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2024 (5) TMI 1324 - SC - Indian Laws


Issues Involved:

1. Validity of the Agreement to Sell.
2. Non-appearance of Plaintiff as a Witness.
3. Limitation and Delay in Filing the Suit.

Summary:

1. Validity of the Agreement to Sell:
The appellant/plaintiff entered into an agreement to sell with respondent no. 4, who was acting as the Power of Attorney holder of respondents/defendant nos. 2 to 11, for the purchase of land. The High Court found that the agreement was not valid as it was not signed by all co-owners/coparceners. The agreement mentioned that Gajay Bahadur Bakshi, who executed the agreement, would be responsible for getting the sale deed executed by all co-owners at the time of registration. However, the names of all co-owners were not mentioned in the agreement, and the Power of Attorney was not produced or proved in the Trial Court. Citing *Shanmughasundaram & Ors. Vs. Diravia Nadar (dead) by Lrs. & Anr. AIR 2005 SC 1836*, the court held that a suit for specific performance cannot be decreed if not all co-sharers have executed the sale agreement.

2. Non-appearance of Plaintiff as a Witness:
The High Court held that non-appearance of the plaintiff in the witness box was fatal to his case. Instead, his Power of Attorney Holder, Parmod Khare, was examined. The court referred to *Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. & Ors. (2005) 2 SCC 217* and *Man Kaur vs. Hartar Singh Sangha 2010 (10) SCC 512*, stating that a Power of Attorney Holder cannot depose for the principal in respect of matters of which only the principal can have personal knowledge. The plaintiff must prove readiness and willingness to perform the contract by stepping into the witness box.

3. Limitation and Delay in Filing the Suit:
The suit was filed on 19.06.2000, the last date of limitation, calculated based on the last extended time for registration of the sale deed. The court cited *K.S. Vidyanadam vs. Vairavan (1997) 3 SCC 1*, *Azhar Sultana vs. B. Rajamani & Ors. (2009) 17 SCC 27*, and *Saradamani Kandappan vs. S. Rajalakshmi & Ors. (2011) 12 SCC 18*, emphasizing that every suit for specific performance need not be decreed merely because it is filed within the period of limitation. The conduct of the plaintiff and the delay in filing the suit were considered significant. The plaintiff, despite being aware of the sale deed executed in favor of defendant nos. 12 to 14 and objecting to the mutation application, delayed filing the suit.

Conclusion:
The Supreme Court upheld the judgment and decree of the High Court, dismissing the appeal and holding that the plaintiff is not entitled to specific performance due to the invalidity of the agreement, non-appearance as a witness, and delay in filing the suit. The parties were ordered to bear their own costs.

 

 

 

 

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