of the parties. In the present case, in her written statement, respondent No. 2 (original defendant No. 1) has, while admitting the agreement, merely stated that since the appellant (defendant No. 2) came in possession of the suit plot, the respondent No. 1 was not ready and willing to perform his part of contract. Beyond this, there is no pleading, and as stated above there is no evidence on behalf of respondent No. 2. Although the learned Counsel for the appellant is correct when he contends that it is for respondent No. 1 (plaintiff) to prove his case when came come to the Court, the pleadings and nature of evidence in the present case, sufficiently demonstrate the readiness and willingness of respondent No. 1 while seeking a decree of specific performance. The finding on the said aspect of readiness and willingness, being a finding of fact, has been concurrently rendered by the two Courts below in favour of respondent No. 1 and the appellant has failed to show any perversity in the said finding, quiet apart from the fact that he is not the person with whom respondent No. 1 had entered into an agreement, but, he is only a person claiming to be in possession of the suit plot pursuant to an alleged subsequent agreement entered into with respondent No. 2.

19. In the light of the above, the aforesaid two Substantial Questions of Law are answered in favour of respondent No. 1 and against the appellant. There is no substance in the appeal and the same is dismissed with no order as to costs.

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Thursday, 28 February 2019

Whether father of plaintiff can prove readiness and willingness on behalf of plaintiff?

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