S. Abdul Khader vs Abdul Wajid (D) By Lrs. & Ors

2. The case made out by the petitioner is that in view of the Agreement for Sale dated 21st February, 1995, executed by the respondent No.1 in his favour for a total consideration of Rs.4,30,000/-, he paid Rs.1,00,000/- in cash to the respondent No.1 as an advance towards the sale price when the said agreement was executed. Thereafter, several amounts were paid by the plaintiff to the respondent No.1 amounting to Rs.2,05,000/- in total. It was also mentioned in the plaint that the respondent No.1 had projected himself to be the owner of the suit property, being site No.18, in Survey No.51/3A situated at Byrasandra 35th Division of Bangalore, having purchased the same from one Prasanth M. Kumar, who is now the respondent No.2 in the present Special Leave Petition. The 3 respondent No.1 assured the plaintiff that the suit property was free from all encumbrances and that the original sale deed executed by the respondent No.2 was with the Deputy Commissioner on account of under valuation. The respondent No.1 also assured the plaintiff that he would produce the original sale deed at the time of registration, together with the records from the Corporation after assessment to register the property, since registration could not be done without the said records.

3. According to the plaintiff, he believed and trusted the respondent No.1 and waited till the end of October 1995, by which date the respondent No.1 had assured the plaintiff that he would complete the sale transaction. The respondent No.1, however, did not make any effort to complete the sale transaction 4 inspite of repeated requests made to him by the petitioner to that effect, though the petitioner was always ready and willing to perform his part of the contract regarding payment of the balance of the sale price after deduction of the amount already advanced by him.

4. It is also the plaintiff's case that only when he found that a compound wall was being constructed that he became suspicious of the motive of the respondent No.1 who, however, continued to assure him that the compound wall was being constructed only for the purpose of payment of tax and issuance of katha endorsement. The respondent No.1 once again assured the petitioner that he would complete the sale as soon as he was able to get the relevant record from the Corporation and the original sale deed executed in his 5 favour from the Deputy Commissioner for Under Valuation.

5. However, the petitioner was surprised when he was served with a legal notice dated 17th November, 1995, indicating that the respondent No.1 had cancelled the Agreement for Sale which had been executed in his favour on 21st February, 1995. The petitioner, thereupon filed the suit for specific performance of the contract and for delivery of possession of the suit land to him, which was disposed of by granting the alternate relief of reimbursement of the monies advanced, together with interest at the rate of 9% per annum. The Trial Court, however, declined to order the execution of the said agreement in respect of the property on the ground that third party rights had intervened, as the respondent No.3 purchased the suit property without knowledge or notice 6 of the prior sale agreement and was thus a bona fide purchaser for value without notice and was not affected by the provisions of Section 52 of the Transfer of Property Act, 1882, and the doctrine of lis pendens.

8.On the basis of the above, the High Court held that the Trial Court had rightly granted the alternative relief of repayment of the sums advanced while denying the substantial relief for execution and registration of a sale deed in respect of the suit land in favour of the respondent. The High Court, however, was not unmindful of the steep rise in the price of immovable properties in urban areas, and, accordingly, enhanced the rate of interest from 9% granted by the Trial Court to 18% upon the amount decreed in favour of the petitioner. The appeal was partly allowed to the above extent.

15.Ms. Suri submitted that the findings of both the trial court and the High Court regarding the petitioner's readiness and willingness to conclude the sale was contrary to the evidence 14 adduced and was, therefore, liable to be set aside and the suit was liable to be decreed for specific performance in respect of suit land.

18.Mr. Bhat urged that since both the courts below had on a detailed analysis of the evidence on record found that the respondent No.3 was a bonafide purchaser for value without notice, the Special Leave Petition was liable to be dismissed.

19.Having carefully considered the submissions made on behalf of the parties, we are not inclined to reappraise the evidence once again in these proceedings. We shall, therefore, 17 confined ourselves only to the legal aspects of the Special Leave Petition.

23.Since we are in agreement with both the trial Court as well as the High Court that the 19 respondent No. 1 had no legal authority to enter into an Agreement for Sale with the petitioner when he was not vested with the authority to do so, no interference is called for with the judgment impugned in the Special Leave Petition, which is accordingly dismissed.

24.There will, however, be no order as to costs.