NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 2869­2870 OF 2010

MOHINDER KAUR ...APPELLANT(S)

VERSUS

SANT PAUL SINGH      ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The  defendant is in appeal, aggrieved  by the concurrent

findings decreeing the suit for specific performance filed by the

respondent.

2. An agreement for sale  with regard to  House  no.3343/3,

situated in Rupnagar Municipality was executed between the

parties on 16.03.1988 for an agreed consideration of

Rs.1,50,000/­.   At the time of execution, a sum of Rs.15,000/­

was paid. As the suit property stood mortgaged to the education

department, a further agreement dated 20.06.1988 was executed

between the parties, that the sale deed would be executed within

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15 days of the defendant obtaining release of the property from

mortgage, giving due intimation to the plaintiff.  A further sum of

Rs.53,000/­ and cash of Rs.2,000/­ was paid to the defendant.

The appellant  after  redemption of the  mortgage, intimated the

respondent on  27.07.1989 in  accordance  with the  agreement,

requiring payment of balance consideration and execution of the

sale deed. The respondent disputed the redemption requiring

proof of the same. The appellant, after due notice cancelled the

agreement for sale on 01.09.1989 and forfeited the earnest

money. The plaintiff then filed the instant suit seeking specific

performance of the  agreement by the defendant.  The suit  was

decreed and the appeal preferred by the defendant was also

dismissed. The second appeal of the defendant having also been

dismissed, the present appeal has been lodged before this Court.

3. Shri Neeraj Kumar Jain, learned senior counsel appearing

for the appellant, submitted that indisputably due intimation was

given to the respondent  after redemption  of the  mortgage, as

required under the agreement. The respondent raised frivolous

objections and failed to perform its obligations by payment of the

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balance consideration amount and to take steps for execution of

the sale deed. The appellant, after due notice cancelled the

agreement  and confiscated the  amount paid, for lapses  of the

respondent. Relying on  I.S. Sikandar (D) by L.Rs.   vs. K.

Subramani and Ors., (2013) 15 SCC 27, it was submitted that

the suit for specific performance simpliciter was not maintainable

in absence of any challenge to the cancellation of the agreement,

and seeking consequential declaratory relief. It was next

submitted that the respondent did not enter the witness box to

establish his readiness and willingness to perform his obligations

under the  agreement for sale. PW­1  was  a  power of attorney

holder from the respondent by execution on 02.11.1989. She was

not competent to depose with regard to events prior to the same,

especially with regard to facts personal to the knowledge of the

respondent. Reliance was placed on  Janki Vashdeo Bhojwani

and Ors. vs. Indusind Bank Ltd. and Ors., (2005) 2 SCC 217.

Mere bald assertions in the plaint, were not sufficient, in absence

of any evidence to establish readiness and willingness. Relaince

was placed on  Vijay Kumar and Ors. vs. Om Parkash,  2018

(15) SCALE 65.   

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4. Shri Vineet Bhagat, learned counsel for the respondent,

submitted that the appellant did not give proper intimation

regarding the redemption from mortgage of the suit property. The

respondent was always ready and willing to perform his

obligations under the agreement, but was hindered by the

conduct of the appellant in not placing correct and relevant

information in accordance with the agreement.

5. We have considered the submissions on behalf of the

parties.   It is  an undisputed  fact  that  the suit  property  stood

redeemed from mortgage on 04.07.1989. The appellant sent due

intimation by registered post to the respondent on 27.07.1989

and  also  provided  him with  a  photocopy  of the release  deed,

requiring the respondent to take steps for execution of the sale

deed. The respondent by reply dated 02.08.1989 insisted on the

no­dues certificate, denying receipt of the release deed. The

respondent then gave a power of attorney on 02.11.1989 to PW­1.

The witness was naturally unaware of the preceding events and

denied receipt of the notice dated 27.07.1989 itself. The witness

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was therefore also incompetent to deny receipt of photocopy of

the release documents by the respondent. It was for the

respondent to establish his readiness and willingness for

execution of the agreement by entering the witness box and

proving his capacity to pay the balance consideration amount.

Except for the solitary statement in the plaint no evidence

whatsoever was led on behalf of the respondent with regard to

the same, if PW­1 was competent to depose with regard to the

same because these were facts which had to be personal to the

knowledge of the respondent alone. Had the witness even led any

documentary evidence on behalf of the respondent, in support of

the plea for readiness and willingness on part of the respondent,

different considerations may have arisen. The witness also

sought to deny any knowledge regarding the cancellation of the

agreement on 01.09.1989.  

6. In  Janki  Vashdeo  (supra), it  was  held that a power of

attorney holder, who has acted in pursuance of the said power,

may depose on behalf of the principal in respect of such acts but

cannot depose for the principal for the acts done by the principal

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and not by the power of attorney holder.  Likewise, the power of

attorney  holder cannot depose for the principal in respect of

matters of which the principal alone can have personal

knowledge and in respect of which the principal is entitled to be

cross­examined.  In our opinion, the failure of the respondent to

appear  in the  witness box can well  be considered  to raise  an

adverse presumption against him as further observed therein as

follows :  

“15. Apart from what has been stated, this Court  in the case of  Vidhyadhar  v.  Manikrao observed at SCC pp. 583­84, para 17 that:

“17.  Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross­examined by the other side, a presumption would arise that the case set up by him is not correct….”

7. The agreement was cancelled by the appellant on

01.09.1989 and the consideration already paid confiscated under

intimation to the respondent. The respondent never challenged

the communication of cancellation. In  Sikandar  (supra) it was

observed as follows:

“37. As could be seen from the prayer sought for in the  original suit, the  Plaintiff  has  not

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sought for declaratory relief to declare the termination of Agreement of Sale as bad in law. In the absence of such prayer by the Plaintiff the original  suit filed by him before  the trial court for grant of decree for specific performance in respect of the suit schedule property on the basis of Agreement of Sale and consequential relief of decree for permanent injunction is not maintainable in law.  

38. Therefore, we have to hold that the relief sought for by the Plaintiff  for grant of decree for specific performance of execution of sale deed in respect of the suit schedule property in his favour on the basis of non existing Agreement of Sale is wholly unsustainable in law….”  

8. We are of the considered opinion that merely because the

respondent may not have been satisfied by the intimation given

by the appellant regarding release of the property from mortgage,

it cannot be construed as readiness and willingness on part of

the respondent and his capacity to perform his obligations under

the agreement, particularly when he is stated to have

subsequently migrated to America and in which circumstance he

executed the power of attorney in favour of PW­1. The relief of

specific performance being discretionary in nature, the

respondent cannot be held to have established his case for grant

of such relief. The conclusions of the High Court, both on aspects

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of readiness and willingness of the respondent and lack of due

intimation by the appellant to the respondent regarding

redemption of the mortgage are held to be unsustainable.    

9. We  are therefore  unable to sustain the impugned orders

under appeal which are accordingly set aside.   The appeals are

allowed.

…………...................J. [NAVIN SINHA]

…………...................J. [INDIRA BANERJEE]

NEW DELHI OCTOBER 01, 2019

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