Result PDF

CNR
No.MHSN060004912012 1 R.C.S.No.66/2012 (Judgment)
Received on 16.01.2012.
Registered on 16.01.2012.
Decided on 28.02.2019.
Duration Ys. Ms. Ds.
07 01 22
IN THE COURT OF JOINT CIVIL JUDGE, JUNIOR DIVISION
MIRAJ, DISTRICT SANGLI
(Presided over by N.M.Wali)
REGULAR CIVIL SUIT NO. 66 OF 2012. Exh.118
(Old Special Civil Suit No.138/2006)
Vinayak Dinkar Gokhale,
Age 47 yrs., Occu. Agri. & Architect
R/o Pratap Colony, Miraj, .. Plaintiff.
Tal.Miraj, Dist. Sangli.
Versus
1. Shri Shivaji Dattatrya Bharati,
Age 36 yrs., Occu. Agri. .. Defendants.
R/o At post Tarewadi, Tal.
Gadhinglaj, Dist. Kolhapur,
Now R/o C/o Sanjay Laxman Buva,
Nipani Ves, Kagal, Tal.Kagal,
Dist. Kolhapur.
2. Shreyas Ganpati Bharati,
Age 22 yrs., Occu. Education,
R/o C/o Dr.Ganapati Shivram Bharati,
Shivajinagar, Miraj, Tal.Miraj,
Dist.Sangli.
3. Shri Narayan Namdeo Sanap,
Age Major, Occu. Agri.
CNR No.MHSN060004912012 2 R.C.S.No.66/2012 (Judgment)
4. Shri Shivaji Namdeo Sanap,
Age Major, Occu. Agri. .. Defendants.
5. Shri Tukaram Namdeo Sanap,
6. Shri Tanaji Namdeo Sanap,
7. Smt. Dhondubai Namdeo Sanap,
Nos.3 to 7 R/o Bedag, Tal.Miraj,
Dist.Sangli.

Suit for Specific Performance of Contract.

Shri P.V.Narwadkar, learned advocate for plaintiff.
Shri S.A.Sutar, learned advocate for defendant No.1 (Without
written statement).
Shri S.G.Malgaonkar, learned advocate for defendant No.2.
Shri C.A.Patil, learned advocate for defendant Nos.3 to 6.
Defendant No.7 – Ex parte.

J U D G E M E N T
(Delivered on 28.02.2019)
*****
This is a suit for specific performance of contract.
Brief facts of the plaintiff's case are as follows
2. Agricultural property bearing Gat No.776 situated at
Bedag, Tal. Miraj, Dist. Sangli, admeasuring, 3 Acre 5.5 Gunthas
land of southern side out of total admeasuring Hector 2.53 Are
(hereinafter referred as the suit property) is owned and possessed
by defendant No.1 Shivaji.
3. It is the case of the plaintiff that defendant No.1

Shivaji was in need of money. So defendant No.1 decided to sell
the suit property and plaintiff agreed to purchase the suit
property for total consideration of Rs.4,55,000/. Accordingly, an
agreement to sale was executed between plaintiff and defendant
No.1 on 19.06.2006. Defendant No.1 accepted earnest amount of
Rs.25,000/ from plaintiff and executed the agreement. It is
agreed that the sale deed is to be executed within 15 days and at
the time of sale deed plaintiff has to pay remaining amount of
Rs.4,30,000/ to defendant No.1 Shivaji and he has to hand over
possession of the suit property to plaintiff on the date of sale
deed.
4. Thereafter, on 20.06.2006, plaintiff issued public

notice inviting the objections from public. The notice was
published on 23.06.2006 in daily Sakal, but nobody objected to
said notice. Thereafter, defendant No.1 Shivaji, his relative
Dr.Ganpati Shivram Bharati and son of Dr.Ganpati Bharati
viz.Shreyas i.e. defendant No.2, in collusion with each other and
in order to deceive the plaintiff, prepared one false and bogus
sale deed dated 27.06.2006. It is executed by Dr.Ganpati Bharati
on the basis of power of attorney executed by defendant No.1
Shivaji in his favour and sale deed was executed in favour of
defendant No.2 Shreyas. It is bogus, hollow and so it is illegal. It
is not binding on the plaintiff. Therefore, the plaintiff filed the
present suit for specific performance of contract dated 19.06.2006
with alternative prayer for refund of earnest money along with
compensation.
5. Defendant No.1 appeared but failed to file his written
statement within time, hence suit proceeded without written
statement of defendant No.1.
6. Defendant No.2 resisted the suit by filing written

statement at Exh.19 and denied all the contentions in the plaint
except the fact that the suit property is owned by defendant No.1.
It is denied that defendant No.1 agreed to sell the suit property to
plaintiff and accordingly an agreement to sale was executed on
19.06.2006 by accepting earnest amount of Rs.25,000/. It is
contended by defendant No.2 that power of attorney holder
Dr.Ganpati Shivram Bharati is uncle of defendant No.1. He
incurred the expenses of education, day to day maintenance and
illness and marriage of defendant No.1. Defendant No.1 could not
do agricultural work and he requested Dr.Ganpati Bharati to give
him Bajaj Tempo Trax and accordingly Tempo Trax bearing
No.MH13/1501 was purchased for defendant No.1 by
Dr.Ganpati. Thereafter, defendant No.1 started to deceive
persons and due to which Dr.Ganpati got executed power of
attorney from defendant No.1 in respect of suit property and
defendant No.1 authorized Dr.Ganpati to do the transaction on
behalf of him in respect of the suit property.
7. It is further contention of defendant No.2 that

defendant No.1 is unemployed. Dr.Ganpati Bharati advised him
to behave like a responsible person and asked defendant No.1 not
to come to his hospital. But being angry with Dr.Ganpati Bharati,
defendant No.1 went away and for taking revenge, he started
mortgaging the property by accepting the amount from various
financial institution and persons by accepting loan from them.
Plaintiff has knowledge about the same. Because the land
property of plaintiff is adjacent to the suit property. The dispute
started between the plaintiff and Dr.Ganpati on the ground of
access from Sarbandh. So by taking advantage of this fact,
plaintiff come close to defendant No.1 and filed this false and
bogus suit by preparing the false documents. Defendant No.2
purchased the suit property for doing agricultural work. He is not
alienating the suit property to anybody. Defendant No.2 prayed to
dismiss the suit with compensatory costs.
8. Defendant Nos.3 to 6 appeared and filed their written
statement at Exh.49 and denied all the contentions in the plaint.
There is no partition between defendants. Suit property is not yet
measured by Govt. Surveyor. These defendants are not necessary
party to suit, hence, suit is bad for misjoinder of necessary
parties. Hence, defendant Nos.3 to 6 prayed to dismiss the suit.
9. Defendant No.7 remained absent even after of service
of summons, hence, suit proceeded ex parte against defendant
No.7.
10. From the rival pleadings of the parties, my learned

predecessor framed the following issues at Exh.30. Same are
reproduced along with findings thereon for the reasons given
thereunder :
Sr.No. Issues. Findings
1. Does plaintiff prove that defendant No.1
agreed to sell suit property to him on Yes.
19.06.2006 for consideration of
Rs.4,55,000/ ?
2. Does plaintiff prove that he paid

Rs.25,000/ to defendant No.1 and he Yes.
executed earnest note on 19.06.2006 ?
3. Does plaintiff prove that he was ready

and willing to perform his part of the Yes.
contract ?
4. Does plaintiff prove that defendant No.1 Yes.
has committed the breach of the
contract ?
5. Is plaintiff entitled for specific No.

performance of contract ?
6. In the alternative, is plaintiff entitled for Partly Yes,
damage of Rs.4,55,000/ with interest ? Rs.25,000/ along
with interest @ 6%
p.a. from 19.06.2006
till its full
realization.
7. What order and decree ? As per final
order.
11. To prove the claim, plaintiff Vinayak Dinkar Gokhale
has examined himself on oath by filing his affidavit of chief
examination at Exh.32. Plaintiff also examined PW2 Pradip
Moreshwar Patwardhan at Exh.52.
12. Plaintiff has also filed on record 7/12 extract of Gat
No.776 i.e. suit property at Exh.8, Extract of defendant No.1 at
Exh.9, agreement to sale dated 19.06.2006 at Exh.59, Public
notice dated 23.06.2006 issued by plaintiff in Daily Sakal at
Exh.60 and notice dated 04.07.2006 given by plaintiff to
defendant No.1 at Exh.61.
13. Defendant No.2 examined himself on oath by filing

his affidavit of examination in chief at Exh.68. Defendant No.2
also examined witness Mahadeo Aba Omase at Exh.90, witness
Rajkumar Jalindar Buva at Exh.94 and witness Vijaykumar
Shantaram Ranagi at Exh.100. Defendant No.2 has relied upon
Sale deed at Exh.114 and power of attorney at Exh.113.
Defendant No.2 filed evidence close pursis at Exh.104.
14. Defendant Nos.3 to 6 filed evidence close pursis at
Exh.107.
15. I have heard learned advocate for plaintiff and

defendants at considerable length.
: R E A S O N S :
AS TO ISSUE NOS.1 AND 2 :
16. As both these issues are corelated with each other,
they are discussed together.
17. To prove his case, plaintiff has examined himself at
Exh.32. It is the case of the plaintiff that defendant No.1 has
executed agreement to sell in respect of the suit property on
19.06.2006 and the consideration was decided at Rs.4,55,000/,
out of which Rs.25,000/ was paid as earnest money by plaintiff
to defendant No.1. For this purpose he has relied upon the
agreement to sell at Exh.59. On perusal of the same, it reflects
that the defendant No.1 has agreed to sell the suit property to
plaintiff for consideration of Rs.4,55,000/. This fact is not denied
by the defendant No.1 and remained unchallenged. Thus, the
contention of execution of agreement to sell of suit property
dated 19.06.2006, which is produced at Exh.59, is duly proved by
the plaintiff. Though this fact is denied by defendant No.2, as he
is not party nor witness on the said document. Thus, the denial by
defendant No.2 will not effect upon the fact about execution of
agreement to sell at Exh.59 by defendant No.1 in favour of
plaintiff. Thus, plaintiff has proved that defendant No.1 has
agreed to sell the suit property to him on 19.06.2006 for
consideration of Rs.4,55,000/.
18. The fact that plaintiff has advanced earnest money of
Rs.25,000/ for the part performance of agreement to sell at
Exh.59 is not denied by the defendant No.1. Plaintiff on oath has
stated that he has advanced a sum of Rs.25,000/ to defendant
No.1 on 19.06.2006, which remained unchallenged by defendant
No.1. Thus, plaintiff has proved that he has paid Rs.25,000/ to
defendant No.1 as earnest money. It is the contention of plaintiff
that the agreement to sell at Exh.59 is executed by defendant
No.1 in his favour and the consideration agreed between him and
defendant No.1 is of Rs.4,55,000/. Plaintiff by his affidavit
contended that defendant No.1 executed the agreement to sell at
Exh.59. PW2 Pradip Patwardhan also stated that defendant No.1
has signed before him on agreement to sell at Exh.59. PW2 is
witness upon the agreement to sell at Exh.59. These facts
remained unchallenged by defendant No.1. Thus, plaintiff has
proved that defendant No.1 has executed agreement to sell at
Exh.59 in his favour. Hence, I answer issue Nos.1 and 2 in
affirmative.
AS TO ISSUE NO.3 :
19. It is the contention of plaintiff that he was ready and
willing to perform his part of contract. For this purpose he has
relied upon documentary evidence at Exh.61. At Exh.61 plaintiff
has produced the notice sent by him to defendant No.1 stating
that he is ready and willing to perform his part of contract and to
complete the agreement to sale. It is further contention of the
plaintiff that said notice is received by defendant No.1 but he

failed to execute sale deed in his favour as per performance of
agreement to sale at Exh.59. Though plaintiff has not produced
any receipt of notice at Exh.61 by defendant No.1, the non receipt
of said notice is not contended by defendant No.1. The fact of
sending notice at Exh.61 by plaintiff to defendant No.1 remained
unchallenged by defendant No.1. Thus, plaintiff has proved that
he has sent notice to defendant No.1 for making compliance of
the agreement at Exh.59. On perusal of notice at Exh.61, it
reveals that plaintiff has stated about his readiness and
willingness to fulfill the obligation on his part by paying
remaining amount of consideration and he is ready to perform his
part of contract. Thus, as this fact is remained unchallenged by
defendant No.1, plaintiff has proved that he was ready and
willing to perform his part of contract.
AS TO ISSUE NO.4 :
20. It is the contention of the plaintiff that defendant
No.1 has committed breach of contract. It is pleaded by plaintiff
that though defendant No.1 has agreed to sell the suit property to
him, defendant No.1 failed to execute the sale deed of the suit
property as per part performance of agreement at Exh.59. To
prove this fact, plaintiff has relied upon documentary evidence at
Exh.59 and Exh.61. Plaintiff contended that the defendant No.1
though executed agreement to sale of suit property failed to
execute the sale deed. Thus, he has sent notice for calling to fulfill
obligations by defendant No.1. By said notice, plaintiff shown his
willingness and readiness to perform his part of contract. On
perusal of said notice at Exh.61, plaintiff has contended in said
notice that defendant No.1 failed to execute the sale deed within
time limited and joining hands with Dr.G.S.Bharati and defendant
No.2, executed sale deed in respect of suit property in favour of
defendant No.2. It is further stated in the notice that defendant
No.1 to cancel the said sale deed and to execute the sale deed in
favour of plaintiff. Thus, it seems from the evidence on record
that on 04.07.2006 plaintiff has well knowledge that defendant
No.1 through power of attorney holder Dr.G.S.Bharati has
executed sale deed in respect of suit property in favour of
defendant No.2. It also seems from the record that plaintiff is
with knowledge of sale deed between defendant No.1 through
power of attorney holder Dr.G.S.Bharati and defendant No.2, has
sent notice to execute the agreement to sell and also filed this
suit. It is clear from evidence on record that defendant No.1 has
agreed to execute sale deed in favour of plaintiff by agreement to
sell dated 19.06.2006, but he failed to execute the sale deed in
favour of the plaintiff. Thus, plaintiff has proved that defendant
No.1 has committed the breach of contract. Hence, I answer issue
No.4 in the affirmative.
AS TO ISSUE NO.5 :
21. It is the case of the plaintiff that defendant No.1 has
executed agreement to sell in respect of suit property in his
favour for consideration of Rs.4,55,000/ and out of it earnest

money of Rs.25,000/ is paid by him to defendant No.1. Plaintiff
has examined himself and PW2 Pradip Patwardhan. It is
contended by both of these witnesses that agreement at Exh.59 is
executed by defendant No.1 and the contents in said agreement
to sell is also agreed by both parties. Plaintiff in his evidence has
stated that defendant No.1 by agreement at Exh.59 admitted that
he has not executed any document in respect of suit property to
anyone. Further the defendant No.1 has also satisfied to him that
there is no encumbrance on said property. The agreement is
produced at Exh.59. On perusal of said agreement, it reveals that
the agreement is stipulated with some conditions which have to
be fulfilled by defendant No.1 and it is also admitted by both
parties that on fulfillment of those stipulations and conditions,
sale deed of suit property to be executed by defendant No.1 in
favour of plaintiff. On perusal of said sale deed, it is one of the
condition that the consent of other coowners and tenants has to
be obtained by defendant No.1, within 15 days. The agreement
also contents that defendant No.1 to satisfy and give assurance
that there is no grievance, complaint, court matters, agreement
with relatives, in respect of suit property. Thus, it is the condition
that within 15 days, defendant No.1 have to take consent of other
coowners and tenants in said Gat numbers and also to satisfy the
plaintiff about no grievance, complaint, court matters, agreement
with relatives, in respect of suit property. For that purpose, as per
condition mentioned in agreement to sell, plaintiff has issued
paper notice dated 20.06.2006 and published on 23.06.2006

(Exh.60) calling objections. On perusal of said notice at exh.60,
plaintiff has mentioned that the objection be given to him within
7 days from the date of notice. It is the defence of the defendant
No.2 that he has no knowledge about the agreement to sell
(Exh.59) and thus he has purchased the suit property on
27.06.2006. It is also argued by defendant No.2 that the power of
attorney holder of defendant No.1 has also given reply paper
notice (Exh.114) which is dated 29.06.2006 and published on
01.07.2006. The said reply notice is produced by plaintiff himself.
On perusal of said notice, it reveals that he has specifically
mentioned that the suit property is transferred by him to another
and general public is cautioned not to make any contract in
respect of the suit property with defendant No.1. The said paper
notice has also cautioned the plaintiff not to take further steps in
respect of the suit property as it is previously sold by him. Thus,
as per documents on record from date of calling objection by
paper notice within time, plaintiff received objection and he got
knowledge about the sale deed in respect of suit property.
Plaintiff has also not pleaded about the stipulations to be fulfilled
by defendant No.1 for concluding the contract into sale deed.
Plaintiff has not also produced any evidence in respect of consent
of other coowners and of tenants. But it seems from the defence
of defendant Nos.3 to 7 that the suit property is not yet
partitioned and they have not given consent to defendant No.1
for sale. Hence, the plaintiff has well knowledge on 01.07.2006
that the conditions as mentioned in agreement to sell are not

fulfilled by defendant No.1 and the suit property is purchased by
defendant No.2. Being this situation, plaintiff has sent notice to
defendant No.1 which is produced at Exh.61. Though there are
conditions to be fulfilled by defendant No.1 for the execution of
sale deed of the suit property in his favour, plaintiff has not
required vide his notice (Exh.61) from defendant No.1 to fulfill
those conditions of agreement to sell. Thus, before completing the
conditions of agreement, plaintiff has required from defendant
No.1 execution of sale deed. Thus, plaintiff has suppressed the
material facts of the agreement and came before Court for
seeking equitable relief of specific performance of contract.
22. Plaintiff has on oath stated that he has not received
any objection to his paper notice and thus he has required the
execution of sale deed from defenant No.1. But on perusal of
notice (Exh.61) sent by plaintiff to defendant No.1, it reveals that
plaintiff has well knowledge about the objection as raised by
power of attorney holder of defendant No.1 and in tune by
defendant No.2. The objection received to plaintiff's notice is
produced by plaintiff himself at Exh.114. The agreement at
Exh.59 is coupled with the conditions to be fulfilled by defendant
No.1. But plaintiff has not pleaded nor required the fulfillment of
these conditions from defendant No.1 and prayed for specific
performance of agreement by defendant No.1.
23. Section 20 of the Specific Relief Act (before

amendment), reads as follows
Section 20 Discretion as to decreeing specific
Performance.
(l) The jurisdiction to decree specific performance is
discretionary, and the court is not bound to grant such
relief merely because it is lawful to do so; but the
discretion of the court is not arbitrary but sound and
reasonable, guided by judicial principles and capable of
correction by a court of appeal.
(2) The following are cases in which the court may

properly exercise discretion not to decree specific
performance—
(a) where the terms of the contract or the conduct of the
parties at the time of entering into the contract or the
other circumstances under which the contract was
entered into are such that the contract, though not
voidable, gives the plaintiff an unfair advantage over the
defendant; or
(b) where the performance of the contract would involve
some hardship on the defendant which he did not foresee,
whereas its nonperformance would involve no such
hardship on the plaintiff;
(c) where the defendant entered into the contract under
circumstances which though not rendering the contract
voidable, makes it inequitable to enforce specific
performance.
Explanation 1: Mere inadequacy of consideration, or the
mere fact that the contract is onerous to the defendant or
improvident in its nature, shall not be deemed to
constitute an unfair advantage within the meaning of
clause (a) or hardship within the meaning of clause (b).
Explanation 2: The question whether the performance of
a contract would involve hardship on the defendant
within the meaning of clause (b) shall, except in cases
where the hardship has resulted from any act of the
plaintiff subsequent to the contract, be determined with
reference to the circumstances existing at the time of the
contract.
(3) The court may properly exercise discretion to decree
specific performance in any case where the plaintiff has
done substantial acts or suffered losses in consequence of
a contract capable of specific performance.
(4) The court shall not refuse to any party specific

performance of a contract merely on the ground that the
contract is not enforceable at the instance of the other
party.

24. In the present case, defendant No.1 has executed
registered power of attorney in favour of Dr.G.S.Bharati in respect
of suit property on 21.01.1999. But he later on has executed the
agreement to sell at Exh.59 dated 19.09.2006 in favour of
plaintiff. It seems from the record that the plaintiff is in hurry to
purchase the suit property. It is admitted fact on record that
plaintiff is land developer and having knowledge that before
purchasing any immovable property, the person have to take the
search in respect of any agreement, encumbrance, if any, on the
said property; But plaintiff failed to take the search of the suit
property, if he has taken search of the suit property, he might
found that defendant No.1 has executed registered power of
attorney in favour of Dr.G.S.Bharati. The time period from the
agreement to sell till filing of the suit creates doubts about the
behaviour and intention of the plaintiff. Plaintiff having
knowledge of the sale deed of defendant No.2 denied the reply
paper notice of vendee of the suit property to defendant No.2.
Thus, I hold that the defendant No.1 entered into the contract i.e.
agreement at Exh.59 under circumstance which though not
rendering the contract voidable, the specific performance of the
agreement makes it inequitable. Thus, as per sub section 2C of
section 20, as it is inequitable, I hold that plaintiff is not entitled
for specific performance of the Contract.
25. The agreement (Exh.59) is unregistered one and sale
deed (Exh.114) and power of attorney (Exh.113) are registered.
It is defence of defendant No.2 that he has no knowledge of
agreement (Exh.59) due to its non registration. From perusal of
notice at Exh.60, it reveals that plaintiff has not finally concluded
the contract in respect of suit property, but if no objection is
raised, he will conclude the contract. Thus, as agreement
(Exh.59) is non registered, it bears less evidentiary value than the
sale deed (Exh.114) and power of attorney (Exh.113) which are
registered. Power of Attorney is registered on 21.01.1999, thus it
shall be presumed that plaintiff has knowledge of the same before
his agreement. The said power of attorney is not cancelled by
defendant No.1 till the execution of sale deed (Exh.114), hence, it
is valid one and by using of it, the sale deed is also valid and
enforceable at law.
26. It is admitted position that possession of the suit

property is handed over to defendant No.2 by sale deed. Plaintiff
having knowledge of power of attorney has made agreement,
thus it is not enforceable. It reflects from evidence of defendant
No.2 that the power of attorney holder has an interest in the suit
property, thus in absence of an express contract for termination of
his agency, the power of attorney cannot be terminated to the
prejudice of such interest. The power of attorney is in effect and
not cancelled by defendant No.1 on the date of sale deed, hence,
the use of power of attorney is legal one and by use of it, the
execution of sale deed is also valid one.
27. Thus, from evidence on record it reflects that plaintiff
has not come before the Court with clean hands and also
suppressed the material facts from the Court, and as conditions of
agreement not fulfilled, he is not entitled for equitable relief of
specific performance. Hence, I answer issue No.5 in the negative.
AS TO ISSUE NO.6.
28. I have answered issue No.4 of breach of Contract in
affirmative. The remedy for breach of contract in this case is to
claim damages, which is claimed by plaintiff. Plaintiff in
alternative of specific performance has claimed damages from
defendant Nos.1 and 2. Plaintiff has specified the amount of
damages in his plaint para 8B. Plaintiff has sought Rs.25,000/,
the earnest money and Rs.4,30,000/ as damages from
defendants. Otherwise, than this plaintiff has not mentioned any
specific details and circumstance for the granting damages as

claimed by him. Plaintiff has also not stated that due to breach of
contract he has suffered any special damages as per section 73 of
the Contract Act. Section 73 of the Indian Contract Act, 1872 read
as follows
Section 73.Compensation for loss or damage

caused by breach of contract. When a contract has been
broken, the party who suffers by such breach is entitled to
receive, from the party who has broken the contract,
compensation for any loss or damage caused to him
thereby, which naturally arose in the usual course of
things from such breach, or which the parties knew,
when they made the contract, to be likely to result from
the breach of it.
Such compensation is not to be given for any

remote an indirect loss or damage sustained by reason of
the breach.
Compensation for failure to discharge obligation

resembling those created by contract. …........
Explanation. In estimating the loss or damage

arising from a breach of contract, the means which
existed of remedying the inconvenience caused by the non
performance of the contract must be taken into account.
29. Thus, as per section 73 of the Contract Act as

defendant No.1 has broken the contract made by him, hence,
plaintiff is entitled for damages. As per explanation of section 73,
the means which existed of remedying if taken into consideration
the plaintiff also has opportunity for mitigating the damages as
claimed by him.
30. Damages will not be payable if loss is abnormal in

nature. The non breaching party is obligated to mitigate, or
minimize the amount of damages to the extent reasonable.
Damages cannot be recovered for losses that could have been
reasonably avoided or substantially ameliorated after the breach
occurred. The non breaching party's failure to use reasonable
diligence in mitigating the damage means that any award of
damages will be reduced by the amount that could have been
reasonably avoided. The plaintiff has claimed Rs.4,55,000/
including earnest amount as damages from defendants. As I have
answered issue No.5 in the negative, plaintiff is entitled only to
the damages which are normal in course of business and which is
loss directly occurred due to breach. From the evidence on
record, plaintiff has proved that he has advanced Rs.25,000/ to
defendant No.1 on 19.06.2006, which is till today not repaid by
the defendant No.1. Thus, for the discussion as above, I think it
proper to return earnest amount of Rs.25,000/ to plaintiff along
with interest @ 6% per annum from 19.06.2006 till its full
realization, as amount of damages. Hence, I answer issue No.6 in
partly affirmative.
31. Learned advocate for plaintiff relied upon ratio laid
down in case of "Ameer Minhas Vs. Dierdre Elizabeth (Wright)
Issar and others" reported in "(2018) 7 Supreme Court Cases

636 : wherein it is held that the registered general power of
attorney will require stamp duty as applicable to deed of
convenience instead of duty of Rs.100/ only. In case in hand the
plaintiff has not sought any relief in respect of neither power of
attorney executed by defendant No.1 nor sought any relief in
respect of sale deed executed by defendant No.1 by using said
power of attorney. Considering the ratio laid down in case cited
supra and the facts of case in hand are not identical. Therefore,
the ratio relied upon is not applicable to the facts of the present
case.
32. Learned advocate for plaintiff relied upon ratio laid
down in case of "Barses J.A. Dsouza Vs. Municipal Corporation of
Greater Brihan Mumbai and others" reported in "(2003) (6)
Bom.C.R.846 : wherein it is held that instrument i.e. attorney,
empowering specific person to act for person executing it, acts as
a agent of donor and said attorney can be terminated by principal
by revoking authority unless prohibited by section 202 of the
Contract Act or any other Law. Mere mentioning that it is
irrevocable does not make it irrevocable. If agent has interest in
subject matter, agency cannot in absence of express contract be
terminated. In the case cited supra power of attorney was
terminated by person giving it by giving notice to the person to
whom it was given. But in present case, no such pleading by
plaintiff that defendant No.1 has by notice terminated the
registered power attorney given by him to Dr.G.S.Bharati,

therefore, the ratio relied upon is not applicable to the facts of the
present case and not helpful to the plaintiff.
33. Learned advocate for plaintiff also relied upon ratio
laid down in case of "Dilip Bastimal Jain Vs. Baban Bhanudas
Kamble and others" reported in "(2001) (3) Mh.L.J. 730: wherein
it is held that in the suit for specific performance of contract of
sale, subsequent transferees to be impleaded as parties without
seeking any specific declaration against them. In present case, it is
the objection of the defendant No.2 that plaintiff has not sought
any relief in respect of his sale deed, thus suit is not maintainable.
But after considering the evidence on record, I have hold that
plaintiff is not entitled for specific performance. Thus, this
citation is not helpful to the plaintiff as this issue not framed due
to non pleading by the parties. Therefore, the ratio relied upon is
not applicable to the facts of the present case.
34. Learned advocate for defendant No.2 relied upon

ratio laid down in case of "Ramti Devi Vs. Union of India"
reported in "(1995) (1) Supreme Court Cases 198 : wherein it is
held that when there is duly registered document in favour of
person against whom the relief is sought, until the said document
is avoided or cancelled by proper declaration the duly registered
document remains valid and binds the parties. In the present
case, defendant No.2 has purchased the suit property by duly
registered sale deed but plaintiff has not sought any declaration
in respect of the same. Though it is defence of the plaintiff that
the power of attorney holder has no right to execute sale deed of
suit property, he has not sought any relief in respect of power of
attorney or sale deed. Thus, as no declaration is sought the
registered sale deed is valid and enforceable, therefore, the ratio
relied upon is applicable to the facts of the present case.
35. Learned advocate for defendant No.2 relied upon

ratio laid down in case of "Suhrid Sing @ Sardool Singh Vs.
Randhir Singh and Others" reported in "(2010) (12) Supreme
Court Cases 112 : wherein it is held that when there is prayer for
declaration that the sale deeds were void and not binding on the
coparcenery and consequential relief of joint possession and
injunction, the Court fee applicable in such cases will be as per
section 7 (IV) (C) r.w.section 7 (V) of the Court fee Act. But the
facts in the case cited supra and case in hand are not identical.
Therefore, the ratio relied upon is not applicable to the facts of
the present case.
36. Learned advocate for defendant No.2 also relied upon
ratio laid down in case of "Suraj Lamp & Industries Pvt. Ltd. Vs.
State of Haryana and another Special Leave Petition © No.13917
of 2009 dated 11.10.2011" reported in "(2012) (1) Supreme
Court Cases 656 : wherein it is held that until the date of this
judgment where transfer of property is made through power of
attorney holder is valid and the validity of sale agreement and
power of attorney executed before this judgment are not affected.
In the present case, the sale deed and power of attorney both are
before the date of this judgment, hence the sale transaction made
by power of attorney of defendant No.1 in favour of defendant
No.2 is held as valid. Therefore, the ratio relied upon is applicable
to the facts of the present case.
AS TO ISSUE NO.7.
37. Therefore, considering all above discussion,
submissions of learned counsels, findings on issue Nos.1 to 6, the
suit is liable to be partly decreed. Hence, I proceed to pass
following order.
O R D E R
1. The suit is partly decreed.
2. Defendant No.1 is directed to repay the earnest amount of
Rs.25,000/ to plaintiff with interest @ 6% per annum
from the date of agreement to sale dated 19.06.2006 till its
full realization.
3. Parties to bear their own costs.
4. Decree be drawn up accordingly.
( Dictated and pronounced in open Court )

Sd/xxx
Place Miraj (N.M.Wali)
Date 28.02.2019. Jt. Civil Judge, Jr. Dn., MIRAJ.

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3. It is the case of the plaintiff that defendant No.1

4. Thereafter, on 20.06.2006, plaintiff issued public

6. Defendant No.2 resisted the suit by filing written

7. It is further contention of defendant No.2 that

10. From the rival pleadings of the parties, my learned

2. Does plaintiff prove that he paid

3. Does plaintiff prove that he was ready

5. Is plaintiff entitled for specific No.

13. Defendant No.2 examined himself on oath by filing

15. I have heard learned advocate for plaintiff and

plaintiff that said notice is received by defendant No.1 but he

favour for consideration of Rs.4,55,000/­ and out of it earnest

paper notice dated 20.06.2006 and published on 23.06.2006

that the conditions as mentioned in agreement to sell are not

23. Section 20 of the Specific Relief Act (before

(2) The following are cases in which the court may

(4) The court shall not refuse to any party specific

26. It is admitted position that possession of the suit

specific details and circumstance for the granting damages as

Section 73.­Compensation for loss or damage

Such compensation is not to be given for any

Compensation for failure to discharge obligation

Explanation.­ In estimating the loss or damage

29. Thus, as per section 73 of the Contract Act as

30. Damages will not be payable if loss is abnormal in

Issar and others" reported in "(2018) 7 Supreme Court Cases

registered power attorney given by him to Dr.G.S.Bharati,

34. Learned advocate for defendant No.2 relied upon

35. Learned advocate for defendant No.2 relied upon

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favour for consideration of Rs.4,55,000/ and out of it earnest

Section 73.Compensation for loss or damage

Explanation. In estimating the loss or damage