... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO.267 of 2002 1. M/s Naguesh Associates, a partnership firm having its office at 1613, Hari Mandir Chawl, Margao, Goa, represented by its partners a. Smt. Vassanti Naguesh Lotlikar, b. Shri Rajan Naguesh Lotlikar and c. Smt. Pratibha Lotlikar All r/o Margao, Goa. 2. Shri Rajan Naguesh Lotlikar, major, married, business, 3. Smt. Pratibha Rajan Lotlikar, major married, business, All r/o House No.1613, Hari Mandir Chawl, Margao, Goa. … Appellants v e r s u s 1. Shri Miguel Furtado, alias Mariano Furtado, major, married, service, working c/o Italab (Goa), Pvt.Ltd., Lotlikar building, Margao, Goa. 2. Smt. Helena Fernandes, major, married, housewife, r/o Jose Cabral Quarters, Modsai, Margao, Goa. … Respondents ... 2 ... Mr. C. A. Coutinho, Advocate for the appellants. Mr. R. G. Ramani, Advocate for the respondents. CORAM: Shri A. H. JOSHI DATE: 27th JULY, 2009. JUDGMENT: This is a first appeal by unsuccessful plaintiffs as their suit for specific performance of agreement to sell and develop, executed in their favour by the defendants was dismissed. 2. The defendants own a plot admeasuring 900 sq.mtrs. and a house thereon which is their ancestral property and defendants claim to the said plot was confirmed in the inventory proceedings No.18927/76. 3. Admittedly:- a) agreement of sale cum development was executed on 02.05.1986. b) Domingos Leao Furtado and Rosa Piedade Babista were in physical possession of the house standing on the said plot. c) All other conditions expressly ... 3 ... incorporated in the agreement are not in dispute d) Property was to be developed after plaintiffs would be put in possession of flats as promised . 4. What is in dispute is : Whether the plaintiffs had to take the property for development with encumbrance i.e. the possession of family members of brother of defendant no.1 and the plaintiffs had to get them evicted. 5. Plaintiffs have pleaded in the plaint in regard to the performance on their part as follows: “7. The defendants represented to the plaintiff no.1 and its partners that they had obtained orders for the eviction of the said occupants of the house standing in the said property and handed over to the plaintiff no.3 copies of certificates from Inventario no.18927/76, copy of judgment passed by Panaji Bench of High Court in M.C.A. No.14 of 1986 in Civil Revision Application No.36 of 1985, besides copies of title deed. 8.............. to 12............. 13. The plaintiff no.3 kept on approaching ... 4 ... the defendants on a number of occasions requesting them to hand over the possession of the house standing in the said property so that he could go ahead with the project. The defendants always kept on promising that they would hand over the possession but failed to do so. 14.................. to 18 ........... 19. The plaintiffs repeatedly have approached the defendants, particularly the defendant no.1 with requests that they expedite the handing over of the possession of the said house. Although the defendants have always been promising to do so, they have not handed over the possession till date. 20.................. 21. The plaintiffs state that they have not fulfilled all their obligations under the said agreement and that the agreement has not been complied with merely on account of the failure on the part of the defendants to comply with their part of the agreement, namely the handing over of the possession of the house standing in the said property. 22. The plaintiffs state that they are ready and willing to perform all their obligations ... 5 ... under the said agreement and that they will do so within the stipulated time limits from the date when the defendants hand over possession of the said house.” ( quoted from pages 45 to 47 and page 48 of appeal paper book ) 6. Defendants' stand is tacitly admitting contradictory on the point of defendant no.1's brother's family being in actual possession, while replying paragraph 10 of the plaint. Relevant paragraphs of written statement, namely, paragraph no.3 and 6 are reproduced below for ready reference:- “3. The contents of paragraphs 5 and 6 are believed to be correct except for the area of the said property and the fact that the afore stated Domingos Furtado and Rosa Piedade Batista are not residing therein as stated. The aforementioned persons have been evicted from the house by an order of this Hon'ble High Court. 4........................ 5............... 6. With reference to the contents of ... 6 ... paragraph 10 the contents as set out therein are denied as being false and misleading. The possession of the said building was to be taken over by the plaintiffs as per the agreement with all the inherent encumbrance of which the plaintiff was fully aware. The plaintiff was unable to carry out his part of the agreement as represented by the plaintiff and due to which there were several other problems which were created. ( quoted from page 52 and 53 of paper book of First Appeal ). 7. Thus the defendants' plea is that though the written agreement contemplates that the plaintiff is to be put in possession as he had paid a sum of Rs.10,000/-, what was actually promised by the plaintiffs is that they would take the possession subject to encumbrance of physical possession Mr. Domingos Furtado and Smt. Rosa Babista, aforesaid. 8. Therefore, according to the defendants though the agreement says obligation of the plaintiff would commence after they were to be put ... 7 ... in possession, in fact plaintiffs' obligation commences no sooner the agreement was signed. 9. After the learned Trial Judge framed the issues, the case proceeded. 10. The plaintiff no.3, the plaintiff's witness no.1 and other witnesses were examined in support and they have deposed to prove compliance on their part. In the evidence, including in the cross examination, Pw.1 has asserted that: (a) No specific time was mentioned by the defendants for the purpose of evicting the persons actually in possession of the house. (b) The defendants delayed signing the papers required for securing permission. 11. The defendants have examined in support the defendant no.1 and closed the evidence and has reiterated the plea raised by them, for opposing the claim and prayers in the suit. 12. The learned Trial Judge found on facts in ... 8 ... favour of the plaintiffs on issues no.1, 2 and 4. 13. The issue as to whether specific performance should be granted has been answered in favour of the defendants. For this refusal, the learned Trial Judge has relied upon the clause number 3 and 5, contained in the agreement, which are quoted below: 3. “3. The second party shall if he fails to compete the works and put the first party in possession, indemnify the first party to the tune of Rs.50/- (fifty only) per day for such delay to the computed from the lapse of the period aforementioned till the date of delivery of the flats and shop and completion. 5. Should the first party fail to hand over possession to the second party for the purpose of doing the works, the second party shall be entitled to a refund of the earnest money paid @ of 18% interest from the date of receipt of the earnest money to payment of the refund.” (quoted from copy of agreement) 14. The learned Trial Judge while placing reliance on clause 5 of the agreement, has placed ... 9 ... reliance on section 23 of the Specific Relief Act. 15. Though many judgments are mentioned in written synopsis, the learned Advocate for the petitioner has actually cited and argued based on the judgments namely:- (1) P. D'souza v. Shondrilo Naidu reported in (2004) 6 Supreme Court Cases 649. (2) Smt. Malini V. Parab @ Prabhu and anr. v. Shri Prafullakumar R. Deshpande and ors. reported in 2008 (5) ALL MR 223. (3) M. L. Devender Singh and ors. v. Syed Khaja reported in (1973) 2 Supreme Court Cases 515. (4) Narayan Nagorao Kunbi v. Amrit Haribhau Potdar reported in 1957 Bombay Law Reporter 1004. The dictum emerging from these precedents is as follows: (a) stipulation contained in the written agreement which provides for compensation has to be read as stipulation in terrorem and not as a substitute or alternative to ... 10 ... right to seek specific performance. (b) If there is a third party claiming to be in possession and wants to oppose a decree for specific performance, remedy available to such party is by obstructing the execution of decree in the process of execution thereof or by filing independent suit and such objector is not a necessary party in a suit for specific performance. 16. It is abundantly clear that a stipulation which provides for mode of dealing with the matter of payment of compensation in the event of breach by seller, cannot be used as a tool to avoid or deny the relief of a decree for specific performance. Section 23 of the Specific Relief Act is not an aid for denial for decree for specific performance. 17. Now on facts, what this Court has to find out is as to whether:- By ignoring the clause relating to compensation for breach of contract, whether the plaintiff is entitled for decree of specific performance? ... 11 ... 18. Reference to some of the dates and events is necessary, which are as follows: 07.04.1986 According to the defendants, his brother was evicted from suit house based on the orders of court in execution of decree passed in the inventory proceedings which order had attained finality. 17.04.1986 According to the defendants The family members of the defendant's brother re-entered the suit house. 02.05.1986 Agreement subject matter was reached and was signed. 26.09.1987 After about 16 months from the date of agreement, the defendants served notice of termination of agreement through Advocates attributing failure or non performance on the part of the plaintiffs. 29.09.1987 After keeping silence for nearly about one year, the Plaintiffs replied the defendants' notice through Advocate, demanding ... 12 ... specific performance. They have denied failures on their part and attributed failure on the part of the defendants and threatened of law suit. 27.03.1989 After waiting for about six months, the Plaintiffs have filed present suit for specific performance. 19. In the background of nature the controversy, it is necessary to take into account, the conduct of the parties, has to be scrutinised by (it is necessary to) keeping in mind the dates referred to herein in above. 20. Considering the pleadings and evidence of the plaintiffs which have been quoted in foregoing paragraph 6, for ready reference and in extenso, and the plaintiffs' oral evidence following facts are evident namely:- (1) It is the plaintiffs' plea that on the date of the suit, the property was in possession of Domingos Furtado and Rosa Baptista. ... 13 ... (2) Before the agreement the defendants have shown to the plaintiffs, the documents, judgment, etc. in the Inventory proceedings. (3) The plaintiffs prepared plans for proposed constructions, but defendants have avoided to sign these papers under some or other excuse. (4) The defendants did not deliver the possession of the suit property and kept promising that they would hand over but failed to do so. (5) The defendants terminated the agreement by notice dated 26.09.1987, they have kept on promising that they shall perform their part. (6) The plaintiffs were aware of the fact that on the date of the agreement, two persons viz. Domingos and Rosa were in possession of the suit property. 21. Relevant portion contained in the examination-in-chief of defendant no.1 as to the defendants' candid stand reads as follows: ... 14 ... “The said property and the house is alloted to me in the inventory proceedings. The said brother and his wife were evicted from the said house on 7.4.86 by the order of the Court. I know the partner of plaintiff i.e. the plaintiff no.3 as he approached me with the proposal of purchase of entire property along with the house after my brother was evicted from the said house. I agreed for the said proposal and thereafter an agreement was made by us which is at Pw.1/B. Before executing the said agreement I showed him the documents of the inventory proceedings as well as the order of the Court which were inspected by him. At that time there was no case pending in respect of the suit property. At present 2 cases are pending in respect of the suit property in Margao Court, which were filed by my brother namely Domingos Furtado. There was one more case pending before “B” Court filed by the same brother but it was dismissed. I have shown all the documents to the plaintiff at the time of agreement including the problems raised by my brother. Inspite of the said information the plaintiff agreed to purchase the suit property and agreed to ... 15 ... look after the said property. At the time of agreement the plaintiff paid Rs.10,000/- towards the earnest money and it was also recorded in the agreement itself wherein it states that the property is not sold/transfered, the amount for Rs.10,000/- was to be refunded to the plaintiff with interest.” (quoted from page 81 and 82 of the paper book). 22. The cross examination of the defendant's witness does not reveal anything beyond giving suggestions. Plaintiffs very well knew the stand or stance of the defendants. 23. The situation as obtained before the trial Court was two oaths. The court was called to believe either and to decide as to whether the oral agreement that the plaintiff shall take the property subject to encumbrance i.e. possession of Domingos and Rosa was proved. 24. Now, in contrast, the Plaintiffs claim no burden to accept the property with encumbrance. ... 16 ... They still claim that the contract has to be enforced and the persons in possession can be faced when they object or oppose the execution of decree which may be passed. 25. Considering the rival contentions particularly in the light of the conduct of the parties, their evidence and submission, the preponderance of the probabilities has to be judged. 26. From the conduct of the plaintiffs certain inference emerge, namely:- (a) The plaintiff has shown between 07.04.1986 to 29.09.1988. (b) Plaintiffs claim that they had spent time in waiting to file the suit coupled with admission that due to possession of third parties, over the suit property, the possession of the suit property could not have been quickly delivered. (c) Had this, i.e. the possession of third party, not been the fact of the matter, there was no reason and cause as to why the act of ... 17 ... delivery of possession by the defendants to the plaintiff was not done on the very same day i.e. on the date of the agreement. d) The defendants' plea that plaintiffs were to take possession with encumbrance was duly suggested through the written statement; e) Defendants' plea that the plaintiffs had to take action first was claimed in defendant's legal notice. f) The defendants were first in order in acting, by issue of notice dated 26.09.1987 and through it the said plea has been reiterated; g) while plaintiffs' witness who was under cross examination he was suggested that actual understanding between the parties was that plaintiffs' shall take possession and commence work on their own. h) The defendants' version in pleadings is that plaintiffs came with proposal to take vacant possession, but ultimately agreed to take the property and took after it. 27. It is further seen that the defendants' notice is dated 26.09.1987 and the plaintiffs have ... 18 ... kept silence on the notice for a long period for one full year. 28. This circumstance is silent on notice of termination demonstrates that: (a) The plaintiffs alleged readiness and willingness was absent, or, (b) Plaintiffs were under the burden of consciousness of obligation of their promise which the defendants' claim that the plaintiffs had to secure the possession on their own. 29. The defendants had clearly notified that the defendants would be free to act, and deal with the property. Even after the termination of the agreement the plaintiffs took about one year to reply and further five months time to file the present suit. 30. All these facts and circumstances taken together lead to a conclusion that either (a) There existed some vagueness in the stipulation of the agreement; or, (b) Defendants' version is true and party who has committed breach are the plaintiffs. ... 19 ... 31. In the situation as obtained from the evidence, a question arise, namely if nothing was to be done by the plaintiff or the defendants, why was delivery of possession of the property differed even for a day after agreement was signed and nothing was due to be performed on the part of the plaintiffs? Answer to the question is which essentially follow is that, it was most probably so expressed, that the plaintiffs were to secure the possession and no burden or obligation was resting on the defendants, what so ever. 32. The conclusions which irresistibly follow are that only question of fact in issue before trial court was as to whether there existed some other stipulation agreed in orally. The parties have testified before the Trial Court on this point. All other stipulations contained in agreement were admitted. Oral evidence on admitted stipulation contained in the agreement have no significance what so ever, and evidence on this point in issue would decide the fate of the case. ... 20 ... 33. The plaintiffs' act of such inordinate waiting for replying defendants' notice of legal action, and then taking time to file a suit for specific performance thus leads to a conclusion that as agreed in the actual oral agreement, plaintiffs had to take possession on their own. This court holds that this oral agreement by the plaintiffs is proved. 34. The present agreement of sale is a document where evidence of collateral agreement is permissible as it is not by Section 91 of the Evidence Act. 35. Suit could be filed till last day prescribed by law of limitation, however this does not imply that conduct of negligence, deliberate delay or supine indifference is beyond judicial notice. The acts of omission or commission resulting in inordinate delay in acting, replying the notice, and even belated lodging of the suit, leads to a sum effect that plaintiffs being ready and willing to perform, their part has not been proved. Act of filing of suit is not and cannot ... 21 ... be conclusive proof of fact of plaintiffs' being ready and willing to perform their part all throughout. 36. Though Court does not subscribe to the reasons due to which specific performance has been refused refused by the Trial Court and holds that learned Trial Court had mis-read Section 23 of Specific Relief Act 1963, and law of precedents on that point, this Court holds that the plaintiffs/appellants are not entitled for a decree of specific performance. 37. In the result, this Court finds that the present appeal does not merit any indulgence. Therefore, the appeal is dismissed. In the circumstances, the parties are directed to bear their own costs. A. H. JOSHI lh/.