A.H. Saikia, J.@mdashHeard Mr. D.C. Mahanta, learned senior Counsel assisted by Mr. A.K. Goswami, learned Counsel for the Appellant. Also heard Mr. A.R. Banerjee, learned Sr. Counsel assisted by Ms. B. Choudhury representing the Respondents.
2. This first appeal has been directed against the impugned judgment and order dated 27.3.87 passed by the learned District Judge, Dhubri in Title Suit No. 17/86 dismissing the suit of the Plaintiff/Appellant filed u/s 10 of the Specific Relief Act, 1963 (for short, "the Act") for specific performance of an oral contract for sale of immovable property.
3. The facts, in a nutshell, leading to instituting the title suit in question may be noticed as under. It is alleged in the plaint that the Defendants/Respondents 1 and 2 entered into a verbal contract on 15.6.83 with the Plaintiff/Appellant, being a partnership firm, for the sale of the suit premises which was under the occupation of the Appellant as tenants for a consideration of amount of Rs. 80,000/-. As a sequel of such contract, the Appellant paid Rs. 5,100/- as advance on that day itself to the Respondent No. 1 and 2 who agreed to execute a formal sale deed after Dewali on receipt of the balance amount of consideration as fixed. The case of the Plaintiff was that though it was ready to pay the balance amount, the Respondent Nos. 1 and 2 did not come to execute the sale deed as promised. Therefore, the Appellant had to sent a letter dated 29.11.83 under certificate of posting requesting the Respondents to come to Dhubri and execute the sale deed. But on the other hand, the Appellant came to know later on that the Respondent Nos. 1 and 2 made a negotiation to sale the suit premises to Defendant/Respondent No. 6 during December, 1983 and in fact three sale deeds in the names of the Respondent Nos. 3, 4 and 5 were prepared on 17.12.83 out of which one sale deed was got registered. Immediately the Plaintiff/Appellant laid objection before the Sub-Registrar who suspended the registration of the other two sale deeds. In the meantime the Appellant filed a suit for declaration and injunction against the Respondent Nos. 1 and 2 on 21.12.83 through T.S. No. 55/83 for restraining them from executing any sale deed to any one except the Appellant and obtained an order of temporary injunction which however stood vacated and the Respondent Nos. 3 and 4 got their sale deed duly registered by the Respondent Nos. 1 and 2. During the pendency of title suit No. 55/83, the Plaintiff/Appellant field the instant suit i.e. T.S. No. 17/86 (earlier numbered as T.S. 5/84) on 30.1.84 on the same cause of action against the Respondent Nos. 1 to 6. Thereafter, the Appellant withdrew the earlier Suit i.e. T.S. No. 55/84 but proceeded with the present case for specific performance of the contract.
4. The Defendants/Respondent Nos. 1 and 2 contested the suit refuting all the allegations made therein by filing written statement through their constituted attorney Sri Gobinda Ram Agarwalla. Respondent Nos. 3, 4 and 6 also filed written statement separately.
5. It was stated on behalf of the Respondents that the Defendants/Respondents 1 and 2, with the intention to dispose of the suit premises which were under the occupation of the Plaintiff/Appellant as tenant, came to Dhubri from Bombay in the month of April, 1993 and accordingly on 14.4.83 the Respondent No. 1 Mostaram entered into a contract with the Defendant/Respondent No. 6 to sell the suit premises for a consideration of Rs. 1,05,000/- and took an advance of Rs. 10,000/- from the Respondent No. 6. It was also contended that the relationship between the Plaintiff and the Defendant Nos. 1 and 2 became strained. It was agreed that the Respondent No. 1 would execute the sale deed on receipt of the balance amount for consideration. Respondent No. 1 though came to Dhubri again in the month of June, 1983 failed to keep his promise as regards the execution of the sale deed, for which the Respondent No. 6 had to file a Title Suit No. 22/83 on 18.6.83 for declaration of decree and injunction against the Respondent Nos. 1 and 2. After receipt of the summons in that case the Respondent Nos. 1 and 2 came to Dhubri in the month of December, 1983 and compromised the matter with the Respondent No. 6. Consequent upon such amicable settlement on 17.12.83, the Respondent No. 1 drafted three sale deeds in favour of Defendant/Respondent Nos. 3, 4 and 5 who were the sons of Respondent No. 6 for a consideration of Rs. 35,000/-each for the sale of the said suit premises. One of the sale deeds was presented and registered on 17.12.83 when other two deeds though presented on 27.12.83, the Sub-Registrar refused to register the same on the plea that Income Tax Clearance Certificate was necessary for registering any documents in respect of the property worth of Rs. 50,000/- and upwards. For which the Respondent Nos. 1 and 2 left for Bombay and therefrom sent Income Tax Clearance Certificate to their appointed constituted Attorney, Gobindaram Agarwalla (D.W.-1) for that purpose and accordingly the remaining sale deeds were also registered.
6. It is noticed that during the pendency of the previous suit i.e. Title Suit No. 55/83, the instant suit was filed without referring to the filing of the aforesaid previous suit which was later on withdrawn by the Plaintiff/Appellant.
7. The learned District Judge, on consideration of the pleadings of the parties, framed as many as 8 issues initially, and 2 more additional issues were framed later on, on the basis of the additional written statement filed by the Respondents. Following are the issues:
1. Whether the suit is maintainable in its present form?
2. Whether the Plaintiff is a registered firm?
3. Whether there is any cause of action?
4. Whether the suit is barred under the provision of res judicata or constructive res judicata?
5. ...plaint?
6. Whether a suit for specific performance of T.S. 22/83 was started by Defendants No. 6 attorney of M/s. Sarawgi Trading and Order of injunction passed against Mostaram and Ghaturam with effect from 14.6.83 not to sell the property to any person and the said case was compromised?
7. Whether the land was sold before the case is filed by the Plaintiff?
8. To what relief, if any, the Plaintiff are entitled?
ADDITIONAL ISSUES
1. Whether Defendant No. 6 and Ors. entered into agreement of sale on 14.4.83 and advanced money to Defendant No. 1?
2. Whether the T.S. 22/83 was filed by Defendants against Defendant No. 1 and the case was compounded and sale deed was executed?
8. In total 5 witnesses were examined on behalf of the Plaintiff/Appellant in order to prove his oral agreement. Out of those witnesses, 3 were independent witnesses, when one of the partners of the firm, Sri Champ Oswal @ Malu was examined as P.W.-1 and Sri Badraj Malo @ Oswal, an employee of the said firm, examined as P.W.-3. Defendants/Respondents examined 4 witnesses including Defendant/Respondent No. 6 himself as D.W.-4 and one Gobinda Ram Agarwalla, the constituted attorney as D.W.-1 and two other witnesses.
9. The learned District Judge on appreciation of the evidences as well as upon hearing the learned Counsel for the parties dismissed the suit of the Appellant holding that the Plaintiff was not entitled to any relief as the alleged contract was not duly proved.
10. Carefully perused the impugned judgment and also discreetly scanned the testimonies of the witnesses of the parties.
11. Out of 8 issues and 2 additional issues, issues Nos. 1, 2, 3 and 4 were decided in favour of the Appellant by the trial Court and as agreed by the learned Counsel for the parties, those issues need not detain this Court any further for discussion upon the same and accordingly this Court proposes to proceed with the discussion on the issues Nos. 5, 6, 7 and 8 with the additional issues Nos. 1 and 2. As discussed by the learned District Judge, this Court also considers it fit and proper to take up the issues No. 5 and 6 along with additional issues No. 1 and 2 analogously, being inter-related and to decide accordingly. It would not be inconvenient if all these issues are clubbed together to be taken up under one heading of sole category as to whether there was any valid oral contract between the Appellant and the Respondents No. 1 and 2 for the sale of suit premises in favour of the Plaintiff/Appellant.
12. P.W.-1 Sri Charup Oswal @ Malu in his deposition claimed that the Respondent Nos. 1 and 2 entered into a verbal agreement with them in 15.6.83 which was effected at their Gaddi as he was one of the partners of the Plaintiff/Appellant. At the time of this agreement, Mahal Chand, Bachraz, Babulal Bathia, P.W.-4 and Hanumanmal Chhajer, P.W.-5 along with him were present. It was P.W.-4 who came to his gaddi (P.W.-1) at 7.30 p.m. and informed that the owner of their house came to Dhubri and that one Gobind Ram, D.W.-1, had called him over phone. As per his deposition, Respondent Nos. 1 and 2 came to their gaddi and agreed to sale their house at an amount of Rs. 80,000/- out of which he paid an advance of Rs. 5,100/-. In turn Respondent Nos. 1 and 2 said that they would execute the sale deed after Dewali on receipt of the rest amount. He said that ''that was verbal agreement. To that effect nothing was done in writing''. According to him on 15.12.83 he knew from Pannalal, P.W.-2, that Mostaram and Guturam (Respondent Nos. 1 and 2) wanted to sell that house and land to Motilal Jain (Respondent No. 6). On 17.12.83 he knew from one Dhan Roy that three deeds had been made in respect of the land and house which had been proposed to be sold to us. One deed had also been registered in favour of Lalit Kr. Jain (Respondent No. 5) and rest two were yet to be executed. Having come to know about this, the instant case had been filed. He also deposed that this case was filed afresh after withdrawal of the previous one. They had filed their first case through advocate but later on that was withdrawn upon consultation with the Govt. advocate who advised them to withdraw that case and to file a fresh one. From the evidence of this witness it is seen that rent of the suit premises had been deposited in the Court. It was deposed that he had deposited the rent in the year 1984 in the Court as the owner did not accept the rent. They had been paying the rent in the Court since 1981. As regards suggestion, this witness stated that it was not a fact that Plaintiff had no good term with the owner i.e. Respondent Nos. 1 and 2. On close scrutiny of the evidence of this witness, it is seen that he did not speak specifically with whom the said verbal agreement was made as the Plaintiff/Appellant itself was a partnership firm. Though he was also a partner, all throughout of his evidence, he was absolutely silent as to who negotiated the oral contract with the Respondent Nos. 1 and 2. It obviously raises doubt as regards the making of such agreement, being oral in nature. From his testimony, it is ample clear that the Plaintiff was not in good term with the Respondent Nos. 1 and 2 as the same is evident from the deposition of rent in the Court since 1981, Accordingly, this witness negated the statements made in paragraph-7 of the plaint to the effect that the ''the Plaintiff had full faith on the Defendants with whom he had a cordial relations for long past as tenant and as such no receipt was demanded from Defendant Nos. 1 and 2". Further this statement also goes to show that though the Plaintiff is a partnership firm, the same has been mentioned as ''he'' as if an individual person and as such, in view of such statement, the entire story of oral agreement smacks suspicion and qualm.
13. The P.W.-2, Pannalal Varania could not say anything about such agreement. According to him he was told by his maternal uncle Sri Mal Chand on his arrival at his shop at 9 O''clock at night on 16.6.83 p.m., on being called by Mal Chand that an agreement had been made to purchase the land and the house in which their partnership firm had been run for an amount of Rs. 80,000/- out of which Rs. 5,100/- had been paid as an advance. He deposed that no written agreement was made and it was said that there had taken place ''Batchit'' which he heard.
14. P.W.-3, Badraj Malo @ Osal, who was an employee of the Appellant, deposed that on 15.3.83 they had entered into an agreement with Mostaram and Gutu Ram (Respondent Nos. 1 and 2 respectively) regarding purchase of their house and shop and at the time of agreement he was at the gaddi. On 15.12.83, P.W.-2 informed him that Mostaram, having come home, wanted to sell the land to Matilal Jain, the Respondent No. 6 and upon determination of the fact, this case was filed. This witness also failed to mention categorically with whom the so called agreement was made. He however deposed that the account of the transaction of money, made on 15.6.83, was recorded in their account Khata, Ext. 3 which was known as ''Rakar'' Khata. Since the matter relates to an oral agreement and keeping in view the Plaintiff, being a firm, in absence of any specific statement as to with whom the said agreement was effected, the deposition of this witness hardly get its credibility.
15. In his deposition, Babulal Bathia, P.W.-4 an independent witness, who was named by P.W.-1 as being present at the time of making the agreement, stated that Gobinda Ram Agarwalla, D.W.-1 proposed to sell the suit land and house to him. He told him to inform him when the owner came. One day (without mentioning the date) after getting a phone call from Gobinda Ram, he went to his house where he was introduced to the Respondent Nos. 1 and 2 who sought Rs. 90,000. Both the Respondent Nos. 1 and 2 asked him to come to the Plaintiffs house. According to him he came to the shop of the Plaintiff/Appellant and gave information about this. Both the Respondents Nos. 1 and 2 came to the gaddi of the Plaintiff/Appellant and an agreement to sell was made at Rs. 80,000/- and they took Rs. 5,100/- as advance saying that they would execute the registered deed after Dewali. Then he said that the date was 15.6.83 but no time was mentioned though in cross he said that at 7.30 O''clock he was over to the gaddi of Gobinda Ram Agarwalla. This witness was also reticent as regards the person with whom the Respondent Nos. 1 and 2 made the verbal agreement. This Court does not think that this witness could prove the execution of an oral contract.
16. Other independent witness namely Sri Hanumanmal Chhajer was examined as P.W.-5. The testimony of this witness goes to show that on 15.6.83 there was an agreement between Jiw Raj Sobhachand (the Plaintiff/Appellant and Mostaram/Gauturam (the Defendants/Respondents) regarding the sale of the house and the land having made on the gaddi of the Plaintiff firm. He claimed that he was present on that day and an agreement was made for Rs. 80,000/- out of which a transaction of Rs. 5,100/- was made in his presence as advance. It was stated by him that Babulal Jee, Malchand, Charup, Chiraj Dwesbeje along with him were present. This witness in cross stated that he never set earlier at the Appellant''s gaddi. It was Babulal, P.W.-4, who called him from the gaddi as he was his friend. From the evidence of this witness it indicates that he also did not mention any name of the Plaintiffs firm who took initiative to enter into the oral agreement with the Respondents. He only stated that on that day there was an agreement between the Plaintiff and Defendant Nos. 1 and 2 regarding the sale of the house and the land. But he did not mention with which partner this agreement was made as the Plaintiff was only a partnership firm. After going through the entire evidences of the Appellant''s witness this Court is constraint to hold that since there was not a whisper about with whom the contract was made by the Plaintiff, there was no valid oral contract ever existed between the parties as claimed by the Plaintiff.
17. On the other hand, on careful analysis of the evidences of the Defendants/Respondents, it is seen that the Plaintiffs case was to some extent damaged by D.W.-1, Gobinda Ram Aagarwalla who was specifically named by P.W.-1 and P.W.-4. According to P.W.-4, as already noticed, it was D.W.-1 who proposed to sale the suit property and called him on telephone to his house where he was introduced to the Respondent Nos. 1 and 2, who sought Rs. 90,000/- for the sale from P.W.-4. But D.W.-1 did not mention anything to support the facts as deposed by P.W.-1 and P.W.-4 in that regard. According to D.W.-1, who was the constituted attorney of Respondent Nos. 1 and 2, it was Respondent Nos. 1 and 2 who came to his house and had an agreement with Respondent No. 6 for sale of the property in question for Rs. 1,05,000/- out of which Rs. 10,000/- was paid as advance.
18. Pertinent it is to mention herein that the Plaintiff admittedly was a partnership firm but curiously enough the names of the partners were not mentioned anywhere in the pleadings of the plaint nor in the cause title as revealed on a plain reading of the plaint. Even the witnesses of the Plaintiff/Appellant kept mum from disclosing the names of the partners. It was only P.W.-1 who in his deposition said that he was one of the partners of Plaintiff. It can only be gathered from the plain reading of the plaint particularly from paragraph-7 that on 15.6.83 a verbal contract was made between the Respondent Nos. 1 and 2 with Sri Mahalchand Oswal on behalf of the Plaintiff in presence of Sri Hanumanmal Chhajer and Babulal Banthia, P.W.-5 and 4 respectively. But from the evidence of P.W.-4 and 5 one has to grope around to find out the name of Mahal Chand Oswal with whom the said agreement was made as indicated in paragraph 7 of the plaint. In the testimonies of the witnesses also, all the time the witnesses maintained that agreement was made with the Plaintiff, the firm with which the Respondent Nos. 1 and 2 entered into an oral agreement. What amazes this Court is that this Mahal Chand with whom, as contended in the plaint, the verbal contract was made, was kept out of the array of the witnesses and that too without any proper and acceptable explanation.
19. The validity of a contract solely depends on ''offer and acceptance''. There must be two persons in a contract, one making an offer to the other who is free to accept the offer or proposal. Similarly for any agreement to be a contract, free consent of the parties, their competency to contract, lawful consideration and lawful object - these are the essential requisites in terms of Section 10 of the Indian Contract Act, (hereinafter referred to as the "Contract Act"). This Contract Act does not require that a contract should necessarily be in writing. Therefore the oral contract or an oral agreement, as the case may be, by which itself the parties are intended to be bound, is valid and enforceable. However, such oral contract or oral agreement must be based on unambiguous and corroborative evidence. It needs to be proved by impeccable testimonies of the witnesses. In the instant case on meticulous examination of the witnesses, it does not project satisfactory and clearest evidentiary value to prove the oral agreement as claimed by the Plaintiff.
20. Mr D.C. Mahanta, learned Sr. Counsel appearing on behalf of the Appellant, has strenuously argued that the evidences of the witnesses especially P.Ws. 1, 4 and 5 explicitly prove the case of oral agreement in favour of the Plaintiff depending on their undeviated and clear corroboration. As such this oral agreement made between the Appellant and Respondent Nos. 1 and 2 is a valid one and enforceable under the law and once it is proved to be valid and legal, the Appellant is entitled to a decree for specific performance under the Act.
21. As regards the validity of the oral agreement, the learned senior Counsel has relied on a decision of this Court reported in 1991 (2) GLJ 479 (Changomal Gupte and Ors. v. Smti Marybella Reade Syiem and Ors.) In that precedent, the Division Bench of this Court held that oral agreement is valid and enforceable but such oral agreement requires clearest and most satisfactory evidence. Nobody has doubted the concept of oral agreement. It is settled law that oral agreement is enforceable having its validity subject to consistent and acceptable evidence to support the same. In the case in hand, in view of the discreetful dissection of the evidences as mentioned above, this Court is not impressed a wee bit with the submission of Mr. Mahanta that the witnesses had proved the existence of a valid oral agreement. On overall consideration of the evidences on record, this Court is in total agreement with the views expressed by the learned District Judge, Dhubri to the effect that the credibility of the oral testimony depends on totality and not on individual scrutiny and existence of any contract between the Appellant and the Respondent Nos. 1 and 2 appeared to be doubtful. Consequently the issues Nos. 5 and 6 along with additional issues Nos. 1 and 2 are hereby decided against the Appellant.
22. Since it is unhesitatingly decided that no oral agreement had ever existed between the Appellant and Respondent Nos. 1 and 2, this Court restrains itself from proceeding to discuss the issues No. 7 and 8 which have lost their importance.
23. Mr. Mahanta, learned Sr. Counsel has further contended that since the Respondent Nos. 1 and 2 promised to sale the land in question on taking Rs. 5,100/- as advance out of the fixed consideration amount of Rs. 80,000/- but failed to carry out the said promise, this present suit was filed u/s 10 of the Act for a decree for specific performance of contract against the Respondent Nos. 1 and 2 to sell the entire property in question to the Plaintiff by directing the dependents/Respondents No. 1 to execute the sale deed in favour of the Appellant. Referring to paragraph 8 of the plaint, Mr. Mahanta, learned Sr. Counsel has urged that as the Respondent Nos. 1 and 2 failed to come to Dhubri as assured by them for execution of sale deed, finally the Plaintiff/Appellant sent a letter on 29.11.83 under certificate of posting requesting him to come to Dhubri to execute the sale deed as he was ready with the balance consideration amount and such communication goes to show that the Respondent Nos. 1 and 2 had failed to perform their part of oral agreement to complete the sale and accordingly the Plaintiff was entitled to a decree to enforce the specific performance of the said oral agreement. This Court does not find any force in such submission. The communication under Certificate of Posting cannot be accepted as a proper intimation for asking the Respondents to perform his part of obligations. The provision of Section 10 of the Act is very clear and simple. It is accepted principle that the relief for specific performance is a discretionary one and can be refused depending on the factual situation of the each case. But such discretion shall have to be exercised on judicial principles without any arbitrariness. In a suit for specific performance, the Court uses its equitable jurisdiction and as such a person seeking relief herein must come with clean hand. From a bare perusal of the plaint as well as on proper appreciation of the evidences of the witnesses adduced on behalf of the Plaintiff/Appellant, it appears that genuineness of the Plaintiffs claim was clouded with doubt and suspicion. Why did plaint not disclose as to who were the partners of the Plaintiff, being partnership firm? What had prevented the Plaintiff from examining Sri Mahalchand Oswal who made verbal contract with Respondent Nos. 1 and 2, as contended in the plaint? For reasons best known to the Plaintiff, no explanation was forthcoming for non-examination of said Mahalchand Oswal. More importantly, it is an admitted fact that the Plaintiff filed the previous suit being Title Suit No. 55/83 on the same cause of action for similar relief. But during the pendency of the said suit, the present suit was instituted without making any reference to the said previous suit and ultimately the previous suit was withdrawn. It has also come on record that the contentions as regard the said oral agreement for sale for consideration of Rs. 80,000/- and out of which Rs. 5,100/-was paid as an advance by the Plaintiff to the Respondent Nos. I and 2, were absolutely absent in the plaint in the previous suit i.e. Title Suit No. 55/83. Such conduct of the Plaintiff attributes enough scope to hold that the Plaintiff had not approached for such equitable relief with clean hand. That being so, this Court has every reason to approve the findings of the learned District Judge, that the Plaintiff was not entitled to any relief whatsoever claimed in the present title suit.
24. Mr Mahanta has referred to a decision reported in (1984)2 GLR 254 (Lalit Mohan Taran v. Lal Mohan Deb and Ors.) to support his submission. In that case, the explaining the nature of remedy u/s 10 of the Act for specific performance of contract, this Court was of the view that "it is settled law that the claim of specific performance assumes the existence of an actionable contract. The Court may exercise discretion in granting or withholding a decree for specific performance; and in the exercise of that discretion the circumstances of the case, and the conduct of the parties and their respective interest under a contract are to be remembered. The relief of specific performance of a contract being of equitable origin and within the discretion of the Court he who seeks equity must come with a clean hand''. This Court is in respectful agreement with the view expressed in Lalit Mohan Tarans case (supra). It is felt that the ratio of this case will go against the interest of the Appellant instead of supporting his case.
25. In view of what has been discussed and observed hereinabove, it is held that by no stretch of imagination the contentions made in the plaint and the testimonies of the witnesses would go to show that there was an oral agreement which can be enforced by this proceeding of specific performance. Taking into account the entire conduct of the Plaintiff, this Court has conclusively arrive at a decision that there is no merit in this appeal and the impugned judgment and order needs no interference.
In the result, the appeal fails.
