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Jharkhand High Court · body

2007 DIGILAW 254 (JHR)

Manoj Kumar Singh And Ulka Singh v. Kusum Dhawan

2007-04-05

N.N.TIWARI

body2007
JUDGMENT Narendra Nath Tiwari, J. 1. This appeal arises out of the judgment and decree dated 28 June, 1993 (decree signed on 12.7.1.993) passed by the learned Sub-Judge-i, Ranchi, where by learned Trial Court has dismissed the plaintiffs-appellants suit being T.S. No. 34 of 1991 in the said suit, the plaintiffs-appellants had sought relief for a decree for specific performance of contract against the defendant, directing her to execute and register the sale deed in favour of the plaintiffs-appellants in accordance with the agreement on accepting the balance consideration amount. 2. The case of the plaintiffs-appellants, in brief, was that the parties had entered into an agreement for sale of the residential building along with garage standing over a portion of R.S Plot no 1651 being sub-plot No. 1651/5/R appertaining to Khata No. 329 of village-Hinoo., P.S. Jagarnathpur, District- Ranchi, measuring an area of 5 kathas more or less, fully described in Schedule-B of the plaint. According to the plaintiffs, the defendant-respondent offered to sell the said property for a total consideration of Rs. 3,50,000/-. The plaintiffs had accepted the terms and agreement dated 20 th October, 1990, which was executed and signed by the parties. The plaintiffs had paid a sum of Rs. 35.000/- as an advance against the consideration amount on the date of execution of the said agreement. According to the plaintiffs, they had also subsequently paid a sum of Rs. 20,000/- through Cheque No. 636470 dated 15 th December, 1990 and a sum of Rs. 20,000/- in cash on 19.1.1991, According to the plaintiffs, the said amount was duly received by the defendant. The defendant had agreed to complete all the legal formalities and to hand over the relevant documents to the plaintiffs, so that the plaintiffs may be able to yet loan from the Bank for the purpose of purchasing the said property. The defendant had agreed to execute the sale deed by 315t December, 1990 in favour of the plaintiffs or their nominees but the defendant failed and neglected and did not comply with the legal formates required for action and registration of the sale deed. According to the plaintiffs, they were always ready and willing to perform their part or agreement and were stilt willing to purchase the said property on payment of the balance consideration amount to the defendant. According to the plaintiffs, they were always ready and willing to perform their part or agreement and were stilt willing to purchase the said property on payment of the balance consideration amount to the defendant. The plaintiffs through their lawyer sent a registered notice on 23 rd January, 1991 demanding the relevant papers and calling upon the defendant to perform her part of the agreement but in spite of receipt of the notice, the defendant failed and neglected to comply with the terms of the agreement. On the contrary, the defendant in reply to the said notice asked the plaintiffs to take refund of the advance amount by her letter sent through her lawyer dated 28 th January, 1991 stating that she was not ready and willing to execute and register the safe deed. The plaintiffs, thereafter, sent a reply to the said notice asking her to register and execute the sale deed in accordance with the terms of the agreement but the said defendant refused to accept the said reply. the plaintiffs having no alternative remedy thereafter filed the instant soil. 3. The case of the defendant, in brief, was that the suit was false and frivolous and was also barred by imitation. It was stated that the plaintiffs failed to perform their part of the contract within 31 st December, 1990, which was the period fixed for execution and registration of the sale deed. It was sidled that the suit property was earlier purchased by her late husband Mohinder Mohgn. who, after acquisition of land, had constructed residential house. He died on 8m March, 1988 leaving behind defendant as a widow and three daughters, as heirs and legal representatives. The said daughters are also necessary parties in the suit and the suit was bad for their non-joinder. The defendant has disputed and denied the statements made in the plaint. It was stated that as per the terms of the agreement, the plaintiffs had to complete the transaction within 31 st December, 1990 but they avoided to do so. After the date of agreement, only Rs. The defendant has disputed and denied the statements made in the plaint. It was stated that as per the terms of the agreement, the plaintiffs had to complete the transaction within 31 st December, 1990 but they avoided to do so. After the date of agreement, only Rs. 20,000/- was paid by Cheque dated 15 th December, 1990 for which the defendant had issued receipt on 19 th January, 1991, There was an stipulation for execution and registration of the sale deed by 31 st December, 1990 on getting full consideration amount but the plaintiffs failed to perform their part of the agreement The defendant was always ready and willing to execute the sale deed but the plaintiffs failed to keep their words and to pay the entire consideration amount by 31;t December, 1990. It was alleged that the plaintiffs fraudulent/obtained receipt dated 19 th January, 1991 from the defendant without paying anything on that date. The receipt, which was against the cheque was handed over to the plaintiffs. The defendant denied to have received the amount of Rs. 20,000/- in cash on 19 th January, 1991. Time was never extended beyond 31 st December, 1990 and, as such, there was no question of acceptance of Rs. 20,000/ on 19 th January, 1991. It was stated that the plaintiffs insisted upon the defendant to hand over her original sale deed to them, with an intention to mortgage the suit property, though Xerox copy of the sale deed and rent receipt were handed over to their. It was contended that the plaintiffs were not entitled to any relief and the suit is liable to be dismissed. 4. On the said pleadings of the parties, the learned trial court framed the following issues: 1. Is the suit maintainable as trained 2. Is the suit barred by law of limitation? 3. Whether the plaintiffs; have any valid cause of action for the suit 4. Whether there was an agreement between both the parties for sale of the suit property and the defendant received a sum of Rs. 35,000/- as an advance money ? 5. Whether the plaintiffs paid Rs; 75,000/- to the defendant or Rs 55,000/- as an advance? 6. Whether the plaintiffs or the defendant violated the terms and conditions of the agreement? 7. 35,000/- as an advance money ? 5. Whether the plaintiffs paid Rs; 75,000/- to the defendant or Rs 55,000/- as an advance? 6. Whether the plaintiffs or the defendant violated the terms and conditions of the agreement? 7. Whether the plaintiff are ready and filing to get the sale deed registered by the defendant on payment of the balance of consideration money? 8. Whether the defendant is the absolute owner of the suit property or her daughters have share in the suit property? 9. To what relief or reliefs, the plaintiffs are entitled? 5. Roth the parties adduced their evidences. The plaintiffs examined altogether seven witnesses arid also adduced documentary evidences. The defendant, on the other hand, examined two witnesses including herself and filed some documents in support of her Case. 6. On the conclusion of the that, learned trial court dismissed the plaintiffs suit mainly holding, inter alia, that the plaintiff? failed to pay the balance amount of consideration by 31 st December, 1990 and that they were not ready and willing to get me sale deed registered. Learned trial court further held that the agreement was executed only on behalf of the defendant and that her three daughters were not party to the agreement and that the said agreement cannot be enforced in absence of the said daughters, who were also the legal heirs and co-sharers of the suit property and title cannot pass to the plaintiffs without executing the sale deed by the said daughters of the defendant. 7. Learned trial court, however, held that there was an agreement between the plaintiffs and the defendant for sale of the suit property and that the plaintiffs has paid a sum of Rs. 35000/- as an advance and subsequently a sum of 20,000/- paid through cheque dated 15" December, 1990. Learned court below dismissed the suit directing the defendant to return the amount of Rs. 55/000/- to the plaintiffs, which was paid to her by the plaintiffs. 8. Aggrieved by the said judgment and decree, the appellants have preferred the instant appeal mainly on the grounds that the findings of the learned court below are contrary to the facts and the evidences on record and that in spite of the clear evidence of readiness and willingness of the plaintiffs, the learned court below has erroneously held that the plaintiffs were not ready to perform their part of contract. Learned court below also failed to appreciate the terms of the agreement and has given an erroneous interpretation. 9. Mr. P.K. Prasad, learned Counsel for the appellants submitted that it is general presumption that in an agreement to sell immovable property, time is hardly essence and in that view, even if the contract could not be completed within 31 st December, 1990, on that ground alone, the right of the plaintiffs should not have been denied by the learned court below. Learned Counsel submitted that the trial court has proceeded on the assumption that the relief for specific performance cannot be granted after the expiry of the period mentioned in the agreement and on that basis, the learned court below held that the plaintiffs failed to pay the entire consideration amount within 31 st December, 1990 and they failed to show their readiness and willingness to perform their part of the contract. Learned Counsel submitted that it would be evident from the terms of the agreement (Exhibit-7) that the defendant had to complete all the legal formalities, as required under the law and thereafter to hand over the relevant documents to the plaintiffs for obtaining loan from the Bank for purchasing the said property, There was a clear stipulation for payment of the balance consideration money on getting lone from the Bank. But the defendant failed to complete the legal formalities and hand over the relevant documents for taking loan from the Bank for purchasing the suit property. In that view, the finding of the learned trial court is contrary to the terms of the agreement and is wholly erroneous. The said part of the contract was to be first-performed by the defendant by completing ail the formalities and handing over the relevant documents to the plaintiffs for taking loan for payment of the balance consideration money. Before that no part was to be performed by the plaintiffs. Learned trial court has committed an error in not taking into consideration the said stipulation and in giving the finding contrary to the material on record. Learned Counsel further submitted that; the trial court has also erroneously held that the suit is bad for non-joinder of the daughters of the respondent who had got nothing to do with the agreement. Learned trial court has committed an error in not taking into consideration the said stipulation and in giving the finding contrary to the material on record. Learned Counsel further submitted that; the trial court has also erroneously held that the suit is bad for non-joinder of the daughters of the respondent who had got nothing to do with the agreement. It has been submitted that the agreement to sell the property was entered into between the plaintiffs and the defendant and, as such, the presence of the daughters had no relevance for the purpose of adjudication of the issues involved in the suit. 10. Mr. Amar Kr. Sinha, learned Counsel appearing on behalf of the respondent, on the other hand; submitted that the judgment and decree of the learned trial court is based on due appraisal of facts and evidences on record and the same is in accordance with law, The findings recorded by the learned trial court is based on the evidences and materials on record and, as such, the same are fully legal and sound. Learned Counsel submitted that it would be evident from Exhibit-/ that the period of contract was to expire on 31 st December, 1990 and by that date, the plaintiffs had to pay the entire balance consideration amount and to get the sate deed executed and registered in their favour. Learned trial court has, thus, rightly held that the agreement had gut no rejevance after lapse of the prescribed period in the agreement. Learned trial court has also rightly held that the plaintiffs-appellants were not ready and willing to perform the part of the agreement. Learned Counsel further submitted that non-compliance of the stipulation for supply of documents, Xerox copy of the sale deed and the rent receipt were supplied to the plaintiffs and, as such, nothing remained to be supplied by her in compliance of the said terms of the agreement and -in that view, learned trial court has rightly come to the finding that the plaintiffs failed and neglected in performing their part of contract. He further submitted that the suit property originally belonged to the husband of the defendant/respondent in which the daughters being the heirs of her husband, had also got interest and, as such, the said agreement in respect of the suit property cannot be enforced in their absence and the learned trial court has rightly held that the suit is bad for non-joinder of the said daughters, as they were necessary party. 11. After hearing the learned Counsel for the parties, the following main points arise for consideration in this appeal: (i) Whether the learned trial court has rightly come to the finding that the plaintiffs were not ready and willing to perform their part of the agreement and the finding recorded by the learned trial court in deciding the issue No. 7 is legal and sound; (ii) Whether the suit is bad for non-joinder of the daughters of the respondent and the findings, which were recorded by the learned trial court on the said issue, are legal and valid. Findings: 12. Point No. 1: Learned trial court while deciding issue No. 7 along with other issues, had taken into consideration the stipulation made in the agreement (Exhibit- 7) and held that it was the admitted case of the parties that they had entered into an agreement on 20 th October, 1990. In the agreement, there was & condition to sell the suit property by 31 st December, 1990 and for that, the sale deed was to be executed and registered within the said period of 31 st December, 1990. Learned trial court had discussed the evidences of the parties and arrived at the conclusion that the parties had entered into an agreement for sale of the suit property and the plaintiffs had paid Rs. 35,000/- as an advance in presence of P.W.1, Kumud Ranjan, who was a witness of the agreement; P.W. 2, Jugal Kishore Singh was another witness of the agreement has proved the payment of Rs. 35,000/- as an advance by the defendant; P.W. 3, Narendra Kumar Singh had countersigned the payment of Rs. 20,000/- on 19.1.1991, which was acknowledged by granting receipt (Exhibit-3). P.W.4, K.B. Banerjee, is the typist, who typed out the agreement dated 20 th October, 1990. He proved his signature (Exhibit-1/b). 35,000/- as an advance by the defendant; P.W. 3, Narendra Kumar Singh had countersigned the payment of Rs. 20,000/- on 19.1.1991, which was acknowledged by granting receipt (Exhibit-3). P.W.4, K.B. Banerjee, is the typist, who typed out the agreement dated 20 th October, 1990. He proved his signature (Exhibit-1/b). Exhibits- 3 & 4 respectively are the acknowledgement, which were proved by the said P.W.4 that the notice (Exhibit-5) was sent through the registered post; P.W.5, Birendra Kumar Singh, is also a typist and has proved the notice marked as Exhibit-5/a; P.W.6, Smt. Uika Singh is one of the plaintiffs. She has proved the agreement and her signature as Exhibit-1/c on the document of the agreement. Exhibit-2 is the receipt acknowledging the payment of Rs. 35,000/-. She has also proved the counter foil of the cheque (Exhibit-6) through which the payment of Rs. 20, 000/- is said to be made. She has stated that she was ready and willing to pay the balance consideration amount to the defendant. She further stated that she wanted to take loan from the Bank for purchasing the suit property for the said purpose. In her cross-examination, she had stated that the loan was not sanctioned by the Bank by 31 st December, 1990. P.W./, Manoj Kr. Singh, who was the plaintiff No. 1, had proved his signature on the agreement and stated that his wife and witnesses and the defendant had signed the agreement: (Exhibit-1). The agreement was for purchasing the suit property for a consideration of Rs. 3,50,000/- and on the date of agreement, Rs. 35,000/- was paid in cash. The defendant had granted receipt on payment (Exhibit-2). It has been stated that by Cheque dated 15" December, 1990, Rs. 20,000/- was further paid to the defendant from the account of the plaintiff No. 2 and further a sum of Rs. 20,000/- was paid on 19 th January, 1991 In cash for which also the receipt was granted. In paragraph-19 of his cross-examination, the witness has stated that he had applied for loan and for that purpose, the Bank employee demanded the sale and mutation papers of the said property. He therefore requested the defendant to hand over the original papers but the same were not given to him. For want of the said papers, he could not obtain loan from the Bank. He therefore requested the defendant to hand over the original papers but the same were not given to him. For want of the said papers, he could not obtain loan from the Bank. Learned trial court had also discussed the defendants evidence to conclude that the agreement (Exhibit-7) was the documents and in the said agreement, there was a condition that the plaintiffs will pay all the consideration amount by 31 st December, 1990 and thereafter the sale deed will be executed and registered. Learned trial court further held that it was an admitted position that the plaintiffs did not pay the remaining balance amount by 31 st December, 1990 and that the plaintiffs had not obtained loan from the Bank on 31 st December, 1990 and the said period of 31 st December, 1990 was not extended nor any request was made by the plaintiffs to the defendant for extension of the period and on that basis. 13. Learned court below held that the plaintiffs themselves violated terms and conditions of the agreement. Mere statement regarding Readiness and willingness to purchase the suit property is not sufficient. The plaintiffs failed to prove that they had sufficient money for payment of the balance amount. Learned court below has also taken into consideration the statement of P.W. 6, Smt. Ulka Singh. In her statement, the plaintiff No. 2, Smt. Ulka Singh stated that no loan was sanctioned by the Bank on " 31 st December, 1990 because no paper was supplied to the Bank for which she was not in a position to purchase the said property. Learned court below held that the said evidence gave a death blow to the case of the plaintiffs that they were ready and willing to purchase the suit property as the plaintiffs themselves admitted that they were not in a position to purchase the suit property till 31 st December, 1990, as loan was not sanctioned and on that basis came to the finding that the plaintiffs bad violated the terms and conditions of the agreement and they did not pay the remaining balance amount within 31 st December, 1990 and they were also not in a position to purchase the suit property till 31 st December, 1990. He, thus, concluded that the plaintiffs were not ready and willing to get the sale deed registered by the defendant and decided the suit against the plaintiffs. 14. On careful scrutiny of the evidence of P.Ws. and also of the evidences of the defendant, including D.W.2, Smt. Kusum Dhawan, it is proved that the defendant had to execute the sale deed after taking full consideration money by 31 st December, 1990 and she had also admitted that the plaintiffs had paid Rs. 35,000/- on the date of agreement and a cheque of Rs. 20,000/- was given on 15 th December, 1990. However, she had denied to have received Rs. 20,000/- on 19 th January, 1991. In paragraph-4 of her evidence, the D.W.2 admitted that P.W.7, Manoj Kr. Singh had asked for original deed of the suit property for taking loan from the Bank, which, according to her, was demanded for mortgaging the suit property, 15. In view of the said admission of D.W.2 coupled with the stipulation In Exhibit-7, whereby the parties had agreed that the remaining/balance amount of consideration shall be paid after taking loan from the Bank and for that purpose, there was a stipulation that the defendant will hand over the relevant papers for sanction of the loan from the Bank. It is a matter of common knowledge that the Bank would not sanction any loan on Xerox copy of the documents. Admittedly, the original documents were not handed over by the defendant to the plaintiffs for taking loan for the purpose of sanctioning loan from the Bank as clearly stipulated in deed of agreement (Exhibit-7). Learned court below has completely ignored the said vital piece of evidence and arrived at its finding on wrong legal assumption. Learned court below has erroneously held that by not getting the loan sanctioned by 31 st December, 1990 and not paying the entire consideration amount by 31 st December, 1990, the plaintiffs had violated the terms of the agreement and had lost their right accruing out of the agreement (Exhibit-7). The said finding is wholly erroneous and contrary to law. When a contract relates to sale of immovable property, it is normal presumption that the time is not essence of the contract. Reference may be made to the decision of the Supreme Court in Govind Prasad Chaturvedi v. Hari Dutt Shastri and Anr. . 16. The said finding is wholly erroneous and contrary to law. When a contract relates to sale of immovable property, it is normal presumption that the time is not essence of the contract. Reference may be made to the decision of the Supreme Court in Govind Prasad Chaturvedi v. Hari Dutt Shastri and Anr. . 16. In the instant case, it is neither the case of the parties nor there is any material to conclude that the time was essence of the contract. Learned court below has committed serious error of law in refusing the decree of specific performance to the plaintiffs on the ground of expiry of the period of agreement on 31 st December, 1990. The date, which was fixed for payment of consideration amount and for getting sale deed executed and registered, which was subject to handing over the papers after completing the legal formality for getting the safe deed executed and registered. In this case, it is proved from the evidences, as discussed above, that the plaintiffs even subsequent to the date of agreement paid Rs. 20,000/- through cheque, receipt of which was acknowledged by the defendant though there was no such stipulation for payment. On the other hand, it was dear stipulation that the defendant shall complete all legal formalities and hand over the documents to the plaintiffs for the purpose of getting loan from the Bank for payment of consideration amount. The payment of the rest of the consideration amount, therefore, was dependant on the sanction of the loan by the Bank and for that purpose, the defendant had to supply the required and relevant document As had been admitted by D.W.2, she did not hand over the original documents when demanded by the plaintiffs for the purpose of taking loan from Bank. Obviously, the defendant failed to perform her part of the contract and for that the plaintiffs cannot be faulted and their legal right to enforce specific performance of the contract cannot be denied only on the ground of expiry of the date mentioned in the agreement for execution and registration of the documents. 17. Obviously, the defendant failed to perform her part of the contract and for that the plaintiffs cannot be faulted and their legal right to enforce specific performance of the contract cannot be denied only on the ground of expiry of the date mentioned in the agreement for execution and registration of the documents. 17. In view of the above discussion, I find and hold that the teamed trial court has committed error of law as well as facts in coming to the finding that the plaintiffs were not ready and willing to perform their part of agreement and deciding the issue No. 7 against the plaintiffs. The said finding is held to be vitiated and unsustainable and the point No. 1 is decided in favour of the appellant?. Point No. 2 18. The instant suit is for specific performance of the contract, which was entered into by the plaintiffs and the defendant. The plaintiffs and the defendant had executed and signed the said contract. At no point of time, the daughters and other persons claimed that their presence was necessary for adjudication of the suit. The plea taken by the plaintiffs that the daughters are also necessary party, is contrary to law as well as the terms of the agreement. In a suit for specific performance of contract, law does not mandate impleading the persons, who are not the parties to die contract. The suit for specific performance of agreement to sale by the vendee, relief is sought for against the vendor, who is a party to that agreement. A third party claiming an interest/title in the property agreed to be transferred is not a necessary party. I, therefore, find substance in the submission of learned Counsel for the appellant that the learned court below has erroneously held that the daughters of the defendant were necessary party in the instant suit. The said finding is contrary to law and is unsustainable. This point is, thus, decided in favour of the appellants. 19. In view of the above discussions, it is held that the findings recorded by the learned court below are contrary to the facts, evidences on record and the provision of law and the same are unsustainable. The judgment and decree of the learned trial court is set aside. This point is, thus, decided in favour of the appellants. 19. In view of the above discussions, it is held that the findings recorded by the learned court below are contrary to the facts, evidences on record and the provision of law and the same are unsustainable. The judgment and decree of the learned trial court is set aside. It is held that the plaintiffs have proved their case and they are entitled to get decree for specific performance of the contract, in question. The suit of the plaintiffs is decreed, The defendant is, accordingly, directed to execute and register the sale deed in terms of agreement, Exhibit-7, on receipt of balance amount of consideration. However, in the facts and circumstances of the case, there shall be no order as to costs.