1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 189 OF 2005 WITH CROSS OBJECTIONS NO. 5 OF 2006 1. Mr. Guna Krishna Gauns, 2. Mrs. Lakshimi Guno Gauns, both resident of Zari-Bhat, near Bambolim Beach Resort, Bambolim-Goa. .... Appellants V/s 1. Mr. Antonio Joao Braganza alias Antush Braganza, resident of Braganza Chambers, Merces, Ilhas Goa. 2. Mr. Gabriel Caetano Braganza, Bragnza Chambers, Merces, Ilhas Goa. 3. M/s. Menezes Fishnets Industry Pvt. Ltd. a company with its office at Rua Joao de Castro near Head Post Office, represented by its Director, Mr. Francis Menezes. 4. Mr. Alwyn Sabino Noronha, Son of Alfred Francis Noronha, resident of Altinho, Panaji-Goa. Represented by his attorney Mercia Laura F.M. Noronha. 5. The Mamlatdar of Record of Rights, Tiswadi, Taluka Panaji-Goa. 6. Mrs. Victoria D'Souza, wife of Issac I. D'Souza. 7. Mr. Issac I. D'Souza, both residing at Merces, Ilhas Goa. 8. Mrs. Gregorina Oliveira Braganza Chambers, 2 Merces, Ilhas Goa. .... Respondents Mr. R.G. Ramani, Advocate for the Appellants. Mr. F.E. Noronha, Advocate for Respondents No. 2,6,7 & 8. Mr. M.S. Sonak, Advocate for the Cross Objectors/Respondents No. 3 & 4. CORAM : A.P. DESHPANDE & N.A. BRITTO, JJ. Date of Reservation of Judgment : 26th NOVEMBER, 2008 Date of Pronouncement of Judgment : 15th DECEMBER, 2008 JUDGMENT: (Per N.A. BRITTO, J.) The appellants herein are the plaintiffs, and, shall hereinafter be referred to as such, whose suit for declaration and other consequential reliefs has been dismissed by the learned trial Court vide judgment/order dated 30/03/2005, and, aggrieved by the said judgment/order the present appeal has been filed. In order to dispose of the same, some facts are required to be stated. 2. The plaintiffs were the owners of a property known as Odlem Bhat admeasuring 22474 sq. mts. surveyed under nos. 52/3 and 51/3 of village Curca in which there were some mundkarial houses. On or about 24/12/1992, the plaintiffs and defendant no.1 executed a deed styled as agreement of sale and the plaintiffs also executed in favour of defendant no.1, 3 an irrevocable general power of attorney. In terms of the said agreement of sale, the plaintiffs agreed to sell the suit property for an amount of Rs. 14 lacs and received a sum of Rs. 3 lacs and the balance was payable on future dates i.e. Rs. 2 lacs on 30/04/1993, Rs. 2 lacs on 30/07/1993, Rs. 6 lacs on 31/12/1993 and Rs. 1 lac on completion of development work. It was further stipulated that on receipt of such payment conveyance of the suit property or part thereof would be executed by the plaintiffs in favour of defendant no.1 or his nominee. Clause 4 stipulated that vacant possession of the suit property was handed over to defendant no.1 for the purpose of development and acknowledged that an irrevocable power of attorney was executed for the purpose of development works and to accept the bookings. The parties agreed that defendant no.1 would be entitled to specific performance of the agreement. The irrevocable general power of attorney contained several clauses and amongst them clause 12 authorised the defendant no.1 to enter into agreement or agreements of sale of the said property or parts thereof with any prospective purchaser and to accept consideration towards the same from them. Clause 5 authorised defendant no.1 to attend before any Registrar, Sub- registrar or Dy. Registrar of Assurances and to execute and present for registration and admit execution by the plaintiffs of any agreement, deed, conveyance, transfer, assignment, assurances, releases, indemnity or other instrument or writing the registration of which is compulsory and generally to do all things necessary or expedient for registering the said deed, instruments 4 and writings or any of them as fully and effectually as the plaintiffs themselves would have done. 3. The plaintiffs inspite of the said agreement and irrevocable power of attorney having been executed in favour of defendant no.1, executed 5 deeds of sale in favour of the mundkars, the last on 21/12/1993 and also accepted sale price in respect of another three sale deeds made under the relevant provisions of the Mundkar Act, all the three sales having taken place on 30/11/1993. The defendant no.1 also executed either in favour of defendant no.2 or the remaining private defendants about 10 sale deeds, the last having been executed on or about 27/01/1995. Afterthat, the plaintiffs by public notices dated 29th and 30th April, 1995 revoked the irrevocable power of attorney. Thereafter, on or about 4/11/1995 the defendant no.1 wrote a letter to the plaintiffs alleging that the plaintiffs had sold about 8259 sq. mts. fraudulently and without the knowledge of defendant no.1. It was also alleged that the instalments could not be paid as per the agreement for sale on account of failure of the plaintiffs to produce title documents. It was further stated that the defendant no.1 had agreed to sell about 14,215 sq. mts. at the agreed rate of Rs. 62/- per sq. mt. which worked out to Rs. 8,81,330/- and as the amount of Rs. 3 lacs was paid to the plaintiffs under the agreement dated 24/02/1992 the defendant no.1 owed to the plaintiffs only a sum of Rs. 5,81,330/- which the plaintiffs were called upon to collect within a period of 5 7 days from the receipt of the letter without prejudice to the right of defendant no.1. The plaintiffs replied to the said letter vide reply dated 21/11/1995 contending that the price fixed was low at Rs. 62/- per sq. mt. because the suit property was in occupation of various persons when the actual market price was Rs. 200/- per sq. mt. The plaintiffs stated that the sale deeds in respect of the mundkars was done at the request of defendant no.1. It was further stated that the statements of defendant no.1 were false, as defendant no.1 was throughout denying that he had made any sales and for that he was unable to pay any amount to them. It was stated that defendant no.1 had no power to sell and the sale deeds made by defendant no.1 were null and void. 4. The plaintiffs then filed the suit on or about 22/01/1996 for declaration that the said 10 sale deeds were null and void and although consequential reliefs were sought, the plaintiffs did not seek any relief, either for the recovery of possession of the property sold by defendant no.1 or for the recovery of the amount due under the agreement. The suit was filed alleging that the plots sold to the mundkars were sold at the instance of defendant no.1. It was further alleged that the power of attorney dated 24/12/1992 only authorised defendant no.1 to develop the suit property and not to sell the same. It was also alleged that the defendant no.1 had committed a fraud by replacing pages nos. 3,4,5 & 6 of the power of attorney and also the pages of 6 the said agreement. The suit was resisted by defendant no.1 alleging that the plaintiffs themselves had sold an area of 8260 sq. mts. of the suit property to various persons inspite of the said agreement behind the back of the plaintiffs. It was further alleged that the plaintiffs had allowed, without the consent of defendant no.1, certain persons to construct huts in the property after signing of the agreement. Defendant no.1 had also pleaded that the defendant no.1 was liable to pay to the plaintiffs only for the balance area left of 14,215 sq. mts. after permissible deductions. The defendant nos. 2,6,7 & 8 contended that they were bona fide purchasers of various plots from defendant no.1. 5. The learned trial Court framed several issues. The plaintiffs examined plaintiff no.1, their son and another witness. The defendants did not examine any witnesses. The learned trial Court came to the conclusion that the plaintiffs had failed to prove that pages nos. 3,4,5 & 6 of the power of attorney were replaced fraudulently by defendant no.1 and likewise also came to the conclusion that the plaintiffs had failed to prove that power of attorney had authorised defendant no.1 only to develop the property. Consequently, the suit came to be dismissed with costs. 6. At the hearing of this appeal, the submission made before the learned trial Court and findings recorded thereon have receded into insignificance, in 7 the light of another formidable submission made on behalf of the defendants as regards the maintainability of the suit itself i.e. main relief and that is in the light of the proviso to Section 34 of the Specific Relief Act, 1963. The submission is that the suit was bound to fail in the absence of a prayer for recovery of possession of the plots sold. 7. Section 34 of the said Act deals with declaratory decrees and provides that any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying or interested to deny his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief. The proviso states that no Court shall make any such declaration where the plaintiff, being able to seek further relief, then a mere declaration of title, omits to do so. 8. Admittedly, in terms of agreement of sale dated 24/12/1992 between the plaintiffs and defendant no.1, defendant no.1 was put in possession of the suit property and clause 5 of the irrevocable power of attorney authorised defendant no.1, to execute and present for registration any agreements, deeds, conveyances, etc. and pursuant thereto that the defendant no.1 executed the sale deeds in favour of the private defendants, more particularly, those mentioned in prayer clause (a) of the plaint. Although the defendants did not 8 step in the witness box, the case of defendant no.1, that the plaintiffs sold an area of 8260 sq. mts. behind his back appears to be more probable. The plaintiff no.1 in his cross-examination admitted that the statements of para 28 of the plaint were false. The said averments of para 28 dealt with the allegation of the plaintiffs that defendant no.1 had gone about telling the mundkars that defendant no.1 had authorised the plaintiffs to execute the sale deeds in respect of their area. The evidence clearly shows that neither the plaintiffs nor defendant no.1 are in possession of the suit property and the suit property has now been sold by the plaintiffs in an area of 8260 sq. mts. for which the plaintiffs have received a consideration of Rs. 77,000/- to his erstwhile mundkars and the remaining land has been sold by defendant no.1 by the said sale deeds. The plaintiffs have not sought for the recovery of possession of the plots sold pursuant to the sale deeds mentioned in prayer clause (a) of the plaint. Admittedly, the plaintiffs were out of possession, as they had handed over the possession to the defendant no.1 in terms of the agreement and later in turn the defendant no.1 sold the plots to the private defendants, who are in possession of the same and in such a situation it was expected of the plaintiffs to seek further relief of recovery of possession. A suit for declaration of sale deeds as null and void would not be maintainable without recovery of possession of the property pursuant to the sale deeds. 9. The object of the proviso to Section 34 of the said Act, is to prevent a 9 multiplicity of suits by preventing a person from getting a mere declaration of right in one suit and then seeking the remedy without which the declaration would be useless and which could have been obtained in the same suit, in another suit. A claim is said to be consequential only when it cannot be claimed in the absence of a claim for declaration. Otherwise it would lead to multiplicity of litigation for the declaratory suit will have to be followed up with an ejectment action for recovery of possession. It is well settled law that a suit for mere declaration when consequential relief which is available and which is not sought for, is not maintainable. The Apex Court in Ram Saran & Anr. V/s. Smt. Ganga Devi (AIR 1972 SC 2685) has clearly and unequivocally stated that where the defendant is in possession of the some of the suit properties and the plaintiff in his suit does not seek possession of those properties but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable. The same principle is applicable in this case also for the plaintiffs only sought for a declaration that the sale deeds executed by defendant no.1 be declared null and void without a prayer for recovery of possession which had passed on in the hands of the defendants in whose favour the said sale deeds were executed, and which admittedly are now in possession of the defendants. That was a case where Ganga Devi was in possession of the some of the suit property and the plaintiffs had not sought the possession of the suit property and it merely claimed declaration that they are the owners of the suit properties and it is in 10 that context that the Apex Court held that the suit was not maintainable. 10. The Apex Court in the case of Vinay Krishna V/s. Keshav Chandra & Anr. (AIR 1993 SC 957) has further held that the failure to ask for relief of possession undoubtedly bars the discretion of the Court in granting the decree for declaration. The Court has held that merely because the plaint says in the prayer such other relief be granted to the plaintiff it does not mean that without a specific plea for possession and disregarding the bar under Section 42 (now Section 34, proviso) of the said Act, the suit could be decreed even with reference to the portions of which the plaintiff has been in possession. In the absence of specific prayer for the recovery of possession of the property sold by the said sale deeds to the defendants, the suit for declaratory relief filed by the plaintiffs was clearly not maintainable and in this view of the matter also, the dismissal of the suit for main relief could not be faulted. 11. Nevertheless the question remains whether the plaintiff would be entitled to recover any amount at all from defendant no.1 and, if so, with interest. As already noted, the plaintiffs did not seek the recovery of any amount from the defendant no.1. Nevertheless, we are inclined to consider that relief in terms of prayer (h). That the plaintiffs had sold an area of 8260 sq. mts. to the plaintiffs' mundkars for which the plaintiffs had received a consideration of Rs. 77,000/- is an admitted position, though on behalf of the 11 plaintiffs it is contended that the plaintiff no.1 did not understand the question when he answered that the total area sold to the mundkars comes to 8260 sq. mts. The defendant no.1 had clearly stated in his notice dated 4/11/1995 that the plaintiffs without his consent and knowledge had sold an area of about 8259 sq. mts. to various persons by sale deeds and sale agreements. The plaintiffs in their reply dated 21/11/1995 did not contest this position. Again defendant no.1 in his written statement pleaded that the plaintiffs had sold an area of 8260 sq.mts. Admission by the plaintiffs that the area sold by them to the mundkars comes to 8260 sq. mts. had to be seen in the overall context of the facts of the case. Once the plaintiffs had admitted that 8260 sq. mts. was sold by the plaintiffs to the mundkars and received consideration for the same, the defendant no.1's contention, although they had not left any evidence, that defendant no.1 was liable to pay to the plaintiffs only Rs. 5,81,330/- appears to be far more probable. As said before the plaintiffs did not seek recovery of any amount from the defendant no.1 which according to them was due and payable by defendant no.1 in terms of the said agreement either before the trial Court or before this Court. However, we find that the plaintiffs did seek “for any other order this Hon'ble Court deems fit and proper in the interest of justice”, in terms of prayer clause (h) of the petition. Order 7, Rule 7, CPC, provides that every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given 12 as the Court may think just to the same extent as it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement. It is well settled proposition of law, and, we did not think that it requires the support of any authority, that a relief can always be moulded by the Court and can be granted even if not claimed if it is otherwise clear from pleadings and evidence on record. The learned Counsel on behalf of defendant no.1 has been ready and willing to pay to the plaintiffs the sum of Rs. 5,81,330/- but without interest contending that, it is an amount which defendant no.1 tendered to the plaintiffs and having not accepted the same, the plaintiffs would not be entitled to any interest and further contending that, in case the plaintiffs had sought for the recovery of any money then defendant no.1 could have deposited the same in Court so as to discharge his liability. On the other hand, learned Counsel on behalf of the plaintiffs has submitted that the defendant no.1 could have filed the suit for specific performance of the agreement or kept the money in the Bank. The learned Counsel further submits that the offer made by the defendant no.1 was conditional and therefore contrary to Section 38 of the Indian Contract Act, 1872. 12. Section 37 of the Contract Act deals with obligation of parties to contract and states that the parties to a contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed 13 with or excused under the provisions of this Act, or of any other law. Promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract. Section 38 deals with effect of refusal to accept offer of performance and it provides that where a promisor has made an offer of performance to the promisee, and the offer has not been accepted, the promisor is not responsible for non-performance, nor does he thereby lose his right under the contract. Every such offer must fulfill the following conditions:- (1) it must be unconditional; (2) it must be made at proper time and place, and under such circumstances that the person to whom it is made may have a reasonable opportunity of ascertaining that the person by whom it is made is able and willing there and then to do the whole of what he is bound by his promise to do; (3) if the offer is an offer to deliver anything to the promisee, the promisee must have a reasonable opportunity of seeing that the thing offered is the thing which the promisor is bound by his promise to deliver. An offer to one of several joint promisees has the same legal consequences as an offer to all of them. 13. By the said letter dated 4/11/1995, after setting out that the plaintiffs had fraudulently sold an area of 8260 sq. mts. and after showing how the said amount of Rs. 5,81,330/- was worked out by defendant no.1, on the basis of the total area and the price per sq. mt. and minus the deductions, the defendant no.1 stated in the said letter that “in case you fail to collect and encash the cheque for the above amount within 7 days from the date of 14 receipt by you of this letter, the offer made in this letter stands withdrawn and I review my rights to take necessary steps in the matter”. 14. In our view, the said letter dated 4/11/1995 can by no stretch of imagination be construed as a tender of the amount due by defendant no.1 to the plaintiffs i.e. of Rs. 5,81,330/-. Nothing had prevented the defendant no.1 to send the amount of Rs. 5,81,330/- by cheque along with the said letter dated 4/11/1995 and only in that case, it could have been said that defendant no.1 had tendered the amount which according to defendant no.1 was due to the plaintiffs. Defendant no.1 since then has made use of the said amount of Rs. 5,81,330/- which according to defendant no.1 was due and payable to the plaintiffs under the said agreement of sale. There cannot be any dispute regarding the propositions of law as expressed by learned authors or laid down in various decisions cited at the Bar by learned Counsel on behalf of defendant no.1, to which we shall not refer briefly. 15. What is “tender” in English Law, is “an offer to perform” under Section 38 of the Indian Contract Act. At page 478 of Anson's Law of Contract it is stated that the tender is of two kinds and it is applied to a performance of a promise to do something and of a promise to pay something. In each case the performance is prevented by the act of the party for whose benefit it is to take place. It is stated that where the performance 15 due consists in the payment of sum of money, a tender by the debtor, though refused by the creditor, does not release him from his obligation to pay the debt. The debtor is bound in the first instance 'to find out the creditor and pay him the debt when due', if the creditor will not take payment when tendered, the debtor must nevertheless continue always ready and willing to pay the debt. Then, when he is sued upon it, he can plead that he tendered it, but he must pay the money into Court. If he proves his plea, the creditor gets nothing but the money originally tendered to him, i.e. no interest or damages, while the debtor gets judgment for the costs of the action, and so is placed in as good a position as he held at the time of the tender. 16. At page 975 of Indian Contract and Specific Relief Act by Pollock & Mulla, it is stated that the law considers a party who has entered into a contract to deliver goods or pay money to another as having substantially performed it, if he has tendered the goods or money to the party to whom the delivery or payment was to be made, provided only that the tender has been made under such circumstances that the party to whom it has been made has had a reasonable opportunity of examining the goods or the money tendered, in order to ascertain that the thing tendered really was what it purported to be. The tender may be good defence in an action on the debt, relieve him from payment of interest after the date of the tender, and entitle him to costs of the proceedings. 16 17. In Gajendra Narain Maity V/s. Sita Nath Das (AIR 1926 Calcutta 310) the money was first sent through the servant and upon refusal by the plaintiff to accept it, it was sent by money order. The Division Bench therefore held that there was a valid tender by the debtor which was improperly refused by the creditor and therefore interest ceased to run from the date of tender. It was contended that