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FA/2312/2010 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2312 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
HARISH
RAMANLAL DESAI - Appellant(s)
Versus
D
S CONSTRUCTION CO & 11 - Defendant(s)
=========================================================
Appearance
:
MR
ADIL R MIRZA for
Appellant(s) : 1,
NOTICE SERVED for Defendant(s) : 1 - 3,3.2.2 -
4, 4.2.2, 4.2.3,4.2.4 - 12.
MR MTM HAKIM for Defendant(s) : 2 -
3.
None for Defendant(s) : 3 - 4.
MR ASPI M KAPADIA for
Defendant(s) : 4.2.1, 4.2.2, 4.2.3,4.2.4 -
12.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 05/04/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The
present appeal arises against the judgement and decree dated
22.9.2009 passed by the learned Civil Judge in Special Civil Suit
No.155 of 1992, whereby the suit is partly allowed against the
defendant Nos.1, 2, and 3 and the plaintiff is directed to pay the
cost of defendants No.4 to 12.
The
short facts of the case appear to be that the suit for specific
performance of contract was filed on the ground that for the suit
property, an agreement to sale was entered into between the
plaintiff and defendants No.1 to 3 for a consideration of
Rs.15,00,001/-. As per the plaintiff, the amount of Rs.75,000/- was
paid as earnest money and thereafter Rs.25,000/- was additionally
paid. Thereafter, as the sale deed was not executed, the suit for
specific performance of contract was filed. The lower Court after
the evidence was recorded and the matter was heard, passed the
judgement and decree, whereby the relief for specific performance of
contract has not been granted and the defendants No.1 to 3 are
directed to pay the amount of Rs.1,50,000/- to the plaintiff and the
damages claim of Rs.1 crore to the plaintiff by the defendants No.4
to 12 is not granted. However, the lower Court has directed the
plaintiff to bare the cost of defendants No.4 to 12. Under these
circumstances, the present appeal before this Court.
We
have heard Mr.Mirza, learned Counsel for the appellant, Mr.Hakim,
learned Counsel for respondent No.1, 2 and 3 – original
defendants and Mr.Kapadia, learned Counsel for respondents No.4 to
12 – original defendants No.4 to 12. We have considered the
relevant record and the reasons recorded in the judgement.
The
first contention raised by the learned Counsel for the appellant is
that in the revenue entry the property was shown in the name of
original defendants No.1 to 3, therefore, the plaintiff bonafide
believed that the defendants No.1 to 3 were the owners of the
property and, therefore, the agreement to sale was entered into and
the earnest money was also paid. It was submitted that the said
aspect is proved to the extent that the agreement to sale was
entered into and the amount of Rs.1 lac was paid. However, in spite
of the same, the trial Court has not granted the relief for specific
performance of contract and, therefore, there is an error committed
by the trial Court.
The
examination of the said contention shows that upon the evidence on
record, the trial Court has found that the property in question was
auctioned in the Court proceedings and vide order dated 26.7.1976
the sale was confirmed in favour of Smt. Fatesinhrao Gaekwad and
sale certificate was also issued on 14.4.1977. Thereafter the said
property was transferred in favour of M/s.Alaukik Trading and
Investment Private Limited and the said M/s.Alaukik Trading and
Investment Private Limited thereafter sold the property by a
registered sale deed. Under these circumstances, the trial Court
has found that the defendants No.1 to 3 were not owners of the
property. Merely because the revenue entry was showing the names of
defendants No.1 to 3 would not result into nullifying the effect of
the registered sale deeds executed long back for transfer of the
property. Once the trial Court found that the Defendant Nos.1 to 3
were not the owners of the property, the exercise of direction for
declining the decree for specific performance of contract cannot be
said to be an erroneous approach on the part of the trial Court
even if the agreement to sale was proved and the part of the
consideration was paid. If the the sellers were not the owners at
the relevant point of the property in question, they had no title of
the property, which could be conveyed by way of specific performance
of contract. Therefore, the said contention cannot be accepted.
It
was next contended by the learned Counsel for the appellant that no
damages were ordered to be paid and only there is direction to pay
the amount of Rs.1,50,000/-, which includes Rs.1,00,000/- towards
the earnest money and Rs.50,000/- towards damages. It was submitted
that because of high appreciation of the property, Rs.50,000/- was
just a negligible amount towards damages and, therefore, there is an
error committed by the trial Court.
Prima
facie the contention appears to be attractive but upon close
scrutiny, it appears that as per the agreement to sale itself
Rs.50,000/- was provided by way of liquidated damages in the event
sale deed was not executed. It is by now well settled that when the
liquidated damage is expressly provided under the contract, the
party suffering the breach would be entitled to such amount. Had it
been a case where any additional damages were provided, the matter
would have been different, but when it was specifically provided for
Rs.50,000/- in the event the sale deed was not executed, as the
damages, and if the trial Court has awarded such damages of
Rs.50,000/-, the approach cannot be said to be erroneous.
It
was next contended by the learned Counsel for the appellant that the
trial Court ought not to have ordered the cost of the defendants
No.4 to 12 to be borne by the plaintiff, more particularly when the
agreement for sale was proved and amount of earnest money was also
found as proved.
There
is considerable force in the submission and we would have considered
the matter further, however, Mr.Kapadia, learned Counsel for
respondent Nos.4 to 12 declared before this Court under the
instructions of his clients that they shall not press for the
execution of the decree for the costs as mentioned in paragraph 5 of
the operative portion of the judgement. Under these circumstances,
that part of the judgement and decree of the trial Court deserves to
be modified accordingly.
No
other contention is raised.
In
view of the aforesaid, judgement and decree passed by the trial
Court so far as it relates to directing the plaintiff to bear costs
of respondent Nos.4 to 12 is quashed and set aside. Rest of the
judgement and the decree passed by the trial Court is not interfered
with. The appeal partly allowed to the aforesaid extent with no
order as to costs.
(Jayant Patel, J.)
(H. B. Antani, J.)
vinod/pirzada
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