plaintiff is not entitled to reliefs of declare that sale deed executed by first defendant in favor of second defendant and sale deed executed by second defendant in favor of defendants 3 and 4 are not binding on plaintiff -
Citation
CDJ 2017 MHC 7453
Civil Procedure Code, 1908 - Order VII Rule 1 - Indian Partnership Act, 1932 - Section 69 -Specific Relief Act, 1963 - Section 16(c) - Registration Act, 1908 - Section 47, Section 52, Section 58, Section 60 - Agreement of sale - Specific performance of agreement – Whether suit is maintainable in view of Section 69 of Act, 1932 - – Whether plaintiff is entitled to reliefs of declaration that sale deed executed by first defendant in favor of second defendant and sale deed executed by second defendant in favor of defendants 3 and 4 are not binding on plaintiff -
Court held –Issue has been framed on the premise that plaintiff is an unregistered firm but, plaintiff has produced Certificate of Registration of Firm issued by Registrar of Firms to show that plaintiff is in fact a registered Firm - Therefore suit filed by plaintiff is not hit by Section 69 of Act, 1932 – It is clear that the plea of first defendant that sale deed executed by first defendant in favor of second defendant was as per directions of plaintiff is a false plea and same does not deserve any consideration - Once second defendant is held to be a bona fide purchaser for value without notice of prior agreement, he would automatically be entitled to protection under Section 19(b) of Act, 1963 – Unless it is brought out by tangible evidence that second defendant/subsequent purchaser, was aware of earlier, subsisting, agreement of sale, plaintiff cannot seek relief of declaration that sale deed executed by first defendant in favor of second defendant is null and void or not binding on him - Therefore, there is nothing in evidence to suggest that either second defendant or defendants 3 and 4 have knowledge of suit sale agreement prior to or at the time of purchase of property - Petition dismissed.
Paras: 10,22, 28
Civil Procedure Code, 1908 - Order VII Rule 1 - Indian Partnership Act, 1932 - Section 69 -Specific Relief Act, 1963 - Section 16(c) - Registration Act, 1908 - Section 47, Section 52, Section 58, Section 60 - Agreement of sale - Specific performance of agreement – Whether plaintiff is entitled to a relief of specific performance of agreements and is ready and willing to perform its part of contract under Section 16(c) of Act, 1963
Court held - Default clause, of agreement which provides for refund of sale advance with interest in the event of vendor being unable to evict tenant within a stipulated time - Therefore, according to first defendant, plaintiff is not entitled to relief of specific performance, and he can only sue for alternate relief of refund of advance -P.W.1/partner of plaintiff Firm had deposed that plaintiff was always ready and willing to perform its part of contract - Evidence regarding readiness and willingness on the part of plaintiff has not been discredited in Cross-examination - Therefore, plaintiff was ready and willing to perform his part of contract and it is entitled to seek specific performance of contract - Though, a plea is taken by first defendant that in view of Clause of agreement of sale, plaintiff cannot seek specific performance, but it is only entitled to refund of advance, said plea cannot be countenanced in view of agreement of sale, wherein, it is clearly stated that parties would be entitled to specific performance of agreement in event of failure on the part of any of parties - plaintiff is entitled to seek specific performance of agreements – Petition allowed.
Para 11, 13
Civil Procedure Code, 1908 - Order VII Rule 1 - Indian Partnership Act, 1932 - Section 69 -Specific Relief Act, 1963 - Section 16(c) - Registration Act, 1908 - Section 47, Section 52, Section 58, Section 60 - Agreement of sale - Specific performance of agreement – Whether plaintiff is entitled for alternative relief of advance and is entitled to the relief of damages - Whether defendants are bona fide purchasers for value without notice of subsisting agreement of sale between plaintiff and first defendant and performance are entitled to -
Court held -first defendant has not denied the receipt of advance as per agreement which provides that in the event failure on the part of vendor to perform its part of contract purchaser will be entitled for refund of advance amount with interest -However, In view of the fact that plaintiff fails in suit solely on the ground that defendant No.2 is a bona fide purchaser for value without notice of prior agreement of sale, Plaintiff is entitled to relief of refund of advance – plaintiff has claimed damages, there is no evidence of any loss suffered by Plaintiff – As, alternative relief prayed by plaintiff for refund of advance amount has already been granted with interest, In the absence of any cogent and convincing evidence regarding quantum of damages suffered by plaintiff, said claim is rejected – Petition allowed.
Paras: 29, 30
Cases Referred:
Nemi Chand Jain and others vs G.Ravindran and others reported in 2010 (2) CTC 751
Narain (Dead) by L.Rs v. Mam Chand (Dead) by L.Rs. and Ors. reported in AIR 2010 SC (Supp) 78
Hiralal Agrawal etc v. Rampadarath Singh and Ors. etc. reported in AIR 1969 SC 244
Chandrika Singh v. Arvind Kumar Singh (dead) by Lrs. And Ors, reported in AIR 2006 SC 2199.
Hamda Ammal vs Avadiappa Pathar And 3 Others, reported in 1991 (1) SCC 715
Arunachala Thevar And Ors. vs Govindarajan Chettiar And Ors. - 1977 (2) MLJ 431
Comparative Citation:
2018 (2) CTC 407,
Court held –Issue has been framed on the premise that plaintiff is an unregistered firm but, plaintiff has produced Certificate of Registration of Firm issued by Registrar of Firms to show that plaintiff is in fact a registered Firm - Therefore suit filed by plaintiff is not hit by Section 69 of Act, 1932 – It is clear that the plea of first defendant that sale deed executed by first defendant in favor of second defendant was as per directions of plaintiff is a false plea and same does not deserve any consideration - Once second defendant is held to be a bona fide purchaser for value without notice of prior agreement, he would automatically be entitled to protection under Section 19(b) of Act, 1963 – Unless it is brought out by tangible evidence that second defendant/subsequent purchaser, was aware of earlier, subsisting, agreement of sale, plaintiff cannot seek relief of declaration that sale deed executed by first defendant in favor of second defendant is null and void or not binding on him - Therefore, there is nothing in evidence to suggest that either second defendant or defendants 3 and 4 have knowledge of suit sale agreement prior to or at the time of purchase of property - Petition dismissed.
Paras: 10,22, 28
Civil Procedure Code, 1908 - Order VII Rule 1 - Indian Partnership Act, 1932 - Section 69 -Specific Relief Act, 1963 - Section 16(c) - Registration Act, 1908 - Section 47, Section 52, Section 58, Section 60 - Agreement of sale - Specific performance of agreement – Whether plaintiff is entitled to a relief of specific performance of agreements and is ready and willing to perform its part of contract under Section 16(c) of Act, 1963
Court held - Default clause, of agreement which provides for refund of sale advance with interest in the event of vendor being unable to evict tenant within a stipulated time - Therefore, according to first defendant, plaintiff is not entitled to relief of specific performance, and he can only sue for alternate relief of refund of advance -P.W.1/partner of plaintiff Firm had deposed that plaintiff was always ready and willing to perform its part of contract - Evidence regarding readiness and willingness on the part of plaintiff has not been discredited in Cross-examination - Therefore, plaintiff was ready and willing to perform his part of contract and it is entitled to seek specific performance of contract - Though, a plea is taken by first defendant that in view of Clause of agreement of sale, plaintiff cannot seek specific performance, but it is only entitled to refund of advance, said plea cannot be countenanced in view of agreement of sale, wherein, it is clearly stated that parties would be entitled to specific performance of agreement in event of failure on the part of any of parties - plaintiff is entitled to seek specific performance of agreements – Petition allowed.
Para 11, 13
Civil Procedure Code, 1908 - Order VII Rule 1 - Indian Partnership Act, 1932 - Section 69 -Specific Relief Act, 1963 - Section 16(c) - Registration Act, 1908 - Section 47, Section 52, Section 58, Section 60 - Agreement of sale - Specific performance of agreement – Whether plaintiff is entitled for alternative relief of advance and is entitled to the relief of damages - Whether defendants are bona fide purchasers for value without notice of subsisting agreement of sale between plaintiff and first defendant and performance are entitled to -
Court held -first defendant has not denied the receipt of advance as per agreement which provides that in the event failure on the part of vendor to perform its part of contract purchaser will be entitled for refund of advance amount with interest -However, In view of the fact that plaintiff fails in suit solely on the ground that defendant No.2 is a bona fide purchaser for value without notice of prior agreement of sale, Plaintiff is entitled to relief of refund of advance – plaintiff has claimed damages, there is no evidence of any loss suffered by Plaintiff – As, alternative relief prayed by plaintiff for refund of advance amount has already been granted with interest, In the absence of any cogent and convincing evidence regarding quantum of damages suffered by plaintiff, said claim is rejected – Petition allowed.
Paras: 29, 30
Cases Referred:
Nemi Chand Jain and others vs G.Ravindran and others reported in 2010 (2) CTC 751
Narain (Dead) by L.Rs v. Mam Chand (Dead) by L.Rs. and Ors. reported in AIR 2010 SC (Supp) 78
Hiralal Agrawal etc v. Rampadarath Singh and Ors. etc. reported in AIR 1969 SC 244
Chandrika Singh v. Arvind Kumar Singh (dead) by Lrs. And Ors, reported in AIR 2006 SC 2199.
Hamda Ammal vs Avadiappa Pathar And 3 Others, reported in 1991 (1) SCC 715
Arunachala Thevar And Ors. vs Govindarajan Chettiar And Ors. - 1977 (2) MLJ 431
Comparative Citation:
2018 (2) CTC 407,
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