M/S New Viraj Housing Agency Builder And Developer vs Kiran And Others

M.S. Jawalkar, J

Heard Shri M.G. Bhangde, learned Senior Counsel with Shri S.B. Mohta, learned Counsel for the appellant and Shri R.P. Joshi, learned Counsel for the respondent No.1. Heard finally at the stage of admission, at the request and by consent of the parties.

The present appeal is filed by original plaintiff challenging the judgment and decree dated 11/12/2020 passed by 8th District Judge, Nagpur, in Regular Civil Appeal No.403/2017, whereby judgment and decree dated 03/05/2017, passed by Civil Judge, Senior Division, Nagpur in Special Civil Suit No.457/2008 is confirmed.

Brief facts can be summarized as under :

The plaintiff has come up with a claim that the plaintiff and defendant No.1 entered into an agreement dated 16/09/1999 for sale of property for consideration of Rs.7,11,000/-. It is the claim of the plaintiff that he has paid the entire consideration amount to the defendant No.1 by cash and cheque between 16/09/1999 to 25/08/2002. The plaintiff was put in possession of the suit property on the date of agreement of sale. The defendant No.1 executed a Power of Attorney in favour of Shri Chandrashekhar Mudliar on 28/09/1999, who is husband of partner of plaintiff Smt Shashi Mudliar. The Power of Attorney was registered one. The defendant No.1 by notice of termination of agreement dated 18/03/2002, cancelled the agreement of sale and called upon the plaintiff to collect amount which has been paid to him. It is the case of the plaintiff that after the alleged cancellation of the agreement, the plaintiff made payment of Rs.1,00,000/- to the defendant No.1 vide two cheques of Rs.50,000/- each. In view of acceptance of the said payment, the defendant waived his notice dated 18/03/2002 of termination of agreement dated 16/09/1999. The plaintiff’s further contention is that on 25/09/2002, Nagpur Improvement Trust by it’s communication raised demand of Rs.95,000/- for regularization of suit plot and asked for some documents. The said amount was deposited by the plaintiff on 26/09/2002 to Nagpur Improvement Trust on behalf of the defendant No.1 towards charges for regularization of suit plot. Both these documents i.e. demand and receipt of payment are placed on

The plaintiff later on came to know that suit plot is required to be regularized and then only building plan can be sanctioned. There was suit bearing Regular Civil Suit No. 133/2002 filed by defendant No.1 against the defendant No.2 for declaration of title of defendant No.1 to suit plot was pending in the Court of 4th Joint Civil Judge, Junior Division, Nagpur and for that reason regularization of suit plot was withheld. On 21/03/2005, the plaintiff gave notice to the defendant No.1 and called upon to perform specifically agreement dated 16/09/1999. The defendant No.1 executed deed of revocation of General Power of Attorney on 17/05/2005, which was given to partner of plaintiff Shri Chandrashekhar Mudliar. On 06/07/2005 the defendant No.1 informed about the said revocation deed. The plaintiff therefore filed Special Civil Suit No. 571/2005 on 12/07/2005 in the Court of Civil Judge, Senior Division, Nagpur, seeking specific performance of agreement dated 16/09/1999.

During the pendancy of the suit i.e. Special Civil Suit No. 571/2005, the plaintiff gave notice in the office of Registrar of Firm, Nagpur informing that Smt. Shashi Chandrashekhar Mudliar, (who had signed plaint), had joined the firm on 01/04/1997. On 27/08/2007, the plaintiff withdrew Special Civil Suit No.571/2005 for curing the defect of non-compliance with the provisions of Section 69(2) of the Indian Partnership Act, 1932 with liberty to file fresh suit. This defect was cured on 16/11/2007, the Registrar of Firm recorded joining of Smt. Shashi Chandrashekhar Mudliar as partner of the plaintiff firm with effect from 01/04/1997.

Thereafter, plaintiff filed Special Civil Suit No. 457/2008 for specific performance of agreement. The said suit came to be dismissed.

Against the judgment and decree the appeal was preferred vide Regular Civil Appeal No. 403/2017. The said appeal also came to be dismissed by order dated 11/12/2020, which is under challenge in the present appeal mainly raises following substantial questions of law :

Whether the learned Lower Appellate Court passed judgment and decree which is in accordance with the provision i.e. Order 41, Rule 31 of the Code of Civil Procedure. In as much as the Lower Appellate Court has framed the points for determination, it has not discussed these points individually. Though, not interconnected, have been discussed together resulting

Whether finding recorded by learned Lower Appellate Court that the plaintiff failed to prove full payment of total consideration of Rs.7,11,000/- is perverse specifically in view of evidence i.e. receipt Exh.151, Pursis Exh.182, receipt of N.I.T. Exh.165, receipt of N.I.T. Exh.160. Thus, plaintiff has paid Rs.7,11,000/- to the defendant No.1?

Whether the finding recorded by learned Lower Court that suit filed by appellant/plaintiff if barred by time is perverse specifically in view of payment made by plaintiff on 25/08/2002 of Rs.1,00,000/- vide two cheques which was deposited by the defendant No.1 in his account and subsequent events up to 25/09/2004?

Whether the finding recorded by learned Lower Appellate Court that there is no privity of contract between plaintiff and defendant No.1 is perverse specifically in view of the fact that “M/s Viraj Housing Agency Builders and Developers” (the plaintiff) and M/s New Viraj Builders and Developers are one and the same entity and that there are no two separate entities?

Whether the learned Lower Appellate Court has misread, mis-interpretate the agreement dated 16/09/1999 particularly failed to know that condition No.3(1) of said agreement which provides for mode of payment of Rs.1,11,000/- that was paid by the plaintiff to defendant No.1 at the time of agreement, the next payment of Rs.2,00,000/- was to be made within 15 days from date of sanction of building plan. The building plan was however never sanctioned and despite that plaintiff has paid entire consideration of Rs.7,11,000/- to defendant No.1?

Whether the finding of learned Lower Appellate Court that plaintiff has failed to prove that it was ready and willing to perform it’s part of contract is perverse specifically when the amount of Rs.7,11,000/-, though not due, was paid by the plaintiff to defendant No.1, which was the only obligation under agreement?

Learned Counsel for appellant relied on following citations:

Azgar Barid (Dead) by L.Rs and others Vs. Mazambi alias Pyaremabi and others reported in (2022) 5 SCC 334.

K.S. Satyanarayana Vs. V.R. Narayan Rao, reported in (1999) 6 SCC 104.

R.K. Saxena Vs. Delhi Development Authority, reported in (2001) 4 SCC 137.

Vice Chancellor, Ranchi University and others Vs. Jharkhand State Housing Board and others, reported in (2019) 17 SCC 584.

Surajmal Dagduramji Shop Vs. M/s Shrikisan Ramkisan, reported in A.I.R. 1973 Bombay 313.

Union of India and others Vs. West Coast Paper Mills Limited and another, reported in (2004) 3 SCC 458.

Urban Improvement Trust, Udaipur Vs. Board of Revenue and others, reported in 2011 SCC Online Raj 3194.

Asaram S/o Deorao Sakalkar (Dead) through L.Rs. and others Vs. Jayshree Vishnu Sakalkar, reported in 2019(5), Mh.L.J. 409.

N. Khadervali Saheb (Dead) by L.Rs. And another Vs. N. Gudu Sahid (Dead) and others, (2003) 3 SCC 229.

M/s Malabar Fisheries Company Vs. The Commissioner of Income Tax, reported in AIR 1980 SC 176.

As against this learned Counsel for respondent Shri R.P. Joshi submitted that the judgment passed by learned Appellate Court is perfectly justified, legal and no perversity whatsoever in the judgment. It is founded on sound reasoning and needs no interference. Learned Counsel relied on following citations :

P. Dasa Muni Reddy Vs. P. Appa Rao, reported in AIR 1974 SC 2089.

Murli Dhar Vs. Chunni Lal, reported in 1970 RCJ 922.

All India Power Engineer Federation and others Vs. Sasan Power Limited and others, reported in (2017) 1 SCC 487.

Gangadhar Ramsa Gudwar Vs. Shridhar Ramsa Gudwar, reported in 2015(3) Mh.L.J. 78.

Mehboob-Ur-Rehman (dead) through L.Rs. Vs. Ahasanul Ghani, A.I.R. 2019 SC 1178.

City Bank N.A. Vs. Standard Chartered Bank and others, reported in (2004) 1 SCC 12.

Santoshkumar S/o Swamidas Agrawal and another Vs. Ashwin S/o Wardhaman Golechha, reported in 2019 (1) All M.R. 140.

Sayeda Akhtar Vs. Abdul Ahad, reported in (2003) 7 SCC 52.

Nedunuri Kameswaramma Vs. Sampati Subba Rao, reported in AIR 1963 SCC 884.

Narayanan Rajendran and another Vs. Lekshmy Sarojini and others, reported in (2009) 5 SCC 264.

Nazir Mohammed Vs. J. Kamala and others, reported in AIR 2020 SC 4321.

Kirpa Ram (Deceased) Through L.Rs. Vs. Surendra Deo Gaur and others, reported in 2020 SCC Online SC 935.

State of Andhra Pradesh and others Vs. B. Ranga Reddy (Dead) by L.Rs. and others (2020) 15 SCC 681.

B. Santoshamma and another Vs. D. Sarala and another, reported in (2020) 19 SCC 80.

The judgments relied on by both the parties are discussed at appropriate places along with their submissions.

Learned Counsel for respondents vehemently argued that there is no substantial question of law involved in the present appeal. Both the Courts below gave concurrent finding on sound reasoning.

Learned Counsel for appellant contended that even if there are concurrent findings recorded by both the Courts below when a material piece of evidence is not appreciated properly, this Court has jurisdiction to interfere with such perversity. Learned Senior Counsel Shri Bhangde, in support of his contention, relied on Azgar Barid (supra), wherein the Hon’ble Apex Court relying on Municipal Committee, Hoshiarpur Vs. Punjab S.E.B. reported in (2010) 13 S.C.C. 216, has held as under :

“27. There is no prohibition on entertaining a second appeal, even on a question of fact provided that the Court is satisfied that the findings of fact recorded by the Courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the Lower Courts.”

“28. If a finding of a fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the findings so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse.”

The learned Counsel for the respondent submitted that the Scope of Section 100 is very limited. The learned Counsel for respondent relied on Narayanan Rajendran (supra), wherein Hon’ble Apex Court held that :

“The scope of interference by the High Court in second appeal under Section 100 CPC after the 1976 Amendment has been drastically changed and is strictly confined to cases involving substantial question of law. The legislative intention has been clearly spelt out in a series of cases of the Supreme Court. The High Court would not be justified in dealing with any second appeal without first formulating substantial question of law.”

23…….

The Privy Council, in Pertap Chunder Ghose v. Mohendranath Purkait [(1890) ILR 17 Calcutta 291 (P.C.)], observed that the limitation as to the power of the court imposed by sections 100 and 101 in a second appeal ought to be attended to, and an appellant ought not to be allowed to question the finding of the first appellate court upon a matter of fact.

In Durga Chowdharani v. Jewahir Singh Chowdhri (1891) 18 Cal 23 (PC), the Privy Council held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may seem to be. The clear declaration of law was made in the said judgment as early as in 1891. This judgment was followed in the case of Ramratan Sukal v. Nandu, ILR Cal at P. 252 and many others. The court observed:

"It has now been conclusively settled that the third court...cannot entertain an appeal upon any question as to the soundness of findings of fact by the second court : if there is evidence to be considered, the decision of the second court, however unsatisfactory it might be if examined, must stand final."

The learned Counsel for the respondents placed reliance on Nazir Mohammed Vs. J. Kamala (supra). It is submitted that it is not the case that decision rendered by the First Appellate Court on any material question violated the settled position of law, the question of law was vitiated by perversity and evidence taken as a whole does not reasonably support the finding of the First Appellate Court or First Appellate Court interpreted the evidence on record in an absurd or capricious manner or arrived at its decision ignoring or acting contrary to any settled legal principle. The High Court would refrain from interfering without formulating substantial question of law. It is contended by the learned Counsel for the respondent that the First Appellate Court examined the evidence on record at length and there is reasoned conclusion which is based on cogent evidence. There were no erroneous inferences nor erroneously shifted burden of proof. As such, this Court may not interfere in the judgment and order passed by the First Appellate Court.

In view of this submission, it is clear that the High Court while exercising jurisdiction under Section 100 of the Code of Civil Procedure must formulate substantial question of law. As mentioned earlier this Court felt that six substantial questions of law are involved in the matter. Those will have to be answered after appreciation of evidence and law and rival contentions of the parties thereon.

The learned Senior Counsel for appellant further submitted that the Appellate Court framed the points for determination, but did not deal with the matter point-wise. The learned Appellate Court failed to apply provision of Order 41, Rule 31 of the Code of Civil Procedure. In view thereof, matter is fit to be remanded back for consideration afresh.

The learned Counsel placed reliance on Urban Improvement Trust, Udaipur (supra). It is also contention for the learned Counsel for the appellant that in view of Order 41 Rule 31, it is expected that the First Appellate Court should apply its own mind and frame those points for determination which are arising out for determination. While framing those points the First Appellate Court is required to consider the pleadings of the parties as well as the evidence to some extent.

In this regard, learned Counsel for the appellant relied on Asaram Devrao Sakalkar (supra), wherein it is held that:

“12…….Though there is some discussion in respect of evidence by the First Appellate Court, it was on the basis of or in relation to the issues those were framed by the Trial Court. That cannot be taken as a compliance of mandatory provision of law comprised under Order 41 Rule 31 of the Code of Civil Procedure and therefore, definitely the matter deserves remand for proper determination of point by the First Appellate Court and findings or decision to be given on those points.”

The learned Counsel for the appellant submitted that so far as the judgment of Narayanan Rajendran and another Vs. Lekshmy (supra) is concerned it lays down that the High Court would refrain itself from interfering with the concurrent findings of fact without formulating substantial question of law. However that does not mean that even if order passed by both the Courts below is perverse still High Court should refrain from interfering.

It is contention of the learned Senior Counsel that lower Appellate Court passed judgment and decree which is not in accordance with the provision of Code of Civil Provision i.e. Order 41, Rule 31 inasmuch as, the lower Appellate Court has framed the points for determination, it has not discussed these points individually. The points though not interconnected have been discussed together which has resulted in confused judgment. Object of these points for determination is defeated. It is also submission of learned Counsel for appellant that though there were five points for determination but learned Appellate Court has decided ten points without framing points for determination. Learned Appellate Court decided point of privity of contract, point of plaintiff’s full payment of consideration, whether suit can be entertain in view of bar of Section 69 (2) of the Partnership Act, revocation of registered Power of Attorney dated 28/09/1999 without framing points to that effect.

As against this, learned Counsel Shri R.P. Joshi for defendant No.1, vehemently submitted that there is no error or illegality committed by the lower Appellate Court. He relied on Santosh kumar (supra).

In Santoshkumar (supra), this Court (Bombay High Court) relied on judgment of Hon’ble Apex Court in H. Siddiqui Vs. A. Ramalingam [2011(2)ALLMR938(S.C.)], wherein provisions of Order 41, Rule 31 of the Code of Civil Procedure is explained. It is held thus :

The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions.”

This Court also relied on G. Amalorpavam Vs. R.C. Diocese of Madurai [2006(2)ALLMR 136 (S.C.)], wherein it is held thus:

"9. The question whether in a particular case there has been a substantial compliance with the p.rovisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient.”

The learned Counsel for respondent in reply to the contention by the appellant that the Lower Appellate Court has not framed point in respect of privity of contract and discussed the same and also not gave its independent finding on the points and relied on Sayeda Akhtar (supra) and State of Andhra Pradesh Vs. B. Ranga Reddy, in support of his contention that non framing of issue will cause no prejudice nor proceedings were vitiated if the parties are aware about adducing evidence and advanced their respective submission. The Hon’ble Apex Court in Sayeda Akhtar (supra) held as under :

“10. Furthermore, as indicated hereinbefore, the plaintiff sought for a decree for eviction against the defendant also on the ground of commission of nuisance. It is true that the trial court did not frame any specific issue therefore but a bare perusal of the judgment passed by the learned trial court will clearly demonstrate that the parties were aware thereabout and not only adduced evidence in that behalf but also advanced their respective submissions in relation thereto.”

Learned Counsel also placed reliance on Nedunuri Kameswaramma (supra), wherein the Hon’ble Apex Court held as under :

“6. Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mix-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer.”

In my considered opinion on perusal of judgment passed by both the Courts below the learned Appellate Court considered every piece of evidence and discussed the same. It is not the case that some evidence is not considered. Even he has examined the judgment passed by the Trial Court meticulously. If the complete judgment is perused there is substantial compliance with the requirement of Order 41, Rule 31 of the Code of Civil Procedure. The impugned judgment and order is based on independent assessment of the relevant evidence on all important aspect of the matter.

The learned Counsel for respondent/defendant submitted that it is not the case that he has discussed point of privity of contract to the surprise of the appellant and drawn my attention to specific pleading. The very pleadings in the written statement made it clear that the point in respect of privity of contract, payment of full consideration and bar of Section 69 (2) of the Partnership Act were raised. These points are not only argued at length by both the parties but led evidence on that point and the Appellate Court discussed the same.

Learned Counsel for appellant relied on Asaram (supra) and Urban Development (supra). I have gone through the rival contentions and also judgment passed by lower Appellate Court. Though point of privity is not framed, it is discussed in point No.4 that whether plaintiff is entitled for decree of specific performance of contract and for permanent injunction. While deciding this point, one has to answer rights of plaintiff for decree of specific performance of contract. As such, even if, point of privity of contract is not framed the said point was argued at length by both the parties, in Trial Court as well as Appellate Court. So far as revocation of registered Power of Attorney is concerned this point was not pressed by the appellant. Third point which appellant claims that learned Appellate Court ought to have framed that point about payment of full consideration of Rs.7,11,000/-. This issue is also discussed by Appellate Court in detail.

Thus the principle underlying is that the construction of order and rule is impelled for avoiding unnecessary cause and inconvenience to the litigant as well as avoiding the situation of setting aside the judgment on account of technicality specifically when the judgment and decree otherwise does not affect the merits of the case.

It is contended by learned Senior Counsel for appellant that findings rendered by lower Appellate Court are vitiated due to non consideration of material evidence on record, due to which the judgment has been vitiated and suffers from perversity. It is contended that though there were documents on record showing payment of Rs.95,000/- and Rs.1,000/- on behalf of defendant No.1 to the corporation, the learned Appellate Court has not considered these documents to establish that appellant paid amount of Rs.7,11,000/- in total.

The learned Counsel for respondent drawn my attention to the paragraph Nos. 59 to 73, wherein the lower Appellate Court elaborately discussed about the payment made and receipts thereof. It is not the case that appellant was not having any opportunity to substantiate their claim of payment of Rs.7,11,000/-. As both the parties were heard at length and Appellate Court has discussed entire evidence placed on record, I do not find that there is any prejudice caused to either of the party and for such procedural lacuna, the judgment cannot be said to be vitiated. Accordingly, in view of discussion above I answer substantial question of law No.1 in the affirmative and hold that there is substantial compliance of Order 41 Rule 31.

Second substantial question of law which falls for my determination is whether finding recorded by learned lower Appellate Court that the plaintiff failed to prove full payment of total consideration of Rs.7,11,000/- is perverse specifically in view of evidence i.e. receipt Exh. 151, pursis Exh.182, receipt of NIT Exh. 165, receipt of NIT Exh. 160. As such, appellant paid full consideration of Rs. 7,11,000/- to the defendant No.1. This substantial question of law can be discussed advantageously along with substantial question of law No.6 about readiness and willingness. It is the case of the plaintiff that he has paid Rs. 5,15,000/- till 11/10/2001 then Rs.1000/- on 31/08/2002 and Rs.95,000/- to the Corporation on 25/09/2002, Rs.1,00,000/- by two cheques on 25/08/2002. Total amount of Rs. 7,11,000/- is paid. It is further contended that the defendant No.1 admitted receipt of two cheques of Rs.50,000/- from New Viraj Housing Builders and Developers. Thus, the learned Appellate Court ought to have held that the total amount of consideration is received by the defendant.

The learned Counsel for respondent/defendant No.1 vehemently argued that there is no dispute that two cheques were issued by New Viraj Housing Builders and Developers in favour of Kiran Senad, defendant No.1. However, the purpose for which it was issued is disputed. In fact, the developer has not initiated the development process. On the contrary, he has given the said plot on lease and was earning thereof. Therefore, the defendant No.1 claimed damages to the plaintiff. The said amount was paid by the developer as a damages and not as any consideration towards agreement. The agreement came to be cancelled on 18/03/2002 with developer firm and cheques were issued on 25/08/2002 by the firm which was illegally in possession. Thus, in absence of any extension or new contract there is no question of payment towards consideration after termination of agreement.

On perusal of evidence of plaintiff Shashi Mudliar P.W.1, she was not able to state when and in what mode of payment of Rs.7,11,000/- was made and that too before termination of agreement. Moreover, notice of termination of agreement and revocation of power of attorney dated 18/03/2002 not replied nor called upon to withdraw the same by the plaintiff. It is contended that the defendants acknowledged the payment of Rs.5,15,000/- by putting its signature, no further evidence is required to prove this fact. As discussed earlier though defendants admitted receipt of amount of Rs. 1,00,000/- by way of two cheques of Rs. 50,000/-each, these cheques were not received as a part consideration of the agreement. It is duly established by the defendants that after possession was handed over, for about 2 years no steps were taken by the builder to develop the property. On the contrary, it was leased out to third person and then to Mahesh Trading Company as per the Spot inspection Report of NMC Exh 219/3, Exh. 219/9 and the developer firm has collected rent from the same Mahesh Trading Company. Specifically from Exh. 219/3 is clear on this aspect that the plot was being used for factory to prepare plastic articles by Mahesh Trading Company.

Thus it was the contention of the defendants that New Viraj Housing Builders and Developers were illegally and unnecessarily withholding the plot and therefore, damages were claimed. Though defendants have acknowledged that he has received two cheques of Rs.50,000/- each, however, he denied the purpose and contents of the receipts. From the evidence it is also clear that two other cheques given in the month of February – March are dishonoured. The cheque return memos are placed on record vide Exhs. 105 to 113. As against this, the evidence of P.W.1 in cross, reveals that the suit is filed by name of “New Viraj Housing Agency Builders and Developers”. She is unaware when the said firm was established. On payment, she deposed that she has not mentioned in her affidavit the cheque of amount of Rs.23,000/-, (which was bounced) issued by her husband. She was not aware whether such cheque was issued by her husband. She was not able to say exactly how much amount was paid to defendant No.1 by her husband by cheque and cash, so also dates of payment. She admitted that she is not having documentary proof to show that defendant No.1 had given authority letter to one Mr. Prakash Israni who has signed receipt of Rs.10,000/-. She was not able to say in whose handwriting receipt Exh.151 is and who has drafted it. She was not aware on which date portion marked – ‘A’ of Exh.151 was written. She admitted the acknowledgment of receipt of notice dated 18/03/2002 bears her signature and she received the notice.

As such the learned Appellate Court has rightly appreciated the evidence in respect of payment in pursuance to the agreement. The plaintiff utterly failed to give any particulars of the payment in respect of amount of Rs.5,15,000/- in cash and cheque up to 11/10/2001. The so called receipt on which plaintiff is relying, failed to substantiate the contents thereof. The plaintiff is not aware in whose handwriting the said receipt was. It was rightly appreciated by the learned Appellate Court that for receipt of Rs.10,000/-, which was shown as received by one Israni (an unauthorized person), signature is on revenue stamp, whereas receipt at Exh.151 is signed without revenue stamp. As such neither the evidence of Shashi Mudliar P.W.1 nor Chandrashekhar Mudliar P.W.2 established that they paid amount of Rs.7,11,000/- in favour of defendant No.1.

In reply to the contention of appellant/plaintiffs that plaintiffs were always ready and willing to perform their part of contract, learned Counsel for respondent Shri R.P. Joshi submitted that there has to be continuous readiness and willingness to perform his part of contract by plaintiff. He relied on Mehboob-Ur- Rehman (Dead) through L.Rs., reported in AIR 2019 SC 1178 (supra), wherein Hon’ble Apex Court held that the plaintiff if had failed to aver and prove his continuous readiness and willingness to perform his part of the contract, the suit was bound to fail on this ground alone.

As against his contention in respect of payment of Rs.5,15,000/-, the only documents placed on record is receipt of Rs.10,000/- dated 08/10/1999 (Exh.149) and receipt of Rs.2,78,000/- dated 28/08/2000. Thus documents only establish that amount of Rs.2,88,000/- paid and not amount of Rs.5,15,000/-as alleged. The plaintiffs were having an opportunity to claim that they have paid full consideration while issuing notice dated 21/03/2005, by giving details of payment of full consideration. However, there is no such reference of total payment of amount of Rs.7,11,000/-. In notice also there is no specific mention on what date and in what mode the amount of Rs.5,15,000/- was paid. The learned Court below rightly appreciated Exh.151 and portion marked – ‘A’. The so called receipt is denied by the defendant No.1. It was pointed out that there was demand note of M.S.E.B. dated 01/10/2001 which is admitted fact. It is informed by the plaintiff that for obtaining the said M.S.E.B. connection, bond on stamp will have to be executed. Accordingly, the defendant No.1’s signatures were obtained on blank stamp paper of Rs.50/- and it is used to prepare the said bogus receipt. In notice issued by the Advocate Yogesh Nayar on behalf of plaintiff, there is mention of demand note in paragraph No.6 of the notice. As such, on perusal of the dates of demand note and purchase of stamp on which receipt is prepared there is substance in contention of respondent. After appreciating evidence of both the plaintiff and defendants, both the learned Courts below recorded finding that contents of the receipt were not established by the plaintiff and what is deposed by the defendant or claim of defendant appears to be correct. Moreover the receipts obtained in the name of M/s. New Viraj Housing Builders and Developers and not in the name of the plaintiff’s firm. The stamp purchased also in the name of New Viraj Builders and Developers. Therefore there is nothing on record neither in notice nor in any communication to the effect that both the firms are one and the same and the amount received by the New Viraj Builders and Developers are through the plaintiff firm. As such I do not see any perversity in the finding recorded by the Appellate Court, that plaintiff failed to prove full payment of total consideration of Rs.7,11,000/- and thereby their readiness and willingness throughout. Accordingly, I answer substantial question of law Nos.2 & 6 in the negative.

Third substantial question of law for my consideration is in respect of limitation and whether the suit filed by plaintiff is barred by limitation.

The learned Counsel for the respondent submitted that on 16/09/1999 there was agreement for development and sale between New Viraj Builders and Developers in respect of plot No. 44 in Khasra No. 58/1 in the layout of Shiraspeth Cooperative Housing Society. Admittedly, the said agreement was unregistered whereas Power of Attorney by Kiran Senad in favour of Chandrashekhar Mudliar dated 28/09/1999 was registered one. This fact is also undisputed. It is also admitted fact that on 18/03/2002, Kiran Senad cancelled the above agreement for development and sell and also canceled Power of Attorney. The said notice for cancellation of agreement for sale and Power of Attorney duly received by the noticee on 19/03/2002. The so called amount of Rs. 50,000/- + Rs.50,000/- is paid by Viraj Housing Builders and Developers. The said payment dated 25/08/2002 is not disputed but purpose for the payment as alleged by the appellant is disputed. The document Exh.151 itself is disputed. The respondent Kiran Senad revoked Power of Attorney in favour of Chandrashekhar Mudliar by registered deed dated 17/05/2005. Legal notice to that effect issued to Chandrashekhar Mudliar.

It is the contention of the plaintiff that payment of Rs.1,00,000/- accepted by the defendant on 25/08/2002. Therefore, the notice of cancellation of agreement has become infructuous. It is contended by learned Counsel for the appellant that after issuance of notice dated 18/03/2002, thereby cancelling the agreement and the Power of Attorney, the defendant No.1 has accepted the amount of Rs.1,00,000/- by way of two cheques of Rs.50,000/- each on 26/08/2002, therefore the suit is well within limitation. The amount was received by the defendant No.1 even after termination of the agreement. The same has to be treated as waiver of notice of cancellation of agreement. It is also contention of the plaintiff that the first suit was filed by the plaintiff on 12/07/2005, after issuance of notice by the plaintiff.

Learned Senior Counsel for appellant Shri Bhangde, contended that after issuance of notice of termination by defendant, the appellant/plaintiff paid amount of Rs.1,00,000/- by that time is extended for payment. Learned Counsel relied on citation R.K. Saxena (supra), wherein Hon’ble Apex Court held that in auction sale of plot after the extension was sought twice and on third request for extension, no reply was received and yet the authority continued to receive remaining payments till total balance amount paid and thereafter, also accepted payment of interest @ 25% per annum on delayed payment, the Hon’ble Apex Court held that the moment the payments were accepted there was deemed extension of time therefore, respondent authority was not justified in cancelling allotment in favour of appellant and treating earnest money deposited by him as forfeited.

In my considered opinion, the facts involved in the matter in RK. Saxena (supra) are different than the facts involved in this matter. Here, after notice of termination the amount is paid towards damages and not in terms of agreement. At least there is no such communication between the parties. Portion ‘A’ of receipt Exh.151 does not bear signature of defendant No.1. In view thereof one cannot say that the said amount is received by defendant No.1 toward part payment of consideration. On the contrary, it suggest that attempts were made to show that the said cheques were issued as part consideration.

Learned Counsel for appellant relied on Vice Chancellor, Ranchi University (supra), wherein the University in term of the allotment agreement was required to pay 10% of the total consideration to the board and the balance money was to be paid in 180 monthly installments. There were some default made by the University in paying remaining installments. The board raised demand of remaining amount since the University did not pay the demand the board canceled the allotment and decided to allot the flats to some of the occupants. The University in the meantime got possession of the flats and they allotted few flats to its employees. The employees occupants filed petitions against the board and University seeking therein a prayer for issuance of the writ of mandamus directing the board to execute the lease-deed of the flats in question allot the same in their favour. There was no dispute that the University, even after cancellation of the initial allotment order went on paying monthly installment in lump-sum to the board and the board in turn also went on accepting the money as and when paid by the University. The Hon’ble Apex Court held that :

“The acceptance of payment from the University subsequent to cancellation by the Board amounted to revocation of the cancellation order and resulted in restoration of the initial allotment made in favour of the University.”

With due respect to the principle laid down in citation the facts involved in present appeal are distinguishable. Here the acceptance amount of Rs.1,00,000/- after termination of contract is not against part payment of consideration. On the contrary, it is established that the said payment is accepted as damages on account of illegal possession of property and leasing it out.

Learned Counsel for respondent vehemently argued that there was no novation of contract nor there was any waiver of notice of termination. Learned Counsel for respondent in support of his contention that there was no waiver relied on citation All India Power Engineer Federation (supra), wherein the reliance was also placed on the Principle of Law laid down in P. Dasa Munni Reddy, the Hon’ble Apex Court held that :

“The waiver is as has been pointed out above, an intentional relinquishment of a known right. Waiver must be spelled out with crystal clarity for there must be a clear intention to give up a known right.”

It is submitted that whether Trial Court is correct in stating that waiver had not taken place, it is important to examine the correspondence between the parties. There is no any clear correspondence by which the defendant disclose his intention to waive his right of termination.

The learned Counsel for respondent further relied on City Bank N.A.(supra), Hon’ble Apex Court held as thus :

“47. Novation, rescission or alteration of a contract under Section 62 of the Indian Contract Act can only be done with the agreement of both the parties of a contract. Both the parties have to agree to substitute the original contract with a new contract or rescind or alter. It cannot be done unilaterally.”

It is contented by the learned Counsel for appellant that the earlier suit was filed under bonafide belief that suit is maintainable. However, when it was revealed that in view of Section 69 (2) only registered partnership firm can file a suit, it was withdrawn. There is nothing wrong in it. Learned Counsel relied on Surajmal Dagaduramji (supra), wherein the plaintiff had instituted earlier suit under a bonafide belief that his firm was duly registered.

It was subsequently ascertained that the registration was not under the Indian Partnership Act but under Section 26(a) of the Indian Income Tax Act.

The learned Counsel for respondent vehemently submitted that there is no waiver of notice of termination by the respondent. He relied on P. Dasa Munni Reddy (supra), wherein Hon’ble Apex Court held that

“The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. The doctrine which the Courts of Law will recognize is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of Courts.”

While arguing scope of Section 14 of the Limitation Act, learned Counsel for appellant relied on Union of India and others Vs. West Coast Paper Mills Limited (supra), wherein Hon’ble Apex Court held that Section 14 of the Limitation Act is wide enough in its application, inasmuch as it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to cases where the prior proceedings have failed on account of other causes of like nature. The expression, “Other cause of like nature”, came up for the consideration of this Court in Roshanlal Kuthaliya Vs. R.B. Mohansingh Oberoi 1975(4) SCC, 628, and it was held that:

“Section 14 of the Limitation Act is wide enough to cover such cases where the defects are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstance, legal or factual, which inhibits entertainment or consideration by the Court of the dispute on the merits comes within the scope of the Section and a liberal touch must inform the interpretation of the Limitation Act, which deprives the remedy of one who has a right.”

The contention of the respondents that first suit itself was filed beyond limitation. Second contention is that the so called receipts at Exh.151 is fabricated receipt. There is no signature below portion ‘A’ of defendant No.1. Moreover the said payment made by New Viraj Builders and Developers, whereas suit is filed by New Viraj Housing Agency Builders and Developers. The so called payment in respect of which both the Courts below, recorded concurrent finding of fact and therefore it need not be interfered at the stage of second appeal.

It is admitted fact that there is no challenge to the notice issued by the defendant of termination of agreement dated 18/03/2002. In absence of seeking any declaration of the said termination notice, the suit itself in the present form is not maintainable. It was pointed out that through plaintiff claimed that there was one additional agreement to sell was executed by the defendant No.1 in favour of developer dated 25/08/2002 (subsequent to issuance of notice of termination). However the plaintiff has not produced any such alleged agreement in Trial Court nor at Appellate stage, which clearly establishes that there was no such additional agreement was executed between the parties. It is contention of the Counsel for respondents that earlier suit filed in 2005, came to be withdrawn as plaintiff’s firm was not registered firm as required under Section 69(2) of the Indian Partnership Act. As first suit itself was barred by the limitation, the subsequent suit equally barred by limitation.

The learned Counsel for the respondents vehemently submitted that as such the suit is filed beyond limitation. The learned Counsel also submitted that the suit become infructuous in view of subsequent agreement with one Ramesh Mahajan for development of the plot.

Learned Counsel for the respondent drawn my attention to Order 23, Rule 2 of the Limitation Act which reads as under:

ORDER XXIII – WITHDRAWAL AND ADJUSTMENT OF SUITS

“2. Limitation law not affected by first suit.- In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.”

Learned Counsel for respondent relied on Gangadhar Ramsa Gudwar (supra), wherein this Court dealing with similar question held as under.

“11 ........

As noted above, plaintiffs share was denied on 21-10-2006 itself. Moreover, under the provisions of Order 23, Rule 2 of the Code of Civil Procedure, the fresh suit instituted after grant of liberty is required to be filed within limitation in the same manner as if the first suit had not been instituted. It is, therefore, clear that the subsequent suit was barred by limitation. Both the Courts have rightly considered the aspect of limitation and have held against the plaintiff. Hence the first substantial question of law as framed is answered by holding that the suit as filed was beyond limitation.”

Learned Counsel for respondents submitted that the plaintiff has not challenged the notice of termination of agreement dated 18/03/2002. The said notice was also not replied though duly served. It is pointed out that in spite of several amendments in the plaint, there is no challenge to the notice terminating agreement dated 18/03/2002. The suit therefore is not maintainable in absence of seeking any declaration of the said termination notice as illegal. It is contended that the first suit which was filed on 12/07/2005 after issuance of notice dated 18/03/2002, itself beyond the period of limitation. Though it is pleaded that one additional agreement to sell was executed by the defendant No.1 in favour of developer dated 25/08/2002, however, the plaintiff has not produced the said alleged agreement to sell on record. Thus, there is no documentary evidence to substantiate that there was any fresh agreement executed between the defendant No.1 and the developer firm. It is a matter of record that the first suit i.e. R.C.S. No.571/2005 came to be withdrawn as plaintiff firm was not registered firm as required under Section 69 of the Indian Partnership Act. After withdrawal of first suit, Special Suit No. 457/2008 came to be filed on 11/04/2008. It is the contention of the defendant that first suit itself was barred by limitation, the second suit is equally barred by limitation.

Admittedly there was notice issued by respondent/defendant on 18/03/2002 canceling the agreement. The said notice was never challenged by the plaintiff nor replied. As discussed earlier the defendant No.1 admitted that the defendant No.1 though admitted that Rs.1,00,000/- by way of two cheques are received by him but it is not a part of consideration. He has duly established that the said plot instead of development used for leasing out to third person and one Mahesh Trading Company for making plastic items. There is no denial of this fact. As such, the plaintiff have failed to establish that they have paid total consideration to the defendant No.1.

The suit is filed on 12/07/2005, whereas, the cause of action arose when notice of termination of agreement received by the plaintiff i.e. the notice dated 18/03/2002. Whether notice was premature and contrary to the terms of contract is concerned, unless the same is challenged this submission is of no use. In absence of any agreement for extension or any renewal agreement, it cannot be held that there is waiver of notice of termination.

Learned Counsel for respondent Shri R.P. Joshi pointed out Order 23, Rule 2 of the Code of Civil Procedure, wherein the limitation for the suit filed after permission granted to withdraw with liberty. The plaintiff shall be bound by the law of limitation only in the same manner, as if the same suit has not been instituted. In spite of many amendments the plaintiff/appellant has not challenged the notice issued for termination of agreement.

The issue of receipt alleged to have been executed if perused, there are no details when and how the amount of Rs.5,15,000/- were paid and the second part of the said receipt i.e. portion marked - ‘A’ executed in the month of August 2002 without there any signature of the respondent/defendant No.1 below it, which clearly goes to show that the attempts are made to show that the total consideration is paid.

The subsequent payment after termination of agreement cannot be treated as a payment of part consideration without there being any extension of time agreed between the parties for execution of sell or without any fresh agreement executed between the parties. The suit filed on 12/07/2005, itself beyond limitation as cause of action arose on 18/03/2002, when the notice of termination of agreement was issued by the defendant and duly received on 19/03/2002. As first suit itself was not within limitation, there is no question of treating second suit within limitation.

In view of Section 14(3) of the Limitation Act, it is intended to provide relief against bar of limitation, where remedy is mistakenly taken recourse to or selection of a wrong forum. Therefore, Section 14 requires wide ambit and restraint liberal interpretation. It is further argued by learned Counsel for the appellant that Section 14(3) refers to the suit instituted on withdrawal and the period has to be excluded during which a former civil proceeding was pending, when such institution of fresh suit is after granting permission on the ground that the first suit must fail by the reason of a defect in the jurisdiction of the Court or “other cause of like nature”.

The learned Senior Counsel Shri Bhangde vehemently argued that by giving liberal interpretation to other cause of alike nature suit can be entertained. Admittedly, suit was withdrawn as partnership firm was not registered one and in view of Section 69 of Partnership Act, the suit would have failed. However, this cannot be treated as defect in the jurisdiction of the Court or other cause of a like nature.

The suit filed on 12/07/2005 i.e. R.C.S. No. 571/2005, itself filed beyond limitation. Therefore there is no question of any exclusion of period which was spent in prosecuting the remedy in earlier suit. Thus, fresh suit presented on 11/04/2008 is beyond limitation in view of article 54 of the Limitation Act. As such, the third substantial question of law is answered in the negative and I hold that there is no error of law or fact in recording finding that the suit is filed beyond limitation.

The fourth substantial question of law relates to the finding recorded by learned District Judge that there is no privity of contract between the plaintiff and defendants. Admittedly, development agreement dated 16/9/1999 was executed amongst Ms New Viraj Builders and Developers whereas suit came to be instituted by New Viraj Housing Agency Builders and Developers. Admittedly these are two separate firms. However, it is contended by the appellant that both the firms are one and the same.

Learned Counsel for appellant submitted that both the Lower Courts erred in holding that there was no privity of contract.

The learned Counsel relied on K.S. Satyanarayana (supra), in support of his contention that after the defendants admitted having received rupees from the plaintiff, he could not retain that money on the specious plea that there was no privity of contract between him and the plaintiff. In the said matter before Hon’ble Apex Court, the amount of Rs.1,00,000/- had been given to defendant No.1 by the plaintiff as he wanted to purchase the ground floor of his property. The agreement to sale for the purpose was entered into through the second defendant whom the first defendant had authorized to enter into any such agreement on his behalf. The plaintiff could not have paid to the first defendant Rs.1,00,000/-but for the agreement to sale in respect of the ground floor of his property. It is only on the basis of this agreement which is entered into by the second defendant on the strength of authorization that the plaintiff paid Rs. 1,00,000/- each to the first and second defendant. The Hon’ble Apex Court held that :

“If we accept the pleadings of the 1st defendant then the amount of rupees one lakh had been given by the plaintiff under some mistake. In any case, it was not a payment gratuitously made. The doctrine of undue enrichment would squarely apply in the case and plaintiff would be entitled to the restitution.”

The facts are distinguishable as 2nd defendant was authorized to enter into agreement.

The learned Senior Counsel for appellant relied on N. Khadervali Saheb (supra), in support of his contention, wherein Hon’ble apex Court held that :

“A partnership firm is not an independent legal entity, the partners are the real owners of the assets of the partnership firm. Actually the firm name is only a compendious name given to the partnership for the sake of convenience. The assets of the partnership belong to and are owned by the partners of the firm. So long as partnership continues, each partner is interested in all the assets of the partnership firm as each partner is owner of the assets to the extent of his share in the partnership.”

Similar is the view taken in M/s Malabar Fisheries Company (supra). However in both the above citations fact involved are different. In Khadervali Saheb (Supra), the question before the Apex Court was that whether compulsory registration is required when arbitration award distributing the residue assets of the dissolution of firm after settlement of account on dissolution of partnership. It is held by Apex Court that the provisions for compulsory registration will not attract. It is held that firm is only compendious name given to the partnership of partners are the real owners of the asset and therefore allotment of asset to individual partners on dissolution of partnership does not constitute partner of any asset of the firm and therefore award recording such settlement does not required registration under Section 17(1). In case of Malabar Fisheries (supra) also the question of distribution of asset among partners on dissolution of firm was involved and the rights of the partners on dissolution of firm held to be mutual adjustment of rights between partners and there is no question of extinguishment of firm’s right in the partnership asset amounting to ‘transfer’ of asset within the meaning of Section 2(47) of the Income Tax Act. Thus principle applied in respect of distribution of asset after dissolution of partnership firm. Here facts are totally different. The firm which enters into agreement is not the firm filed a plaint. The partners of the said firms on the day of agreement were not the same and it is not the case that developer partnership firm is dissolved and merged into plaintiff firm. As such with due respect to the ratio laid down in the above citation, it is not applicable to the present set of fact.

On perusal of documents placed on record, it appears that M/s. New Viraj Housing Agency Builders and Developers consisting of partners Chandrashekhar Mudliar, Rekhabai Gawhankar and Gangadhar Zade registered on 01/09/1994. It also appears from Exh. 101 that Rekhabai Gawankar and Gangadhar Zade have retired whereas Shashi Mudliar was introduced and accepted as a partner in the said partnership firm on 01/04/1997 and fresh deed of partnership was executed on 01/04/1997 (Exh.102).

On 09/11/1994, it appears that the name of New Viraj Housing Agency of the firm changed to New Viraj Housing Agency Builders and Developers. However there is no firm registered by name New Viraj Builders and Developers. The name of Shashi Mudhliar accepted as a partner/ the plaintiff firm upon notice of change of dissolution of firm dated 10/04/2007 issued on 11/04/2007. Thus on the day of execution of agreement, there was no firm registered by name M/s New Viraj Builders and Developers. Admittedly, the partners of New Viraj Builders and Developers shown in the partnership deed is as Smt. Shashi Mudhliar and Satish Kundawar. Though it is claimed that Shashi Mudliar became partner of New Viraj Housing Agency Builders and Developers on 01/09/1994. Notice of change in form- E came to be filed on 10/04/2007 for the first time.

The contention of the appellant that “New Viraj Builders and Developers” firm is the same firm i.e. “New Viraj Housing Agency Builders and Developers” is having no substance. Only because one of the partner is partner in another firm it cannot be treated as one and the same firm. Thus learned District Judge rightly appreciated these facts and there is no error whatsoever in recording the finding that New Viraj Builders and Developers was not registered as a partnership firm at any point of time even on the date of agreement of development or on the date of filing of either suit. The defendant No.1 never entered into contract with the firm by name New Viraj Housing Agency Builders and Developers. The defendant in counter claim of written statement Clause – E specifically denied that there was no contract between the defendant No.1 and New Viraj Housing Agency Builders and Developers.

As such there was no privity of contract between the plaintiff and defendant no.1. It is not the contention of the appellant that the New Viraj Housing Builders and Developers firm was dissolved and merged into firm M/s Viraj Housing Agency Builders and Developers. Nor there is any submission that the assets and liabilities New Viraj Housing Builders and Developers is the assets and liabilities of M/s Viraj Housing Agency Builders and Developers. Their partners are also different, except one partner is common that too notified in the year 2007 which is not sufficient to treat both the firms as one and the same. Accordingly, answers the substantial question of law in the negative.

I have considered the rival contentions of the parties. As per the appellant, there is specific mode of payment which is based on development of property. In Clause – 3 (1) the said mode of payment is given. It is also correct to say that after payment of Rs.1,11,000/- at the time of agreement, the second installment will be due within fifteen days from the date of sanction of building plan. There is no dates specified in the said mode of payment. It is well settled principle of law that when there is no time specified or time is not essence of contract, the plaintiff is expected to perform his part of contract within reasonable time.

On perusal of Exh.146 Clause – 6 of the said agreement reads as under:

The DEVELOPERS shall commence the actual construction on execution of this Agreement and subjects to availability of all the building material and within approximate two years complete the entire scheme, subject to no other hindrance from N.I.T. of State Government. However, this period of two years may be extended for another period of one year as grace period for any unavoidable reason beyond the control of the DEVELOPERS on the same terms and Conditions. It is also agreed that the OWNER shall not be responsible on any taxability on account of payment of Sales Tax or Works Contract Act etc. The DEVELOPER shall be free to recover the same from the prospective purchasers.

In view of this clause, it is expected that the plaintiff to perform his part of contract within approximate period of two years and the said period may be extended for another one year as a grace period for any unavoidable reason. It is not the case of the plaintiff that there was any non-cooperation on the part of defendant No.1.

On the contrary, inspection report of Nagpur Improvement Trust clearly shows that the plot was leased out by the plaintiff to one Mahesh Trading Company on their own showing the amount towards regularization paid on 31/08/2002 and regularization charges paid on 25/09/2002. The agreement of dated 16/09/1999, the scheme was required to be completed within two years and extension for another year for the reasons beyond control of developers. It is duly established by the defendant No.1 that there was breach of condition of contract and notice of termination of agreement in such circumstances was justified. Moreover, two cheques got dishonoured issued by developer.

In view of this, the finding recorded by the Trial Court in respect of interpretation of agreement dated 16/09/1999 is perfectly justified. Accordingly, I answer substantial question of law No.5 in the negative.

So far as substantial question of law in respect of power of attorney dated 28/09/1999 is not irrevocable and was illegally cancelled, is not pressed by the Counsel for the appellant.

In the facts and circumstances and for the reasons recorded above, I do not see any reason to interfere in the judgment and order passed by both the Courts below. Hence, I pass the following order :

ORDER

i) Appeal is dismissed.

ii) Pending Civil Application Nos. 781/2021 and 780/2021 are also disposed of.

ii) Decree be drawn accordingly.