- (1.) CM No. 2537 -C of 2014 Having heard learned counsel for the appellant and for the reasons mentioned in the Civil Misc. application, the same is allowed. Delay of 3 days in re -filing the regular second appeal is condoned. RSA No. 1101 of 2014 (O&M) Instant regular second appeal has been preferred by the appellant -defendant no.1 against the judgment and decree dated 17.05.2010 passed by learned Civil Judge (Senior Division), Chandigarh, as well as, against the judgment and decree dated 20.09.2013 passed by learned Additional District Judge, Chandigarh whereby appeal preferred at the instance of respondent no.1 -plaintiff has been allowed and judgment and decree of the Court of first instance has been modified and suit has been decreed for specific performance.
(2.) FOR convenience sake, hereinafter parties will be referred to as they are arrayed in the Court of first instance.
(3.) THE detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, brief facts relevant for disposal of this second appeal are that plaintiff filed a suit for specific performance of agreement to sell dated 07.12.2004 with respect to sale of House No. 2212, Sector 22 -C, Chandigarh. It is alleged that Lal Chand Kumra was the owner of house in question. After the death of Sh. Lal Chand Kumra, his three sons, namely, Kulwant Rai Kumra, Darshan Lal Kumra, Om Dev Dutt Kumra and one daughter Smt. Raj Rani Narang inherited the house in question in equal shares i.e. 25% share each. Sh. Om Dev Dutt Kumra and Sh. Darshan Lal Kumra have also died. In the month of October, 2004 defendant no.1 being a distant relative approached the husband of the plaintiff Sh. Anil Malhotra for sale of the suit property on his behalf and on behalf of other co -sharers. A deal was struck to sell the property between defendant no.1 and Sh. Anil Malhotra for a consideration of Rs. 14.25 lacs on 28.10.2004. Thereafter, a written agreement was executed by defendant no.1, as a memorandum, on a plain paper in favour of Sh. Anil Malhotra at New Delhi and defendant no.1 received earnest money of Rs. 1,50,000/ - vide cheque No. 550290 dated 03.11.2004 drawn on Standard Chartered Bank, Sector 9 -C, Chandigarh. It is further alleged that on 02.11.2004, plaintiff advanced another amount of Rs. 1,50,000/ - to defendant no.1 vide cheque No. 550291 dated 09.11.2004 and an agreement dated 02.11.2004 was executed by defendant no.1 in favour of plaintiff as a memorandum in receipt of amount of Rs. 3.00 lacs, which included the amount of Rs. 1,50,000/ - received from Sh. Anil Malhotra on 28.10.2004. Both cheques were encashed by defendant no.1. In pursuance of the deal struck with plaintiff, defendant nos. 2 to 8 executed two separate general power of attorneys in favour of defendant no.1 on 01.12.2004, first for getting the house in question transferred in their respective names and the other irrevocable power of attorney, empowering defendant no.1 to sell their respective shares in the suit property. Similarly, defendant nos. 8 to 12 also executed two power of attorneys giving similar powers to defendant no.1. Defendant nos. 2 to 12 had executed an irrevocable power of attorney empowering defendant no.1 to sell their respective shares after receiving full consideration against their share in the suit property from defendant no.1. After receipt of power of attorney from defendant nos. 2 to 12, defendant no.1 executed a proper agreement to sell dated 07.12.2004 with the plaintiff and admitted and acknowledged the receipt of Rs. 3.00 lacs against total sale consideration of Rs. 14.25 lacs. It was further agreed by the parties that balance sale consideration would be paid before Sub Registrar, Chandigarh, at the time of execution of sale deed. The last date for execution of sale deed was fixed to be within one month form the date of transfer of suit property in the names of defendants and receipt of 'No Objection Certificate' from Estate Office, UT, Chandigarh. It is further alleged that in the month of May 2005, the suit property was transferred in the name of defendants. On request of defendant no.1 the plaintiff supplied an affidavit and two passport size photographs being purchaser of the suit property, which were required for the purpose of obtaining permission to sell. Another document i.e. indemnity bond was also supplied. Plaintiff had made it clear to defendant no.1 that she was ready and willing to perform her part of the agreement to sell as soon as 'no objection certificate' was obtained from Estate Office. However, attitude of defendant no.1 changed in the month of July 2005 due to escalation in prices of the properties in Chandigarh and he asked for enhanced sale consideration. Defendant no.1 on being contacted, informed the plaintiff that till she agreed to pay higher consideration as per prevailing price, he would not complete the formalities to get the 'no objection certificate' from the Estate Office. Plaintiff was constrained to issue a legal notice dated 21.09.2005, calling upon defendant no.1 to fulfill all the formalities and requirements raised by the Estate Office, UT Chandigarh for the early issuance of 'no objection certificate'. Vide reply dated 05.09.2005, the defendants although admitted the execution of agreement dated 07.12.2004 but refused to comply with the demand of the Estate Officer in completing the required formalities on the ground that agreement dated 07.11.2004 had ceased to be enforceable because the Estate Officer had not accepted the General Power of Attorneys executed before the date of transfer of the property in question in the names of the defendants. They also enclosed photocopy of letter dated 29.09.2005 issued by the Estate Officer to defendant no.1 demanding submission of fresh general power of attorneys. Defendants also enclosed a cheque for Rs. 3.00 lacs drawn on UTI Bank dated 04.10.2005. It is also alleged that plaintiff has always been ready and willing to perform her part of the contract and is still ready and willing to do so, but the defendants willfully and deliberately have been avoiding to perform their part of the contract on illogical and malafide grounds. Upon notice, defendants appeared and filed their written statement taking preliminary objections that it was specifically negotiated between defendant No.1 for self and on behalf of other defendants and plaintiff and her husband Shri Anil Malhotra, who is an Advocate and also dealing in real estate business in the name of his wife, that if for any reason the power of attorneys already executed stand futile, no further power of attorney will be obtained. Plaintiff and her husband had brought the already typed agreement and after reading Clause No.6, the defendants flatly refused and accordingly, said Clause was cut off. The defendants had told the plaintiff and her husband that it would not be possible to have another power of attorney. Therefore, the agreement will not be binding if the power of attorneys stand futile. Plaintiff and her husband agreed to said agreement. It was also agreed that a sum of '3.00 lacs paid as earnest money would be returned to the plaintiff. It is alleged that plaintiff's husband is close relative of defendant No.1. The daughter -in -law of defendant No.1 namely, Smt. Manju Kumra is the real sister of Smt. Sushma Malhotra, who is married to Shri Pawan Malhotra, the real elder brother of husband of plaintiff. Plaintiff misused that position and made the defendants to enter into an agreement to sell for a very low price about which defendants came to know later on. The property in question belonged to Shri Lal Chand, who died intestate in the year 1956, leaving behind three sons and one daughter including defendant No.1. Out of three sons, two sons namely, Shri Darshan Lal Kumra and Shri Om Dev Dutt Kumra having expired and the property in question not having been mutated in the records of the Estate Officer, therefore, defendant No.1 was looking for a person at Chandigarh, who could get the property mutated in their names. They came to know that Shri Anil Malhotra could help them and accordingly, they contacted him and told him their purpose. Shri Anil Malhotra's eyes flared up and he grabbed this opportunity and instead of getting the property in question first mutated in the names of the defendants, he in a planned manner, visited the house of defendant No.1 at Delhi on 28.10.2004 for the first time and got an agreement to sell prepared then and there on a plain paper in his own handwriting and also issued a cheque for Rs. 1,50,000/ - dated 3.11.2004 towards the sale consideration of Rs. 14.25 lacs. Defendant No.1 clearly told him that there were other co -owners having title in the property, but without waiting for anything and clarity of title, Shri Anil Malhotra pressed upon defendant No.1 to sign the said agreement on 28.10.2004 itself. Shri Anil Malhotra again reached Delhi on 2.11.2004, with a typed agreement to sell in which he mentioned defendant No.1 as the seller and his wife as the purchaser. Though plaintiff and her husband were aware that defendant No.1 was not having any authority to enter into agreement to sell on behalf of other coowners and other co -owners were not party to the agreement to sell, yet he took a calculated risk considering the disadvantages of the sellers. Shri Anil Malhotra pressed upon defendant No.1 to sign the said agreement to sell dated 2.11.2004 and paid another sum of Rs. 1,50,000/ - by another cheque dated 9.11.2004. Shri Anil Malhotra contacted defendant No.1 and asked him to call all the other co -owners to Chandigarh as their power of attorneys in favour of defendant No.1 are required in order to get the property mutated in their names in the record of the Estate Officer. He assured defendant No.1 that all the documents would be kept ready.;