1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 356 OF 2010 WITH CIVIL APPLICATION NO. 8010 OF 2010 Devilal s/o. Chaturbhuj Bajaj ...Appellant. Versus Shankar s/o. Dattatray Dagde & Anr. ....Respondents. Mr. B.A. Darak, Advocate for appellant. Mr. B.R. Kedar, Advocate for respondent Nos. 1 and 2. CORAM: S.V. GANGAPURWALA, J. DATED: 14th September, 2010. PER COURT : 1. The appellant is the original defendant. The respondents had filed a suit for specific performance of contract. Both the Courts have decreed the said suit. The appellant, being aggrieved by the judgment and decree passed by the Courts below, has approached this Court. 2. Shri. Darak, learned counsel for the appellant canvassed following propositions :- (1) The second agreement, Exh. 51, does not state that the earlier agreement was revoked or cancelled and as such, the earlier agreement would still be in force. (2) The plaintiffs did not enter into the witness box and 2 the evidence was laid through power of attorney holder, his evidence cannot be considered. For the said purpose, he relies on the judgment of the Apex Court in the case of Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others reported in 2005 (1) Mh.L.J. 1170. (3) The plaintiffs have not pleaded readiness and willingness as is required in form No. 47 and 48 of the Code of Civil Procedure and as the same is not pleaded, no relief could have been granted to the plaintiffs. For the said purpose, he relies on the judgment of the Apex Court in the case of Ouseph Varghese Vs. Joseph Aley and others reported in 1969 (2) SCC 539 and another judgment of the Apex Court in the case of Manjunath Anandappa Urf. Shivappa Hansi Vs. Tammanasa and Ors. reported in 2003 (3) ALL MR 303 (S.C.). (4) As the plaintiffs have not entered into the witness box, adverse inference ought to have been drawn against the plaintiffs. For the said purpose, he relies on the judgment of the Apex Court in the case of Vidhyadhar V. Manikrao and another reported in AIR 1999 SUPREME COURT 1441. 3 3. It is true that a power of attorney holder cannot depose regarding facts which are within the personal knowledge of the plaintiffs. But the evidence of the power of attorney holder can be considered as a witness as has been held by the Apex Court in the case of Janki Vashdeo Bhojwani referred supra. As such, the facts, which were within the personal knowledge of the said power of attorney holder, can be considered. The said power of attorney holder was the witness to the agreement, Exh. 51, towards the knowledge of the said transaction. In view of the same, his evidence can be considered to that extent. 4. The contention of Shri. Darak that the subsequent agreement, Exh. 51, does not state that the earlier agreement was revoked, cannot be countenanced, for the reasons that the subsequent agreement, Exh. 51, recites about the adjustment of the earnest amount of the earlier agreement. In fact, the subsequent agreement would amount to novatio of contract and when the subsequent agreement, Exh. 51, was executed, as per Section 62 of the Contract Act, the original contract need not be performed. 5. So far as the contention regarding the pleadings are not in form Nos. 47 and 48 is concerned, the law does not require the use of specific words, but the spirit and substance of the pleadings has to be considered. Both the Courts below have succinctly observed that the plaintiffs have pleaded that at all times, he was after the defendant to 4 accept the remaining consideration of Rs. 31,000/- and to execute the sale deed, but the defendant did not comply with the same. Thus, the pleadings spelt out the readiness and willingness on the part of the plaintiffs. The Lower Appellate Court has considered the said aspect. Even the Apex Court in the case of Syed Dastagir Vs. T.R. Gopalakrishna reported in AIR 1999 SC 3029 has held that in order to comply the concept of readiness and willingness to perform part of contract, the same has to be in spirit and substance and not in the letter and form. 6. Regarding the question of adverse inference to be drawn against the plaintiffs as they did not enter into the witness box, the fact on record shows that the agreement, Exh. 51, was proved by examination of both the attesting witnesses and even Courts below have observed that the defendant has not denied his signature on agreement, Exh. 51. So also, the major part of the consideration amount was already paid by the plaintiffs to the defendant. i.e. Rs. 1,50,000/- was already paid to the defendant and only a paltry amount of Rs. 31,000/- was to be paid for which the plaintiffs had also issued the notice and the the pleadings also testify the said facts. The receipt of notice is not disputed. As held by the Courts below, it was the defendant, who was not ready and willing to perform his part of contract. 7. In the light of the above facts no substantial question of law arises. As such, the second appeal is dismissed. 5 8. In view of the dismissal of the second appeal, the application for stay does not survive and it is disposed of as such. [ S.V. GANGAPURWALA, J.] ssc/sa356.10