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2001 DIGILAW 401 (JHR)

GOURI SHANKAR PRASAD v. BRAHMANAND SINGH

2001-06-22

D.N.PRASAD

body2001
Judgment : DEOKI NANDAN PRASAD, J. ( 1 ) THIS second appeal is directed against the judgment dated 9-8-2000 and the decree signed on 21-8-2000 passed by the District Judge, Palamau at Daltonganj in Title Appeal No. 10 of 1997 by which the learned District Judge, Palamau allowed the appeal and set aside the judgment and decree dated 27-1-1997 passed by the Additional Munsif, Garhwa, in Title Suit No. 17/92- 49/93. ( 2 ) THE case of the plaintiffs-appellants in brief as stated is that the plaintiffs were in need of money , hence, offered to mortgage their land detailed in Schedule d of the plaint with condition to repurchase the same on consideration of Rs. 36,600/ -. The defendant-respondent, namely, Brahma-nand Singh and one Dasrath Prasad Keshri became ready to purchase jointly the land of Schedule d and accordingly, the plaintiffs executed a registered deed of sale dated 5-2-1986. The respondent and Dasrtath Prasad Keshri on the same day also executed a registered deed of agreement and agreed to recovery the purchased land to the plaintiff on payment of consideration money to them. It has been alleged that though the deed of sale was executed by the plaintiff-appellants in favour of the respondent and Dasrath Prasad Keshri and they always remained in cultivating possession of the lands, as described in Schedule d of the plaint. It is alsoalleged that the plaintiffs-appellants were in need of Rs. 15,000/ -. The respondent and Dasrath Prasad Keshri became ready to keep the land in mortgage, but only after calculating the interest thereupon at the rate of 4 per cent for three years and accordingly, the price was fixed at Rs. 36,600/ -. It is further alleged that the plaintiffs appellants in the first week of January, 1989, repaid Rs. 5,500/- to the respondent in presence of the witnesses upon which, he promised to reconvey the suit land, but even thereafter he did not reconvey the land and extended time for execution of the deed of reconveyance. Ultimately on 10-4-1992, Dasrath Prasad Keshri received consideration money of his share i. e. Rs. 18,300 and executed the deed of sale reconveying half of the land of Schedule d in favour of the plaintiffs. Ultimately on 10-4-1992, Dasrath Prasad Keshri received consideration money of his share i. e. Rs. 18,300 and executed the deed of sale reconveying half of the land of Schedule d in favour of the plaintiffs. It is also claimed that the plaintiffs also requested the respondent to receive his consideration money and to reconvey the Schedule d land of his share, but he delayed the matter, whereupon the plaintiffs sent registered legal notice to defendant No. 1 but even then the respondent failed to perform his part of contract and, hence, the plaintiff filed the suit. ( 3 ) THE respondent contested the suit and filed written statement alleging therein that the deed of agreement contained a specific terms that if the plaintiffs paid back the consideration amount at any point of time within three years then the respondent and Dasrath Prasad Keshri would recovery the land of Schedule d. It is also claimed that the plaintiffs remained in possession of the land after execution of the sale deed. The plaintiffs-appellants had never been willing to perform their part of contract nor they had paid money within the stipulated period of three years as contained in the agreement. According to him, the plaintiffs-appellants never paid any money to this defendant nor they had requested for extention of time nor the defendant ever orally agreed to extend the time. He has also denied that on 10-4-1992 the plaintiffs tendered any consideration money nor there had been any such occasion till date and, as such, the plaintiffs have lost their right of recon-veyance. ( 4 ) HOWEVER, issues were framed by the trial Court and the witnesses were also examined. After having heard both the parties and considering the evidence on record, the trial Court decreed the suit in favour of the plaintiffs-appellants. The defendant-respondent preferred appeal before the District Judge against the judgment and decree of the Court below, who after hearing both sides and considering the evidence on record, allowed the appeal after setting aside the judgment and decree of the Court below. ( 5 ) THE Appellate Court framed the following points for consideration :-"i. Whether the suit of the plaintiffs is barred by law of Limitations?ii. Whether the plaintiffs-respondents were always ready and Willing to perform their part of contract as envisaged u/s. 16 (c) of the Specific Relief Act?iii. Whether the time was essence of contract?iv. ( 5 ) THE Appellate Court framed the following points for consideration :-"i. Whether the suit of the plaintiffs is barred by law of Limitations?ii. Whether the plaintiffs-respondents were always ready and Willing to perform their part of contract as envisaged u/s. 16 (c) of the Specific Relief Act?iii. Whether the time was essence of contract?iv. Whether the plaintiffs-respondents are entitled to get decree of specific performance of contract, as prayed for ?v. Whether the judgment in question is fit to be set aside?" ( 6 ) AT this stage, it may be noted that admittedly two deeds were executed between the parties on 5-2-1986. One sale-deed was executed by the plaintiffs appellants in favour of the respondent and one Dasrath Prasad Keshri for Rs. 36,600/- in respect of Schedule d land. The second deed was the deed of agreement for reconveyance of the land under the sale-deed executed by the defendant in favour of the plaintiffs-appellants. ( 7 ) THERE was specific stipulation in the deed of reconveyance that if the executee returns back the consideration amount in one lump sum within three years i. e. 5-2-1989, the executants shall reconvey the land by executing registered sale deed. It is the admitted position that the plaintiffs-respondents-appellants have not paid the consideration amount in lump sum to the defendant-respondent within the stipulated period of three years as envisaged in the deed of reconveyance (Ext. 2 ). However, it is pleaded that the time for reconveyance of the land was extended time to time and the time was not the essence of contract as it was extended orally. Thus the controversy arises whether the time mentioned in the agreement was actually extended orally as pleaded by the plaintiffs-appellants and was essence of contract or not which is to be considered. It is true that the other vendee Dasrath Prasad Keshri after receiving the consideration amount in lump sum has reconveyed the land of his share in favour of the plaintiffs-appellants. ( 8 ) MR. N. N. Tiwari, learned counsel appearing for the appellants vehemently argued at the first instance that the Appellate Court has committed error in framing the point that the time was an essence of contract. ( 8 ) MR. N. N. Tiwari, learned counsel appearing for the appellants vehemently argued at the first instance that the Appellate Court has committed error in framing the point that the time was an essence of contract. It is further argued that though there was stipulation for payment of consideration money in one lump sum within three years but the said period was extended by the respondent orally time to time. It is further argued that the plaintiffs-appellants were ready and Willing to perform their part of contract whereas the respondent has failed to perform his part of contract as envisaged in the agreement (Ext. 2 ). It is also argued that the lower Appellate Court has wrongly held that the plaintiffs suit is barred by limitation as there was extention of time for payment of consideration amount and time is not the essence of contract in the instant suit and, as such, the suit was filed within the period of limitation. Therefore, the judgment of the lower Appellate Court is fit to be set aside. ( 9 ) ON the other hand, Mr. P. P. N. Roy, learned counsel for the defendant-respondent contended before me that there is no illegality in the judgment passed by the lower Appellate Court as he has discussed the evidence on record in detail and touched every points in controversy. It is also submitted that there was a specific stipulation in the agreement (Ext. 2) for payment of consideration amount within three years and the plaintiffs-appellants did not offer the said amount in one lump sum at any point of time within the said period to the respondent and as such, the learned lower Appellate Court has rightly decided that time was the essence of contract which was not complied with. It is also submitted that the other executent, namely, Dasrath Prasad Keshri, who was examined in the Court below and he also admitted that no payment was made to the respondent in his presence. It is further argued that the suit is also barred by limitation. According to him, the limitation for enforcement of right for specific performance of contract expired on 5-2-1992 and the suit was filed on 23-5-1992. It is further argued that the suit is also barred by limitation. According to him, the limitation for enforcement of right for specific performance of contract expired on 5-2-1992 and the suit was filed on 23-5-1992. Thus there was delay of three months in filing the suit and, as such, it is barred by limitation, hence, there is no illegality in the judgment of the lower Appellate Court and this appeal is fit to be dismissed. ( 10 ) THIS appeal is being disposed of at the stage of order XLI Rule 11 of the Code of Civil procedure. ( 11 ) APPARENTLY the lower Appellate Court allowed the appeal by setting aside the judgment of the trial Court. The only substantial question is to be formulated : Whether the time was an essence of agreement (Ext. 2) and whether the plaintiffs /appellants were ready and willing to perform their part of contract. ( 12 ) IT is an admitted position that two deeds were executed on 5-2-1986 one deed of sale of the land in question and the other deed of agreement for reconveyance as well as the deed of agreement for reconveyance contained the specific terms that if the plaintiffs paid back the entire consideration amount at any time within three years then the defendant/ respondent and one Dasrath Prasad Keshri reconveyed the land in question. The lower Appellate Court considered as to whether the plaintiffs / appellants have performed or have always been ready and Willing to perform the essential terms of contract to be performed by him in detail and discussed the evidence led by the parties in this regard and held that the plaintiffs never offered the consideration amount within the period fixed by the said contract. It may be noted here that the other vendee Dasrath Prasad Keshri who was examined in the Court below as P. W. 7 also stated that no payment was made to the defendant/respondent in his presence. There is nothing cogent coming forward to show that the plaintiffs/appellants had ever offered the consideration amount within the stipulated period of three years. ( 13 ) IN the case of Chunchun Jha v. Ebadat Ali AIR 1954 SC 345 , it was held therein that :"if the sale and agreement to repurchase are embodied in separate documents, then the transaction cannot be mortgage, whether the documents, are contemporaneously executed or not. ( 13 ) IN the case of Chunchun Jha v. Ebadat Ali AIR 1954 SC 345 , it was held therein that :"if the sale and agreement to repurchase are embodied in separate documents, then the transaction cannot be mortgage, whether the documents, are contemporaneously executed or not. In the case of agreement of re-purchase, the conditions of repurchase must be construed strictly against the original vendor and the stipulation with regard to time of performance of the agreement must be strictly complied with as the time must be treated as being of the essence of the contract in the case of an agreement of reconveyance. " ( 14 ) IN the instant case, there was an agreement of reconveyance and there was specific stipulation for reconveyance of the land within the period of three years which has admittedly not been complied with by the plaintiffs. ( 15 ) IN the case of Bismallah Begum (Smt.) v. Rahmatullah Khan (1998)3 civil LJ (SC) 252 : ( AIR 1998 SC 970 ), it was held as under :- (at p. 971 of AIR) "we may also add that in contracts relating to reconveyance of property, time is always the essence of the contract as laid down by the Fedral Court in the case of Shanmugam Pillai v. Annalakshmi Ammd AIR 1950 FC 38 and also laid down by this Court in Caltex (India) Ltd. v. Bhagwan Devi Marodia AIR 1969 SC 405 . The relevant passage in the judgment of this Court in Caltex (India) Ltd. at page 407 in para 3 reads as follows :-"at common law stipulations as to time in contract giving an option for renewal of a lease of land were considered to be of the essence of the contract even if they were not expressed to be so and were construed as conditions precedent. Equity followed the common law rule in respect of such contracts and did not regard the stipulation as to time as not of the essence of the bargain. An option for the renewal of a lease, or for the purchase or repurchase of property must in all cases be exercised strictly within the time limited for, the purpose, otherwise it will lapse. An option for the renewal of a lease, or for the purchase or repurchase of property must in all cases be exercised strictly within the time limited for, the purpose, otherwise it will lapse. "( 16 ) ACCORDING to the case of the plaintiffs/appellants, first of all they tendered the entire consideration amount only on 10-4-1992 just after the period of limitation for enforcement of right of specific performance of contract as stipulated in the deed of agreement of reconveyance. The learned trial Court appears to have made out a third case by observing that the transaction in between the parties is neither a sale out-right nor the mortgage but it is a transaction to secure the re-payment of original money with higher rate of interest when there was a specific stipulation in the deed of agreement for reconveyance, if the entire amount shall be paid within three years, then and then only the land in question would be reconveyed by way of sale. It also appears that the trial Court, who decreed the suit, based his finding on presumption and has not considered the legal aspect of reconveyance deed. The oral evidence even if strong cannot supersedethe documentary evidence. There was a specific stipulation in the deed of agreement (Ext. 2) that if the vendors repaid the consideration amount in one lump sum by 5-2-1989, the vendee shall return the land in question by way of sale-deed. Thus it can safely be held that time was the essence of the agreement and the lower Appellate Court has rightly allowed the appeal. ( 17 ) IN paragraph 9 of the plaint, it is stated that on 10-4-1992 the appellants requested the respondent to receive rest of the consideration money, but after the expiry of the stipulated period i. e. three years. Moreover, nothing cogent evidence is coming to show that the plaintiffs/ appellants had actually tendered lump sum money to the defendant/respondent before expiry of the period. The lower Appellate Court has rightly concluded that the plaintiffs/ appellants were not ready and Willing to perform their part of contract. The respondent /defendant completely denied about the payment or tender of any amount to him by the plaintiffs/ appellants. In view of the specific denial, on this score, the pleading of the plaintiffs which is based on oral declaration cannot be taken into account. The respondent /defendant completely denied about the payment or tender of any amount to him by the plaintiffs/ appellants. In view of the specific denial, on this score, the pleading of the plaintiffs which is based on oral declaration cannot be taken into account. In absence of cogent and convincing evidence, the plea as regard to oral extention of stipulated period cannot be believed when the respondent denied specifcally about any such extention. ( 18 ) LEARNED counsel for the respondent also pointed out in course of argument that the suit itself is barred by law of limitation as the plaintiffs/appellants tendered the consideration amount only on 10-4-1992 which is after the period of limitation for enforcement of right of specific performance of contract, whereas the limitation expired on 5-2-1992 and admittedly the suit was filed on 23-5-1992 and, therefore, the suit is also hit by law of limitation. ( 19 ) HAVING regard to the above facts and circumstances of the case coupled with the evidence on record, it is evident that the learned lower Appellate Court has rightly allowed the appeal which does not requires for any interference. ( 20 ) IN the result, I do not find any merit in this second appeal which is accordingly, dismissed but without costs. Appeal dismissed. --- *** --- .