By Dr. K. Shivaram, Senior Advocate, Rahul K. Hakani, Advocate, Sashank Dundu, Advocate
Santosh
Vaidya vs. Namdeo Budde and Ors AIR 2016 (NOC) 584 (BOM.)
Respondents-plaintiffs,
through their power of attorney holder by name Dhairyasheel, instituted Special
Civil Suit for specific performance of contract against the Appellant defendant
no. 1 and defendant no. 2.
The
case was that defendant no. 1 was the owner of field HR at Mouza
Hudkeshwar and he entered into an agreement in favour of the Plaintiff and
defendant no. 2 for the sale thereof. It
was also agreed that defendant no. 1 will execute the sale-deed within 1 1/2
years from the date of the agreement and remaining consideration would be paid
accordingly. It was further agreed that in case there was any legal impediment
in getting the sale- deed registered, further time of 1 1/2 years would be
extended. The defendant no. 1 having not complied with the obtaining of
permissions and no objections from the authorities, was not entitled to cancel
the agreement nor could he do so since the agreement itself provided for
extension by another 1 1/2 year. Plaintiffs and defendant no. 2 again informed
defendant no. 1 that they were ready and willing to get the sale-deed
registered and then defendant no. 1 also realised his mistake of not obtaining
the necessary documents of no objections etc. and agreed to make compliance.
however, defendant no. 1 still did not produce no objections from the competent
authority and therefore, Plaintiff had no alternative but to file suit for
specific performance of contract thereafter.
It
was held by the high Court that rule 14 of the Code of Civil Procedure
categorically shows that a person authorised is entitled to file and prosecute
the suit till its disposal. In the light of the above provision, it is not
possible to accept the submissions about the incompetence of the power of attorney
holder to file the suit.
The
counsel for the appellant then argued that the power of attorney holder had no
personal knowledge about the execution of agreement and, therefore, his
evidence is worthless and should not have been relied upon by the appellate
judge.
On perusal of the evidence of two witnesses of
the defen dant namely; appellant nos. 1 and 2, does not even show a semblance
of evidence that there was no readiness and willingness on the part of the
Plaintiff and defendant no. 2. It was clear from the entire record that the
power of attorney holder had full personal knowledge about the entire
transaction and that Plaintiff and defendant no. 2 were ready and willing to
perform their part of contract. In the wake of the above factual position in
this case, the power of attorney holder could validly depose about the
readiness and willingness. Accordingly, the appeal was dismissed.
