Calcutta High Court (Appellete Side)
Pramod Shroff vs Mohan Singh Chopra on 21 January, 2025
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
And
The Hon'ble Justice Uday Kumar
F.A.T. No. 47 of 2018
Pramod Shroff
Vs.
Mohan Singh Chopra
For the appellant : Mr. Kushal Chatterjee,
Mr. A.K. Acharyya,
Ms. Moumita Das
Hearing concluded on : 13.01.2025
Judgment on : 21.01.2025
Sabyasachi Bhattacharyya, J.:-
1. The appeal was heard for ex parte, in view of the respondent having not
contested in either court, and is accordingly taken up for passing
judgment.
2. The plaintiff in a suit for specific performance of an agreement for sale
has filed the present appeal against the dismissal of such suit.
3. Learned counsel for the appellant contends that the learned Trial Judge
dismissed the suit on the ground that the defendant has no title in the
property and as such, no decree for specific performance of an
agreement for sale can be granted. However, it is argued, under
Section 12 of the Specific Relief Act, 1963, where a party to a contract
is unable to perform the whole of his part of the contract, the court may
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direct the specific performance of so much of the contract as can be
performed and award compensation in money for the deficiency.
Hence, the learned Trial Judge ought to have granted at least a decree
of specific performance for transfer of whatever rights the defendant
has in the property in favour of the plaintiff/appellant.
4. It is contended that the 75 years’ lease executed by the original owner
in favour of the Khimjis has still not spent its tenure. As such, at least
for the residual portion of the lease period, a transfer deed could be
directed to be effected in favour of the plaintiff/appellant.
5. Learned counsel next argues that after the amendment of Section 20 of
the Specific Relief Act in the year 2018, the discretion of the court to
grant specific performance is no longer there. If the necessary
conditions for specific performance are met, the court mandatorily has
to grant the relief of specific performance. In support of his contention,
learned counsel cites ChennadiJalapathi Reddy v. Baddam Pratapa
Reddy (Dead) through legal representatives and Another, reported at
(2019) 14 SCC 220, where the Supreme Court directed specific
performance in view of the plaintiff therein being ready and willing to
perform his part of the contract.
6. Learned counsel next cites Shivaji Yallappa Patil v. Ranajeet Appasaheb
Patil and Others, reported at (2018) 16 SCC 725, where the Supreme
Court observed that for basing a claim on Section 53-A of the Transfer
of Property Act, 1882, there must be a contract to transfer for
consideration of any immovable property, executed in writing and
signed by the transferor in such words from which the terms necessary
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to construe the transfer can be ascertained. The transferee must, in
partperformance of the contract, take possession of the property, and
must have done some act in furtherance of the contract. Also, the
transferee must have performed or be willing to perform his part of the
contract.
7. In the present case, it is argued, the transferee/plaintiff has fulfilled all
the said conditions and is in possession of the property
contemporaneously with the execution of the agreement for sale-in-
question in the year 1977 and as such, is entitled to get the benefit of
Section 53-A of the Transfer of Property Act. Hence, a decree of specific
performance ought to have been granted in favour of the
plaintiff/appellant.
8. Learned counsel for the appellant next cites B. Santoshamma and
Another v. D. Sarala and Another, reported at (2020) 19 SCC 80, where
the Supreme Court considered the effect of Section 12 of the Specific
Relief Act and directed specific performance of the part of the contract
which could be performed.
9. It is next contended that since the possession of the appellant of the
property in terms of the contract and the other antecedents of part
performance by the plaintiff/appellant are not in doubt in the present
case, the learned Trial Judge ought to have granted a decree of specific
performance, even if confined to the transferable rights available to the
defendant in respect of the property. Thus, the dismissal of the suit
outright in its totality is bad in law.
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10. Insofar as the objection as to limitation is concerned, it is argued that
Clause 7 of the agreement-in-question specifically provides that a deed
is to be executed in terms thereof when called upon by the purchaser
(plaintiff/appellant) to do so. Since the plaintiff called upon the
defendant to do so only in the year 2007, the refusal to so perform on
the part of the defendant, which is the cause of action of the suit, took
place in 2007, the very same year when the suit was instituted, and,
hence, the suit is not barred by limitation.
11. Upon hearing learned counsel for the appellant, the court arrives at the
following decision:-
12. The brief facts of the case are that the original owner of the property
executed a 75 years’ lease on August 3, 1964 in favour of the Khimjis.
The Khimjis thereafter constructed a building on the said property by
the name of Shalimar Apartments. During construction, the Khimjis
entered into a partnership with other persons under the name and style
of Goolmohar Properties to complete the construction and sell out the
flats therein on ownership basis.
13. On September 1, 1968, the Khimjis executed an agreement for sale in
respect of the suit property, which is Flat No.61 in the Shalimar
Apartments, along with a car parking space, in favour of the Balwanis,
with a clause for assignment.
14. Pursuant to such clause, the Balwanis transferred the property to the
defendant Mohan Singh Chopra by a tripartite registered sale deed
dated November 12, 1971, in which Goolmohar Properties, the
Balwanis and the defendant were signatories.
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15. On January 21, 1977, the defendant entered into an agreement for sale
with the plaintiff in respect of Flat No. 61 and the car parking space.
16. The present suit was instituted in the year 2007 for specific
performance of the said agreement of 1977.
17. Insofar as the question of limitation is concerned, the plaintiff is
justified in contending that in terms of Clause 7 of the agreement dated
January 21, 1997, the vendor/defendant agreed and undertook to
execute and register a formal conveyance of the said flat in favour of the
purchaser/plaintiff whenever called upon to do. Since it is an
undisputed position that the said right was asserted first in the year
2007 by the plaintiff, the cause of action for the suit arose with the
refusal by the defendant to do so in 2007, in which year the suit was
filed. Thus, the suit cannot be said to be barred by limitation, even in
the absence of any justification as to why the plaintiff waited for so long
to assert his claim.
18. The next question which crops up for consideration is whether the
court has mandatorily to grant the relief of specific performance merely
because there is an agreement and the antecedent conditions envisaged
therein are otherwise fulfilled.
19. It is seen that the suit was filed in year 2007 and the impugned
judgment was passed on October 26, 2017, whereas the substitution of
Section 20 of the Specific Relief Act by way of amendment took place by
virtue of the amendment of 2018, which was given effect from October
1, 2018, that is, after the passing of the impugned judgment and
decree. Thus, as on the date of the impugned judgment and decree, the
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said substitution had not taken place and the old Section 20 was fully
applicable.
20. Mere pendency of the appeal thereafter cannot give an additional cause
of action or justification to the plaintiff, since the pendency of the
appeal before this court can be attributed either to the delay occasioned
by the plaintiff himself or the procedure of court, neither of which
changes the position that the legality of the impugned judgment has to
be testedon the anvil of the legal position as it stood on the date on
which it was passed.
21. As per Section 20, discretion is vested in the court whether or not to
grant a decree for specific performance and the court is not bound to
grant such relief merely because it is lawful to do so. At the same time,
however, such discretion has to be exercised judiciously.
22. The appellant cites Shivaji Yallappa Patil (supra), where the Supreme
Court postulated the sine qua non for basing a claim on Section 53-A of
the Transfer of Property Act, 1882. However, apart from the said
conditions no being exhaustive, and there being other circumstances
where the court, in its discretion, can refuse to grant a relief for specific
performance even if it is lawful to do so, the said conditions relate to a
Section 53-A scenario and are not parameters for the grant of a decree
for specific performance.
23. The yardsticks for a defence under Section 53-A of the Transfer of
Property Act and the conditions for grant of a decree of specific
performance stand on different footings.
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24. Section 53-A protects the possession of a party, who, in part
performance of a written agreement, has taken such possession. In the
event the defendant had instituted a suit for eviction against the
appellant, the said provision might have been relevant, since the
defendant would arguably be estopped from asserting his rights for
eviction, to which Section 53-A would provide a defence to the
appellant. However, such provision is not germane in the present
context.
25. The appellant has also relied on Chennadi Jalapathi Reddy (supra)
where, on the basis of an averment in the plaint that the plaintiff was
ready and willing to perform his part of the contract, the Supreme
Court granted specific performance. The said question is a non-issue
in the present case and the above judgment is, thus, irrelevant for the
present consideration.
26. The next question which has been raised by the appellant is that the
learned Trial Judge could have granted specific performance to the
extent that the defendant has right to dispose of the subject property.
However, as evident from the above adumbration of facts, as also
discussed by the learned Trial Judge, the question in the present case
is not one of the defendant being unable to perform a part of the
contract. The absence of ownership of the property, so far as the
defendant is concerned, hits at the very root of his right to transfer title
in the property by way of a deed of sale, which would be the only
manner in which the agreement for sale between the parties could be
performed.
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27. In B. Santoshamma (supra), the Supreme Court had directed part
specific performance of an agreement to sell in a situation where a part
of the subject-matter of the agreement to sell stood unassailably
transferred to a third-party. There was no dearth of title of the
defendant in the said case so as to prevent him from transferring such
title in respect of the remaining portion of the property which had not
been transferred to third parties. Thus, Section 12 of the Specific Relief
Act is not attracted to the present case at all, as in the present case,
the court would have to re-write the agreement between the parties and
direct execution of a deed of sale, thereby giving its seal to a palpably
unlawful transaction, in the teeth of the defendant’s lack of ownership
of the property. It is well-settled that one cannot transfer more than
what one has, which principle is squarely applicable to the present
case.
28. The instant case is not one where the defendant is capable of
performing a part of the contract whereas he is incapable of performing
the rest. Here, in view of his dearth of title in the property, the
defendant could not pass title in respect of any part of the property.
Thus, no part of the agreement for sale could have been performed by
the defendant at all.
29. As such, it would be beyond the jurisdiction of the court to create a
new agreement and direct execution of a deed of lease by the defendant
in favour of the plaintiff for the residual period of the original 75 years’
lease.
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30. Thus, the argument of the appellant on Section 12 of the Specific Relief
Act falls flat.
31. In the present case, there arises no question of the vendor being able to
perform a part of the contract. It is either the whole of the contract
which has to be performed or none of it. In the absence of any saleable
title in the property having vested in the vendor at any point of time,
since the original owner himself had granted only a 75 years’ lease,
which has been percolating through several hands to the present
defendant, no decree of specific performance can be passed by directing
the defendant to execute a sale deed. As the agreement-in-question
between the parties is one for sale, the same cannot be converted to an
agreement for grant of lease by the court and a lease deed be directed
to be executed.
32. At best, the plaintiff might have claimed an alternative relief of
damages. However, such claim would also have its own attending
doubts, as the plaintiff entered into the agreement of sale with his eyes
wide open and has enjoyed possession of the suit property for three
long decades since the year 1977 before even seeking the execution of a
sale deed from the defendant only in the year 2007. In any event, such
discussion would be merely academic as the plaintiff, despite being able
to seek such alternative relief in the suit, has not done so.
33. In the light of the above discussions, we find that the impugned
judgment and decree dismissing the plaintiff/appellant’s suit for
specific performance on the ground of lack of title of the
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defendant/respondent is absolutely justified and there is no reason or
scope to interfere with the same in appeal.
34. Accordingly, F.A.T No.47 of 2018 is dismissed on contest, thereby
affirming the judgment and decree dated October 26, 2017 passed by
the learned Judge, Sixth Bench, City Civil Court at Calcutta in Title
Suit No.3500 of 2007 whereby the plaintiff/appellant’s suit for specific
performance was dismissed.
35. There will be no order as to costs.
36. A formal decree be drawn up accordingly.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Uday Kumar, J.)
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