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TMI Blog1996 (7) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a power of attorney in favour of one Mahendra Damodar Patil, original defendant No.1 (since deceased and represented by his legal representatives who are respondents in this appeal), in respect of certain immovable properties bearing Survey No. 327, Hissa No. 3 and Survey No. 328, Hissa No.11 (hereinafter referred to as Warli property') Identical power of attorney was also executed by one Mr. Mhase, original defendant No. 3 in respect of certain property belonging to him. Another appeal, being Appeal No. 958 of 1995, which is clubbed with this appeal for hearing, pertains to the property belonging to Mr. Mhase and the alleged agreement of sale executed by Mr. Patil in respect of the said property. 3. The suit in question was filed by respondent No.1 against the predecessor of the appellants for specific performance of an agreement of sale dated 10th June 1983 executed by the power of attorney holder Mr. Patil for sale of the Warli property. The case of respondent No. 1 in the suit was that by the agreement dated 10th June, 1983 executed by Mr. Patil in his individual capacity for his own property, as a constituted attorney for the predecessor of the appellants in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Otherwise in any manner dealing with appearing in the said clause. When Mr. Warli came to know of this order, he took out a Notice of Motion, which was numbered as Notice of Motion No. 2284 of 1989, for setting aside the above interim order injuncting Mr. Warli, the owner of the property, from selling, transferring, etc. of the property in question. 4. The contention of the appellants before the learned single Judge in the Notice of Motion was that Mr. Patil, in whose favour of he had given power of attorney, had no power to enter into any agreement of sale of the property. He was only authorised by the power of attorney to manage the property and to do all other acts incidental for that purpose. The only other power conferred on him, in addition to the power of management, was the power under Clause 17 of the power of attorney to negotiate for the sale of the property. In that clause, it was made clear that the power of attorney holder Mr. Patil was authorised to negotiate for the sale of the property . The case of the appellant before the learned single Judge was that no power or authority had been given to Mr. Patil to sell the property or to enter into any agreement for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other authorities under B.T. and A.L. Act, 1948, Mr. Patil was appointed as his attorney to appear for and act and represent him and to execute or to do all or any of the acts and things mentioned in the power of attorney. The acts and thins mentioned in various clauses of the power of attorney are to manage the said property (clause 1 ),l to collect and recover rents and profits of the properties (clause 2 ), to give valid and proper receipts in respect of payments made by any person or persons (clause 3), to appoint or engage the services of a lawyer, attorney, solicitor, etc., for the purpose of enquiry, suit or proceedings and for the purpose of the management of aforesaid properties and to given and sing his name or on any warrant of attorney, or vakalatnama, etc. to prosecute and defend on the premises; (clause 4); to sing petitions, etc. in respect of the properties and/or in any proceedings in connection with the management and superintendence of the said properties (clause 5). Power was also conferred on Mr. Patil to compromise, compound and negotiate and settle any dispute and refer the same to the arbitration (clause 6). He was also authorised to accept the service of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this presents, to negotiate for the sale of the lands, to the prospective purchaser or customers for the best available price and the event of the sale of lands in question taking place, my said Attorney shall be entitled to a commission of 4% on the amount of the value or price of lands or consideration for sale mentioned in the Deed of Conveyance on the final conveyance being made and registered but no otherwise whatever may be the cause of noncompliance. It is further expressly stated that I hereby give Shri Damodar Dharam Patil, by these presents power of Attorney which is irrevocable. All the previous power of Attorney special or General, if any, given by me to and or in favour of any person or persons other than my own self or may aforesaid Attorney, are hereby revoked and cancelled and shall deemed to have been so revoked and cancelled. From the reading of the above clause, it is clear that the power conferred thereby on the attorney is the power conferred thereby on the attorney is the power to negotiate for the sale of the land with the prospective purchasers or customers for the best available price. Whether power to negotiate can be construed as meaning power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principal at liberty to say, I accept the offer -- then the agent has done all that a negotiating agent can do ..... In the above cases, the controversy before the Court was bout the scope of the power of a solicitor to arrange or negotiate sale or purchase under the orders of the Court. In that context, Lindley, L.J. also said (at page 114): Now it appears to me there is a little confusion of thought there as to what negotiation mans. What is solicitor who has the conduct of the sale in Court to do? What is his business as a negotiator? I cannot understand that it is anything more than this, to obtain all the terms and all the conditions, including the cost price, which are to be laid before the Court. It is his business to negotiate that; it is not his business as negotiator to see to their performance. That is quite another matter. But when he draws up the proposals, and finally settles the proposals, which are laid before the court for its approval, it appears to me to finish that part of the business which can properly be called negotiation. The above decision, to our mind, clearly brings, out the scope and ambit of the authority to negotiate for sale . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact that a person competent to transfer can only transfer interest in the property. Section 7 of the Transfer of Property Act clearly provides that every person competent to contract and entitled to transferable property or authorised to dispose of transferable property not his own is competent to transfer such property. In the instant case. Mr. Patil had no authority to transfer the property of Mr. Warli nor to enter into an agreement for sale thereof. The agreement for sale entered into by the respondent No. 1 with Mr. Patil, therefore, cannot confer any right on them to claim the execution of the sale of the property of Mr. Warli on the basis of such an agreement of sale. 11. In view of the above, we are of the clear opinion that the learned single Judge was not justified in refusing to set aside the interim order passed by him restraining the appellants from disposing of, transferring or alienating the property in question. 12. In the result, this appeal is allowed. The impugned order of the learned single Judge is set aside. The interim order passed by the learned single Judge is set aside. The interim order passed by the learned single Judge in Notice of Motion No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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