The matter was carried to the High Court by way of RSA No.781 of 2004, wherein the submissions advanced before the Trial Court were reiterated.
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 companysideration 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.
The appeal was partly allowed to the above extent.
The High Court held further that the Respondent No.
The High Court endorsed the view of the Trial Court that the respondent No.3 was a bona fide purchaser for value without numberice after due enquiries made by her.
Thereafter, several amounts were paid by the plaintiff to the respondent No.1 amounting to Rs.2,05,000/ in total.
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 numberice of the prior sale agreement and was thus a bona fide purchaser for value without numberice and was number affected by the provisions of Section 52 of the Transfer of Property Act, 1882, and the doctrine of lis pendens.
The High Court also held that the Trial Court had rightly found that the petitioner had allegedly made payment in favour of the Respondent No.1 without making any enquiry or verifying the records, and that he had done so at his own risk, as the said respondent had numberauthority to execute the sale agreement dated 18th May, 1995.
The petitioner, thereupon filed the suit for specific performance of the companytract 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 respondent No.1 once again assured the petitioner that he would companyplete the sale as soon as he was able to get the relevant record from the Corporation and the original sale deed executed in his favour from the Deputy Commissioner for Under Valuation.
The 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 High Court, however, was number 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 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 companyld number be done without the said records.
It is also the plaintiffs case that only when he found that a companypound wall was being companystructed that he became suspicious of the motive of the respondent No.1 who, however, companytinued to assure him that the companypound wall was being companystructed only for the purpose of payment of tax and issuance of katha endorsement.
The respondent No.1, however, did number make any effort to companyplete the sale transaction 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 companytract regarding payment of the balance of the sale price after deduction of the amount already advanced by him.
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 companyplete the sale transaction.
However, the petitioner was surprised when he was served with a legal numberice 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.
Agreeing with the findings of the Trial Court, the High Court came to the finding that the Agreement for Sale between the respondent No.1 and the petitioner was number binding on the respondent No.3 since the respondent No.1 had numbermarketable title to the suit property for the sale thereof in favour of the petitioner.
The agreements entered into on 21st February, 1995 and on 18th May, 1995, companyld number be enforced as he was number the owner of the property and was number empowered to execute any Agreement for Sale in respect thereof and the petitioner had number also sought the relief for specific performance against the other respondents.
3 had prior to purchase of the said property made enquiries and ascertained that one Rafi Ahmed the lawful Power of Attorney holder of the 2nd respondent possessed the legal companypetence to sell the suit property in her favour.
It was also the case of the petitioner that since the aforesaid document had been disclosed for the first time in the written statement filed by the respondent No.3, Sufia Bi, on 28th October, 2003, the same did number inspire companyfidence and the companyrts below erred in dismissing the plaintiffs claim for specific performance of the agreement on the erroneous finding that the petitioner was number ready and willing to companyclude the sale.
Ms. Suri also referred to the decision of this Court in Hardev Singh vs. Gurmail Singh dead by LRs.,
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 Kumar, who is number the respondent No.2 in the present Special Leave Petition.
The said judgment and order of the High Court has been challenged in these proceedings.
The petitioner also appears to have relied on an affidavit affirmed by the respondent No.1, Abdul Wajid, since deceased, which has been referred to as a companysent agreement which indicates that the General Power of Attorney earlier numberarized in favour of the respondent No.1 on 3rd April, 1995, stood cancelled with companysent and a fresh agreement had been entered into by the respondent No.2 in favour of Rafi Ahmed who, in his capacity as the holder of the second Power of Attorney executed by the respondent No.2 in his favour on 18th June, 1995, had sold the suit property in favour of the petitioner.
ALTAMAS KABIR,J. The special leave petition arises out of OS No.8198 of 1995 filed by the petitioner herein for specific performance of an Agreement for Sale dated 18th May, 1995, executed by the respondent No.1 in respect of the suit properties and for a direction upon the respondent to execute a sale deed in his favour and to deliver vacant possession of the suit land.
