9911796707
TMI Blog2007 (2) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... he absolute owner of house bearing No. 148, 8th cross N.R. colony, Bangalore- 19 more fully described in the schedule hereunder, having acquired the same under registered gift deed, executed by Mrs. B.N. Vijaya Deva. Whereas the second party has offered to buy and the first party has agreed to sell to the second party the schedule property for a sum of Rs. 45,000/- (Rupees fourty five thousand only.) The first party hereby agreed to sell the schedule property to the second party on the following terms and conditions. a) A sum of Rs. 15,000/- (Rupees fifteen thousand only) has been paid this day by the second party to the first party which he hereby acknowledges out of the said price of Rupees Forty Five thousand. b) A further sum of Rs. 5,000/- (Rupees five thousand only) in respect of the balance of the price shall be paid by the second party to the first party within one year from this date, i.e., 11-5-79. c) The remaining balance of the consideration for the sale, i.e., Rs. 25,000/- (Rupees twenty five thousand only) shall be paid by the second party to the first party within five years from this date. On payment of the full consideration of Rs. 45,000/- to the first party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e were entered into by and between the appellant and other persons categorically demonstrate that he had merely borrowed some amount and the purported agreement for sale was not meant to be acted upon. The learned counsel urged that in view of the default clauses contained in the agreement, the same could not have been construed to be an agreement for sale. Strong reliance in this behalf has been placed on Dadarao and Another v. Ramrao and Others [(1999) 8 SCC 416]. In any event, it was urged that it is not a fit case where the Courts below should have exercised their discretionary jurisdiction under Section 20 of the Specific Relief Act, 1963. Mr. S.N. Bhat, learned counsel appearing on behalf of the respondents, on the other hand, supported the judgment. Original relationship of the parties as landlord and tenant is not in dispute. The fact that the appellant intended to convey his right, title and interest in respect of the said property is also not in dispute. As noticed hereinbefore, he entered into more than one agreement in respect of the self- same property and took advances in respect thereof from more than one person. The agreement in question has been described as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clear that in the event of commission of any breach on the part of respondent, the appellant was entitled to forfeit the entire amount of advance. The very fact that the parties intentionally incorporated such default clause clearly goes to show that they intended to lay down their rights and obligations under the contract explicitly. They, therefore, knew the terms thereof. They understood the same. There is no uncertainty or vagueness therein. The decision of this Court in Dadarao (supra), whereupon reliance has been placed by Mr. Chandrashekhar is wholly misplaced. The term of the agreement therein was absolutely different. We need not dilate on the said decision in view of the fact that in a subsequent decision of this Court in P.D' Souza v. Shondrilo Naidu [(2004) 6 SCC 649], it has been held to have been rendered per incuriam, stating: "34. In Dadarao whereupon Mr Bhat placed strong reliance, the binding decision of M.L. Devender Singh4 was not noticed. This Court furthermore failed to notice and consider the provisions of Section 23 of the Specific Relief Act, 1963. The said decision, thus, was rendered per incuriam. 35. Furthermore, the relevant term stipulated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decree of specific performance but here the parties to the agreement had agreed that even if the seller did not want to execute the sale deed he would only be required to refund the amount of Rs. 1000 plus pay Rs. 500 in addition thereto. There was thus no obligation on Balwantrao to complete the sale transaction. 36. Apart from the fact that the agreement of sale did not contain a similar clause, Dadarao does not create a binding precedent having not noticed the statutory provisions as also an earlier binding precedent." We may furthermore notice that recently in Jai Narain Parasrampuria (Dead) and Others v. Pushpa Devi Saraf and Others [(2006) 7 SCC 756], this Court categorically opined that a stipulation in regard to payment of damages by one party of the contract to the other does not establish that the same was not an agreement for sale stating: "59. One of the learned Judges of the High Court also held that the said agreement dated 12-6-1984 was in fact an agreement for obtaining loan. There was no warrant for such a proposition. Clause 7 of the agreement on the basis whereof such a finding was arrived at reads as under: "(7) That it is further agreed that in case any ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
