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Allahabad High Court · body

2007 DIGILAW 1943 (ALL)

LALTA PRASAD v. RAVI SHANKER

2007-07-20

TARUN AGARWALA

body2007
TARUN AGARWALA, J. List of hearing cases has been revised. No one appears for plaintiff respondent. Heard Sri Triveni Shanker, the learned Counsel for defendant appellants. 2. The plaintiff respondent instituted a suit for specific performance. It is alleged that the defendants had contracted to sell a portion of the land for a consideration of Rs. 10,687. 50 P. and that the defendants had received a sum of Rs. 1,000/- as earnest money. This agreement was duly registered. It was contended that the defendants were required to seek permission under the provisions of The Urban Land (Ceiling and Regulation) Act, 1976 and, upon receiving the permission, the defendants were required to execute the sale-deed. It was alleged that the plaintiff-respondent from time to time had enquired from the defendants as to whether the permission was received and that the defendants intimated the plaintiff that as and when the permission was granted and the matter was sorted out with the authorities, the sale-deed would be executed. The plaintiff further contended that he was always ready and willing to get the sale-deed executed and that the defendants only dilly dallied the matter for one reason or the other. Eventually, the plaintiff gave a notice on 26-12-1981 and thereafter filed the suit. 3. The defendants contested the matter and submitted that they were not bound by the agreement and that, time was the essence of the contract and that the plaintiff failed to get the sale-deed executed after permission to sell the land was accorded to the defendants from the ceiling authorities. The defendants further contended that the requisite permission was shown to the parents of the plaintiff, who expressed their inability to pay the balance amount and consequently the earnest money was refunded to the parents of the plaintiff. It was also alleged that the defendants had entered into similar agreements with other parties for the sale of the remaining land and that the defendants to show their bona fides, had executed sale-deeds in favour of other parties after receiving the permission. Consequently, there was no reason for the defendants not to execute the sale- deed in favour of the plaintiff. Consequently, the defendants urged that the plaintiff himself was not willing or ready to execute the sale-deed. Consequently, there was no reason for the defendants not to execute the sale- deed in favour of the plaintiff. Consequently, the defendants urged that the plaintiff himself was not willing or ready to execute the sale-deed. The defendants further submitted that in any case, the plaintiff was a minor and therefore, on the principles of mutuality, the contract could not be enforced. 4. On the basis of the pleadings, the trial Court framed as many as ten issues and after considering the evidence brought on the record, decreed the suit. The trial Court held that an agreement for sale was executed between the plaintiff and defendants and that an amount of Rs. 1,000/- was paid to the defendants as earnest money. The trial Court further found that the contract was binding upon the defendant No. 2 and that the plaintiff was ready and willing to perform his part of the agreement. The trial Court further found that no proof had been filed to prove that the earnest money of Rs. 1,000/- had been returned to the plaintiff. The Court further found that time was not the essence of the contract and that the defendants did not intimate the plaintiff with regard to the permission granted by the ceiling authorities to the defendants. Ultimately, the trial Court decreed the suit for specific performance directing the defendants to execute the sale-deed upon the deposit of the balance amount by the plaintiff. 5. Aggrieved by the aforesaid decree passed by the trial Court, the defendants filed an appeal which was also dismissed. The lower appellate Court affirmed the decision of the trial Court and further concluded that in view of sub-clause (4) of Section 20 of the Specific Relief Act, the principles of mutuality was no longer applicable and that a contract for sale against a minor could be enforced in a Court of law. The defendants, being aggrieved by the aforesaid decisions, filed the present second appeal which was admitted on the following substantial question of law: "whether the plaintiff purchaser being a minor at the time of agreement, there was no mutuality and therefore, the suit for specific performance was not maintainable". 6. The defendants, being aggrieved by the aforesaid decisions, filed the present second appeal which was admitted on the following substantial question of law: "whether the plaintiff purchaser being a minor at the time of agreement, there was no mutuality and therefore, the suit for specific performance was not maintainable". 6. At the time of hearing of the appeal, Sri Triveni Shanker, the learned Counsel submitted that the following question of law should also be considered, namely : "whether, a suit for specific performance could be decreed in the absence of clear and cogent finding regarding readiness of the purchaser with the full amount to be paid as purchase money is established and that mere willingness is nothing. There is no finding in this case that the respondents had the entire amount of Rs. 9,687. 50 P. in readiness to pay the purchase money for the purpose of specific performance of the contract. " 7. Upon hearing the learned Counsel for the defendant appellants at length, this Court is of the opinion that judgment of the Court below requires no interference. The doctrine of mutuality of a contract to be specifically enforced by the Court must, as a general rule, be mutual, that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them. If there is personal incapacity to contract or the nature of the contract is such that the contract is incapable of being enforced against the other party, the party generally capable of enforcing it against the other, though its execution in the latter may be free from the difficulty, can raise a plea of the contract not being enforced. This doctrine of mutuality was burdened upon the citizens of India by the Privy Council in various judgment. The Specific Relief Act of 1877 did not suggest that this doctrine of mutuality was intended to be applied by the Act. The Privy Council, however, applied it in certain cases and, since then, want of mutuality has been considered as a defence to a suit for specific performance. The Specific Relief Act of 1877 did not suggest that this doctrine of mutuality was intended to be applied by the Act. The Privy Council, however, applied it in certain cases and, since then, want of mutuality has been considered as a defence to a suit for specific performance. A defence was raised that a contract with a minor was void under Section 11 of the Contract Act since no contract by or on behalf of a minor could be specifically enforced and, even the minor, on attaining the majority, would still be incapable of enforcing it because of the want of mutuality. 8. However, by insertion of sub-section (4) of Section 20 in the Specific Relief Act, 1963, the scope of the doctrine of mutuality has, more or less, come to an end. For facility, sub-section (4) of Section 20 of the Specific Relief Act is quoted hereunder : "20 (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. " 9. The effect of the insertion of sub-section (4) of Section 20 is, that even in the narrow sphere where it is not within the competence of the guardian to contract for the sale or lease of land of the minor so that such contract was not enforceable against the minors estate it would still be open to the contract being enforced on behalf of the minor if the contract was otherwise valid. 10. In the present case, the trial Court as well as lower appellate Court has given concurrent findings that the agreement entered between the parties was a valid contract for the sale of the land. Further finding has been given that the plaintiff was always ready and willing to perform his part of the agreement and that he was always ready and willing to get the sale-deed executed. A finding has also been given that the defendants did not intimate that plaintiff about the permission being granted by the ceiling authorities. These findings, being findings of fact cannot be interfered in the second appeal. A finding has also been given that the defendants did not intimate that plaintiff about the permission being granted by the ceiling authorities. These findings, being findings of fact cannot be interfered in the second appeal. Consequently, in the opinion of the Court, the trial Court rightly exercised its discretion under Section 20 of the Specific Relief Act and, the discretion so exercised by the trial Court, was not arbitrary but was sound and reasonable and was guided by judicial principles which was rightly affirmed by the lower appellate Court. 11. The submission of learned Counsel for the appellant that there is no finding that the plaintiff had the financial capacity to pay the balance amount, cannot be taken into consideration at this stage. The lower appellate Court has categorically given a finding that the plaintiff was ready and willing to perform his part of the agreement. Such finding of readiness and willingness cannot be interfered at this stage. In my view, the second question of law urged by the learned Counsel for appellant, being based on findings of fact, could not be considered at this stage. 12. In view of the aforesaid, the judgment, being based on findings of fact, cannot be interfered in the second appeal. The substantial question of law as framed by the Court, is answered in the negative and it is held that contract of sale entered with the minor can be enforced and the suit filed at the instance of the minor for the enforcement of the specific performance was maintainable. 13. In view of above discussion, the second appeal fails and is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs. Appeal dismissed. .