1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.306 OF 2009 Sitaram s/o Madhavrao Davkhar, R/o-Ward No.1, Gondhwani, Shrirampur, Taluka-Shrirampur, Dist-Ahmednagar. .... APPELLANT. (Orig. Defendant No.1) VERSUS 1) Babasaheb s/o Ravji Davkhar, R/o-Ward No.7, Shrirampur, Taluka-Shrirampur, Dist-Ahmednagar, 2) Annasaheb s/o Revji Davkhar, R/o-Ward No.7, Shrirampur, Taluka-Shrirampur, Dist-Ahmednagar, 3) Bhagirathibai Revji Davkhar, Died, 4) Smt. Nirmalabai w/o Popatrao Khilari, R/o-Ward No.7, Shrirampur, Taluka-Shrirampur, Dist-Ahmednagar, 5) Chandrakala w/o Dattatraya Gavade, R/o-Bherdapur, Taluka-Shrirampur, Dist-Ahmednagar. .... RESPONDENTS (Resp. Nos.1 & 2 are orig. Plaintiifs, and Resp.Nos. 3 to 5 are Orig. Def. Nos. 2 to 4) ... Mr.N.K. Kakade Advocate for the Appellant. Mr.P.R. Patil Advocate for Respondent Nos.1 & 2. None present for Respondent Nos. 3 to 5. ... 2 CORAM: K.K. TATED, J. ORDER RESERVED ON : 13TH JULY, 2009. ORDER PRONOUNCED ON : 16TH JULY, 2009 ORDER : 1. Heard Mr. Kakade, learned counsel for the Appellant and Mr. Patil, learned counsel for Respondent Nos. 1 and 2. 2. Present Second Appeal preferred by the original defendant No.1 against the Judgment and decree dated 21st February, 2009 passed by District Judge-1, Shrirampur in Regular Civil Appeal No.26 of 2004 arising out of the Judgment and decree dated 21st February, 2004 passed by Civil Judge, Senior Division, Shrirampur in Regular Civil Suit No.26 of 2004. 3. To avoid the confusion in the nomenclature while deciding this Appeal, the parties will be referred by their original status. A few facts of the 3 matter are as under: . The plaintiff filed Special Civil Suit No.12 of 1995 for specific performance of agreement dated 9th November, 1993 at Exhibit 94 in respect of land situated in Shrirampur, District- Ahmednagar within the municipal limits of Shrirampur admeasuring 8 Gunthas + 12 Gunthas + 13 Gunthas out of City Survey No.2126 from Survey No.16/2 inclusive of well. It is the case of the plaintiff that as per agreement for sale dated 9th November, 1993 he agreed to purchase the said land for consideration of Rs. 1,40,000/-. Out of the said amount he paid/ adjusted a sum of Rs.1,32,000/- towards the debts due from the vendor. It was decided between the parties that remaining sum of Rs.8,000/- to be paid by the plaintiff to the defendants at the time of executing the sale deed. The plaintiff is in possession of suit property pursuant to the previous agreement/ mortgage deed in respect of suit land. It is the case of the plaintiff that defendant was in need of money and therefore the defendant executed four sale deeds on different dates for loan amount. First agreement executed on 6th May, 1977 for a sum 4 of Rs.12,000/- for a period of five years, second agreement executed on 24th October, 1977 for a sum of Rs.13,000/- for a period of five years, third agreement executed on 29th April, 1980 for a sum of Rs.20,000/- for a period of five years and fourth agreement executed on 2nd March, 1982 for a sum of Rs.15,000/- for a period of two years. In this way the plaintiff advanced a total sum of Rs.60,000/- to the defendant on the basis of executing conditional sale deeds in respect of the property. The plaintiff submitted that as the defendant failed to repay the said amount within time, defendant requested the plaintiff to purchase the said property for a sum of Rs.1,40,000/- inclusive of the loan advanced by the plaintiff to the defendant. As per the said discussion between plaintiff and defendant, the defendant executed the agreement for sale dated 9th November, 1993 at Exhibit 94 in respect of suit property for a sum of Rs.1,40,000/- in all. As per mutual understanding, defendant agreed to adjust a sum of Rs.1,32,000/- towards the outstanding loan amount and remaining sum of Rs.8,000/- was to be paid at the time of executing the sale deed. As the 5 defendant failed to execute the sale deed in time, the plaintiff filed suit for specific performance. In the said Suit the trial Court passed Judgment and decree dated 21st February, 2004 and held that defendant No.1 shall pay to the plaintiff a sum of Rs. 72,000/- without any interest within two months from the date of decree and further held that plaintiff is at liberty to withdraw a sum of Rs.8,000/- deposited by him in the Court for specific performance of agreement dated 9th November, 1993. Being aggrieved by the said decree dated 21st February, 2004, the plaintiff preferred Regular Civil Appeal No.26 of 2004 in the Court of District Judge, Shrirampur on the ground that the trial Court ought to have held that the plaintiff is and was ready and willing to perform his part of the contract. Learned Court ought to have considered the fact that plaintiff has deposited remaining amount of Rs.8,000/- in the Court. He further submitted that without any objection as to the admissibility of the document Exhibit 94, the observation of the learned lower Court regarding enforceability of the document are erroneous. He submitted that learned lower court erred in holding 6 that the enforceability of the deed Exhibit 94 as an agreement is doubtful and questionable. The Appellate Court considering the submissions made by both the parties, allowed the Appeal by Judgment and decree dated 21st February, 2009 and ordered and decreed held that original defendant No.1 to execute sale deed in respect of suit lands in favour of plaintiff within a period of three months from the date of order failing which the plaintiff shall be entitled to get the sale deed executed through the Court during execution proceedings in accordance with law. The Appellate Court further held that defendant No.1 is at liberty to withdraw an amount of consideration of Rs.8,000/-which was deposited by the plaintiff in the trial Court. 4. Being aggrieved by the said decree of the Appellate Court, the defendant No.1 preferred present Second Appeal before this Court. The defendant submitted that the plaintiff without enforcing mortgage, filed Suit for specific performance on the basis of agreement dated 9th November, 1993 at Exhibit 94 which was against 7 justice, equity and good conscience. Learned counsel for defendant submitted that without obtaining foreclosure of the mortgage, the plaintiffs had no authority either to purchase the said property by private negotiation with owner and/or to file a suit for specific performance to the agreement. He further submitted that agreement dated 9th November, 1993 was not executed according to law. He submitted that the agreement dated 9th November,1993 was not stamped and registered according to the Bombay Stamp Act and Indian Registration Act. He further submitted that the defendant No.1 filed Regular Civil Suit No.424 of 1994, 389 of 1994 and 406 of 1994 for redemption the suit property and in view of pendency of the Suits the Appellate Court erred in passing decree for specific performance of the agreement dated 9th November, 1993. 5. Considering the submissions made by both the parties, following points arise for determination in the present Appeal: "(i) Whether the agreement dated 9th November, 1993 at Exhibit 94 is 8 enforceable document in law? (ii) Whether the plaintiff can purchase the suit property before taking any action for redemption of the mortgage? (iii) Whether the plaintiff was ready and willing to perform his part of agreement dated 9th November,1993? (iv) Whether the Appellate Court is right in decreeing the suit for specific performance of agreement dated 9th November, 1993?" 6. Learned counsel for the Appellant/original defendant No.1 submitted that Exhibit 94 sale deed dated 9th November, 1993 was not properly stamped and registered and therefore the same was not admissible in evidence. He further submitted that the said document Exhibit 94 obtained by playing fraud on the defendant, therefore the said document Exhibit 94 was not admissible in law at all. On the other hand learned counsel for Respondents/ original plaintiffs submitted that execution of the agreement dated 9th November,1993 is admitted by the Power of attorney holder of the defendant in his evidence. He further 9 submitted that once the document was exhibited, then the defendant could not raise objection about its admissibility at the time of deciding the matter. He submitted that once the document was admitted in evidence without objection, it could not be rejected on the ground that it was insufficiently stamped. In support of his submissions, learned counsel for plaintiff relied on the Authority in the matter of Naginbhai P. Desai vs. Taraben A. Sheth, reported in 2003 (1) Mh. L.J. Page 994 wherein it is held by the Division Bench of this Court that once improperly stamped document is admitted in evidence, it is not open to the trial Court or the Court of Appeal to go behind that order. Para 10, 13 and 14 of the said Judgment read as under: "10. Though issue was decided in the light of provisions of Indian Stamp Act, both the learned counsel stated that the provisions of the Indian Stamp Act are pari materia with the provisions of the Bombay Stamp Act regarding the admissibility, in evidence of instruments which are unstamped or not properly stamped. While dealing with the question, 10 the Apex Court in paragraph No.4 observed: "Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decided to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court...." Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or Revision to go behind that order. Such an 11 order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction." "13. In view of this as laid down in Bipin Shantaram Panchal vs. State of Gujarat (supra), whenever an objection to admissibility of any document an evidence is raised (Whether on the ground that the document is not properly stamped or otherwise) such objection need not be decided there and then but the Court can take not of such objection and mark the objected document tentatively as an Exhibit in the case and subject to such objection to be decided at the last stage in the final judgment. If this course if followed, then perhaps no injustice would be caused of the order overruling the objection of insufficiency of stamp being binding on the trial court as well as the appellate court because the decision as to the admissibility of the document would then be a part of the final judgment and the validity of the final judgment is tested in an appeal." 12 "14. However, in the present case, we find that the objection as to the admissibility of the document on account of insufficiency of the stamp was raised and was decided by the trial Court when the document was tendered in evidence. Once it was decided that decision became final and cannot be reopened in this appeal in view of the judgment of the Apex Court in Javerchand's case supra. We would therefore, have to hold that the agreement of sale (Exhibit A), though in our opinion is improperly stamped, would be admissible in evidence and at any rate, we cannot go behind the order of the trial Court holding that the document was admissible in evidence. We are also fortified in this view by section 35 of the Bombay Stamp Act which reads as under- "Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped." 13 7. Learned counsel for the plaintiff further submitted that in the present case defendant No.1 did not enter into the Witness Box to prove his case and therefore the presumption would arise that the case set up by the defendant No.1 is not correct. For this purpose learned counsel for the plaintiff relied on the authority in the matter of Vidhadhar vs. Manikrao and another, reported in (1999)3 Supreme Court Cases, Page 573. Para 17 of the said Judgment reads as under: "17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and the Bombay High Court in Martand Pandharinath Chaudhari v. 14 Radhabai Krishnarao Deshmukh. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh case. The Allahabad High Court in Arjun Singh v. Virendra Nath held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box." 8. It is clear from this Authority that if party to the suit does not enter into the Witness Box and state his own case on oath and does not offer for cross examination by the other side, a presumption would arise that case set up by him is not correct. 9. Learned counsel for the plaintiff relied on the Authority in the matter of Shanaz D'Souza vs. Sheikh Ameer Saheeb, reported in 2007 (2) B.C.R. Page 362. 15 Para 7 of the said Judgment reads as under: "7. It is now sell settled, as held in the case of (Shambhu Dutt Shastri vs. State of Rajasthan) (1986) 2 W.L.N. 713 that: "When a general power of attorney holder can appear, plead and act on behalf of the party, but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff." 10. On the basis of this Authority, learned counsel for the plaintiff submits that as the defendant No.1 failed to enter into the Witness Box, his case cannot be considered in the present matter. 11. It is clear from the cross examination of 16 power of attorney holder of Defendant No.1 that he was not present when the agreement for sale was executed. He admitted in his cross examination that he was not present on any occasion when the transaction took place between plaintiff and defendant No.1. In any case as the defendant No.1 showed his inability to repay the loan amount, he agreed to sell the suit land and executed agreement for sale dated 9th November, 1993 at Exhibit 94 for a sum of Rs. 1,40,000/- in favour of the plaintiff. He also admitted payment/ adjustment of Rs.1,32,000/- in respect of said transaction. As both the Courts below held that the agreement dated 9th November, 1993 was voluntarily executed by defendant No.1 for the stated consideration, and there is no legal infirmity in the concurrent finding of the two Courts below, the finding of the learned judge of the first appellate Court, that the plaintiffs entitled to the specific performance of the agreement dated 9th November, 1993, which is not shown to be wrong due to some legal infirmity, cannot be interfered with in the Second Appeal. 17 12. Learned counsel appearing on behalf of the Appellant submitted that the Courts below failed to appreciate that agreement for sale dated 9th November, 1993 - Exhibit 94 is on revenue stamp only. Both the Courts without impounding the said document produced by Respondent Nos. 1 and 2 - original plaintiffs, admitted the same in evidence and considered at the time of hearing. Learned counsel for the Appellant submitted that in view of the provisions of the Bombay Stamp Act, it is the duty of the Court to impound such type of document and send it to the Collector for taking appropriate action as laid down in the following Authorities: i) Veena Hasmukh Jain and another vs. State of Maharashtra and others, reported in AIR 1999 S.C. Page 807, ii) Sheshrao Bhikaji Kale vs. Damodar Pandhare, reported in 2004 (3) Mh. L.J. Page 357 13. In the matter of Veena Hasmukh Jain (supra) the Apex Court held that if an agreement for sale coupled with handing over possession is entered into by the parties, then same is covered by the Explanation (1) of Article 25 of Schedule I of the Bombay Stamp Act and stamp duty is payable on the same. Head Note of 18 the said Judgment reads as under: "Bombay Stamp Act (60 of 1958), Sch.1, Art. 25, Explanation 1 - Agreement for sale - Executed in terms of S. 4 of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Provides for sale of immovable property and there is also a specific time for handing over possession without executing conveyance - Document falls within scope of Explanation 1 and attract duty as if it is conveyance." 14. In similar way in the matter of Sheshrao Bhikaji Kale (supra), the Bombay High Court held that the agreement for sale coupled with handing over possession was covered by the Bombay Stamp Act (60 of 1958 as amended by Maharashtra Act No.17 of 1993), Schedule I, Article 25 and was deemed to be conveyance and stamp duty was liable to be paid as such. Both the Authorities are not applicable in the present case because the Respondent Nos. 1 and 2 were already in possession of the suit property under the four mortgage deeds. Thereafter they only executed 19 agreement for sale dated 9th November, 1993. 15. Learned counsel appearing on behalf of the Appellant submitted that the Courts below failed to consider that defendant executed 4 mortgage deeds dated 6th May, 1977, 24th October, 1977, 29th April, 1980 and 2nd March, 1982 which were in force on the date of execution of agreement for sale dated 9th November, 1993 - Exhibit 94. He submitted that without taking appropriate steps for redemption of mortgage, the Respondent Nos. 1 and 2 entered into agreement for sale dated 9th November, 1993 which was bad in law. He further submitted that the Appellant already filed four different Suits against Respondent Nos. 1 and 2 for redemption of above mentioned four mortgage deeds. He submitted that the documents executed between the parties was covered by Section 58 (c) of the Transfer of Property Act. He relied on the following two Authorities to support his submission that present case squarely falls under Section 58(c) of the Transfer of Property Act: i) P.L. Bapuswami vs. N. Pattay Gounder, reported in 20 A.I.R. 1966 S.C. 902, ii) Mohammulla Co-operative Building Society Limited vs. Lakshmi Srinivasa Co-operative Building Society Limited and others, reported in 2008 (6) Maharashtra Law Journal Page 5. 16. In the matter of P.L. Bapuswami (supra) the Apex Court held that the document held to be mortgage by conditional sale and not sale with condition for re- transfer. Head Note (B) of the said Judgment reads as under: "(B) Transfer of Property Act (1882), Section 58 (c) - Scope - Document held to be mortgage by conditional sale and not sale with condition for retransfer." 17. Head Note (C) of the Judgment reported in 2008 (6) Maharashtra Law Journal Page 5 (supra) reads as under: "(C) Specific Relief Act (47 of 1963), S. 20 - Decree for performance of contract - Grant of decree is a 21 discretionary relief. Grant of decree for specific performance of contract is a discretionary relief. There cannot be any doubt whatsoever that the discretion has to be exercised judiciously and not arbitrarily. But for the said purpose, the conduct of the plaintiff plays an important role. The Courts ordinarily would not grant any relief in favour of the person who approaches the Court with a pair of dirty hands." 18. On the facts of the present case the ratio of both the Authorities is not applicable in the present case. In the present case the Appellant himself executed the agreement for sale dated 9th November, 1993 - Exhibit 94 for a consideration of Rs.1,40,000/- and the sum of Rs.1,30,000/- paid and/or adjusted towards the dues of 4 mortgage deeds as stated herein above. Only remaining sum of Rs.8000/- agreed to be paid at the time of execution of sale deed. This clearly shows that the Appellant with a full knowledge and intention, agreed to sale the suit property to the Respondent Nos. 1 and 2 by agreement for sale dated 9th November, 1993 - Exhibit 94. 22 19. Another point raised by the learned counsel for the defendant No.1 is that without foreclosure of the mortgage, the plaintiff had no right to seek specific performance of the agreement dated 9th November, 1993. Not only that the defendant No.1 preferred Suit for redemption of the mortgage deed and same was pending and therefore the Appellate Court erred in coming to the conclusion that plaintiff was entitled for specific performance of the said agreement Exhibit 94. Learned counsel for defendant No.1 submits that it is well settled principle of law that without foreclosure of the mortgage , person in possession of the property cannot purchase the said property and or become the owner of the same. In the present case though the agreement for sale was executed on 9th November, 1993 the plaintiff was in possession of the suit property on the basis of four mortgage deeds dated 6th May, 1977, 24th October, 1977, 29th April, 1980, and 2nd March, 1982. The learned counsel for the Appellant therefore submits that the decree passed by the Appellate Court for specific performance of agreement for sale at Exhibit 23 94 is against justice, equity and good conscience and same is liable to be set aside. 20. It is not possible to accept the submissions made by learned counsel for defendant No.1, because the defendant No.1 himself showed his inability to repay the loan amount and voluntarily executed the agreement for sale dated 9th November, 1993. The said document was also exhibited by the trial Court without any objection from the defendant No.1. Not only that, to discard the submission made by the plaintiff about inability of payment of the loan amount by defendant No.1, the defendant No.1 did not enter into the witness Box. The power of attorney holder of defendant No.1 who was examined for the defendant No.1 admitted in his cross examination that when the transaction in respect of the suit property took place, he was not personally present. In any case as the defendant No.1 showed his inability to repay the loan amount and offered to sell the suit property to the plaintiff and the plaintiff agreed to purchase the suit property by