A.M.KHANWILKAR,J - (1.) This appeal emanates from the decision of the High Court dated 2nd December, 2016 allowing the application preferred by respondent Nos.1 and 2 (defendant Nos.3 and 4) whereby the admissibility of the documents produced by the appellant (plaintiff) in the suit filed by him for relief of specific performance of contract with alternative relief of refund of advance amount and permanent injunction against the defendants was questioned.
(2.) The appellant filed a suit in the Court of District Judge of the Nilgiris at Udhagamandalam, being O.S. No.23 of 2010, against Mr. Charles Thomas Orme Alford Wright who died during the pendency of the suit whereafter respondent Nos.1 and 2 herein (defendant Nos.3 and 4) were brought on record as his heirs and legal representatives. It was asserted in the suit that the original defendant No.1 was the absolute owner of 4.80 acres of land in Survey No.H48A in R.S. No.332/1 of Coonoor Rural Village. He had entered into an agreement of sale with respondent No.3 (defendant No.2) on 12th November, 1995 agreeing to sell the said property either to the second defendant or its nominees. It is further asserted by the appellant (plaintiff) that in furtherance of the said agreement to sell the second defendant was put in possession of the property agreed to be sold, in part performance of the agreement of sale and that fact has been recited in the agreement of sale itself. The agreement also authorized the second defendant, at its discretion, to develop the property by constructing dwelling units thereon for which the predecessor in title of respondent Nos.1 and 2 (namely the original 1st defendant) was to cooperate and give consent, whenever and wherever necessary, for the unhindered development of the property. It was then asserted by the appellant (plaintiff) that to effectuate the stated agreement to sell, a registered Power of Attorney was executed in favour of the second defendant (respondent No.3) by the owner (original first defendant). That Power of Attorney was registered on 2nd May, 1996 in the office of Sub Registrar, Coonoor. It was then stated that since respondent No.3 (defendant No.2) was unable to develop the said property due to unavoidable situation, he requested the appellant (plaintiff) to execute the project of developing the suit property into building sites for dwelling units and to sell it to prospective purchasers. The appellant (plaintiff) accepted the said offer after doing due diligence and resultantly, an agreement of sale came to be executed on 9th July, 2003 by the 1st defendant the original owner of the suit property namely the predecessor in title of respondent Nos.1 and 2 in favour of the appellant (plaintiff) through his Power of Attorney holder, namely, respondent No.3 (2nd defendant) for a consideration of Rs. 1 crore. Earnest money of Rs. 25 lakh was paid at the time of the execution of agreement of sale and the balance was to be paid within a period of 12 months, subject to certain stipulations. The appellant (plaintiff) was put in possession of the suit property upon execution of the agreement of sale dated 9th July, 2003. The 1st defendant did not fulfill his obligation within the stipulated period as a result of which a suit for specific performance, permanent injunction and alternative relief of refund of the advance amount came to be filed on 2nd August, 2010.
(3.) Admittedly, neither the agreement to sell dated 12th November, 1995 executed in favour of defendant No.2 (respondent No.3) nor the agreement to sell dated 9th July, 2003 executed in favour of the appellant (plaintiff) has been registered. The Power of Attorney in favour of respondent No.3 (defendant No.2) dated 2nd May, 1996 has been registered but executed on a stamp paper of Rs. 100/only. The defendants filed their written statement to counter the claim set up in the plaint by the appellant. It is not necessary to dilate on the factual matrix as the issue to be answered in the present appeal/proceedings is very limited.;