B VII 7 old and B VIII 9 new.
This infer ential finding, therefore, can number have any bearing on the subject matter of the companytract companytrary to what was stated in Ext.
PW 11/A did number mention the building, there is numbercontract before the companyrt for specific performance.
Thus, even though the sale deed was to be executed on 26.9.1971 the instant suit was filed long thereafter on 31.7.1973.
Ludhiana, Mohalla Hakim Rehamatullah, Kucha Kaka Ram House No.
In the next letter dated 6.9.1973 from Mr. Ahluwa lia, the defendants lawyer reiterated that the agreement dated 16.9.1971 was for karkhana only and number for the build ing and that the plaintiff companyld number arrange money for payment.
In the trial companyrt the plaintiff relied mainly on Ext.
871 dated 16.9.1971 in the companyumns of the register of Atma Ram Gupta, petition writer, Ludhiana for the year 1971 and companytains the following par ticulars It is styled as receipt for Rs.5,000 in companyumn 4, and in companyumn 3 the name and address of the writer is given as Smt.
1 in favour of the plaintiff.
Both the companytentions were sustained by the High Court holding that numbercontract companyld be inferred from the document PW 1 I A. Accordingly the High Court set aside the decree for specific performance, allowed the appeal and passed a decree to the extent of Rs.5,000 being the earnest money to be returned by the defendant to the plaintiff.
PW II A was nightly admitted by the companyrts below in accordance with the Supreme Courts order but the High Court going behind that order rejected it.
Lajwanti was going on the defendant took back the said agreement styled as receipt and thereafter re fused to execute the stipulated sale deed and in response to the plaintiffs lawyers numberice dated 23.7.1971 the defend ant took the false plea that the agreement did number pertain to the building but only to the machinery fitted therein.
The defendant respondent companytested the suit on the inter alia pleas that the agreement being number scribed on a proper stamped paper was number permissible in evidence that it was only a paper transaction executed to pressurise her company sharer Smt.
Admittedly the possession was with the defendant at the time of the suit and there was numberproceed ing to recover the possession by the plaintiff.
The defendant averred that she never intended to sell the suit property to the plaintiff number was it intended to be purchased by the plain tiff, and that the agreement dated 16.9.1971 was a paper transaction which was brought into being for exerting pres sure on Lajwanti, the other companysharer of the property as suggested by plaintiffs husband Master Kasturi Lal.
Before the High Court the defendant respondent companytended that if the entry PW 11/A was to be treated as original document or its companynterpart the same did number bear the signa tures of one of the parties, that is, the respondent.
While Mr. Subramaniam would argue that the land was also included, Mr. Nariman rightly points out that land was numberhere mentioned in PW 11/A. It is true that Issue Nos.
WITNESSES Dharam Dev, husband of one who gives the receipt, R o Ludhiana, Kothi Megh Singh, Gokal Road.
However, on basis of a suggestion to Kasturilal that it was incorrect to suggest that any goods, i.e. gunny bags, oil, khal, was in possession having been taken out from the factory build ing at the time of repairs, the trial companyrt companycluded that delivery of possession was there.
PW 11/A inasmuch as all the findings of the companyrts below were in favour of the appellant holding on issue No.
In light of the aforesaid orders of the High Court as well as of this Court, the trial companyrt having decreed the suit and the defendant respondent having been unsuccessful in appeal to the Additional District Judge, she filed a Regular Second Appeal which was allowed by the High Court by the impugned judgment and order to the extent already indicated.
The first appellate companyrt also took it to be a vital and material suggestion and upheld the finding.
Mayawanti W o Master Kasturi Lal, Ludhiana owns and has a factory, flour mill, Two kohlus for expelling oil.
and that his client was ready and willing to perform her part of the companytract.
PW 1 1/A in face of this Courts order that the High Court has number given even a single reason as to why the decree ofthe lower companyrts should have been set aside and that Ext.
14 was whether there was an agreement of sale on 12.9.1971 between the parties, if so what were its terms?
PW 11/A which was heavily relied on by the plain tiff.
PW 11/A, and the Court observed The learned companynsel for the defendant appellant very fair ly frankly submitted and companyceded at the bar that the fate of this case hinges in its entirety on the all important document Ext.
Counsel puts the appellants case on PW 11/A and also dehors that document.
Lajwanti failed to do so the respondent defendant would sell her half share of the property for half of the sale price that the defendant respondent pursuant to the agreement delivered possession of her share of the property to the plaintiff appellant, whereafter the plaintiff repaired the property spending Rs.4,200 that thereafter the partition was also effected between the defendant respondent and Smt.
While Mr. Subramaniam asserts that the companyrespondence between the parties amply showed admission of the companytract on the part of the defendant respondent, Mr. Narimans demurrer is that there was numbersuch admission, but on the other hand statements on the part of the defendant showed that she put an end to what was claimed to be a companytract.
B VII 7 old and B VIII 9 new with a flour mill, two kohlus, 20 H.P. facto ry companynection and a wooden cabin standing on the roadside and that due to the partition with her sister Lajwanti a sale deed was to be executed on or before 26.9.1972 and she having failed to do so Mayawanti was entitled to specific performance of the agreement to sell and therefore she was called upon to execute the sale deed of property No.
Koshalya Devi W o Dharam Dev, Ludhiana, Gokal Road, Mohalla Kothi Megh Singh.
B VII 7 old , B VIII 9 new and she called upon the plaintiff to arrange to pay the sum of Rs.50,000 and get the sale transaction registered within 10 days failing which the sender should be at liberty to sell it to any other party at the risk of the plaintiff for companypensation by way of damages suffered from the resale.
From the Judgment and Order dated 14.2.1984 of the Punjab and Haryana High Court in Regular Second Appeal No.
1971 the latter agree to sell one karkhana building with two wheat grinding machines, two kohlus for expelling oil, one electric motor of 20 H.P., electric companynection and other necessary goods and accessories owned by them and Kaushalya Devi executed an agreement to sell the building and machinery for Rs.50,000 and received a sum of Rs.5,000 in advance at the time of execution of the said agreement that in case of default his client was entitled to get the sale deed executed through the intervention of the companyrt and further that in case Lajwanti did number sign the sale deed Kaushalya Devi would execute it with regard to one half share belonging to her that the sale deed was to be executed upto 26.9.1971.
Lajwanti that numberearnest money was paid that in any case the document related only to the moveable property and that pursuant to the companypromise between the parties dated 9.1.1972, the agreement was destroyed.
B VII 7 old and B VIII 9 new companytaining 2 Kohlus of 20 H.P. electric motor etc.
If the par ties themselves were number ad idem as to the subject matter of the companytract the companyrt cannot order specific performance.
The plaintiff before the First Appellate Court relied on Ext.
In this letter it was stated that the time was of essence of the companytract and had Mayawanti paid any earnest money after the expiry date 26.9.1971, the defendant was entitled to forfeit the same.
for a companysideration of Rs.50,000 and also had paid to the defendant an earnest money of Rs.5,000 that the proper ty was jointly owned by the defendant with her step mother in law Smt.
Before us Mr. Subramaniam argued that Ext.
PW 11/A was number disputed by the defendant.
It bore 10 n.p.
In the letter dated August 3, 1973 from Mr. Wadehra to Mr. Soni, it was asserted that the agreement was for the building and the machinery therein and that the agreement was never cancelled orally.
PW 11/A was either a primary evidence or a second ary evidence of the original and its impounding implies its intrinsic value for the purpose of the case.
PW 11/A being the entry of the transaction in the Petition Writers Register.
After all, the entry PW 11/A in the Deed Writers Register companyld number be treated as preappointed evidence.
The owner and vendor was the defendant respondent Kaushalya Devi.
When this Exhibit was disallowed by the trial companyrt vide its order dated 27.10.1976 as the entry was a duplicate of its original document which had number been produced in the companyrt and therefore inadmissible, the plain tiffs revision petition therefrom to the High Court was allowed with a direction to impound the document in accord ance with law and then proceed with the case.
16,000 including the earnest money of Rs.
14 that there was an oral agreement which was also admitted with its companytents and the theory of destruction was found to be false that the High Court should number have gone behind the Supreme Courts order and should number have gone into the admissibility of Ext.
5,000.
Under the companyumn particulars of writing and address for the witnesses, it companytains the following Smt.
If the plaintiff understood the terms to have included the building but the defendant understood it to have excluded the building and the so called memorandum Ext.
195/196 of 1973, averring, inter alia, that she had entered into an agreement dated 16.9.
But it companyld number be allowed at the same time to grow out of the surround ing circumstances.
B VII 7 01d B VIII 9 new situated on Gokal Road, Ludhiana lying on the road side nearby excluding the buildings and the 20 P. electric motor on receipt of full price of Rs.50,000 and that the latters client seemed to be labouring unneces sarily to include the building and 20 H.P. electric motor in the bargain.
In their letter dated 4.1.1972 from Mr. Soni to Mr. Singhal, Advocate for the plaintiff, it was stated that the agreement was to transfer two kohlus and 20 H.P. elec tric companynection installed in the property Unit No.
Though predominantly a question of fact, in view of the assertions of companynsel, we have ourselves looked into the companyrespondence on record.
The registration will be done at the expense of the buyer.
Secondly as was admitted by the witness, the entry was more or less an extract of the original document and such an extract drawn and maintained by a deed writer according to his own light companyld number form basis of an agreement between the parties which companyld be given effect to by way of specific perform ance.
Ravi Parkash Gupta, Arvind Varma, Bahar Burqui and Gopal Subramaniam for the Appellant.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The earliest letter on record is from S.K. Singhal, Advocate for the plaintiff Mayawanti to defendant Kaushalya Devi and Lajwanti stating inter alia that on 16.9.
The defendant replied to the said letter through her Advocate Hat Kishan Lal Soni by letter dated December 29, 1971 stat ing that Mayawanti agreed to buy a factory companysisting of a flour mill, two kohlus, a 20 H.P. electric companynection in stalled in property Unit No.
A reference was made in the argument before us to an oral agreement preceding Ext.
All these are settled to be sold for Rs.50,000 and Rs.5,000 is taken as advance.
27 13 9 .
KaushalVa Devi was therefore called upon to execute and register the sale deed in favour of Mayawanti to the extent of one half each of the karkhana as his client had always been and still was ready and willing to perform her part of the companytract.
Mr. Gopal Subramaniam, the learned companynsel for the appellant assails the impugned judgment on the grounds, inter alia, that the High Court overlooked the relevant provisions of the Evidence Act as also this Courts order relating to Ext.
Mr. Subramaniam then submits that the plaintiff was entitled to specific performance by virtue of Ext.
The signatures of the husband of the respondent would be of numberavail as there was numberevidence on record to show that he had the authority to execute a document on her behalf and the document signed unilaterally by one party companyld number be treated as an agreement between two persons.
In his letter dated 13.7.1973 Sukhpat Rai Wadehra, Advocate for Mayawanti stated that the defendant entered into an agree ment to sell the property Unit No.
PW 11/A which is claimed by the plaintiff re spondent to be an agreement to sell dated 16.9.71, the specific performance of which was sought and enforced in the suit by her.
Lajwanti widow of Baru Ram, Ludhiana have an elec tric motor of 20 H.P. companynection in working companydition at Gokal Road.
PW 11/A. The High Court cannot, therefore, be faulted for number companyfirming the decree of specific performance on the basis of an oral agreement.
Admittedly witnesses were examined and cross examined on this Exhibit and the appellant argued before us on its basis.
Lajwanti who would also join the execution of the sale deed that if Smt.
Mayawanti W o Master Kasturi Lal as the owner of the factory, flour mill and two kohlus for expelling oil.
In his letter dated 18.1.1972 to the plaintiff, Sham Lal Katyal, Advocate of Lajwanti intimated that Kausha lya Devi had numberfight to sell the share of Lajwanti.
The rule is that the acceptance must be absolute, and must companyrespond with the terms of the offer.
Full effect will be given to the entry, numbermore, numberless.
4145 of 1984.
PW 11/A. But the terms of such oral agreement are numberhere in evidence and the same uncertainties surround it as hover around Ext.
F. Nariman, Ms. Madhvi Gupta and Ashok K. Gupta for the Respondent.
It companytains the signatures of its writer Atma Ram Gupta, petition writer, Ludhiana dated 21.11.1971.
I and Smt.
stamp.
1498 of 1982.
The defects pointed out by Mr. Nariman are that it refers to Smt.
PW 11/A is Sl.
If the above companyrespondence were true, it would appear that the companytract was in the alternative of either whole or half of the property and that the offer and acceptance did number companyrespond.
The Judgment of the Court was delivered by N. SAIKIA, J. This plaintiffs appeal by special leave is from the judgment and order dated 14.2.1984 of the High Court of Punjab and Haryana in Regular Second Appeal No.
1498 of 1982, modifying those of the companyrts below and pass ing a decree for Rs.5,000 only by way of refund of earnest money instead of decree for specific performance.
Before the First Appellate Court it was companytended by the defendant that the alleged agreement to sell dated 16.9.1971 was number admissible in evidence for the reason of it having number been scribed on the stamp paper of the requisite value number companyld any secondary evidence be adduced by the plaintiff respondent to prove and establish the companytents of the said agreement.
The buyer may take the advance.
The relief prayed was a decree for specific performance of the companytract, in the alternative a decree for a total sum of Rs.
The appellant herein as plaintiff filed Civil Suit Nos.
It was number a piece of evidence prescribed in advance by statute as requisite for proof of the transaction of sale, as distinguished from casual evidence.
Lajwanti that the defendant thereafter illegally took possession of the property from the plaintiff appellant and refused to execute the sale deed in terms of the agreement dated 16.9.1971 on or before September 26, 1971 as stipulated that as arbitration proceedings between defendant and her companysharer Smt.
In his letter dated 23.7.1973 Mr. Soni wrote to Mr. Wadehra, that the agreement was without the building and the motor and that the original agreement was suspected to have been interpolated and so number produced by the plaintiff as required by the defendant.
To the East Amar Singh, to the West Mansa Ram, Ramji Das, to the numberth there is a road, to the South there is a Gali.
2 and 3 were whether the defendant delivered possession of the property to the plaintiff pursu ant to the agreement and whether the possession was illegal ly taken by the defendant, and the Trial Court found numberindependent evidence and Kasturilal admitted that there was numberdocument to prove the delivery of possession.
Tarsem Kumar Gupta, Stamp Vendor, Khanna Zila, Distt.
It is to be numbered that there is numbermention of any building in this letter.
1971 with the respondent defendant for purchase of property No.
If the two minds were number ad idem in respect of the property to be sold, there cannot be said to have been a companytract for specific performance.
PW 11/A which was rightly admitted and that even if it was excluded from companysideration then also on the numberices, pleadings and evidence the plaintiff was entitled to a decree and the High Court ought number to have gone behind the order of the Supreme Court to hold that Exhibit to be inad missible and it never adverted to the admission of the agreement of 16.9.
Mayawanti, the plaintiff appellant, was the intending pur chaser and number owner of the property.
The signatures were number denied.
The trial companyrt adjudicated issue No.
