TaxTMI 
TaxTMI 
TaxTMI 
2021 (4) TMI 1373
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.... in the agreement that sale deed will be executed on or before 10.11.1993, the defendants did not execute the sale deed. Plaintiff has been ready and willing to perform his part of the contract. Hence, the civil suit with the above prayer was filed. Alternatively, plaintiff prayed for recovery of Rs. 60,000/- 2(ii) Defendants though admitted their joint ownership and possession over the suit land but denied execution of the agreement in question. Their stand was that the agreement dated 6.11.1992, put forth by the plaintiff was a forged document, which did not even bear their signatures. They also pleaded that they alongwith plaintiff were members of a Committee, in which the plaintiff had contributed Rs.28,000/-. The Committee failed and plaintiff started demanding his money back from the defendants. Defendants expressed their inability to pay the amount in lump sum. In this regard plaintiff also moved an application before Police Post Haroli. Eventually, defendants paid Rs.30,000/- to the plaintiff on receipts against due amount of Rs.28,000/-. 2(iii) After considering the pleadings and the evidence adduced by the parties, both the learned Courts below concurrently held that th....
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.... of Rs.30,000/- (Thirty Thousand Rupee only), half of which is Rs.15,000/- in cash as earnest money, we agree to get the same deed registered by appearing before the Sub Registrar, Haroli, District Una, on or before 10.11.1993 and shall receive the remaining amount accordingly. There shall be no objection. Revenue papers regarding Khasra Number, etc., of the house shall be produced at the time of Registration. Failing which, we shall pay double the amount of earnest money and in case the vendee does not execute the sale agreement, the earnest money shall stand forfeited. This agreement has been reduced into writing for the purpose of record. Dated 6.11.1992. Executants Vendee Witness Sd/(in Hindi) Sd/(in Hindi) Sd/(in Urdu) Om Parkash Ram Lal Mahmood Iqbal Sd/(in Hindi) Overleaf No. 2179 dated 6.11.1992 value of stamp paper: 2+1 Name of purchaser: Om Parkash, S/o Mansa Ram, R/o Sahnewal Sd/-(illegible) Surinder Singh Stamp Vendor Kohara Road, Sahnewal Ludhiana 4. Contentions Learned counsel for the appellant contended that the agreement dated 6.11.1992 was not a vague document. It reflected clear intention of the executant....
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....ing of which is not certain, or capable of being made certain, are void. Section 9 of the Specific Relief Act, 1963, entitles the defendant to plead by way of defence any ground available to him under law relating to the contracts, where relief of specific performance of contract is claimed under Chapter II of the Act. Before adverting to question of law, it would be appropriate to first notice the precedents in respect of specific performance of valid, enforceable contracts as also in respect of defective contracts. 5(a)(ii) Hon'ble Apex Court in (2016) 4 SCC 352, titled Satish Kumar Vs Karan Singh & Anr., held that the jurisdiction to order specific performance of contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court will not make a contract for the parties. Specific performance will not be ordered if the contract itself suffers from some defect which makes it invalid or unenforceable. The discretion of the Court will not be there even though the contract is otherwise valid and enforceable. In this regard, it is apposite to extract relevant paragraphs of this judgment:- "8 It is well settled ....
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....he plaintiff. The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Exhibit A-1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance. 5(a)(iii) (2010) 15 SCC 601, titled Pawan Kumar Dutt and Another Vs. Shakuntala Devi and Others, was a case where the Trial Court held that the suit for specific performance could not be decreed for want of certainty as to description of suit property. The First Appeal filed by the plaintiff was also dismissed. The High Court did not find any valid ground to take a different view on the concurrent findings of fact recorded by both the Courts below. The Hon'ble Apex Court held that 'Courts are not expected to pass a decree which is not capable of enforcement in courts of law'. If a decree is to be granted for specific performance, without identification of the suit property, it will not be possible to e....
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....t may. The fact remains that the agreement to sell dated 6.11.1992 is vague. It does not reflect clear intention of the executants as to what was being agreed to be sold under the agreement. All material aspects which needed to be reflected with certainity have been left in the realms of speculation. Neither the agreement gives out clear identity of the land nor it spells out the boundaries. Even the area of the house-subject matter of the agreement is not correctly recorded therein. No ascertainable or determinative intention can be deciphered from this agreement. Such an agreement to sell is not capable of enforcement. Its specific performance cannot be granted. The judgments cited by learned counsel are based upon facts of individual cases. Substantial question of law No.1 answered, accordingly. 5(b) Question of Law No.2:- Section 29 of Indian Contract Act entitles a defendant to avoid an agreement if the same is void. Also the defendant is entitled to take the defence of vagueness & void nature of the agreement in order to avoid its specific performance under Section 9 of the Specific Relief Act. Such a defence would essentially revolve around frame of the agreement and its l....
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.... the defect of vagueness or uncertainty by relying upon any extrinsic evidence. Such an attempt would really mean 4 AIR 1958 SC 512 the making of a new contract between the parties. That is why we do not think that the appellants can now effectively raise the point that the plea of vagueness should not have been entertained in the High Court." (Emphasis supplied) 21. Therefore, the mere fact that a plea is not taken, that the clause in question is vague, and hence, unenforceable and void will not stand in the way of the Appellate Court looking into the contract and, if on its terms, it finds it to be vague and unenforceable, it can be so held." Reference in this regard can also be made to AIR 1990 Kerala 198, titled K.G. Balakrishnan,J. titled Kandamath Cine Enterprises (Pvt.) Ltd. Vs. John Philipose. Relevant paragraphs whereof are extracted as under:- "6. The next contention urged by the appellant's counsel is that the terms of Ext. Al are vague and uncertain and, therefore, it is not enforceable in view of Section 29 of the Contract Act. The contention of the appellant is that the description of the property to be sold is not made clear and it is so vague and uncer....
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....the property. When the parties described the property as "1 acre of front land", it clearly means 1 acre of the property lying on the northern side of the Engineering College road. It is difficult to interpret that 1 acre of front land intended by the parties was on the extreme northern side of the entire property or the property lying on the east of the western pathway. From the lie of the property and the existence of the southern public road it is clear and certain that the 1 acre of land intended to be sold was "CXJK" in Ext. C2(a) plan. It is important to note that the defendant on the date of the agreement received Rupees 10,000/ - and after two months he received the balance consideration. Thus, the defendant accepted several payments towards the agreement without any protest and he acted on the agreement. At no point of time the defendant contended that the terms of the agreement are vague and uncertain and the plaintiff is not entitled to enforce the agreement. PW1, the father of the plaintiff, who acted on behalf of the plaintiff and DW1, the Managing Director of the defendant-company are well educated and they knew each other for a number of years. According to P. W.I, h....
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....ence of defendants at the time of alleged execution of the agreement, is at variance with the version of the other witnesses of the plaintiff. PW-2 Mewa Singh, the scribe, did not produce the deed writer register. The stamp vendor was not examined by the plaintiff. Defendant No.2 Malkit Singh while appearing in examination-in-chief stated that Ext. PW1/A, dated 6.11.1992, was a forged document and never executed by the defendants. This witness was not at all cross-examined by the plaintiff in respect of the valid execution of the agreement. No suggestion was given to this witness by the plaintiff that he had executed the agreement. Burden of proving due execution of the agreement was on the plaintiff, which he failed to discharge. Under the circumstances, there was hardly any necessity for expert opinion about signatures on the document. In this regard, it is apposite to refer to AIR 2016 Karnataka 192, titled Sayed Moinuddin Vs Md. Mehaboob Alam and others. Relevant paragraphs are extracted hereinafter:- "11. So looking to this oral evidence of plaintiff as well as the witnesses on the side of the plaintiff which has been observed by the Trial Court that, firstly the identity of....