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2006 DIGILAW 92 (GAU)

Nanda Kishore Choudhury v. Biswajeet Choudhury

2006-01-25

ANIMA HAZARIKA

body2006
JUDGMENT A. Hazarika, J. 1. The instant appeal is preferred by the Plaintiff against the judgment and decree dated 26.8.02, passed by the learned Civil Judge (Senior Division) No. 1, Guwahati in Title Suit No. 60/95, refusing to grant the decree of Specific Performance of Contract for sale of the suit property, though decreeing the suit of the Plaintiff with costs of Rs. 65,000/- with interest @ 12% per annum from 11.5.1992 till realization and consequently thereupon directed the Defendants to pay the decretal amount within one month and on receipt of the payment, the Plaintiff was directed to deliver possession of 6 1/4 lechas of land to the Defendants, which is in possession of the Plaintiff, in pursuance to the agreement for sale executed between him and the Defendants and being aggrieved by the judgment and decree of the trial court is the Appellant herein. 2. The brief facts necessary for disposal of the appeal are that on 11.5.1992, an agreement for sale of a plot of land measuring 12'/2 lechas covered by Dag No. 104 of K.R. Patta No. 4 of village Bharalumukh gaon, Mauza Jalukbari, District, Kamrup, along with an Assam type house standing thereon, was executed between the Plaintiff-Appellant and the Defendants/Respondents at a price fixed at Rs. 1,65,000/-. One of the term of agreement, as stipulated, was that the Plaintiff-Appellant will have to pay Rs. 65,000/- only on the date of agreement, with a further stipulation that, the balance amount of Rs. 1,00,000/- shall have to be paid on the date of final execution and registration of the final sale deed within one month of the sale permission, obtained by the Defendants. In pursuance of the execution of agreement for sale the Defendants have delivered possession of half of the suit land measuring 6% lechas, keeping the other 6% lechas in possession of the Defendants. 3. The Plaintiff has further averred in the plaint that the Defendants did not take any steps to obtain the sale permission from the concerned authority, inspite of repeated requests to obtain the same for finalisation of the contract as agreed upon though the amount as stipulated in the agreement has been paid on the date of agreement for sale. 3. The Plaintiff has further averred in the plaint that the Defendants did not take any steps to obtain the sale permission from the concerned authority, inspite of repeated requests to obtain the same for finalisation of the contract as agreed upon though the amount as stipulated in the agreement has been paid on the date of agreement for sale. Therefore, the Defendants have failed to execute the contract, though he was/is agreed and ready to pay the balance amount and the Defendants having failed to execute the final sale deed, he had filed the suit for specific performance of contract praying for a decree against the Defendants jointly and severally with the following prayer: i) For specific performance of the contract of sale of the suit land and the Assam type house described in the schedule below directing the Defendants to execute the sale deed in favour of the Plaintiff by accepting the balance amount of consideration money; ii) For direction to the Plaintiff in case of the failure of the Defendants to execute the sale deed, to deposit the balance amount of Rs. 1,00,000/- (Rupees One lakh) only of the consideration money in the court and execute the sale deed by the court. iii) For direction to the Defendants to deliver the Khas Possession of 6% (Six and one fourth) lechas of land which the Defendants are keeping in their possession, to the Plaintiff; iv) For issue of permanent injunction against the Defendants restraining them from transferring the suit property; v) For all costs of the suit against the Defendants; and vi) For any other relief or reliefs and compensation which the Plaintiff is entitled to. 4. The Defendants, resisting the suit, filed their written statement, while admitting the execution of agreement for sale dated 11.5.1992 and on consideration an amount of Rs. 65,000/- has been received and delivered possession of 6% lechas of land to the Plaintiff. They have further admitted that the final sale deed was to be executed within one month after obtaining sale permission from the revenue authorities for which a joint application is required to be filed, but the Plaintiff did not come forward to sign the application for sale permission and hence sale permission could not be obtained. They have further admitted that the final sale deed was to be executed within one month after obtaining sale permission from the revenue authorities for which a joint application is required to be filed, but the Plaintiff did not come forward to sign the application for sale permission and hence sale permission could not be obtained. Therefore, the need of money for the marriage of their sister, for which the agreement for sale executed was frustrated and they had to obtain loan on interest from private persons to meet marriage expenses of their sister. However, after filing of this suit, there was compromise between the parties and the Plaintiff then agreed with the Defendants that, the Plaintiff shall pay them from the balance, a sum of Rs. 1,45,000/-(Rupees One lakh forty five thousand) only in place of Rs. 1,00,000/- (Rupees One lakh) and on that compromise they have obtained the sale permissions in the year 1997. Even though the sale permission was obtained, the Plaintiff did not come forward to pay the balance amount, as agreed upon, in order to get the sale deed executed and registered, inspite of repeated requests made by the Defendants. Since they were in need of money, they had to sell other properties to repay the debt and hence the Plaintiff is not entitled for specific performance of contract since the Plaintiff has failed to perform his part of contract, the suit therefore, is liable to be dismissed and prayed for a decree of eviction of the Plaintiff from 6% lechas of land and house standing thereon. 5. Upon the pleadings of the parties the learned trial court has framed the following issues viz; i) Is the suit barred by limitation? ii) Is the suit maintainable in its present form? iii) Is there any cause of action for the suit? iv) Is the suit properly valued and prop, court fee has been paid? v) Whether the agreement for sale was executed on 15.5.92 or 11.5.92? vi) Is the Plaintiff entitled to specific performance of contract of sale in respect of the suit land and house by way of execution of sale deed by the Defendants on receipt of balance amount of consideration money? vii) Is the Plaintiff entitled to possession of 6 1/4 lechas of land out of the suit land which is kept under possession of the Defendants? vii) Is the Plaintiff entitled to possession of 6 1/4 lechas of land out of the suit land which is kept under possession of the Defendants? viii) To what relief/reliefs if any, parties are entitled to? During trial, the Plaintiff have examined himself and one other witness and exhibited two documents, whereas the Defendant has examined himself. 6. The learned trial court after hearing the parties, decided the issue No. 1 in the negative and issue No. 2, 3 and 4 in the affirmative and issue No. 5 has been struck off. While deciding the issue No. 6 and 7, the learned trial court decided the issues in the negative, holding that, the Plaintiff is not entitled to get a decree for specific performance of contract but however, decided that the Plaintiff is entitled to get the earnest money returned along with interest thereon. Therefore, the learned trial court decided the issue No. 8, holding that, the Plaintiff is entitled to get back the advance amount of Rs. 65,000/- from the Defendants alongwith an interest of 12% per annum from the date of payment of advance i.e. from 11.5.1992 till realization, along with cost and hence decreed the suit of the Plaintiff on contest with cost of Rs. 65,000/- with interest @ 12% per annum from 11.5.1992 till realization, directing the Defendants to pay the decretal amount within one month and on receipt of such payment, the Plaintiff was directed to deliver possession of 6% lechas of land to the Defendants. Aggrieved by the judgment and decree, the present appeal has been filed by the Plaintiff. 7. Assailing the judgment and decree passed by the learned trial court, Shri C.K. Sarma Barua, Senior Counsel appearing for the Appellant has made the following submission viz; i) That admittedly, there was an agreement for sale, executed on 11.5.1992 between the parties and on consideration of the aforesaid agreement an amount of Rs. 65,000/- had been paid which the Defendants had acknowledged and 6% lechas of land including the house standing thereon was delivered to the Appellant. ii) That the agreement (vide Ext. 65,000/- had been paid which the Defendants had acknowledged and 6% lechas of land including the house standing thereon was delivered to the Appellant. ii) That the agreement (vide Ext. 1) stipulates that the final execution and registration of sale deed should be completed within one month from the date of obtaining the sale permission and the Appellant has signed the application for sale permission and the plaint and the evidences led during the trial would reveal that, he was/is ready and willing to pay the money and wanted to purchase the land in suit and did not intend to get back the money and in support of his submissions, the counsel has referred Section10(b) and Explanation 1 of the Specific Relief Act; iii) That the judgment and decree would show mat, the learned trial court has failed to appreciate the rights of the parties under the provisions of Specific Relief Act, 1963, more so, when there is no findings as regards the specific performance of contract; iv) The learned Counsel has relied on the judgment reported in AIR 1979 S.C. 1241 , paragraph 9 Prakash Chandra v. Angadlal and Ors. 8. Refuting the argument advanced by the counsel of the Appellant, Shri B.K. Goswami, Senior Counsel, assisted by Smti. T. Goswami contended that, the agreement for sale was executed on 11.5.92 and in the said agreement there is a specific clause that the final execution of sale shall be completed within one month from the date of obtaining the sale permission. The sale permission was obtained on 21.3.97, but the Plaintiff has not come forward to pay the balance consideration amount which can be inferred from the materials on record and hence, the Appellant was not ready and willing to perform his part and therefore, considering the equity, the learned trial court dismissed the suit for specific performance of contract but decreed the suit for Rs. 65,000/- with interest at 12% per annum from 15.5.92 till realization with a direction to the Defendants, to pay the decretal amount within one month, which has already been deposited as decreed and submits that the judgment and decree under challenge is not required to be interfered with. 9. 65,000/- with interest at 12% per annum from 15.5.92 till realization with a direction to the Defendants, to pay the decretal amount within one month, which has already been deposited as decreed and submits that the judgment and decree under challenge is not required to be interfered with. 9. Shri B.K. Goswami, Senior Counsel has further argued that, the bonafide of the Defendants cannot be questioned since the day the agreement for sale was executed, the Appellant had been delivered possession of land measuring 6 1/4 lechas, though final execution was awaiting and even after the sale permission was obtained, there is no averment in regard to his willingness to pay the balance amount and in absence of readiness and willingness, no relief is available under the provisions of Specific Relief Act. In support of his contentions he has referred the following decisions viz; (1994) 4 SCC 18 Sarder Singh v. Krishna Devi AIR 2002 S.C. 1279 Pr. 21 V. Muthusami v. Angammal 10. In reply to the said argument, Shri C.K. Sarma Barua, Senior Counsel, has relied on the decision reported in AIR 1979 S.C. 1241 (Supra) and submitted that the Plaintiff has done some substantial act pursuant to the contract dated 11.5.92 and the discretion may be exercised in favour of the Appellant as provided under Section 20(3) of the Specific Relief Act and prayed for setting aside the judgment and decree. 11. From the arguments of the parties, following points have emerged for decision viz; a) Whether the Plaintiff has proved his readiness and willingness to perform the essential terms of contract as required under Section 16(C) of the Specific Relief Act? and b) Whether the performance of contract would lead to hardship on the Defendants and its non-performance if allowed, would not involve such hardship on the Plaintiff? 12. To answer the questions, the court has looked into the averments made in the plaint, written statement, the evidence on record and the documents exhibited and proved by the parties. The admitted facts in the case in hand is that there was an agreement for the sale of 11.5.92, executed between the parties ant, on consideration of the terms of contract an amount of Rs. 65,000/- has been paid by the Appellant to the Respondents and the balance amount of Rs. The admitted facts in the case in hand is that there was an agreement for the sale of 11.5.92, executed between the parties ant, on consideration of the terms of contract an amount of Rs. 65,000/- has been paid by the Appellant to the Respondents and the balance amount of Rs. 1,00,000/- is required to be paid within one month from the date of obtaining the sale permission as required. The Defendants on receipt of the amount of Rs. 65,000/-, has delivered possessions of the land measuring 6 1/4 lechas to the Appellant. Thereafter, there was verbal agreement/compromise between the parties and initially, they have applied for sale permission before the Deputy Commissioner, Kamrup, who permitted to sell the land @ Rs. 3,00,000/- per Katha excluding the Assam Type house vide permission dated 21.3.97 and thereafter permission has been obtained from Gauhati Met-ropolitan Development Authority on 7.8.1997. 13. From the facts pleaded and established between the parties reveals that, the Plaintiff filed the suit for specific performance of contract in the year 1995 though the final execution of sale deed and registration is required to be made within one month from the date of obtaining the sale permission. The averments made in the plaint and the evidences led by the Plaintiff and his witness have proved his readiness and willingness to pay the money in order to execute sale deed. The Plaintiff in his evidences has also further proved that, he has signed the applications filed before the Revenue Authorities as required for sale of immovable properties. The fact has further revealed that, he is in possession of the land measuring 6% lechas of land with effect from 11.5.92. From the conduct of the Plaintiff unequivocally showing that, he is ready and willing to pay the balance amount as per terms of the contract. The relief under Section 20 of the Specific Relief Act is discretionary and ordinarily the specific performance of contract shall be granted and the same can be denied only when, equitable consideration comes to its refusal and the circumstances show that, compensation would contribute an adequate relief. Therefore, this Court holds from the surrounding circumstances and the material evidence on record and the conduct of the parties that, a decree for specific performance of contract is the adequate relief in the instant case. 14. Therefore, this Court holds from the surrounding circumstances and the material evidence on record and the conduct of the parties that, a decree for specific performance of contract is the adequate relief in the instant case. 14. The next point that requires for determination by this Court is, as to whether the performance of contract would lead to hardship on the Defendants and its non-performance, if allowed, would not involve such hardship on the Plaintiff. To answer the question, this Court has perused the written statement filed by the Defendants and the material evidence of the Defendant No. 1 on record. The written statement filed by the Defendants would show that, no plea as to hardship, if relief for specific performance of contract is granted raised by the Defendants vendor in written statement. The contention raised by the Defendants in their written statement is that, after the sale permission was obtained the Plaintiff did not come forward for registration inspite of repeated demand and due to nonperformance, the Defendants had to take loan and paid interest thereon against the principal loan amount of Rs. 60,000/- and as such the Plaintiff is not entitled for specific performance of contract for sale of land. The purpose for which the land was agreed, to sell could not be performed by the Plaintiff in time. In evidence, the Defendant No. 1 has stated that, the Plaintiff has never paid the balance amount at any point of time and asked him to execute the sale deed. The Plaintiff has to hand over possession of the portion of the land, which was given possession by him and take back the money paid to him. Therefore, in absence of pleading in the written statement and the evidence on record, the question of hardship on the Defendants is rejected. Another important feature of equity would lay in favour of the Plaintiff, when the Defendants have averred in the pleadings that, from 11.5.92 the Plaintiff is using the land as rickshaw garage and now he is using the same for business of sweets, from the month of February and the power of discretion therefore, has to be exercised on the equitable consideration in favour of the Plaintiff. 15. Mr. 15. Mr. C.K. Sharma Barua, learned Senior Counsel for the Appellant specifically drawn the attention of the court to the effect that, the learned trial court overlooked the subsequent events regarding the sale permission which took place during pendency of the suit, in the year 1997. The Defendants refused to register the sale deed after accepting the balance consideration money. The learned trial court did not consider the vital portion of the evidence of the Plaintiff with regard to his readiness and willingness to pay the balance amount after the permission to sell the land was obtained. The learned Counsel, in this regard referred the following portion of the Plaintiffs evidence-in-chief, which was not considered by the learned trial court. After institution of this suit in the year 1997 the Defendant Biswajeet Choudhury came to my residence and wanted to compromise the suit, if I wanted. Biswajeet and Prashanta Choudhury said that they would execute the sale deed within a few days. Joy Prakash Mali was also present at the time of discussion. Then the Defendants took another Rs. 5000/- for obtaining the Sale Permission. Thereafter, they obtained Sale Permission for selling the said plot of land. After obtaining the Sale Permission I asked the Defendants to hand over possession of the remaining half portion of land, by telling that I wanted to erect the boundary wall. Then they permitted me to erect the boundary wall. When I went to erect the Boundary wall on the said plot of land Biswajeet Choudhury's uncle's son as well as his uncle and aunt resisted us from erecting the boundary wall. They also called the Police. Later on Biswajeet's uncle son lodged complain before the police. The complaint was lodged against me. Biswajeet and Prashanta. Exhibit-2 is the Certified Copy of the said police case. I could not take the possession of the land. Biswajeet and Prashanta also did not execute the sale deed. Therefore, I pray before this Hon'ble court to direct the Defendants to accept the balance amount and to execute the sale deed. I am ready to pay the balance amount as per the agreement. Presently I am in as possession over half portion of the said plot of land. Biswajeet and Prashanta also did not execute the sale deed. Therefore, I pray before this Hon'ble court to direct the Defendants to accept the balance amount and to execute the sale deed. I am ready to pay the balance amount as per the agreement. Presently I am in as possession over half portion of the said plot of land. The learned Counsel, referring the deposition mentioned above, submitted that, the Issue No. 6 and 7 were erroneously decided by the learned trial court while deciding Issue No. 6 and 7 against the Appellant. This Court found sufficient force in the submission of the learned Senior Counsel in making the aforesaid submission. 16. The learned trial court has dismissed the suit for specific performance of contract, but decreed the suit for Rs. 65,000/- with interest at 12% per annum from 11.5.92 till realization. The said decree has been passed under issue No. 8. But admittedly, the learned trial court has not framed any issue to the effect that, the Plaintiff can be compensated in terms of money in lieu of decree for specific performance and the said plea having not been raised in the pleadings of the parties, the trial court has committed an error in decreeing the suit for compensation and this Court is not inclined to accept the plea of hardship raised in the appeal, in absence of issue framed during trial. Therefore, the decree passed by the trial court is set aside. 17. The decision cited by the learned Counsel for the parties reported in AIR 1979 S.C. 1241 (Supra) (1994) 4 S.C.C. 18 and AIR 2002 S.C. 1279 would show that, there is no ambiguity in the decisions cited. It is well established by catena of decisions that, the power under the Specific Relief Act is discretionary and the said discretion must he-based on sound and reasonable, guided by Judicial Principles. In exercising discretion, court should take into consideration, circumstances of the case, conduct of parties and respective interests under the contract. In the instant case, this Court while exercising power under Section 20 of the Specific Relief Act has found that, the Plaintiff is entitled to get the decree for specific performance of contract. However, considering the part of compromise, the Plaintiff is directed to pay the balance amount of Rs. 1,45,000/- (Rupees One lakh forty five thousand) only, to the Defendants. 18. However, considering the part of compromise, the Plaintiff is directed to pay the balance amount of Rs. 1,45,000/- (Rupees One lakh forty five thousand) only, to the Defendants. 18. In the result, the appeal under challenge is allowed. The judgment and decree passed by the trial Court is set aside directing the Defendants to execute the sale deed in favour of the Plaintiff by accepting the balance amount of Rs. 1,45,000/- (Rupees One lakh forty five thousand) only, within a period of three months from today, failing which, the Plaintiff is directed to deposit the balance amount of Rs. 1,45,000/- (Rupees One lakh forty five thousand) only, to the court and the learned trial court would execute the sale deed accordingly. The amount deposited by the Defendants in pursuance to the judgment and decree passed by the learned trial court is allowed to be withdrawn in the facts and circumstances of the case. The parties are left to bear their own costs. Appeal allowed