TMI Blog2021 (4) TMI 1373X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendants in the agreement is around 5 biswa, whereas the plaint talks about land measuring 0-9 marlas out of total land measuring 3 kanals and 4 marlas, comprised in specific khasra numbers - 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. Whether the courts below were wrong in dismissing the suit for specific performance by holding it to be hit of Section 9 of the Specific Relief Act and Section 29 of the Indian Contract Act in the absence of any such plea raised by the respondents in the written statement and the findings thus recorded are beyond pleadings? - HELD THAT:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit was filed by the plaintiff for possession through specific performance of an agreement by way of execution of sale deed of land measuring 0-9 marlas out of total land measuring 3 kanal 4 marla bearing Khasra No. 1467 comprised in Khewat No. 30 min, Khatauni No. 82 min, situated in village Kangar, Sub Tehsil Haroli, Tehsil and District Una, H.P. The foundational facts as set out in the plaint were that the plaintiff and defendants had executed an agreement to sell in respect to the above described land on 6.11.1992. Out of the total agreed sale consideration of Rs. 40,000/-, an amount of Rs.30,000/- was paid by the plaintiff to the defendants. Despite stipulation 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 plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficial Translator reads as under:- That we, Om Parkash and Malkiat Singh, Sons of Mansa Ram, R/o Village Kangar, Tehsil Haroli, District Una, Himachal Pradesh, presently residing at Delhi road, Nandpur, Tehsil and District Ludhiana, do hereby agree to sell a Kutcha house, under our owernship and possession, compromised in an area measuring around 5 biswa at Kangar, Tehsil Haroli, District Una, in favour of Vendee Ram Lal, S/o Banta Singh, S/o Nandu Ram, R/o Kangar, Tehsil Haroli, District Una, presently residing at Delhi Road, Sahnewal, Tehsil and District Ludhiana, for the consideration of Rs.40,000/- (Forty Thousand Rupees only). On receipt 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to the evidence adduced by the parties and also highlighted that defendant No.2 Sh. Malkit Singh had signed as Malkit Ram in:- (i) the written statement dated 17.8.1996, (ii) in his examination-in-chief by way of affidavit dated 9.4.2003 and (iii) in an another agreement dated 26.8.1992 Ext. DW1/A with respect to return of Rs.28,000/- to the plaintiff. Whereas in the disputed agreement (Ext.PW1/A) his signatures appear as Malkit Singh . 5. Observations: 5(a) Questions of law No.1: 5(a)(i) As per Section 29 of the Indian Contract Act, 1872, agreements , the meaning 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umbara Kuruivilas Son and others, 1987 AIR(SC) 2328 observed:- 14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the 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 speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the land referred to in the plaint has also been appended. The plaint is definitely an improvement over the agreement to sell in respect of identity of land/house. Defendants in their written statement have admitted their joint ownership possession over the suit land as well as of the house. By relying upon the revenue records (jamabandi for the year 1985-86/Ext.P1), they submit that they are joint owners over the suit land alongwith others. It is further their case that they have never executed the agreement in question. Be that as it 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 cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o it was competent to the appeal court to allow such a plea to be raised under Order 41 Rule 2 of the Code of Civil Procedure. If, on a fair construction, the, condition mentioned in the document is held to be vague or uncertain, no evidence can be admitted to remove the said vagueness or uncertainty. The provisions of Section 93 of the Indian Evidence Act are clear on this point. It is the language of the document alone that will decide the question. It would not be open to the parties or to the court to attempt to remove 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 reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Al agreement. It is incorrect to say that the Commission-was taken out to identify the property as the recital in Ext. Al was too vague and uncertain. The entire 5 acres and 2 cents of land was lying on the northern side of the public road leading to Engineering College. There is a by lane on the western side of the property. This bylane is being used by people residing on the further north of the defendant's property. It is an undisputed fact that the main public road is on the southern side of 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 cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he land or was in regarding sale of house. He was also appears to be confused, as to whether he knew Punjabi language or not. The agreement was scribed in Punjabi language. He stated that the stamp paper was brought by defendant No.2 Om Prakash and the agreement was scribed by Mewa Singh at around 1.02 P.M. at Dana Mandi on 6.11.1992. Agreement thereafter was read out by Mewa Singh for the benefit of all. He himself (PW-1) did not read the agreement. His given version of residence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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