Home Case Index All Cases Indian Laws Indian Laws + SC Indian Laws - 2024 (5) TMI SC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (5) TMI 1324 - SC - Indian LawsValidity of the Agreement to Sell - Purchase of land - Non-Appearance of Plaintiff as a Witness - Discretionary Relief of Specific Performance - Limitation Period for Filing the Suit - Appellant/plaintiff entered into an agreement to sell land with respondent no. 4, acting as Power of Attorney holder for respondents/defendant nos. 2 to 11 - agreement extended multiple times. HELD THAT - It is mentioned in the agreement that Gajay Bahadur Bakshi would be responsible for getting the sale deed executed and registered by all the coowners or co-khatedars at the time of registration. Neither the names of all the co-owners/coparceners/co-khatedars are mentioned in the agreement, thus, the High Court is right in finding that all the co-owners have not signed the agreement. The subsequent endorsement of receipt of additional amount of Rs. 40,000/- is also not signed by all the co-parceners. The same is the condition with the 3rd agreement dated 26.12.1996 and the extension endorsement dated 27.03.1997 and 23.04.1997. Significantly, the so-called power of attorney pleaded in the plaint through which the defendant nos. 2 to 11 authorised defendant no. 1 to execute the agreement, have not been produced and proved in the Trial Court. Thus, neither in the agreement nor in course of trial the power of attorney is proved by tendering the same in evidence. Hence, in the absence of evidence, the High Court rightly held that the agreement is not signed by all the co-owners. Undisputedly, in the present case, the plaintiff failed to appear in the witness box . Instead, his Power of Attorney Holder got himself examined as PW-1. This witness was examined on 05.09.2002 and the power of attorney was executed on 26.08.2002. It is not a case where the suit itself was filed by a Power of Attorney Holder. He appeared subsequently only for recording his evidence as the Special Power of Attorney Holder of the plaintiff. The legal position as to when the deposition of a Power of Attorney Holder can be read in evidence has been dealt with by this Court in several decisions. In the instant case, the plaintiff/appellant has failed to enter into the witness box and subject himself to cross-examination, he has not been able to prove the prerequisites of Section 12 of the Specific Relief Act,1963 and more so, when the original agreement contained a definite time for registration of sale deed which was later on extended but the suit was filed on the last date of limitation calculated on the basis of the last extended time. The plaintiff entered into an agreement with only one of the co-owners and thereafter sought extensions for execution of the sale deed but did not prefer any suit though he was aware of the sale deed dated 14.05.1997 executed in favour of defendant nos. 12 to 14 and sent a legal notice on 30.05.1997 and even objected to the subsequent purchasers application for mutation of their names in the revenue records on 20.08.1997 and refers to a meeting of the Gram Panchayat dated 06.12.1997, yet the suit was preferred, on 09.05.2000 on the last date of limitation . Thus, the suit having been preferred after a long delay, the plaintiff is not entitled for specific performance on this ground also.
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.
|