M/S Gautamchand Tikam Chand vs Sampatlal Jain

Radhakishan Agrawal, J

Challenge in this appeal under Section 96 of CPC by the appellant/plaintiff is to the judgment and decree dated 29.11.2017 passed by the 2nd Additional District Judge, Raipur, C.G. in Civil Suit No.55A/2009, whereby the suit for specific performance of oral agreement to sell dated 13.10.1997 has been dismissed.

As per averments in the plaint, the plaintiff was doing his business as a tenant in the shop owned by defendant No.1 (Sampatlal Jain) i.e. shop No. J-3 situated at Textile Market Pandri, Raipur (hereinafter referred to as “ the suit property”). According to the plaintiff, he entered into oral agreement with defendant No.2 (Dipchand Deshlahra), who is brother of defendant No.1, on 13th October, 1997 for sale of the suit property for a consideration of Rs.11.50 lacs and out of which Rs.11 thousand was paid as advance and thereafter till 14th April, 1998, a total sum of Rs.4 lacs were paid towards part of sale consideration to defendant No.2 but the defendants instead of executing sale deed in favour of the plaintiff sent a notice on 10th March, 2000 for eviction from the suit premises. Therefore, the present suit for passing a decree of specific performance was filed.

In their joint statement, the defendants while admitting the tenancy of the plaintiff in the suit property, denied oral agreement to sell the suit property between defendant No.2 and the plaintiff on the ground that defendant No.1 is owner of the suit property and there is no general or special power of attorney executed by him in favour of defendant No.2 for sale of the suit property.

Learned trial Court based on the pleadings of the respective parties framed following issues:-

• Whether the present suit is barred by period of limitation?

• Whether there was any oral agreement dated 13th October, 1997 between the plaintiff and defendant in respect of the suit property for total sale consideration of Rs.11,50,000/-?

• Whether in compliance of the said agreement plaintiff paid to the defendant No.2, a sum of Rs.4 lacs towards part consideration?

• Relief and cost?

After appreciation of the evidence placed on record, the trial Court held that neither the facts nor equities are in favour of the plaintiff and accordingly dismissed the suit by the impugned judgment and decree. Hence, this appeal.

Learned counsel for the appellant submits that the impugned judgment and decree of the Court below is perverse and not sustainable in law. The trial Court failed to see that the plaintiff was ever ready and willing to perform his part of contractual obligation but the defendants miserably failed to perform their part of contract despite several demands made by the plaintiff for execution of the sale deed in his favour. In view of the oral and documentary evidence adduced by the plaintiff in support of his contention, the trial Court was not justified in dismissing the suit. Therefore, the impugned judgment and decree are liable to be set aside.

Reliance has been placed on the decision of Hon'ble Supreme Court in the matter of Central Bureau of Investigation vs. V.C. Shukla and others reported in (1998) 3 SCC 410 and the judgments of this Court in the matters of Bhagirathi Dewangan vs. Jhaduram (Dead) Through LRS. reported in 2021 Law Suit (Chh) 31 & Habeeb Bhai vs. K.K. Choudhari reported in 2006 SCC Online Chh 82.

On the other hand, learned counsel for the respondents supporting the impugned judgment and decree contended that the trial Court having considered all the relevant aspects of the matter, the nature and quality of evidence adduced by the plaintiff, rightly arrived at the conclusion that the plaintiff could not prove either existence of oral agreement dated 13th October, 1997 or payment of any advance amount or further sum totaling to Rs.4 lacs to the defendants. Being so, there is no need to interfere with the impugned judgment and decree and the instant appeal is liable to be dismissed.

Reliance has been placed on the decisions of Hon'ble Supreme Court in the matter of Brij Mohan and others vs. Sugra Begum and others reported in (1990) 4 SCC 147 and the judgment of High Court of Madras in T. Jayaram Naidu and D Rajaram vs. Yasodha and ors. reported in 2007 LawSuit (Mad) 1050.

We have heard learned counsel appearing for the parties, perused the pleadings and the evidence available on record.

PW-1 Mangalchand Jain admits in his deposition that defendant No.1 Sampatlal Jain is owner of the suit property, he was running a shop there as a tenant since 1982-83 and that on 10.03.2000, defendant No.1 sent a notice to him for eviction (Ex.P-25) which was replied by him on 10.05.2000 in which for the first time he mentioned about oral agreement for sale of the said shop and receipt of the sale consideration. He also admits that he did not see any document whereby defendant No.1 authorized defendant No.2 for entering into such agreement to sell the suit property. He volunteers that the entire agreement was oral and the entire transaction was being done by defendant No.2 Dipchand Deshlahra. However, he admits that defendant No.2 was not the owner of the said shop. In para 21, he admitted that no advance amount was personally given to defendant No.1 (Sampatlal Jain) by him. He has also admitted that an exparte judgment and decree of eviction dated 08.11.2010 was passed against him by 10th Additional District Judge, Raipur which is challenged in appeal by him. He has exhibited the balance sheets of his firm M/s Gautamchand Tikam Chand as Ex.P-6 & Ex.P-8 and admits that there is no seal of Income Tax Department on Ex.P-6 and also there is no reference of Ex.P-6 in Income Tax Return Ex.P-7. It is also admitted by this witness that there is no mention of any acknowledgment / receipt of the amount given to defendant No.2 in the documents of Ex.P-6 and Ex.P-8 and further clarified that the amount was given to defendant No.2 through one Suresh Barariya before him. He has admitted the fact that his ledger book does not bear any seal of Income Tax Department or his C.A. and the same is not certified by any competent authority.

PW-2 Dhanpatchand Vaidya, brother of the plaintiff, has admitted in cross-examination that he did not see or read the documents executed regarding M/s Gautamchand Tikam Chand firm. In para 16, he admits that his brother (plaintiff) had told him about payment of Rs.4 lacs towards purchase of the shop. He admits that whatever his brother (plaintiff) told him, he is making this statement on that basis.

PW-3 Nathmal Mangilal, relative of the plaintiff, has stated in his affidavit that the plaintiff had given Rs.11 thousand as advance to defendant No.2 Dipchand before him out of total sale consideration of Rs.11.50 lacs of the said shop. In para 13 of his cross-examination, he admits that the said affidavit was not got typed by him but further volunteers that it was typed at his instance. He states that he is living in Mumbai since 1960 and visits Raipur only once a year. He states that plaintiff- Mangalchand Jain is his real brother-in-law (saala), he is not in a position to tell the date and month of the said agreement, he did not see any document of Dipchand Ji Deshlahra pertaining to sale of the suit property and that the said agreement was between the partner of plaintiff’s firm Gautamchand and defendant No.2. In para 17, he admits that information regarding payment of Rs.4 lacs was given to him by Suresh Barariya and Mangalchand Jain and that Dipchand informed him about receipt of the said amount. According to this witness, the discussion regarding agreement was done at the house of Gautamchand and Rs.11 thousand was given to Dipchand Ji at the house of Suresh Barariya.

DW-1 Dipchand Deshlahra (defendant No.2) in his cross-examination vehemently denied the suggestion of receipt of any amount from the plaintiff towards the said agreement to sell of the suit property. He has stated that defendant No.1 never authorized him or executed any power of attorney in his favour for receiving any money on his behalf and that since 1991 he and his brothers have been living separately and doing their respective business.

It is not in dispute as stated above that the suit property is owned by defendant No.1 and there is nothing on record to show that the defendant No.1 ever executed any general or special power of attorney in favour of defendant No.2 to obtain money on his behalf or to sell the suit property on his behalf to anyone. The plaintiff admits that the agreement to sell was oral but has nowhere stated in the plaint or in his evidence as to why sale deed could not be executed immediately when, according to him, he was ever ready and willing to perform his part of the contract. Even there is no receipt of any amount allegedly given by him to the defendant No.2 except his own ledger book which is also admittedly not certified by any competent authority. True it is that Section 34 of the Evidence Act provides for relevancy of entries in books of account including those maintained in an electronic form, regularly kept in the course of business but it is a trite law that such entries by themselves cannot create any liability on the other party without there being any evidence to prove the same. Plaintiff also admits in para 22 of his cross-examination that the ledger book is stitched with rope, it can be opened and its pages can be changed. It is also important to mention here that the plaintiff has been conducting business since long, as such is expected to be well conversant with the mode of dealing and its consequences and, therefore, in the totality of facts and circumstances of the case, the conduct of the plaintiff appears to be highly uncommon that initially he paid a sum of Rs.11,000/- to defendant No.2 as advance towards sale consideration and thereafter from time to time till 14th April, 1998 paid a total sum of Rs.4 lacs to him but did not obtain any receipt of the said amount from him.

Having gone through the judgments relied upon by learned counsel for the appellant and the principles of law laid down therein, in the given facts and circumstances of the present case, the aforesaid judgments being distinguishable on facts are of no help to the appellant.

It is a well settled position of law as has been held in the matter of Brij Mohan (supra) that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, where such contract or agreement is oral, the party seeking decree for specific performance of such contract has to satisfactorily discharge the heavy burden lying on him that there was consensus ad-idem between the parties for a concluded oral agreement, the vital and fundamental terms were orally concluded between the parties for sale of the immovable property which were to be subsequently incorporated in the written agreement, if any, to be executed. However, in the present case, the plaintiff has miserably failed to discharge the said burden. Looking to the nature and quality of evidence, oral as well as documentary available on record, this Court is of the opinion that the plaintiff neither could prove that there was oral agreement on 13.10.1997 between the parties for sale of the disputed property nor could prove payment of any advance or further sum totaling to Rs. 4 lacs to defendants towards such sale and hence, the trial Court was fully justified in dismissing the suit for specific performance of contract in exercise of its discretionary jurisdiction.

On the basis of aforesaid discussions, the instant appeal being sans merits is liable to be dismissed and is, accordingly, dismissed. No order as to costs.

A decree be drawn up accordingly.