suit for specific performance =
Validity of Evidence of Power of Attorney Holder of the Plaintiff = It is an undisputed fact that the suit property stood redeemed from mortgage on 04.07.1989. The appellant sent due
intimation by registered post to the respondent on 27.07.1989 and also provided him with a photocopy of the release deed, requiring the respondent to take steps for execution of the sale
deed. The respondent by reply dated 02.08.1989 insisted on the nodues certificate, denying receipt of the release deed. The respondent then gave a power of attorney on 02.11.1989 to PW1. The witness was naturally unaware of the preceding events and denied receipt of the notice dated 27.07.1989 itself. The witness was therefore also incompetent to deny receipt of photocopy of the release documents by the respondent. It was for the respondent to establish his readiness and willingness for execution of the agreement by entering the witness box and proving his capacity to pay the balance consideration amount. Except for the solitary statement in the plaint no evidence whatsoever was led on behalf of the respondent with regard to the same, if PW1 was competent to depose with regard to the same because these were facts which had to be personal to the knowledge of the respondent alone. Had the witness even led any documentary evidence on behalf of the respondent, in support of the plea for readiness and willingness on part of the respondent, different considerations may have arisen. The witness also sought to deny any knowledge regarding the cancellation of the agreement on 01.09.1989.
Without Declaration - Specific Performance is not maintainable =
As could be seen from the prayer sought for in the original suit, the Plaintiff has not
sought for declaratory relief to declare the termination of Agreement of Sale as bad in law. In the absence of such prayer by the Plaintiff the original suit filed by him before the trial
court for grant of decree for specific performance in respect of the suit schedule
property on the basis of Agreement of Sale and consequential relief of decree for permanent injunction is not maintainable in law. Therefore, we have to hold that the relief sought for by the Plaintiff for grant of decree for specific performance of execution of sale deed in respect of the suit schedule property in his favour on the basis of non existing Agreement of Sale is wholly unsustainable in law….”
Readiness and willingness can not be inferred from in action of the defendant - it should be pleaded and proved by the plaintiff = merely because the respondent may not have been satisfied by the intimation given
by the appellant regarding release of the property from mortgage, it cannot be construed as readiness and willingness on part of the respondent and his capacity to perform his obligations under the agreement, particularly when he is stated to have subsequently migrated to America and in which circumstance he executed the power of attorney in favour of PW1. The relief of specific performance being discretionary in nature, the respondent cannot be held to have established his case for grant of such relief.
The conclusions of the High Court, both on aspects of readiness and willingness of the respondent and lack of due intimation by the appellant to the respondent regarding redemption of the mortgage are held to be sunsustainable.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 28692870 OF 2010
MOHINDER KAUR ...APPELLANT(S)
VERSUS
SANT PAUL SINGH ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The defendant is in appeal, aggrieved by the concurrent
findings decreeing the suit for specific performance filed by the
respondent.
2. An agreement for sale with regard to House no.3343/3,
situated in Rupnagar Municipality was executed between the
parties on 16.03.1988 for an agreed consideration of
Rs.1,50,000/. At the time of execution, a sum of Rs.15,000/
was paid. As the suit property stood mortgaged to the education
department, a further agreement dated 20.06.1988 was executed
between the parties, that the sale deed would be executed within
1
15 days of the defendant obtaining release of the property from
mortgage, giving due intimation to the plaintiff. A further sum of
Rs.53,000/ and cash of Rs.2,000/ was paid to the defendant.
The appellant after redemption of the mortgage, intimated the
respondent on 27.07.1989 in accordance with the agreement,
requiring payment of balance consideration and execution of the
sale deed. The respondent disputed the redemption requiring
proof of the same. The appellant, after due notice cancelled the
agreement for sale on 01.09.1989 and forfeited the earnest
money. The plaintiff then filed the instant suit seeking specific
performance of the agreement by the defendant. The suit was
decreed and the appeal preferred by the defendant was also
dismissed. The second appeal of the defendant having also been
dismissed, the present appeal has been lodged before this Court.
3. Shri Neeraj Kumar Jain, learned senior counsel appearing
for the appellant, submitted that indisputably due intimation was
given to the respondent after redemption of the mortgage, as
required under the agreement. The respondent raised frivolous
objections and failed to perform its obligations by payment of the
2
balance consideration amount and to take steps for execution of
the sale deed. The appellant, after due notice cancelled the
agreement and confiscated the amount paid, for lapses of the
respondent. Relying on I.S. Sikandar (D) by L.Rs. vs. K.
Subramani and Ors., (2013) 15 SCC 27, it was submitted that
the suit for specific performance simpliciter was not maintainable
in absence of any challenge to the cancellation of the agreement,
and seeking consequential declaratory relief. It was next
submitted that the respondent did not enter the witness box to
establish his readiness and willingness to perform his obligations
under the agreement for sale. PW1 was a power of attorney
holder from the respondent by execution on 02.11.1989. She was
not competent to depose with regard to events prior to the same,
especially with regard to facts personal to the knowledge of the
respondent. Reliance was placed on Janki Vashdeo Bhojwani
and Ors. vs. Indusind Bank Ltd. and Ors., (2005) 2 SCC 217.
Mere bald assertions in the plaint, were not sufficient, in absence
of any evidence to establish readiness and willingness. Relaince
was placed on Vijay Kumar and Ors. vs. Om Parkash, 2018
(15) SCALE 65.
3
4. Shri Vineet Bhagat, learned counsel for the respondent,
submitted that the appellant did not give proper intimation
regarding the redemption from mortgage of the suit property. The
respondent was always ready and willing to perform his
obligations under the agreement, but was hindered by the
conduct of the appellant in not placing correct and relevant
information in accordance with the agreement.
5. We have considered the submissions on behalf of the
parties. It is an undisputed fact that the suit property stood
redeemed from mortgage on 04.07.1989. The appellant sent due
intimation by registered post to the respondent on 27.07.1989
and also provided him with a photocopy of the release deed,
requiring the respondent to take steps for execution of the sale
deed. The respondent by reply dated 02.08.1989 insisted on the
nodues certificate, denying receipt of the release deed. The
respondent then gave a power of attorney on 02.11.1989 to PW1.
The witness was naturally unaware of the preceding events and
denied receipt of the notice dated 27.07.1989 itself. The witness
4
was therefore also incompetent to deny receipt of photocopy of
the release documents by the respondent. It was for the
respondent to establish his readiness and willingness for
execution of the agreement by entering the witness box and
proving his capacity to pay the balance consideration amount.
Except for the solitary statement in the plaint no evidence
whatsoever was led on behalf of the respondent with regard to
the same, if PW1 was competent to depose with regard to the
same because these were facts which had to be personal to the
knowledge of the respondent alone. Had the witness even led any
documentary evidence on behalf of the respondent, in support of
the plea for readiness and willingness on part of the respondent,
different considerations may have arisen. The witness also
sought to deny any knowledge regarding the cancellation of the
agreement on 01.09.1989.
6. In Janki Vashdeo (supra), it was held that a power of
attorney holder, who has acted in pursuance of the said power,
may depose on behalf of the principal in respect of such acts but
cannot depose for the principal for the acts done by the principal
5
and not by the power of attorney holder. Likewise, the power of
attorney holder cannot depose for the principal in respect of
matters of which the principal alone can have personal
knowledge and in respect of which the principal is entitled to be
crossexamined. In our opinion, the failure of the respondent to
appear in the witness box can well be considered to raise an
adverse presumption against him as further observed therein as
follows :
“15. Apart from what has been stated, this
Court in the case of Vidhyadhar v. Manikrao
observed at SCC pp. 58384, para 17 that:
“17. Where a party to the suit does not
appear in the witness box and states his
own case on oath and does not offer
himself to be crossexamined by the other
side, a presumption would arise that the
case set up by him is not correct….”
7. The agreement was cancelled by the appellant on
01.09.1989 and the consideration already paid confiscated under
intimation to the respondent. The respondent never challenged
the communication of cancellation. In Sikandar (supra) it was
observed as follows:
“37. As could be seen from the prayer sought
for in the original suit, the Plaintiff has not
6
sought for declaratory relief to declare the
termination of Agreement of Sale as bad in law.
In the absence of such prayer by the Plaintiff
the original suit filed by him before the trial
court for grant of decree for specific
performance in respect of the suit schedule
property on the basis of Agreement of Sale and
consequential relief of decree for permanent
injunction is not maintainable in law.
38. Therefore, we have to hold that the relief
sought for by the Plaintiff for grant of decree
for specific performance of execution of sale
deed in respect of the suit schedule property in
his favour on the basis of non existing
Agreement of Sale is wholly unsustainable in
law….”
8. We are of the considered opinion that merely because the
respondent may not have been satisfied by the intimation given
by the appellant regarding release of the property from mortgage,
it cannot be construed as readiness and willingness on part of
the respondent and his capacity to perform his obligations under
the agreement, particularly when he is stated to have
subsequently migrated to America and in which circumstance he
executed the power of attorney in favour of PW1. The relief of
specific performance being discretionary in nature, the
respondent cannot be held to have established his case for grant
of such relief. The conclusions of the High Court, both on aspects
7
of readiness and willingness of the respondent and lack of due
intimation by the appellant to the respondent regarding
redemption of the mortgage are held to be unsustainable.
9. We are therefore unable to sustain the impugned orders
under appeal which are accordingly set aside. The appeals are
allowed.
…………...................J.
[NAVIN SINHA]
…………...................J.
[INDIRA BANERJEE]
NEW DELHI
OCTOBER 01, 2019
8
Validity of Evidence of Power of Attorney Holder of the Plaintiff = It is an undisputed fact that the suit property stood redeemed from mortgage on 04.07.1989. The appellant sent due
intimation by registered post to the respondent on 27.07.1989 and also provided him with a photocopy of the release deed, requiring the respondent to take steps for execution of the sale
deed. The respondent by reply dated 02.08.1989 insisted on the nodues certificate, denying receipt of the release deed. The respondent then gave a power of attorney on 02.11.1989 to PW1. The witness was naturally unaware of the preceding events and denied receipt of the notice dated 27.07.1989 itself. The witness was therefore also incompetent to deny receipt of photocopy of the release documents by the respondent. It was for the respondent to establish his readiness and willingness for execution of the agreement by entering the witness box and proving his capacity to pay the balance consideration amount. Except for the solitary statement in the plaint no evidence whatsoever was led on behalf of the respondent with regard to the same, if PW1 was competent to depose with regard to the same because these were facts which had to be personal to the knowledge of the respondent alone. Had the witness even led any documentary evidence on behalf of the respondent, in support of the plea for readiness and willingness on part of the respondent, different considerations may have arisen. The witness also sought to deny any knowledge regarding the cancellation of the agreement on 01.09.1989.
Without Declaration - Specific Performance is not maintainable =
As could be seen from the prayer sought for in the original suit, the Plaintiff has not
sought for declaratory relief to declare the termination of Agreement of Sale as bad in law. In the absence of such prayer by the Plaintiff the original suit filed by him before the trial
court for grant of decree for specific performance in respect of the suit schedule
property on the basis of Agreement of Sale and consequential relief of decree for permanent injunction is not maintainable in law. Therefore, we have to hold that the relief sought for by the Plaintiff for grant of decree for specific performance of execution of sale deed in respect of the suit schedule property in his favour on the basis of non existing Agreement of Sale is wholly unsustainable in law….”
Readiness and willingness can not be inferred from in action of the defendant - it should be pleaded and proved by the plaintiff = merely because the respondent may not have been satisfied by the intimation given
by the appellant regarding release of the property from mortgage, it cannot be construed as readiness and willingness on part of the respondent and his capacity to perform his obligations under the agreement, particularly when he is stated to have subsequently migrated to America and in which circumstance he executed the power of attorney in favour of PW1. The relief of specific performance being discretionary in nature, the respondent cannot be held to have established his case for grant of such relief.
The conclusions of the High Court, both on aspects of readiness and willingness of the respondent and lack of due intimation by the appellant to the respondent regarding redemption of the mortgage are held to be sunsustainable.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 28692870 OF 2010
MOHINDER KAUR ...APPELLANT(S)
VERSUS
SANT PAUL SINGH ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The defendant is in appeal, aggrieved by the concurrent
findings decreeing the suit for specific performance filed by the
respondent.
2. An agreement for sale with regard to House no.3343/3,
situated in Rupnagar Municipality was executed between the
parties on 16.03.1988 for an agreed consideration of
Rs.1,50,000/. At the time of execution, a sum of Rs.15,000/
was paid. As the suit property stood mortgaged to the education
department, a further agreement dated 20.06.1988 was executed
between the parties, that the sale deed would be executed within
1
15 days of the defendant obtaining release of the property from
mortgage, giving due intimation to the plaintiff. A further sum of
Rs.53,000/ and cash of Rs.2,000/ was paid to the defendant.
The appellant after redemption of the mortgage, intimated the
respondent on 27.07.1989 in accordance with the agreement,
requiring payment of balance consideration and execution of the
sale deed. The respondent disputed the redemption requiring
proof of the same. The appellant, after due notice cancelled the
agreement for sale on 01.09.1989 and forfeited the earnest
money. The plaintiff then filed the instant suit seeking specific
performance of the agreement by the defendant. The suit was
decreed and the appeal preferred by the defendant was also
dismissed. The second appeal of the defendant having also been
dismissed, the present appeal has been lodged before this Court.
3. Shri Neeraj Kumar Jain, learned senior counsel appearing
for the appellant, submitted that indisputably due intimation was
given to the respondent after redemption of the mortgage, as
required under the agreement. The respondent raised frivolous
objections and failed to perform its obligations by payment of the
2
balance consideration amount and to take steps for execution of
the sale deed. The appellant, after due notice cancelled the
agreement and confiscated the amount paid, for lapses of the
respondent. Relying on I.S. Sikandar (D) by L.Rs. vs. K.
Subramani and Ors., (2013) 15 SCC 27, it was submitted that
the suit for specific performance simpliciter was not maintainable
in absence of any challenge to the cancellation of the agreement,
and seeking consequential declaratory relief. It was next
submitted that the respondent did not enter the witness box to
establish his readiness and willingness to perform his obligations
under the agreement for sale. PW1 was a power of attorney
holder from the respondent by execution on 02.11.1989. She was
not competent to depose with regard to events prior to the same,
especially with regard to facts personal to the knowledge of the
respondent. Reliance was placed on Janki Vashdeo Bhojwani
and Ors. vs. Indusind Bank Ltd. and Ors., (2005) 2 SCC 217.
Mere bald assertions in the plaint, were not sufficient, in absence
of any evidence to establish readiness and willingness. Relaince
was placed on Vijay Kumar and Ors. vs. Om Parkash, 2018
(15) SCALE 65.
3
4. Shri Vineet Bhagat, learned counsel for the respondent,
submitted that the appellant did not give proper intimation
regarding the redemption from mortgage of the suit property. The
respondent was always ready and willing to perform his
obligations under the agreement, but was hindered by the
conduct of the appellant in not placing correct and relevant
information in accordance with the agreement.
5. We have considered the submissions on behalf of the
parties. It is an undisputed fact that the suit property stood
redeemed from mortgage on 04.07.1989. The appellant sent due
intimation by registered post to the respondent on 27.07.1989
and also provided him with a photocopy of the release deed,
requiring the respondent to take steps for execution of the sale
deed. The respondent by reply dated 02.08.1989 insisted on the
nodues certificate, denying receipt of the release deed. The
respondent then gave a power of attorney on 02.11.1989 to PW1.
The witness was naturally unaware of the preceding events and
denied receipt of the notice dated 27.07.1989 itself. The witness
4
was therefore also incompetent to deny receipt of photocopy of
the release documents by the respondent. It was for the
respondent to establish his readiness and willingness for
execution of the agreement by entering the witness box and
proving his capacity to pay the balance consideration amount.
Except for the solitary statement in the plaint no evidence
whatsoever was led on behalf of the respondent with regard to
the same, if PW1 was competent to depose with regard to the
same because these were facts which had to be personal to the
knowledge of the respondent alone. Had the witness even led any
documentary evidence on behalf of the respondent, in support of
the plea for readiness and willingness on part of the respondent,
different considerations may have arisen. The witness also
sought to deny any knowledge regarding the cancellation of the
agreement on 01.09.1989.
6. In Janki Vashdeo (supra), it was held that a power of
attorney holder, who has acted in pursuance of the said power,
may depose on behalf of the principal in respect of such acts but
cannot depose for the principal for the acts done by the principal
5
and not by the power of attorney holder. Likewise, the power of
attorney holder cannot depose for the principal in respect of
matters of which the principal alone can have personal
knowledge and in respect of which the principal is entitled to be
crossexamined. In our opinion, the failure of the respondent to
appear in the witness box can well be considered to raise an
adverse presumption against him as further observed therein as
follows :
“15. Apart from what has been stated, this
Court in the case of Vidhyadhar v. Manikrao
observed at SCC pp. 58384, para 17 that:
“17. Where a party to the suit does not
appear in the witness box and states his
own case on oath and does not offer
himself to be crossexamined by the other
side, a presumption would arise that the
case set up by him is not correct….”
7. The agreement was cancelled by the appellant on
01.09.1989 and the consideration already paid confiscated under
intimation to the respondent. The respondent never challenged
the communication of cancellation. In Sikandar (supra) it was
observed as follows:
“37. As could be seen from the prayer sought
for in the original suit, the Plaintiff has not
6
sought for declaratory relief to declare the
termination of Agreement of Sale as bad in law.
In the absence of such prayer by the Plaintiff
the original suit filed by him before the trial
court for grant of decree for specific
performance in respect of the suit schedule
property on the basis of Agreement of Sale and
consequential relief of decree for permanent
injunction is not maintainable in law.
38. Therefore, we have to hold that the relief
sought for by the Plaintiff for grant of decree
for specific performance of execution of sale
deed in respect of the suit schedule property in
his favour on the basis of non existing
Agreement of Sale is wholly unsustainable in
law….”
8. We are of the considered opinion that merely because the
respondent may not have been satisfied by the intimation given
by the appellant regarding release of the property from mortgage,
it cannot be construed as readiness and willingness on part of
the respondent and his capacity to perform his obligations under
the agreement, particularly when he is stated to have
subsequently migrated to America and in which circumstance he
executed the power of attorney in favour of PW1. The relief of
specific performance being discretionary in nature, the
respondent cannot be held to have established his case for grant
of such relief. The conclusions of the High Court, both on aspects
7
of readiness and willingness of the respondent and lack of due
intimation by the appellant to the respondent regarding
redemption of the mortgage are held to be unsustainable.
9. We are therefore unable to sustain the impugned orders
under appeal which are accordingly set aside. The appeals are
allowed.
…………...................J.
[NAVIN SINHA]
…………...................J.
[INDIRA BANERJEE]
NEW DELHI
OCTOBER 01, 2019
8
